Geoffrey Bruce Mullins v Peoplebank Australia Pty Ltd

LEGISLATION CITED : Industrial Relations Act 1996 s 108A s 108A(1)s 108B Interpretation Act 1987 s 30 Attorney-Geneneral (Q'ld) v Australian Industrial Relations Commission (2002) 76 ALJR 1502 Bowker v Software Engineers Australia and ors. [2003] NSWIRComm 213 Boyce v Hughes (1970) 72 SR (NSW) 54 at 57 British Broken Hill Proprietary Co Ltd v Simmons (1921) 30 CLR 102 at 111 per Higgins J Esber v The Commonwealth (1992) 174 CLR 430 CASES CITED : Kennedy v Contract Transport Solutions [2003[ NSWIRComm 158 Mathieson v Burton (1970-71) 124 CLR 1 Maxwell v Murphy (1957) 96 CLR 261 Minister for Youth and Community Services v Health and Reseach Employees' Assocatiion of Australia, NSW Branch and ors (1987) 10 NSWLR 543 Powell v Farleigh Estate Sugar Co. Ltd (1919) 27 CLR 219 at 227

HEARING DATES: 11/28/2003 DATE OF JUDGMENT: 12/12/2003

APPLICANT Mr R Reitano of counsel SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT Mr J Fernon SC SOLICITORS Baker & McKenzie

JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

12 December 2003 Matter No. IRC 2274 of 2003 Geoffrey Bruce Mullins v Peoplebank Australia Pty Ltd Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2003] NSWIRComm 457

ISSUES RAISED ON NOTICE OF MOTION 1 On 29 April 2003, solicitors acting for the applicant, Mr Mullins, filed a summons for relief under s 106 of the Act seeking, inter alia, orders declaring void the contract between the applicant and the respondent or alternatively, varying the contract to provide twelve months' notice or pay in lieu thereof in the event that the respondent terminated the applicant's contract. By amended notice of motion filed on 4 June 2003, the respondent sought a declaration that the contract between the applicant and the respondent under which the applicant performed work was one where the remuneration package exceeded $200,000 paid or received during the period of twelve months immediately before the termination of the applicant's employment, within the meaning of s 108A of the Act. A further order was sought declaring the Commission to have no jurisdiction in relation to the subject matter of the proceedings, together with supplementary orders for costs.

2 When the amended Notice of Motion was listed for hearing, counsel for both parties proposed that the Court deal only with the issue of whether s 108A applied to exclude the Commission from dealing with the application having regard to the time when it was filed or whether there was an accrued right available to the applicant such that s 108A had no operation leaving the application to be dealt with under the Act prior to the amendment which introduced s 108A.

3 The following matters were common ground for the purposes of dealing with the notice of motion: (a) the applicant's employment was terminated by the respondent during May 2002 and well prior to 24 June 2002; (b) s 108A was inserted into the Act with operation on and from 24 June 2002; (c) the application for relief under s 106 of the Act was filed on 29 April 2003.

4 The case for the applicant was simple and straightforward: (a) the position was one covered by the judgment of Peterson J in Kennedy v Contract Transport Solutions [2003]) NSWIRComm 158 which in turn was supported by Schmidt J in Bowker v Software Engineers Australia and ors. [2003] NSWIRComm 213; (b) the effect of those judgments was that the applicant had an accrued right to bring his application under s 106 in relation to conduct which occurred before s 108A became operative on 1 June 2002, and thus the amendment did not apply to the applicant's situation; (c) this approach was supported by the classic statement of the law against retrospectivity as enunciated by the High Court in Maxwell v Murphy (1957) 96 CLR 261; (d) there was nothing in s 108A which expressed a contrary intention to the operation of the presumption against retrospectivity; (e) the relevant "right" which accrued to the applicant was a right to put an application, here an application under s 106 of the Act, to the Court.

5 The respondent's case was also stated succinctly: the opening words of s 108A, "an application cannot be made for an order under this Division …" were the key and clearly established the statutory intent; those words clearly overcame the common law presumption against retrospectivity and the provisions of s 30 of the Interpretation Act; in any event, for the common law presumption and the provisions of s 30 of the Interpretation Act to operate required a relevant application to have been made in order to have accrued a right at the time that the amendment became operative; neither could s 108A be classified as a "statute of limitation" having the effect of barring a cause of action which proscribed the maintenance of an action - here an application made would be protected but there was no such application made at the time that the amendment became operative; while there may be a right to have determined an application which was made, there was no right to commence an action or to make an application; s 106 (like its predecessor s 88F) did not, by its own operation, create any right or obligation and its function was simply to grant jurisdiction to the Commission; and, ultimately, the application was, in substance, merely a power to take advantage of an enactment and no relevant right accrued.

DELIBERATION 6 For present purposes, the relevant provisions of s 108A are as follows [IRA 108A] Employment contracts in respect of which applications cannot be made 108A (1) An application cannot be made for an order under this Division if the application relates to a contract of employment under which: (a) a remuneration package that exceeds the remuneration cap is paid or received (or is payable or receivable) during the period of 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination), or (b) a remuneration package is paid or received (or is payable or receivable) during a period of less than 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination) that would, if the remuneration package had been paid or received (or been payable or receivable) for a period of 12 months, have exceeded the remuneration cap.

7 In Kennedy, Peterson J was dealing with an application by a driver employed by the respondent between October 2000 and September 2001 at which point a contract was entered into between the respondent and a company formed for the purpose by the applicant and his wife. On 15 February 2002, the parties executed a document entitled "Cartage Contract Termination Agreement" which recited, in part, that the applicants' company had requested that the contract and sub-lease be terminated with effect from 3 February 2002 which was to be regarded as the termination date. The respondent had agreed to that termination on terms and conditions set out in the Agreement. The summons for relief was filed on 6 February 2003 and the respondent claimed that the application was outside the time limit provided by s 108B which was in the following terms: 108B Time for making application (1) An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract. (2) The Commission does not have jurisdiction to extend the time for making any such application or to accept an application made after the time prescribed by subsection (1).

8 Peterson J noted from the evidence that the contract was on foot on 6 February 2002 and perhaps 7 February 2002 and on another view it remained on foot until it was terminated on 15 February 2002. The parties, however, had provided in the termination agreement that the date of termination would be 3 February 2002. If 3 February 2002 was the date of termination then s 108B(1) applied and the application was filed more than twelve months thereafter and had to be struck out. Peterson J concluded that s 108B(1) was not concerned with the legal fiction or the "commercial effect" of the agreement: the contract was continued on 6th, possibly 7th and even up to 15 February 2002 and therefore the application, being filed on 6 February 2003, was within the time limit specified by s 108B. 9 His Honour, however, found an additional argument which required consideration: the Industrial Relations Amendment (Unfair Contracts) Act 2002, which introduced s 108A and s 108B commenced on 24 June 2002. His Honour noted that as at February 2002 there was no time bar save to the effect of any arguments based upon the doctrine of laches, against an application brought under s 106. The applicant argued that he had an accrued right in February 2002 to commence the proceedings without any relevant time restriction and that, on the basis of the ordinary rules of construction, (for example, Maxwell v Murphy) that right remained unaffected by the later amendment, given the absence of any express intention that the amendment was to have retrospective effect.

10 His Honour commenced a consideration of this argument by reference to the following well known passage in the judgment of Dixon CJ in Maxwell v Murphy: The general rule of the common law is that a statute changing the law ought not, unless the intention appears with a 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 the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62. 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done' (1873) 3 CH D at p 69.

11 In applying Maxwell v Murphy his Honour concluded that any substantive right obtained by the applicant in February 2002 to commence this action would not be affected by the retrospective operation of a statutory provision such as s 108B in the absence of an express intention in the statute. His Honour pointed out that in Maxwell v Murphy there was an attempt to invoke provisions of the Compensation to Relatives Act which had been amended to extend a time limit for the bringing of an application from twelve months to six years. In that case, the twelve month time bar had been exceeded and no application had been filed within the 12 months. The subsequent amendment of the Act to provide a six years time limitation was held not to have been retrospective in its effect such as to revive the right that had expired with the effluxion of the time bar. Of this situation his Honour said: In a sense that case is the mirror image of the present matter where an extended 'time limit' is sought to be cut back by a later amendment. Therefore, I conclude that upon this approach to the construction of s 108B(1) the Act does not provide a twelve months' limitation which could exclude the summons for relief in this matter. (see paragraph [26]).

12 In Bowker, Schmidt J dealt with a submission in the context of numerous amendments to the summons for relief that raised the question as to whether the amendments then proposed as a result of a joinder judgment earlier given by her Honour, could still be permitted having regard to the provisions of s 108B of the Act. It was also argued that Peterson J had wrongly decided the s 108B in Kennedy.

13 Schmidt J pointed out that the amendments which she proposed to allow flowed from the joiner judgment given in June 2002 prior to the enactment of s 108B. She expressed the view that such an amendment could not be time barred by the new section having regard to the provisions of s 30(1)(b) of the Interpretation Act 1988. Section 30 is in the following terms: 30. Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duty suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continue or enforced as if the Act or statutory rule had not been amended or repealed. (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect: (a) the proof of any past act or thing, or (b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or (c) any amendment or validation made by the Act or statutory rule, or (d) the operation of any savings or transitional provisions contained in the Act or statutory rule. (3) This section applies to the amendment or repeal of an Act or statutory rule in addition to, and without limiting the effect of, any provision of the Act or statutory rule by which the amendment or repeal is effected. (4) In this section, a reference to the amendment or repeal of an Act or statutory rule includes: (a) a reference to the expiration of the Act or statutory rule, (b) a reference to an amendment or repeal of the Act or statutory rule effected by implication, (c) a reference to the abrogation, limitation or extension of the effect of the Act or a statutory rule, and (d) a reference to: (i) the exclusion from the application of the Act or statutory rule, or (ii) the inclusion within the application of the Act or statutory rule, of any person, subject-matter or circumstance.

14 Her Honour did not accept that Kennedy had been wrongly decided. Peterson J had concluded that prior to the date of assent, 24 June 2002, there was no time bar on applications brought under s 106 of the Act and that any substantive right which an applicant obtained prior to that date, to commence an action under s 106 of the Act, would not be affected by the enactment of s 108(B) which had no retrospective operation. That was an approach with which her Honour agreed. Her Honour also stated that she was well satisfied that the section did not deal with or touch upon the retrospective operation of the newly enacted time bar: rather it dealt with the question of whether the Commission had jurisdiction to permit an application to be brought outside the new limitation period imposed by the section. Such discretions existed elsewhere in the Act (for example, s 85(3)), but s 108B made it clear that there was no such discretion in the circumstances of this new limitation period.

15 Her Honour then dealt with arguments that the provisions of s 108B were no more than procedural and that there was no relevant right accrued to the applicant. Her Honour dealt with those arguments in the following paragraphs as follows: 41. The respondents also argued that s30(1)(c) of the Interpretation Act had the effect that s108B operated retrospectively. Again, I disagree. Peterson J followed the approach of the High Court in Maxwell v Murphy (1956) 96 CLR 261. As Williams J discussed in the context of the common law position at pp277-8: Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights. 42. At p 267, Dixon CJ also discussed the distinction between rights and procedures, observing that the distinction 'is clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its application. In some cases they have been due to the discovery in the nature or context of the legislation or in its subject matter of indications, whether faint and conjectural or strong and persuasive, of a desire to cover situations already existing. In other cases the difficulty has been traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance. Again, enactments in truth conferring or denying rights are not seldom expressed in terms of remedy. 43 The views expressed by Williams J were discussed in Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228. Gibbs J observed at p241 that Dixon CJ recognised a similar distinction in Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 at pp636 and 638. 44 The common law must now be considered in the context of s30 of the Interpretation Act earlier quoted. In Yrttiaho, Gibbs J in dealing with the provision of the Act's Interpretation Acts 1954 to 1962(Q), said at p244 'I do not, of course, deny that the expression "right" standing alone, would include a right belonging to the area of procedure', but went on to construe s20(1)(c) of that Act as being concerned with substantive rights, rather than procedural rights. A similar question of construction arises in relation to s30(1)(c) of the Interpretation Act, which I find it unnecessary here to decide, for reasons which I will explain. 45 In Fisher v Madden (2002) 114 IR 119, the Court of Appeal discussed the operation of s106 of the Act, in the context of the operation of the Corporations Law. Meagher JA observed at [12] that 'Section 106 does not of itself confer any rights or obligations on anyone. Not only does she' (referring to the applicant in the proceedings) 'not have a right to a quantifiable order, she does not have a right to an order at all. She has the right to apply for an order, nothing more.' At [13], his Honour went on to say that the section granted 'the bare right to make a claim, nobody knowing whether it will succeed or not, or if so in what amount, or subject to what terms or condition.' 46 The respondents relied upon these observations, to urge the conclusion that the new limitation period was procedural in nature and did not affect substantive rights, so that the presumption against retrospective operation of the legislation would not arise. I do not agree at all with those submissions. 47 Reference to the decision of Sheller JA, in Madden, with whom Beazley JA agreed, explains why. His Honour referred to Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443, where Mahoney JA described s88F of the Industrial Arbitration Act 1940, a predecessor to s106 of the Act, as conferring no rights or obligations, but rather, conferring particular jurisdiction on the then Industrial Commission. Handley JA there referred at p246 to the decision of the High Court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at p155 and pp165-6, in relation to legislation such as s88F, which confers jurisdiction on a Court to grant particular relief, as creating rights. Sheller JA concluded at [45]: Section 88F therefore creates substantive rights and since proceedings under the section comprise a suit or action (see Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 at 560) there is every reason for concluding that it gives rise to rights of action. 48 It follows that the right, so described, granted by s106 of the Act, is plainly a right of action whereby this Court may declare void or vary an unfair contract, as defined, and make money orders in connection with such a contract, just in the circumstances of the case. The right is not one to enforce existing rights or obligations, but to have new rights created. It is a right granted by the section, which also provides the only remedy by which that right can be enforced. It follows that s108B, introducing a new limitation upon the exercise of the right, cannot be regarded as merely procedural, so as to have retrospective effect. To so approach the section would have the effect of depriving parties of existing rights of action. The section may not properly be so construed.

16 As recently pointed out again by the High Court in Attorney-General (Q) v Australian Industrial Relations Commission (2002) 76 ALJR 1502, the task of a court in construing amending or repealing legislation is firstly to discern the meaning of the provision and identify the legislative intent. It is only when that task is completed that consideration turns to provisions found in s 30 of the Interpretation Act to see if there is an accrued right which has been affected and which might be preserved.

17 Section 108A and s 108B were introduced at the same time and made two important alterations to the operation of s 106. Firstly, for the first time, applications could not be made for an order in relation to a contract of employment where, briefly stated, the remuneration package exceeded $200,000 or any greater amount prescribed by regulation. Secondly, where previously there had been no time limit prescribed for bringing a claim under s 106 apart from the principle of laches, s 108B required an application for an order in relation to a contract that had been terminated, to be made not later than twelve months after the termination of the contract. Further, the Commission was deprived of jurisdiction to extend the time. In broad terms, it may be stated that the general legislative intention in introducing these amendment was to narrow the jurisdiction available under s 106 of the Act.

18 The respondent emphasizes the opening words of s 108A(1), namely: An application cannot be made for an order under this Division if the application relates to a contract of employment under which: … Applying the natural meaning of these words they appear to be speaking of applications made in the future, that is, from the day on which the provision became applicable. Equally, the words do not appear to catch applications which have already been made: it would be illogical and ungrammatical for the words "cannot be made" to apply to applications that had already been made. For s 108A(1) to catch applications already made would require not only clear words, but additional words. These considerations confirm my view that the words of the provision and the legislative intent was that s 108A would operate in relation to future applications and would not attach to applications already made. Some further support for this approach may be found in the specification of the $200,000 cap which appears to be a judgment made on an appropriate salary level on 2002 values as may be altered by the regulations in the future, and not by reference to lower amounts over a period of years prior to the introduction of s 108A.

19 Section 108B is not quite as clear cut. It is a provision which, on its face, may apply immediately in relation to applications already lodged as well as to applications to be lodged in the future. As pointed out in the Attorney-General (Q) however, the task of statutory construction requires consideration be given not only to the words used in a particular provision but the context of the legislative provisions. In the present case, as already referred to, s 108A and s 108B were introduced in the same amending legislation and became operative at the same time. The context therefore suggests that just as s 108A deals with future applications and not applications already filed, s 108B was intended to operate in the same way.

20 In the present case although the termination of the contract took place in May 2002, and approximately one month before a s 108A became operative, the application made under s 106 of the Act was not filed until 29 April 2003. On the construction of s 108A I have arrived at, the application would be caught by s 108A and it is an application that could not be commenced at that time if the contract exceeded the salaried cap as defined. The applicant meets this difficulty by relying upon the decisions in Kennedy and Bowker : the applicant, in a relevant sense, had an accrued right in May 2002 to make an application under s 106 of the Act and have it determined according to the provisions of the Act prior to the insertion of s 108A and s 108B.

21 The two judgments relied upon by the applicant move from the classic statement of principle against retrospectivity in Maxwell v Murphy but in neither case does the Court's attention seem to have been drawn to the recent judgment of the High Court in Attorney-General (Q) v AIRC: nor does it appear that attention was drawn to authority requiring some relevant step to have been taken in order to establish an accrued right. In regard to the last matter, in Abbott v Minister for Lands (1895) AC 425 the Privy Council, on appeal from the Supreme Court of New South Wales, stated at 431: It has been very common in the case repealing statutes to save all rights accrued: if it were held that the effect of this was to leave it open to anyone who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would very far-reaching. It may be, as Windeyer J observes, that the power to take advantage of an enactment may without impropriety be termed a "right". But the question is whether it is a 'right accrued' within the meaning of the enactment which has to be construed. Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in connection with the words 'obligations incurred or imposed'. They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment.

22 In Abbott, the provision being construed was similar to that which now appears in Interpretation Act provisions and was in the following terms: All rights accrued and obligations incurred or imposed under or by virtue of any of the said repealed enactments shall subject to any express provision of this Act in relation thereto remain unaffected by such repeal. The approach in Abbott , requiring some application to be made in order to accrue the right, has since been followed in Powell v Farleigh Estate Sugar Co. Ltd (1919) 27 CLR 219 at 227; British Broken Hill Proprietary Co Ltd v Simmons (1921) 30 CLR 102 at 111 per Higgins J; Boyce v Hughes (1970) 72 SR (NSW) 54 at 57 (which itself was regarded as correctly decided by the High Court in Mathieson v Burton (1970-71) 124 CLR 1, without the court descending to all matters decided in the case). 23 The significance of these cases cannot be ignored. Indeed, in Attorney-General (Q) at least four members of the court approached the question of construction on the basis that it was unlikely that the legislature intended to preserve the operation of the earlier Act for the life of disputes which had already been found, acknowledging the fact that ambit logs meant that numerous awards could be made over many years in relation to the one finding of dispute. In this discussion, the High Court did not mention the line of authority commencing with Abbott nor does the judgment of the Full Federal Court which had been appealed. This point may have been unnecessary to consider in light of the fact that two differently constituted five member benches of the Australian Industrial Relations Commission (as well as the Full Federal Court) had found that the amendment did not affect applications for an award which had already been made and were substantially part-heard in the Commission. Indeed, in the Commission proceedings the bench was concerned that the existence of an accrued right as alleged by the unions would have effect for a very long period of time until the ambit of the dispute expired. It was expressly conceded by the unions in the Australian Industrial Relations Commission proceedings and in the Federal Court that the relevant act taken, to which a right accrued, was not the Commission's finding of the existence of a dispute but rather the application for an award which the Act required the Commission to consider and deal with. It seems, however, from the judgment of Kirby J that in the High Court the unions reverted to an argument based on the relevant act accruing a right as being the finding of a dispute rather than being an application for a particular award. It may be relevant that in this long running litigation, at no stage did either of the five member Full Benches of the Australian Industrial Relations Commission, the Federal Court or the High Court suggest that the line of authority beginning with Abbott was incorrect.

24 On the application of the approach in Abbott, as at the 24 June 2002, although the applicant was entitled to commence proceedings under s 106 of the Act without the limitation of the salary cap, thereafter any application filed by the applicant had to meet that test.

25 Although the High Court was able to reach its conclusions on the proper construction of the provision and that it was meant to have immediate effect, the court also closely analysed the concept of an "accrued right" in the context of arbitral proceedings and an application for an industrial award. In the joint judgment of Gaudron, McHugh, Gummow and Hayne it was acknowledged (paragraph 40) that the unions did not assert that they had acquired or accrued a "right" to an award but rather submitted that they had accrued or acquired the "right" to have their disputes arbitrated in accordance with s 104 of the 1988 Act. Of this submission their Honours said: Describing the putative right in this manner, however, says little about its legal nature or the way in which it may be enforced. The right acquired or accrued by the respondent unions is more accurately described as a public law right to require the Commission to observe its duty to comply with the law as it exists from time to time. A right of that nature, where it exists, is a right to have a claim or application considered in accordance with the statute that governs its determination. Their Honours pointed out that where what was involved was the exercise of judicial power, that would often require the determination of pre-existing rights or liabilities. This was illustrated by those functions which were appropriate exclusively to judicial action including the determination of criminal guilt, actions in contract and tort and suits to enforce trusts. Different considerations were said to apply to the exercise of arbitral functions under the 1904 Act and the 1988 Act. The arbitrator was empowered to make a determination not of existing legal rights and liabilities, but as to the conditions to prevail in the future between the parties to the dispute: statute gave to the terms of the determination the character of legal rights and obligations. Their Honours continued: [46] The requirement, enforced by mandamus, that the arbitrator hear and determine the matter according to law allowed for changes in the content of that law which founded the duty which attracted the remedy. If before the making of the award prescribing rules of conduct for the future, the law was changed to place additional restraints or conditions upon the exercise of the power to make the award then the obligation to make a determination according to law was correspondingly modified. In this way, the content of the public duty and correlative right to its discharge was fluid rather than fixed and notions of 'accrued' rights in the law as it stood at any particular stage in the arbitral processes had no place.

26 The formulation of the right as one to have an award application heard and determined undoubtedly owed its origin to the decision of the High Court in Esber v The Commonwealth (1992) 174 CLR 430. The joint judgment noted that the transitional provisions of the repealing statute at issue in Esber were held by the majority to expressly preserve the entitlement which had accrued under the previous law. Also, the "accrued right" arising in Esber was concerned with the continuation of an application for review by the Administrative Appeals Tribunal and the determination of Mr Esber's entitlement to redeem his rights to further payments of compensation under the earlier legislation. The court pointed out that, as had earlier been indicated, the "rights" said to flow from the duty imposed upon the Commission under the 1988 Act (s 104(1)), "were of a different nature".

27 In a separate judgment, Kirby J dealt with the similarities between the case and the judgment in Esber and stated: [135] There are certain similarities between the suggested right found to exist in Esber and that upheld by the Full Court in the present proceedings. In each case, the right said to exist was incomplete or provisional. In each case, it was necessary to proceed to a tribunal to have a decision made whether or not to grant the right and if so, in what terms. In each case, the exercise of previously unexercised statutory discretions remained to be performed, notwithstanding the supervening repeal of legislation pursuant to which such discretions were formerly provided. [136] However, it is possible to distinguish Esber from these proceedings on fairly obvious grounds. Mr Esber had an uncontested statutory entitlement to weekly compensation payments. This afforded him the foundation of a legal right for a fairly simple determination of entitlement to a redemption sum and calculation of its amount. In none of the present proceedings was the task of the Commission so simple. Even if, an industrial dispute having been found, it might be anticipated that a Federal award would be made or extended as sought by the employee organisations, that decision still had to be reached by the Commission. Once reached, the content of the applicable award remained to be determined. Moreover, in the face of a radical alteration of the jurisdiction and powers of the Commission effected by the WROLA Act, designed to limit the subject matter of federal awards and the function of the Commission and to include a public interest consideration, the consequence of the respondent's argument would be completely the opposite. The Commission would have to complete its award-making functions under the I R Act without the consideration of the public interest otherwise mandated by s 111AAA, where the wages and conditions of particular employees had hitherto been governed by State awards of State employment agreements. It is impossible to reconcile this prospect with the Act, read as a whole after WROLA Act Amendments came into effect. … [139] Thus, even if the construction of s 111AAA of the Act was favorable to the employee organizations and even if no contrary intention were evinced by that provision (premises that I reject) there would still have been no occasion to apply s 8 of the Interpretation Act to these proceedings. The entitlement to have the Commission make an award was not a right of the kind to which that section refers. This was so because making such an award went beyond the carrying into effect of rights of the parties accrued before the repeal of the law. It would have involved no more than the continuation of procedures to decide whether there should be new rights and, if so, what those new rights should be.

28 In the present proceedings, the parties did not discuss these aspects of Attorney-General (Q) and they were not, apparently, referred to by the parties in Kennedy and Bowker. There are similarities between the statutory provisions and their exercise in the making of an award and the exercise of jurisdiction under s 106 of the Act which is clearly aimed at the creation of new rights. In Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch and ors (1987) 10 NSWLR 543, McHugh JA (as he then was) stated that the jurisdiction of the Commission to void or vary a contract, independently of the circumstances which existed at the time of its making, indicated conclusively, in his opinion that the power conferred by s 88F was not an exercise of judicial power (at 560D). In view of this statement, s 88F and its re-enacted formulations including s 106 of the Act have been considered as effectively an exercise of arbitral power. I have earlier extracted those sections of the judgment in Bowker which refer to the Court of Appeal judgment in Fisher v Madden and in particular the view expressed by Justice Sheller that s 88F created substantive rights and that proceedings under the section comprised a suit or action and that there was every reason for concluding that it gave rise to rights of action. His Honour however did not have to finally determine that point because, for the purpose of that case, it was sufficient that the section conferred another "remedy". That discussion took place, of course, in the context of retrenchment payments within the meaning of the Corporations Law. The views expressed in Fisher v Madden need to be reconsidered in the light of the judgment in Attorney-General (Q) v Australian Industrial Relations Commission.

29 In the absence of detailed submissions on the point, it is not appropriate to conclude that an application under s 106 of the Act is indistinguishable from arbitral proceedings dealt with by the High Court in Attorney-General Q'ld) v Australian Industrial Relations Commission such that there can be no accrued right for the purposes of the provisions of the Interpretation Act. It is sufficient to say that there are significant arguments for both propositions to the extent that there is a real issue as to whether an application under s 106 of the Act involves rights accrued or otherwise as protected by the Interpretation Act. 30 For the reasons I have already expressed concerning what I regard to be the proper operation of s 108A, I conclude that this application is caught by the amendments introduced in 2002 and the applicant's submissions to the contrary are rejected. The proceedings may be re-listed for further programming as necessary after the parties have had sufficient time to consider the terms of this judgment. Oo00oo

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