Public Service Association and Professional Officers' Association Amalgamated Union of NSW v Director of Public Employment [2011] NSWIRComm 143

Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of NSW v Director of Public Employment [2011] NSWIRComm 143 Hearing dates: 1 August 2011 Decision date: 31 October 2011 Jurisdiction: Industrial Court of NSW Before: Walton J, Vice-President; Kavanagh J; Backman J Decision: 1. The Notice of Motion filed on 20 July 2011 is dismissed. 2. Costs are reserved. Catchwords: Constitutional law - application for declaratory relief - challenge to constitutional validity of Amendment Act - Chapter III courts - Court and Commission separate entities - Kable doctrine - question of impairment of institutional integrity or appearance of - no invalidity found - regulation - regulation within power - motion dismissed Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Tribunal Act 1997 Commonwealth Constitution Constitution Act 1902 (NSW) Fair Work Act 2009 (Cth) Industrial Relations Act 1996 Industrial Relations (Commonwealth Powers) Act 2009 Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 Interpretation Act 1987 Judicial Officers Act 1986 Judiciary Act 1903 (Cth) Police Act 1990 Victorian Civil and Administrative Tribunal Act 1998 (Vic) Cases Cited: Brian Rochford Ltd v Textile Clothing & Footwear Union of New South Wales (1998) 85 IR 332; (1998) 47 NSWLR 47 GIO Australia Ltd v O'Donnell (1996) 70 IR 1 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 Hilton v Wells (1985) 157 CLR 57 Hollingsworth v Commissioner of Police (1998) 81 IR 276; (1998) 47 NSWLR 104 International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51 Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249; [2004] 1 Qd R 40 South Australia v Totani [2010] HCA 39;(2010) 242 CLR 1 Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 Wainohu v State of New South Wales [2011] HCA 24; (2011) 278 ALR 1 Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Director of Public Employment (First Respondent) The Roads and Traffic Authority of New South Wales (Second Respondent) NSW Attorney General (Intervening) NSW Minister for Finance & Services (Intervening) Unions NSW (Intervening) Representation: A A Hatcher SC with M Gibian of counsel (Applicant) R C Kenzie QC with A T Britt of counsel (First Respondent) S E J Prince of counsel (Second Respondent) J V Agius SC with S B Benson of counsel (Intervenor - NSW Minister for Finance & Services) M G Sexton SC with J G Renwick SC (Intervenor - NSW Attorney General) I Taylor of counsel (Intervenor - Unions NSW) W G McNally Jones Staff (Applicant) Crown Solicitor's Office (First & Second Respondents) Solicitor-General (NSW Attorney General) File Number(s): IRC 1276 of 2011