Eaton v Industrial Relations Commission of New South Wales

The applicant, a probationary police constable, sought a review of his dismissal by the Industrial Relations Commission of New South Wales. The Full Bench of the Commission had determined that it lacked jurisdiction to hear the application, finding an inconsistency between the provisions of the *Police Act 1990* (NSW) and the *Industrial Relations Act 1996* (NSW) that impliedly repealed the latter's application to probationary constables. The applicant sought judicial review of this decision in the Supreme Court of New South Wales.

The central legal issue before the Supreme Court was whether the *Industrial Relations Act 1996* applied to probationary police constables seeking a review of their dismissal, or if the specific provisions of the *Police Act 1990* governing such reviews, and their modifications to the *Industrial Relations Act 1996*, effectively excluded the latter's general application. This involved determining if the modifications introduced by section 181G of the *Police Act 1990* were so significant as to indicate a legislative intention to create a different and more restrictive review process for probationary constables compared to that available under the *Industrial Relations Act 1996*.

The Court reasoned that the modifications to the *Industrial Relations Act 1996* by section 181G of the *Police Act 1990* were not sufficiently substantial to justify the conclusion that the legislature intended to deny probationary constables the general rights of review available under the *Industrial Relations Act 1996*. While section 181G(1)(f) modified the ability to introduce new evidence, the Court found this modification was ameliorated by section 181G(2), which still allowed for the reception of new evidence in certain circumstances, albeit with a higher threshold for granting leave. The Court concluded that the Full Bench had given undue weight to these modifications, leading to an erroneous finding that probationary constables would be in a more beneficial position than confirmed officers if the *Industrial Relations Act 1996* applied.

The Court ordered that the record of proceedings be brought before it, quashed the decision and orders of the Full Bench of the Commission, and remitted the matter to the Full Bench to be decided according to law and in conformity with the Court's decision. The second respondent was ordered to pay the applicant's costs.