Community and Public Sector Union & Ors v Commonwealth of Australia

The Community and Public Sector Union and its members (the applicants) brought proceedings against the Commonwealth of Australia (the respondent) in the High Court of Australia. The dispute concerned the validity of certain provisions of the *Public Service Reform Act 1984* (Cth) and the *Public Service Amendment Act 1984* (Cth), which the applicants argued were invalid because they purported to confer upon the Minister power to determine the terms and conditions of employment of public servants, thereby encroaching upon the exclusive power of the Parliament to make laws with respect to the Public Service.

The central legal issue before the High Court was whether the impugned provisions of the Acts constituted an unlawful delegation of legislative power. Specifically, the Court was required to determine whether the Parliament had validly conferred upon the Minister the power to make determinations concerning the terms and conditions of employment for officers of the Australian Public Service, or whether this power was an essential function of the Parliament that could not be delegated.

Dawson J reasoned that the power to determine the terms and conditions of employment for public servants was a fundamental aspect of the legislative power vested in the Parliament by section 51(xix) of the *Constitution*. His Honour held that the impugned provisions, by empowering the Minister to make such determinations, effectively allowed the executive to legislate in a manner that encroached upon the exclusive legislative domain of the Parliament. Consequently, Dawson J concluded that the provisions were invalid as an unlawful delegation of legislative power.