63 I observe that apart from the limited requirements of the Act dealing with industrial agents in the context of unfair dismissal claims, there are no equivalent provisions of any legislation that would impact upon the representation of litigants before this Court by agents who are not legal practitioners.
64 It follows that an agent who is not an Australian legal practitioner will not be compelled to observe the obligations created by, and to comply with the responsibilities and duties inherent in, the provisions of the LP Act and the rules of practice such as the Solicitors' Rules to which I have referred. Absent any provisions in the rules of this Court which would replicate the obligations, responsibilities and duties incumbent upon an Australian legal practitioner to which I have referred, this Court could not be confident that an agent would conduct himself or herself consistently with those obligations, responsibilities and duties. This, in my opinion, would detract from the administration and management of proceedings before the Court. These observations are made without reference to any lack of understanding on the part of an agent of the Rules of Practice and Procedure before this Court and, most importantly, of the laws of evidence that every Australian legal practitioner is deemed to know and understand in connection with the preparation and presentation of proceedings before all courts. Of course, an understanding and appreciation of the laws of evidence is even more significant in the case of criminal proceedings, such as prosecutions under the Occupational Health and Safety legislation.
65 If, however, s 166 of the Act is to be construed, contrary to the conclusion that I have reached, so as to enable an agent to represent parties in proceedings before the Court, this creates a prima facie inconsistency with the provisions of s 14 of the LP Act. It is then necessary to deal with such an assumed prima facie inconsistency.
66 There are many instances in reported cases where consideration has been given to the approach that courts should take in resolving such an inconsistency. Sometimes, courts have regard to the chronology of the inconsistent legislation to determine whether or not a statutory provision, which is later in time than an earlier provision, should or should not be determined to have repealed, altered or otherwise affected the earlier provision. Sometimes, the courts have characterised one provision as being of general application and another as being of more special or limited application as assisting in divining the intention of the legislature. Some authorities concentrate on endeavouring to reconcile the apparent conflict so as to ensure that both apparent conflicting statutes may operate harmoniously.
67 Of course, adopting any of these approaches is fraught with difficulty when attempting to fairly represent the intentions of the legislature. In Butler v Attorney-General (Victoria) (1961) 106 CLR 268, Taylor J in the High Court of Australia, in commenting on this aspect, said:
"The conclusion which I have reached is based solely upon a comparison of the competing legislative provisions for it is in 'the words of Parliament itself, formally enacted in the statute', that the intention of the legislature is expressed (per Latham CJ in South Australia v The Commonwealth (1942) 65 CLR 373 at p 410). Or as Starke J said in the same case
'The intention, object or purpose of a legislative body can only be legitimately ascertained from what it has chosen to enact either in express words or by reasonable and necessary intendment' (At p 439)
But even if it were permissible to impute an intention to the legislature upon extraneous grounds any enquiry for this purpose would be profitless for if the competing provisions could stand together there would, of course, be no problem whilst, on the other hand, if, as I think, they cannot then speculation as to the intention of the legislature - whatever that expression may mean independently of intention expressed in the words of a statute - can be of no assistance." (At 285).
68 That the task of dealing with and reconciling inconsistent legislation is difficult, even at the highest level, may be seen from the result in Butler, where the members of the High Court split 3/2 in determining whether there was any relevant inconsistency and the impact that it had in the circumstances of those proceedings.
69 In a more recent decision in the High Court of Australia, Saraswati v the Queen (1990-1991) 172 CLR 1, Gaudron J said:
"It is a basic rule of construction that, in the absence of express words,
an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. See Butler v. Attorney-General (Vict.) (1961) 106 CLR 268, per Fullagar J. at p 276, and per Windeyer J. at p 290. More particularly, an intention to affect the earlier provision will not be implied if the later is of general application (as is the provision by which indecent dealing is constituted an offence under the Act) and the earlier deals with some matter affecting the individual (as does the limitation provision in s.78). Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation. The position was stated by Lord Selborne in Seward v. The "Vera Cruz" (1884) 10 App Cas 59, at p 68, as follows:
'where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so'."
(At 17-18)
70 I should add for completeness that Saraswati concerned circumstances in which there were said to be two competing provisions within the same enactment. However, it is suggested that the extract from the judgment of Gaudron J is indicative of the proper approach to construction of inconsistent statutes in the circumstances of these proceedings.
71 There is a certain degree of artificiality in determining whether a piece of legislation is earlier or later in time than that of another enactment. This is because it is sometimes necessary to ascertain whether the conflicting provisions were contained within earlier legislation. For example, in the context of these proceedings, s 14 of the LP Act is in relevantly similar terms to s 48B of the Legal Profession Act 1987. Furthermore, s 166 of the Act replicates a similar provision in the Industrial Relations Act 1991 and which also had found its way into provisions of the Industrial Arbitration Act 1940.
72 Moreover, there may be competing arguments as to which of the Industrial Relations Act 1996 and the LP Act is special legislation and which is general. It might be said that the LP Act is general in terms of the regulation of the activities of legal practitioners throughout New South Wales and that the Industrial Relations Act is of a more general nature including any right of appearance created by s 166. However, the contrary argument is also available and might sought to be justified on an equally rational basis.
73 For my part, I prefer the formulation of the appropriate approach by the Supreme Court of Connecticut that reflects statements of principle found at appellate court level in Australia but would seem to encourage a pragmatic approach to the construction process. In Nizzardo v State Traffic Commission et al (2002) 259 Conn.131, 788A.2d 1158, the Court said:
"Such a conclusion would fly in the face of one of our most fundamental tenets of statutory construction, namely, that we must, if possible, construe two statutes in a manner that gives effect to both, eschewing an interpretation that would render either ineffective.
[12][13][14] *157 In construing two seemingly conflicting statutes, "we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law...." (Internal quotation marks omitted.) State v. Ledbetter , 240 Conn. 317, 336, 692 A.2d 713 (1997). "Legislation never is written on a clean slate, nor is it ever read in isolation or applied in a vacuum. Every new act takes its place as a component of an extensive and elaborate system of written laws.... Construing statutes by reference to others advances [the values of harmony and consistency within the law]. In fact, courts **1174 have been said to be under a duty to construe statutes harmoniously where that can reasonably be done." 2B J. Sutherland, Statutory Construction (6th Ed. Singer 2000) s 53:01, pp. 322-24. Accordingly, "[i]f two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both." (Internal quotation marks omitted.) Wilson v. Cohen , 222 Conn. 591, 598, 610 A.2d 1177 (1992); see Hirschfeld v. Commission on Claims , 172 Conn. 603, 607, 376 A.2d 71 (1977). "If a court can by any fair interpretation find a reasonable field of operation for two allegedly inconsistent statutes, without destroying or preventing their evident meaning and intent, it is the duty of the court to do so. Knights of Columbus Council v. Mulcahy , 154 Conn. 583, 590, 227 A.2d 413 (1967); Shanley v. Jankura , 144 Conn. 694, 702, 137 A.2d 536 (1957)." Windham First Taxing District v. Windham , 208 Conn. 543, 553, 546 A.2d 226 (1988). Therefore, "[w]e must, if possible, read the two statutes together and construe each to leave room for the meaningful operation of the other." State v. West , 192 Conn. 488, 494, 472 A.2d 775 (1984). In addition, "[i]f two constructions of a statute are possible, we will adopt the one that makes the statute effective and workable...." (Internal quotation marks omitted.) State v. Scott , 256 Conn. 517, 538, 779 A.2d 702 (2001). "Moreover, *158 statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant...." (Internal quotation marks omitted.) State v. Gibbs , 254 Conn. 578, 602, 758 A.2d 327 (2000)."
74 In determining this matter on the assumption that there is a prima facie inconsistency between s 166 of the Act and s 14 of the LP Act and in determining whether there is "a reasonable field of operation" for the two provisions "without destroying or preventing their evident meaning and intent" I shall have regard to a number of matters:
1) This Court is a superior court of record with limited jurisdiction circumscribed by legislation.
2) The legislature in s 14 of the LP Act read in light of s 13 of that Act has professed a clear and positive intention to restrict entitlement to represent parties in proceedings before a court to persons who are appropriately qualified, namely Australian legal practitioners.
3) Agents, who are not Australian legal practitioners, do not necessarily have the legal skills and knowledge to properly represent parties in proceedings before this Court, are not subject to the controls and regulation imposed by the LP Act and, most importantly, do not owe a concurrent duty to the court which is integral to and necessary for the proper administration of justice in proceedings before this Court. There are no provisions within the Rules of this Court or within the Act that deal in any way with the manner in which agents are expected to conduct themselves when representing parties in proceedings before the Court.
4) It is in the interests of the community to ensure that only appropriately qualified and skilled persons recognised by law be entitled to represent parties in proceedings before this and any other court in New South Wales.
5) All of these represent powerful policy reasons for ensuring that s 166 is construed in a manner that is consistent with the practice and procedure before courts generally in New South Wales.
6) There are no provisions within s 166 which positively point to construing that section in a manner which is inconsistent with the LP Act so as to enable agents who are not Australian legal practitioners to appear before the Court. Any such construction would defy the analysis of s 166(2) to which I have earlier referred.
75 For all of these reasons I would construe s 166 as limiting representation by an agent to proceedings before the industrial tribunal only and as excluding any entitlement in an agent to represent parties in proceedings before the Court.