New South Wales Fire Brigade Employees Union v The Crown in the Right of NSW

APPLICANT Mr J Nolan of counsel Mr G Maniatis NSW Fire Brigade Employees' Union LEGAL REPRESENTATIVES: RESPONDENT Mr S E J Prince of counsel Solicitor: Ms J Burton Crown Solicitors Office

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 24 September 2004

NEW SOUTH WALES FIRE BRIGADE EMPLOYEES' UNION v THE CROWN IN THE RIGHT OF NEW SOUTH WALES (NSW FIRE BRIGADES)

Application by New South Wales Fire Brigade Employees' Union for declarations under s 154 of Industrial Relations Act 1996 JUDGMENT [2004] NSWIRComm 285

1 This is an application by the New South Wales Fire Brigade Employees' Union ("FBEU") for the following declarations to be made under s 154 of the Industrial Relations Act 1996: 1 A declaration that upon the proper construction of Clause 22.1.2 of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2001 the reference to "statutory declarations" is a reference to a statutory declaration made either under the Oaths Act 1900 (NSW) or the Statutory Declarations Act 1959 (Cth). 2 A declaration that upon the proper construction of Clause 14.1.2 of the Crown Employees (NSW Fire Brigades Retained Firefighting Staff) Award 2001 the reference to "statutory declarations" is a reference to a statutory declaration made either under the Oaths Act 1900 (NSW) or the Statutory Declarations Act 1959 (Cth).

2 What, at first glance, would appear to be a curious application, is explained by the fact that under the (NSW Fire Brigades Firefighting Staff) Award 2001 and the (NSW Fire Brigades Retained Firefighting Staff) Award 2001 ("the Awards") an employee who has responsibilities in relation to certain classes of persons shall be entitled to use any current or accrued sick leave entitlement for absences to provide care and support for such persons when they are ill. However, under the Awards the employee carer shall, if required, establish by production of a medical certificate or statutory declaration, the illness of the person concerned and that the illness is such as to require care by another person.

3 In this case the employer, the NSW Fire Brigades, requires that a carer shall produce either a medical certificate or statutory declaration. However, if a statutory declaration is to be produced the employer insists upon one that complies with the provisions of the Oaths Act 1900 (NSW); a statutory declaration under the Statutory Declarations Act 1959 (Cth) is not acceptable.

4 As Mr S E J Prince of counsel for the Crown in the Right of New South Wales (NSW Fire Brigades) ("the respondent") submitted in the proceedings: … [T]he issue between the parties has meaning because under the Commonwealth Act, inter alia, a firefighter of 5 years service may witness a statutory declaration whereas under the State Act only a person competent to administer an oath (i.e., a legal practitioner, justice of the peace or other judicial officer) may witness the Statutory Declaration.

5 Clause 22 of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2001 deals with personal/carer's leave and enables employees to utilise, in accordance with the clause, any current or accrued sick leave entitlement, to provide care and support for certain classes of persons when they are ill.

6 Clause 22.1.2 of that Award provides as follows: The employee shall, if required, establish, by production of a medical certificate or statutory declaration, the illness of the person concerned and that the illness is such as to require care by another person. In normal circumstances an employee must not take carer's leave under this clause where another person has taken leave to care for the same person. Clause 14.1.2 of the (NSW Fire Brigades Retained Firefighting Staff) Award 2001 is in identical terms.

7 The question which arises then, is whether the words "statutory declaration" in cll 22.1.2 and 14.1.2 in the respective Awards, refer to a statutory declaration under the Oaths Act 1900 (NSW) or the Statutory Declarations Act 1959 (Cth) or under both statutes?

Relevant provision of Oaths Act and Statutory Declarations Act

8 Statutory declarations are dealt with in Part 4 of the Oaths Act 1900 (NSW). Section 21 provides: 21 Declarations in cases not specifically provided for (1) Any justice of the peace, notary public, commissioner of the court for taking affidavits, legal practitioner authorised by section 27 (1) to take and receive any affidavit, or other person by law authorised to administer an oath, may take and receive the declaration of any person voluntarily making the same before him or her, in the form or to the effect of the form in either the Eighth or the Ninth Schedule. (2) Any statutory declaration taken and received prior to the commencement of the Oaths (Amendment) Act 1916 before any commissioner of the court for taking affidavits, shall be deemed to have been duly taken and received.

9 Section 5 of the Statutory Declarations Act provides: Application (1) Subject to this section, this Act applies both within and without the Commonwealth. (2) Except as provided by subsection (8) of section twelve of this Act, this Act does not apply in a Territory not forming part of the Commonwealth unless this Act extends to that Territory by virtue of section thirteen of this Act.

10 Section 6 of the Commonwealth statute provides: Authority to make and use statutory declarations (1) A person may, if he or she so desires, make a statutory declaration in relation to any matter. (2) Subject to the next succeeding subsection, a statutory declaration may be used: (a) for the purposes of a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law; (b) in connexion with any matter arising under a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law; or (c) in connexion with the administration of any Department of State of the Commonwealth. (3) The last preceding subsection does not authorize a statutory declaration to be used as evidence in a judicial proceeding but nothing in this section prevents a statutory declaration from being so used.

11 Section 8 of the Statutory Declarations Act provides: How Statutory declaration is made A statutory declaration made under this Act must: (a) be in the form in the Schedule; and (b) be made before a prescribed person. 12 The Statutory Declarations Regulations 1993 (Cth) provides for a long list of persons before whom a statutory declaration may be made, including a permanent employee of a State or Territory authority with 5 or more years of continuous service.

13 Mr J Nolan of counsel for the applicant submitted the use of statutory declarations made under the Statutory Declarations Act was not restricted to what might be described as 'commonwealth purposes' - that is, the purposes specified in s 6(2). To suggest this, it was submitted, failed to deal with s 6(1), which provides a separate and distinct class of uses for statutory declarations. Mr Nolan submitted the respondent's interpretation was an unnecessarily narrow reading of the scope of s 6 and such is clear by reference to the Second Reading speech. In introducing the Bill for the 1959 Act into the Senate, Senator Gorton said (Hansard, 14 May 1959 - Proceedings of the Senate, pp 1436-1437): The purpose of this bill is to repeal and re-enact, with certain amendments, the law relating to statutory declarations. The present Statutory Declarations Act was passed in 1911. Under the Act a person may make a statutory declaration in relation to any matter . He may also make a statutory declaration for any purpose or in connexion with any matter arising under a law of the Commonwealth, or in connexion with the administration of any Commonwealth department. The act has, therefore, been one of great practical utility, especially in facilitating dealings between the public and Commonwealth departments (applicant's emphasis).

14 The FBEU relied upon Re Amalgamated Television Services Pty Ltd & Ors v Australian Broadcasting Tribunal (1989) 88 ALR 287. In that case, in the course of discussing whether a Commonwealth agency could require the production of a statutory declaration in the absence of a separate source of statutory authority to do so, Sheppard J made the following observations at 308: … Full weight must be given to the provisions of subsec. 6(2) which empower the use of statutory declarations in relation to government activity. But the use of the expression "may be used" and the nature of the coercive power which would result if the position contended for by counsel for the Tribunal prevailed lead me to conclude that the section means no more than that it is appropriate for officials of government to ask people making applications of various kinds or dealing with government in a variety of other ways to make statutory declarations voluntarily. What the section does not do is to compel them to do so. Statutory declarations have a wide use in private affairs. Members of the community dealing with each other, for example, in relation to the transfer of personal property, may find it convenient to make use of a statutory declaration. 4cThere are countless other ways in which, in private affairs, statutory declarations are used. But, in every case the person asked to make the declaration has an option whether to make it or not. It is true that if the vendor of property refuses to make a declaration of the kind I have mentioned, the transaction may not eventuate. Nevertheless, the vendor has a clear choice whether to make it or not [applicant's emphasis].

15 Mr Nolan further submitted: It is clear both from the remarks of the then Senator Gorton, and those of Sheppard J, that section 6(1) of the Statutory Declarations Act permits a statutory declaration to be made which would fit the description of a declaration made before any 'other person by law authorised to administer an oath'. However, it is not necessary to go this far, because the clear terms of the award clause require only that the particular document supplied fit the description of a 'statutory declaration'. Note also that section 21 of the Interpretation Act (1987) (NSW) defines a 'Statutory declaration' to mean 'a declaration made by virtue of any act or authorizing a declaration to be made instead of an oath'. There is nothing in those words which suggest any restriction which would exclude declarations made under the Commonwealth Act. The award clause embodies an arrangement which has been agreed upon between the parties to facilitate the provision of personal/carer's leave and does no more than provide a source of legal authority - i.e. by the award itself - which authorizes the employer to require proof in an appropriate form when a claim for leave is made and where the employer judges that such proof is desirable in a particular case. There is nothing in the Industrial Relations Act 1996 which prevents such a prescription being made, and the clause has operated upon the understanding - shared by the FBEU and the employer since the clause was inserted in the award - that a declaration under the Statutory Declarations Act 1959 (cwth) has been sufficient to satisfy clause 22.

16 Mr Prince submitted that the Awards did not contemplate the application of the Statutory Declarations Act for the purposes of cll 22.1.2 and 14.1.2 respectively and that the Commonwealth Act was only intended to operate in those spheres necessary for the administration of Commonwealth laws and Commonwealth Government business.

17 It was submitted that the reference to statutory declaration in the Awards must mean a declaration made under the Oaths Act and not the Statutory Declarations Act. This was so, it was submitted, because s 21 of the Interpretation Act 1987 (NSW) provides that in any Act or instrument 'Statutory declaration' means a declaration made by virtue of any act or authorizing a declaration to be made instead of an oath'. As Pt 4 of the Oaths Act provided for statutory declarations to be substituted for oaths and as the Statutory Declarations Act makes provision for the making of a declaration instead of an oath (and does not authorise an oath at all) the Awards, being 'Industrial instruments' for the purposes of the Interpretation Act, do not contemplate declarations under the Commonwealth Act. Moreover, it was submitted the reference to "any Act" in s 21 of the Interpretation Act was a reference to any Act of New South Wales: s 12.

18 Mr Prince also submitted that the construction placed on s 6 of the Statutory Declarations Act by the applicant, namely, that section allowed the making at large of statutory declarations, was not open nor, it was submitted, would the Commonwealth have the constitutional power to make such a law of general application.

19 As to the observations by Sheppard J in Re Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal relied upon by the applicant, Mr Prince submitted it should be noted that case involved a dispute with a Commonwealth Government agency administering a Commonwealth law. Further, it was submitted that the passage from the judgment relied upon by the Union misconceived an analogy being drawn by Sheppard J to serve the point that as in private affairs it was open to use a statutory declaration, so to it was open to those dealing with the Commonwealth Government to use a statutory declaration made under the Commonwealth Act.

20 Mr Prince further submitted: If the Commonwealth Act were taken as intending to regulate the making of Statutory Declarations generally, then by operation of s 109 of the Constitution, there would be no room left for the operation of any other state Act governing the making and use of Statutory Declarations. It is submitted that this result could not have been intended by the Parliament in circumstances where the terms of the Act are complementary, not exclusive, of the existing regime for making Statutory Declarations in private matters. The observations of Sheppard J would support such a conclusion. Accordingly, it is submitted, the Commonwealth Act could not operate to authorise the making of Statutory Declarations for the purpose of the administration of State Acts, Regulations and Awards.

· There is no qualification upon the expression "statutory declaration" in the award and the history of the award clause would point to the fact that such an expression has been introduced, arguably without any consideration, being given to the particular statute under which the statutory declaration is made. The award clause found its way initially, into Federal awards and often apply in more than one State.

· The clause in question does no more than reproduce the standard clause which was adopted first, by the Full Bench of the Australian Industrial Relations Commission in the Personal/Carer's Leave Test Case (1995-96) 62 IR 308 (see esp 80.8), and later, flowed into state awards by the NSW Commission in the State Personal/Carer's Leave Case (1996) 68 IR 308 (see esp 311.9, 330.5). There is no indication in either of those decisions that the term 'statutory declaration' had any particular meaning - apart from its common meaning.

· The Interpretation Act cannot conclusively govern the meaning of the expression "statutory declaration" in the award and no authority has been referred to by the Respondent in support of the proposition.

· The Respondent's submissions endeavour to insinuate that the Commonwealth Act by the operation of s.109 of the Constitution operates to exclude the operation of any State Act governing the making or use of statutory declarations. There is no basis upon which this submission is supported. The submission is erroneous because there is nothing to prevent the statutory provisions co-existing - the award according to its terms must be construed so as to permit the provision of a statutory declaration whether it be one made under the State Act or the Commonwealth Act. None of the accepted tests with respect to 'covering of the field' by Commonwealth law apply or have really been seriously suggested to apply, in the Respondent's submissions.

· It was not correct to suggest that the remarks of Sheppard J in Re Amalgamated Television Services Pty Limited v Australian Broadcasting Tribunal should be construed in the manner suggested in the Respondent's submissions.

· There is no reason at all why the Commonwealth Act should not be construed according to its terms and there is no caveat or qualification in the Commonwealth Act that says that it ought to be utilised only for "Commonwealth purposes". The suggestion that the Second Reading Speech, (which has been referred to in the Applicant's original submissions), can only be construed as authorising the use of statutory declarations under the Commonwealth Act for dealings with the Commonwealth government is not supported by the record of proceedings referred to.

· If the Respondent's submissions were accepted, an interesting dilemma in construing the equivalent federal award clause would arguably arise. In the case of a State Agency bound by a federal award, the words 'statutory declaration' would refer to a declaration made under the State Act. Would the same wording in an award clause binding upon a private sector employer permit the use of a declaration made under the Commonwealth Act by reason of its inclusion prescription in a federal award? Or would the suggested 'commonwealth purposes' test preclude the use of a declaration made under the Commonwealth Act? It is submitted that the simple answer is provided in the clear words of the award clause.

· Given that the award clause is a standard clause which has been included following a test case decision, it is a matter surely that may be revisited only where the Full Bench itself decides to re-visit the terms of the standard clause. Otherwise the FBEU is entitled to the benefit of the standard clause without any qualification or caveat, unless and until the Full Bench decides an alternative prescription is required or desirable.

· If the Fire Brigades has a difficulty with the type of statutory declaration which has been produced by its employees pursuant to the award and which, until fairly recently has been long accepted, that is surely a matter for the Brigades to raise in the context of the next award discussions.

22 Section 154 of the Industrial Relations Act provides: (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought.

23 I consider there is no doubt that the Commission in Court Session has jurisdiction to make a declaration where there is a dispute about the meaning of an award provision. See, for example: TWU v Linfox Australia Pty Ltd [2003] NSWIRComm 97; New South Wales Teachers Federation v Director General, Department of Education and Training. Application for declaratory relief under s 154 of the Industrial Relations Act 1996 [2002] NSWIRComm 56.

24 I also consider there can be little doubt - and it was not contended otherwise - that the reference to "statutory declaration" in cll 14.1.2 and 22.1.2 respectively of the Awards is a reference to a statutory declaration made under the Oaths Act. Section 21 of the Interpretation Act provides that in any Act or instrument a statutory declaration "means a declaration made by virtue of any Act authorising a declaration to be made instead of an oath." The Awards are "industrial instruments" for the purpose of the Interpretation Act and the Oaths Act is an Act authorising a declaration to be made instead of an oath.

25 The more problematic issue is whether the reference in the Awards to "statutory declaration" may be construed as a reference to a statutory declaration authorised under the Statutory Declarations Act. The applicant's position in this respect is essentially quite straightforward: the Commonwealth Act provides in s 6(1) that "A person may, if he or she so desires, make a statutory declaration in relation to any matter"; the Awards refer to "statutory declaration"; the Awards do not limit such declarations to those made under the Oaths Act; and, there is no warrant for departing from the natural and ordinary meaning of the term 'statutory declaration'.

26 I take the view, however, that whilst the Commonwealth Act purports to authorise the making of a declaration in relation to any matter, the use to which that declaration may be put is limited by the terms of s 6(2) of the Statutory Declarations Act, namely: (a) for the purposes of a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law; (b) in connexion with any matter arising under a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law; or (c) in connexion with the administration of any Department of State of the Commonwealth. Section 6(3) provides that s 6(2) does not authorize a statutory declaration to be used as evidence in a judicial proceeding but nothing in the section prevents a statutory declaration from being so used.

27 This construction is consistent with what I consider to be a statute made pursuant to s 51 (xxxix) of the Australian Constitution, that is, the incidental power. Moreover, in Re Power; Re Plumbers and Gasfitters Employees Union of Australia (WA Branch) (1992) 35 FCR 133 at 140; (1992) 40 IR 256 at 263, Lee J stated: The effect of s 6 of the Statutory Declarations Act 1959 is to permit a declaration authorised or made lawful by statute to be used for the purposes described in s 6(2).

28 The production of a statutory declaration for the purpose of establishing the illness of a person and that the illness is such as to require care by another person in the context of a personal/carer's leave provision in an industrial instrument made by a State industrial authority, is not a use authorised by the Statutory Declarations Act.

29 The applicant referred to the Second Reading speech introducing the Statutory Declarations Bill in 1959 where it was said, "Under the Act a person may make a statutory declaration in relation to any matter. He may also make a statutory declaration for any purpose or in connexion with any matter arising under a law of the Commonwealth, or in connexion with the administration of any Commonwealth department." Section 15AB of the Acts Interpretation Act 1901 (Cth) permits reference to a Second Reading speech in circumstances set out in s 15AB(1) of that Act, that is: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b) to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

30 I do not consider s 6 of the Statutory Declarations Act is ambiguous or obscure. Section 6(2) plainly authorises the use of statutory declarations for limited purposes that do not extend to the purpose with which I am here concerned. In any event, the Second Reading speech is at odds with the words of the statute. The statute does not provide that a person may "make a statutory declaration for any purpose or in connexion with any matter arising under a law of the Commonwealth, or in connexion with the administration of any Commonwealth department" but rather a statutory declaration may be used for the above purposes.

31 That a Second Reading speech might indicate a contrary intention to what the words of the statute suggested, was a situation dealt with by the High Court in Re Bolton; Ex parte Beane (1987) 162 CLR 514. In that case the respondents had submitted that s 19 of the Defence (Visiting Forces) Act 1963 (Cth) authorized the arrest in Australia of a deserter or absentee without leave from the forces of a country to which the section applied notwithstanding that the desertion or absenting occurred outside Australia. The High Court did not agree. In their joint judgment Mason CJ, Wilson and Dawson JJ said at 517 - 518: Furthermore, given that s 19 is ambiguous, consideration may be given in ascertaining the meaning of the provision to the second-reading speech of the Minister when introducing the Bill for the Act into the House of Representatives in 1963: Acts Interpretation Act 1901 (Cth), as amended, s.15AB. That speech quite unambiguously asserts that Part III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.

9. In our opinion, notwithstanding the expressed intention of the government in introducing the law into the Parliament - an aspect of the matter which, as we have said, must give the Court cause for earnest consideration - we would not be justified in reading an implication carrying such serious consequences for the liberty of the individual into s 21(1) of the Act. The decision in Peterson must stand, with the result that Mr Beane is entitled to be released.

32 In the present case, I do not consider the words of the Minister can be substituted for the plain text of the statute.

33 As to the observations of Sheppard J in Re Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal relied upon by the applicant, his Honour was doing no more than drawing an analogy between, on the one hand, the choice persons had under the Commonwealth Act to make a statutory declaration for any purpose or in connexion with any matter arising under a law of the Commonwealth or in connexion with the administration of any Commonwealth department (that is, they were not compelled to do so) and, on the other hand, the choice persons had if they wished to make a statutory declaration in private affairs - a choice that had existed under legislation in some States extending back to the 19th Century.

34 The Statutory Declarations Act is to be read with s 27(c) of the Acts Interpretation Act, which defines "statutory declaration as meaning "a declaration made by virtue of any Act authorizing a declaration to be made otherwise than in the course of a judicial proceeding." Section 38 provides: (1) An Act passed by the Parliament of the Commonwealth may be referred to by the word "Act" alone. (2) An Act passed by the Parliament of the United Kingdom may be referred to by the term "Imperial Act". (3) An Act passed by the Parliament of a State may be referred to by the term "State Act".

35 In Re O' Dowd & Anor; Re Commonwealth Bank Officers' Association (1984) 3 FCR 150 at 150-151; (1984) 8 IR 222 at 223 Gray J made the following observations regarding the use of the words "Act" and "State Act" in the Acts Interpretation Act: In s. 30(2) the word "Act" is used in contradistinction to the words "State Act". These provisions compel the conclusion that the word "Act" in s. 27(c) means an Act of the Australian Parliament, and does not include an Act of the Parliament of a State. If this were not the case, the phrase "any Act" in s. 27(c) would be used in a totally different sense from the sense in which it is used throughout the Acts Interpretation Act 1901. No ground exists for holding this is the case.

36 Section 30 of the Acts Interpretation Act was repealed by the Crimes Legislation Amendment Act 1987. However, the same contradistinction referred to by Gray J between "Act" and "State Act" exists in s 40 of the current Acts Interpretation Act and the point made by his Honour remains valid in my opinion. That is, the use of the word "Act" in s 27(c) of the Acts Interpretation Act refers to an Act of the Australian Parliament, and does not include an Act of the Parliament of a State.

37 In Re Power, Lee J decided that a statutory declaration made pursuant to s 106 of the Evidence Act 1906 (WA) could be regarded as a declaration required by s 159(2)(b) of the Conciliation and Arbitration Act 1904 (Cth). In La v Federated Furnishing Trade Society of A/asia (1993) 46 IR 164 at 172 Gray J adhered to the view he expressed in Re O' Dowd and to that extent his view was contrary to that expressed by Lee J in Re Power. I respectfully agree with Gray J but, in any event, the decision of Lee J in Re Power does not alter the fact that s 6(2), subject to s 6(3), of the Statutory Declarations Act, determines the use to which a statutory declaration made pursuant to that Act may be put and that does not include the use contemplated by the relevant provisions of the Awards in question.

38 For the reasons given in this judgment, I decline to make the declaratory orders sought by the applicant in these proceedings. _____________________

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