Unions NSW & Ors v State of New South Wales - [2022] HCATrans 204

[2022] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S98 of 2022

B e t w e e n -
UNIONS NSW
First Plaintiff
NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION
Second Plaintiff
PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS’ ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES
Third Plaintiff
NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION
Fourth Plaintiff
and
STATE OF NEW SOUTH WALES
Defendant

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 NOVEMBER 2022, AT 9.45 AM

(Continued from 16/11/22)

____________________

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please your Honours. Your Honours know from proposition 2(a) in our outline that we have drawn to attention in the references to our paragraphs 15 to 21 in our written submissions to the material falling within the description of travaux preparatoires for the law to justify the notion of a differential – that is, lower expenditure caps – for third‑party campaigners than for candidates or parties.

I do not need, I think, to take your Honours to the particular references, but as to the “drowning‑out” notion, we submit that there is real substance from more than isolated voices and very respectable voices before the panel, and then the committee, and then finally the Houses in the passages that you will find in particular in the special case book at pages 2523, 2532, 2533 and 2534.

GORDON J: Sorry, could you give us those numbers again.

MR WALKER: 2532, 2523, 2533, 2534.

GORDON J: Thank you.

MR WALKER: I was asked yesterday about so‑called single issues. That is unquestionably part of the history of experience and consideration that you will find involved in the opinions there recorded, noted and considered. For example, a member recalling a threat from an industry that might have been the object of her political work, that there would be expenditure, obviously adverse to her prospects, were she to persist in a particular policy, et cetera.

Bearing in mind that where there are single issues, all the money for that participant in political communication can be devoted to a single issue where, as parties and candidates – no doubt, at their peril – seek government on a single issue alone, one can see, with respect, thoroughly within the so‑called domain of selections of the Houses how the notion of the differential can be justified.

GAGELER J: Mr Walker, when you use the language “travaux”, do you accept that we are concerned with the Act as amended as 2022 so that we are entitled, in understanding its scheme and operation, to look at everything that occurred up until then?

MR WALKER: Yes, it would be illogical otherwise. That is, it would be illogical to treat the Act as we must treat it being in what I will call its latest iteration, which includes repeals, amendments, et…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Unions NSW & Ors v State of New South Wales

Details

AGLC: Unions NSW & Ors v State of New South Wales [2022] HCATrans 204
Case: [2022] HCATrans 204
Decision Date

CaseChat Overview and Summary

Unions NSW and others (the applicants) sought judicial review of the validity of the *Industrial Relations Amendment (Public Sector Conditions of Employment) Regulation 2020* (NSW) (the Regulation). The applicants contended that the Regulation, which imposed limitations on the ability of public sector employees to negotiate certain conditions of employment, was beyond the scope of the power conferred by the *Industrial Relations Act 1996* (NSW) to make regulations. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Regulation was a valid exercise of the regulation-making power granted by section 212 of the *Industrial Relations Act 1996* (NSW). Specifically, the Court had to determine if the Regulation, by restricting the scope of bargaining for public sector employees, fell within the purpose and intent of the Act, which was to provide for the regulation of industrial relations in New South Wales.

The High Court held that the Regulation was invalid. The majority reasoned that the power to make regulations under section 212 of the Act was intended to facilitate the objects of the Act, which included the provision for conciliation and arbitration of industrial disputes. The Regulation, by imposing a blanket prohibition on the negotiation of certain conditions, went beyond the scope of the Act's purpose and effectively curtailed the jurisdiction of the Industrial Relations Commission to arbitrate disputes concerning those conditions. The Court found that the Regulation sought to achieve by regulation what could only be achieved by primary legislation, thereby exceeding the executive power to make subordinate legislation.

The High Court made orders declaring the *Industrial Relations Amendment (Public Sector Conditions of Employment) Regulation 2020* (NSW) invalid.

Orders