THE UNION'S SUBMISSIONS
13 The Union contended that s 26A did not operate to validate the registration of the Federation. There were two strands to the argument. The first strand was that the text of s 26A and the Revised Explanatory Memorandum did not disclose an intention to reverse the result of the judgment of the Full Court. The second strand was that s 26A should be read down to avoid unfairness and injustice to the Union.
14 The Union submitted that the starting point in construing s 26A is the presumption that legislation affecting rights or obligations does not operate retrospectively unless there is a clear expression of intention to the contrary. Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267 (Maxwell) expressed it thus:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.
15 The Union then accepted that validating legislation such as s 26A is intended to have some degree of retrospective operation. However, "such a statute will only be given retrospective operation to the extent necessitated by the words of the statute, construed in their full context and in accordance with the legislative purpose, but no greater extent", perSpigelman CJin Attorney General of NSW v World Best Holdings Limited [2005] NSWCA 261; (2005) 63 NSWLR 557 at [48] (World Best).
16 Next, the Union addressed the particular situation where, as here, a party has taken steps to pursue its interests through litigation. The Union relied on the following passage from NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456 at [132]:
…authorities with respect to the application of retroactive laws accept that the fact that proceedings have been commenced introduces an added element of unfairness. Accordingly, a statute intended to have retroactive effect to some degree, is read down to restrict that effect so as not to apply to proceedings already commenced.
17 The Union submitted that this potential unfairness is increased where the legislation purports to affect rights already determined by a court. As Spigelman CJ said in World Best at [62]:
The present case is higher on the scale of unfairness or injustice than the factual situation in Bawn. This is not a mere pending action. In the present case the steps taken before the Parliament intervened extended to actually pursuing the proceedings through trial and receiving a formal order of the court, albeit one subject to an appeal to this Court.
18 The Union then referred to different approaches to the interpretation of legislation with retrospective effect on pending litigation. In Zainal bin Hashim v Government of Malaysia [1980] 1 AC 734 (Hashim) the Privy Council said at 742:
…for pending actions to be affected by retrospective legislation, the language of the enactment must be such that no other conclusion is possible than that that was the intention of the legislature. (Emphasis added.)
19 In State of Victoria v Robertson [2000] VSCA 113; (2000) 1 VR 465 (Robertson) at [21] the Victorian Court of Appeal approached the construction by asking whether "no other conclusion is open".
20 In World Best Spigelman CJ suggested that both these approaches were too wide. He said at [52] - [53]:
52 The contemporary approach to the determination of parliamentary intention - in the objective sense of intention employed in the law of statutory interpretation - is no longer formulaic in the manner sometimes suggested by lists of "canons" or "principles" of statutory interpretation. A "test" as to whether or not a construction is "possible" or "open" or "reasonably open" or, alternatively, that the language is "intractable", is generally a mode of expressing a conclusion rather than an independent test applied in the particular circumstances.
53 The issue must be determined in accordance with the full range of relevant factors that are employed to determine the intention of Parliament, in the same way as the High Court (in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355) identified the approach to determining whether there was a legislative purpose to invalidate conduct that was undertaken without compliance with a legislative stipulation:
"The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the conditions. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue."
21 Rather Spigelman CJ favoured the view taken by the House of Lords in L'Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486where Lord Mustill said at 524:
...I must own up to reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what Parliament intended by a particular form of words, for they too readily confine the court to a perspective which treats all statutes, and all situations to which they apply, as if they were the same. This is misleading, for the basis of the rule is no more than simple fairness, which ought to be the basis of every legal rule. True it is that to change the legal character of a person's acts or omissions after the event will very often be unfair; and since it is rightly taken for granted that Parliament will rarely wish to act in a way which seems unfair it is sensible to look very hard at a statute which appears to have this effect, to make sure that this is what Parliament really intended. This is, however, no more than common sense, the application of which may be impeded rather than helped by recourse to formulae which do not adapt themselves to individual circumstances, and which tend themselves to become the subject of minute analysis, whereas what ought to be analysed is the statute itself.
...
Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by Parliament cannot have been intended to mean what they might appear to say.
22 Spigelman CJ then summarised this approach at [59] of World Best as follows:
This approach requires the Court to determine the scope and degree of the unfairness or injustice that is applicable in the particular case. The greater the unfairness or injustice, the less likely it is that Parliament intended the Act to apply. Where Parliament has used general words, the courts will apply the well-established technique of reading them down. (See R v Young[1999] NSWCCA 166; (1999) 46 NSWLR 681 at [23]- [31].) Referring to the presumption that Parliament did not intend to affect pending proceedings, Lord Rodger of Earlsferry said in Wilson v First County Trust supra at [198]:
"Since the potential injustice of interfering with the rights of parties to actual proceedings is particularly obvious, this...presumption will be that much harder to displace".
23 In its written submissions the Union stated:
…whichever formulation is adopted, the underlying principle is the same. The authorities insist that there must be a clear intention not just that the legislation operate retrospectively in a general sense, but that it operate specifically to affect rights and obligations already determined by a court in a particular case.
24 The Union then examined the language of s 26A and the Revised Explanatory Memorandum and argued that in neither case was there revealed a clear intention to retrospectively alter the rights determined by the Full Court.
25 As to s 26A(a), there is a requirement that an association be purportedly registered before the commencement of the provision. The Union argued that the effect of the judgment of the Full Court was that the registration of the Federation was void ab initio. The reference to an association purportedly registered was to an association open to the type of challenge which succeeded before the Full Court, but where the registration of such association had not been quashed by the Court.
26 Similarly, in s 26A(b) which requires that the registration of the association would, but for the section, have been invalid, the Union argued that this was not the position of the Federation in this case. The Full Court had quashed the registration of the Federation and hence there was nothing on which s 26A could operate.
27 The Union argued that if Parliament had intended that the registration of the Federation was to be validated it could have easily said so. Rather, the purpose of s 26A was to clear up uncertainty arising in connection with other associations vulnerable to the particular challenge. The section was not designed to reverse the effect of the judgment of the Full Court in respect of the Federation.
28 The language of the Revised Explanatory Memorandum, the Union contended, mirrored this interpretation of s 26A. It explained that the section was intended to address uncertainty regarding the registration of certain associations in view of the judgment of the Full Court, that the government considered that the decision of the Full Court could have significant ramifications for certain organisations in that their registration could be called into question, that s 26A was intended to avoid these potential ramifications, and that this was to be achieved by validating the registration of associations that were invalidly registered. The Union submitted that this choice of language indicated that s 26A did not apply to the Federation. There was no uncertainty about its registration. The Full Court had quashed the registration. There could be no ramifications with respect to the Federation's registration because that registration did not exist. And there was no opportunity to validate the registration because that registration had been quashed ab initio and did not exist to be validated.
29 The Union argued that neither s 26A nor the Revised Explanatory Memorandum exhibited a clear intention to alter retrospectively the result of the Full Court judgment. Further, they did not disclose any clear intention to alter the determination of legal rights between the Union and the Federation. Construing s 26A to now validate the registration of the Federation would involve unfairness to the Union which had pursued its rights to finality before the Full Court and obtained a judgment in its favour against which the Federation did not seek leave to appeal. The wording of s 26A and the Revised Explanatory Memorandum disclose an intention that s 26A validate the registration of organisations that might have faced a challenge in the future on the same basis as succeeded before the Full Court. The section was not intended to change the result of the judgment of the Full Court.
30 In oral submissions, Mr Quinn, who appeared with Mr Kirkwood as counsel for the Union, elaborated on the unfairness and injustice to the Union which would result from reading s 26A to apply to the Federation. There are three aspects.
31 First, the Union had expended money and resources on the litigation opposing the registration of the Federation. This expenditure would be wasted if s 26A operated to validate the registration.
32 Second, as a result of the quashing of the registration of the Federation, the Union was the only organisation which, through its registration, held the statutory rights, such as rights of entry, in respect of principals employed in government schools. This exclusive position would be removed from the Union if the Federation's registration was validated by s 26A.
33 The third issue concerns steps taken by the Union following the judgment of the Full Court quashing the registration of the Federation. In response to the judgment the Federation applied to the Full Bench of the Commission to insert a purging rule into the rules of the Federation. The Union opposed the application. At the time s 26A was enacted, the decision of the Full Bench was pending. In view of the enactment of s 26A and the Federation's view that the section operated to validate its registration, the Federation sought, and was granted leave to withdraw the rule amendment application. Again, the Union argued that if s 26A does validate the registration of the Federation, then the Union wasted resources and effort in contesting the rule amendment application. As in the case of the Union's opposition to the registration application, it would be unfair and unjust if s 26A operated so that the Union's effort and expenditure were rendered useless.