The Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment & Ors

[2012] HCATrans 113

[2012] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S384 of 2011

B e t w e e n -

THE PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS’ ASSOCIATION AMALGAMATED OF NSW

Applicant

and

DIRECTOR OF PUBLIC EMPLOYMENT

First Respondent

ROADS AND MARITIME SERVICES

Second Respondent

NSW ATTORNEY GENERAL

Third Respondent

NSW MINISTER FOR FINANCE & SERVICES

Fourth Respondent

UNIONS NSW

Fifth Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MAY 2012, AT 9.32 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR A.A. HATCHER, SC and MR M. GIBIAN, for the applicants.  (instructed by W.G. McNally Jones Staff)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friends, MR J.G. RENWICK, SC and MS A.M. MITCHELMORE, for the first, second, third, and fourth respondents.  (instructed by Crown Solicitors (NSW))

GUMMOW J:   Thank you.  We would like to hear first from you, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, we could hardly deny that in a different context there would be some interesting questions raised by the relationship between the Industrial Commission and the Industrial Court under the relevant New South Wales legislation, but in our submission there are two bases on which there are no prospects of success in relation to the decision of the Industrial Court below in this Court.  The first of those is by looking at what the relevant legislative provisions actually do.  The second is considering the question of the institutional integrity of the Industrial Court.  Perhaps if I can remind your Honours of what the relevant legislative provisions actually set out. 

Section 146C of the Industrial Relations Act effectively requires the Commission, not the Court of course but the Commission, to give effect to declared policies on the part of the government.  Some of those polices are now set out in the relevant regulation.  There are two paramount conditions in clause 5 of the regulation which talk about “minimum conditions of employment” and equal pay for men and women.  The minimum conditions are then spelt out in part in clause 7, parental leave, superannuation payments, long service leave, annual leave, sick leave, public holidays and part‑time work.

Then in clause 6 of the regulations there is the provision that effectively requires the Commission to observe the parameters for wage rises for public sector employees of somewhere between zero and 2.5 per cent, although increases greater may be awarded if certain “employee‑related cost savings have been achieved”.  In our submission, those provisions would be valid even if they applied to the Industrial Court, which they do not.

KIEFEL J:   But that is just the regulations as they currently are, I think as the applicant points out?

MR SEXTON:   Yes.

KIEFEL J:   In the structure of section 146C they could provide for anything.

MR SEXTON:   Your Honour, I accept that, but even so, in the terms of the Commission, but even in relation to – it is academic, in a sense, to consider this except in the context of the existing regulations and the kinds of things for which they provide.  The question is, how are they different, indeed how could they be different, even accepting what your Honour says, from such requirements for a court to observe such as limitation periods or caps on damages provisions relating to the admissibility of evidence in the criminal area in New South Wales, standard non‑parole periods, accepting that Muldrock has effected the construction in relation to those provisions, mandatory minimum sentences for offences which, for example, exist in the Migration Act.  So the question is what is the difference in substance between those and the kinds of provisions that we have here, even accepting that there is a difference in form in the way that those provisions are expressed?  So that, your Honours, that is what we have to say on that question about the ‑ ‑ ‑

GUMMOW J:   If one looks at 146C(3) which says:

An award or order of the Commission does not have effect to the extent that it is inconsistent with the obligation –

would it be the Commission sitting as the court which would determine such a question, namely, that an award or order does not have effect?

MR SEXTON:   That may be so.  That may be so, your Honour.  It is really, in a sense, that – I am not sure if the statute is entirely self‑executing ‑ it makes that provision so that the award would simply have no effect.  It is a question of whether in those circumstances any attempt to enforce it - I assume that that enforcement would occur within the structure of the ‑ ‑ ‑

GUMMOW J:   It could be a collateral attack, I suppose.  It could be raised in an enforcement situation, I suppose.

MR SEXTON:   That is right but there would be a threshold question there that there could not be enforcement because of that provision.

GUMMOW J:   Yes.

MR SEXTON:   Your Honours, the second question is that of the institutional integrity of the Industrial Court. As your Honours will be aware from our outline of argument, we make the point that the Commission is a separate and a distinct body from the Court under the legislation, even though there is an overlap between the membership of those bodies and that because the Court is a court of the State for the purposes of section 77(iii) of the Constitution it must be a distinct entity from the Commission and vice versa, we would say, because the Commission’s functions and its composition would indicate that it could not be a court of the State for the purposes of section 77(iii). There are links between them, of course, as there are, for example, between the Commonwealth Administrative Appeals Tribunal and the Federal Court.

The notion of institutional integrity, of course, in a sense arises out of Kable and was initially concerned with the conferral upon a court of a State or I suppose on a Federal Court as well, of functions that would affect its institutional role but that is, we would say, not this case because the functions are conferred here on the Commission and that in the case of Wainohu it seems to us that that was a case concerning the conferring of functions on individual judges – not as judges but as persona designata - but nevertheless conferring those functions on individual judges who were members of and only members of a State, in that case, Supreme Court.

That seems to us to be again a different situation from what occurs here.  We quoted in our outline of argument a passage from Justice McHugh in Kable.  It is at page 55 of the application book - it is

perhaps the most convenient way of looking at it – where Justice McHugh said at 118 to 119 of Kable that:

A State may invest a State court with non‑judicial functions and its judges with duties that, in the federal sphere, would be incompatible with the holding of judicial office. But under the Constitution the boundary of State legislative power is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the State court as an institution was not free of government influence in administering the judicial functions invested in the court.

It seems to us that that is not this situation where here the judges of the Industrial Court, when sitting as members of the Commission, are not administering the judicial functions invested in the Industrial Court and we would say that there is no basis here for any fair‑minded person to imagine that the legislation would result in an effect on the judges of the Industrial Court in their carrying out their role and their functions on that body.

Similarly, perhaps, in Hilton v Wells which is at page 56, paragraph 16 of the application book, Justices Mason and Deane in that case discussing the doctrine of persona designata referred to:

a judge, who is appointed to carry out a function by reference to his judicial office –

We would say that this is again a situation where the judges who are members of the Commission and therefore subject in that capacity to these legislative provisions are not appointed to carry out a function by reference to their judicial office but by a quite separate role which is as members of the Industrial Commission. 

So, your Honour, in our submission, there are two bases on which the judgment below can be safely upheld and therefore we would say that the prospects of success are not sufficient to warrant a grant of special leave in this case.  I think, your Honours, unless there are any other matters those are the submissions that I have to make.

GUMMOW J:   Yes.  We do not need to call on you, Mr Jackson.  There will be a grant of special leave in this matter as a one‑day case.  Does the draft notice of appeal at page 35 appear adequate?  I am not sure about 6.

MR JACKSON:   Your Honour, someone nodded when it came to 6, I think.  May we say that grounds 1 to 5 do appear to cover the issues that are sought to be raised.  If any further issue was sought to be raised as a ground of appeal, could we indicate that in the written submissions and seek leave to do so?

GUMMOW J:   Yes.  Thank you.  That seems right, Mr Solicitor.  There will be a grant of special leave limited to grounds 1 to 5 in the draft notice appearing at page 35 of the application book.  Counsel agrees that it is perhaps less than a one‑day matter.

MR JACKSON:   Yes, your Honour.

GUMMOW J:   Will the solicitors speak to the Deputy Registrar on the way out to get the ‑ ‑ ‑

MR SEXTON:   I am sorry, your Honour.  Can I just mention that about the one day.  There is likely to be, of course, a number of interveners.

GUMMOW J:   There may be interventions, of course.  Yes, I was wondering about that.  Thank you.  Will the solicitors make sure they speak to the Deputy Registrar on the way to get the running order for the preparation of submissions and the timetable?

AT 9.46 AM THE MATTER WAS CONCLUDED