A regulation made under s 146C of the Industrial Relations Act 1996 (NSW) that purports to prohibit the Industrial Relations Commission from dealing with an aspect of employment entirely — rather than regulating the conditions that may be awarded — is ultra vires as it does not constitute a 'policy on conditions of employment'. The distinction between regulating the exercise of a power and prohibiting the exercise of a power is critical to the validity of delegated legislation under Henry VIII clauses. The question whether the presumption against withdrawal of jurisdiction applies to non-judicial tribunals was left open.
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