Project Blue Sky v Australian Broadcasting Authority [2016] NSWIRComm 1035 | Case summary

Principles of statutory interpretation

The principles which govern the approach to be adopted by the Commission in construing legislation are not in dispute and are succinctly stated in the following passage from the judgement of the High Court (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky v Australian Broadcasting Authority ([1998] HCA 28): [69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (See Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208 at 213 per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617 per Lord Scarman, "in the context of the legislation read as a whole"). In Commissioner for Railways (NSW) v Agalianos ([1955] HCA 27; (1955) 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias [1917] HCA 41; (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 312 per Gibbs CJ, 315 per Mason J, 321 per Deane J). [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 440 per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (See Australian Alliance Assurance Co Ltd v Attorney-General of Queensland [1916] St R Qd 135 at 161 per Cooper CJ; Minister for Resources v Dover Fisheries [1993] FCA 366; (1993) 43 FCR 565 at 574 per Gummow J; [1993] FCA 366; 116 ALR 54 at 63). Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" (Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision (The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 per Griffith CJ, 419 per O'Connor J; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12-13 per Mason CJ). In The Commonwealth v Baume ([1905] HCA 11; (1905) 2 CLR 405 at 414) Griffith CJ cited R v Berchet ([1794] EngR 1806; (1688) 1 Show KB 106 [89 ER 480].) to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
Examination of the "context of the provision that is being construed" will necessarily involve a consideration of the legislative history of that provision.

History of Chapter 6 of the Act

On 23 February 1970 the Commission in Court Session (Beattie P, Sheehy and Sheldon JJ) provided a report to the Minister on "Section 88E of the Industrial Arbitration Act, 1940-1968 in so far as it concerns Drivers of Taxi-cabs, Private Hire Cars, Motor Omnibuses, Public Motor Vehicles and Lorry Owner-Drivers" ('Beattie Report'). That report recommended the establishment of a legislative framework for, inter alia, the regulation of contracts of carriage between principal contractors and contract carriers.
Paragraph 30.119 of the Beattie Report noted the following submission of counsel assisting: 30.119 Counsel assisting (see appendix 7 to the report) claimed that provision should be made for the registration of an association as an association authorized to enrol owner-drivers. Only such associations as obtain such registration should be able to avail themselves of certain rights to be provided for. Existing industrial unions with owner-driver members should be required to obtain registration.
The Report also contained the following extracts: 30.121 The employers who supported regulation and representation of lorry owner-drivers made the following proposals (see appendix 9 to this report) concerning representation:- (a) Provision should be made for industrial unions of employers and of employees to enrol and represent owner-drivers and for the constitution of a new type of industrial union, an industrial union of lorry owner-drivers. (b) Provisions analogous to those now prescribed by s.8 of the Industrial Arbitration Act for the registration of industrial unions of employees should be made allowing an industrial union of employers or of employees whose rules do not authorize it to enrol lorry-drivers to obtain the Industrial Registrar's approval to alter its rules to allow the admission of owner-drivers. (c) ………………An industrial union of lorry owner-drivers should not have the powers, rights or obligations which industrial unions of employers or of employees have under other sections of the Industrial Relations Act but should have the powers, rights and obligations conferred and imposed upon industrial unions under the special provisions to be enacted concerning lorry owner-drivers, including the powers to make applications under s.88F, to notify contract disputes to the Registrar and to object to an industrial union employers or of employers altering its rules to make lorry owner-drivers eligible for membership. ……………………… 30.122 Our comments: Despite the considerable differences between these various proposals concerning representation of lorry owner-drivers there was also a good deal of common ground. Thus it was agreed that provision should be made for associations with lorry owner-driver members to have rights to represent owner-driver members in at least some proceedings under the Act. It was also agreed that a right to seek the status of an association representing owner-driver members should be available to associations of employees and to associations of employers and to associations of owner-drivers. But there was a difference as to how this status can be achieved. ……………………….. 30.123 Except in two respects it was agreed that, in considering applications, the industrial authority should have regard, amongst other things, to the question whether a previously registered association has adequately protected the interests of owner-drivers of the class concerned. ………………………… Conclusions 30.124 It follows from our recommendation favouring industrial regulation that provision must be made for the industrial representation of the owner-drivers to be covered by the proposed legislation which we have suggested should be embodied in a new Part of the Industrial Arbitration Act. It is essential to industrial arbitration that such representation basically should be through appropriate associations and no party in this Inquiry suggested otherwise… At the outset we emphasize that we are dealing only with owner-drivers to be covered by the legislation and with their representation for its purposes. ………………………….. 30.155 We therefore recommend that:- (a) "Associations" meaning (as stated in cl.1 of the proposal of counsel assisting the Commission) (i) an industrial union of employees or (ii) an industrial union of employers or (iii) an association or body the objects of which include the furthering or protection of the interests of owner-drivers should be given rights to apply for registration to represent owner-drivers to whom the Part applies;
One of the central themes of the Beattie Report was that the representation of owner-drivers and principal contractors, within the regulatory framework which was recommended to be established, would be through representative associations. These associations would be registered under the proposed mechanism for registration, which would be analogous to the existing regime for the registration, and consequential rights to participate as parties in the processes of conciliation and arbitration, of registered industrial organisations of employees and employers.
In 1979 the Industrial Arbitration Act 1940 ('1940 Act') was amended to implement the recommendations of the Beattie Report. So much was made clear by the relevant minister in the second reading of the amendment bill in the Legislative Council on 19 April 1979. The minister then stated: I turn now to the schedules. Schedule 1 contains essential definitions, including association of contract carriers, association of contract drivers, and association of employing contractors. Those definitions are set out and discussed below.
Upon the passing of the amendment act, Part VIIIA - Regulated Contracts was inserted into the 1940 Act. Section 91B provided for the registration of associations of employing contractors. This was the predecessor provision of section 664 of the Industrial Relations 1991 ('1991 Act') and section 333 of the IR Act. Section 91C provided for the registration on associations of contract drivers and contract carriers. This was the predecessor provision of section 666 of the 1991 Act which was, in turn, the predecessor provision of section 335 of the IR Act.
By the same amendment act in 1979, the 1940 Act was further amended by the insertion of the following definitions in section 5: "Association of contract carriers" means an association of contract carriers registered under Part VIIIA. "Association of contract drivers" means an association of contract drivers registered under Part VIIIA. "Association of employing contractors" means an association of employing contractors registered under Part VIIIA.
In addition, section 91J of the 1940 Act provided for the establishment of tribunals which had the power to make contract determinations pursuant to sections 91L and 91N. "Tribunal" was defined in section 5 of the 1940 Act to mean "a contract regulation tribunal established under Part VIIIA". Sections 91L and 91N were the predecessor provisions of sections 680 and 682 of the 1991 Act which, in turn, were the predecessor provisions of sections 313 and 316 of the IR Act. However, the reference to a "tribunal" was replaced by the reference to the "Commission" in the 1991 Act and this continued in the IR Act.
Section 74 of the 1940 Act was also amended to provide as follows: 74 Commencement of proceedings …………………………. (3) Proceedings before a tribunal shall be commenced by - (a) reference to the tribunal by the commission or the Minister; or (b) an application made as provided by subsections (4) and (5). (4) An application under subsection (3)(b) may be made by - ………………………….. (c) an association of employing contractors, or any other association, which represents bailors or principal contractors who are, or some of whom are, parties to contracts of the class in respect of which the tribunal is established; or (d) an association of contract drivers or an association of contract carriers which represents bailees or carriers who are, or some of whom are, parties to contracts of the class for which the tribunal is established.
These provisions were replicated in section 678 of the 1991 Act and are now found in section 311 of the IR Act.
It is necessary to consider whether or not an unregistered association had standing under the amended 1940 Act to commence proceedings before a contract regulation tribunal. Clearly, no reliance could have been placed on section 74(4)(d) by an unregistered association because the terms "association of contract drivers" and "association of contract carriers" were defined in the 1940 Act to mean associations registered under Part VIIIA of that act.
Turning to section 74(4)(c), an unregistered association is not an "association of employing contractors" as defined in the act. The question then arises, can an unregistered association come within the term "or any other association, which represents bailors or principal contractors who are, or some of whom are, parties to contracts of the class in respect of which the tribunal is established"? The answer to this question must be "no". If the inclusion of this term in section 74(4)(c) had the effect of permitting an unregistered association, which represented principal contractors, to commence proceedings before a tribunal, the preceding words, "association of employing contractors", meaning a registered association, would have no work to do and would be superfluous. Further, such an outcome would be contrary to emphasis placed upon the central role that registration of associations was to have in the scheme proposed by the Beattie Report and subsequently implemented by the parliament.
The definitions set out at paragraph 19 above did not find their way into either the 1991 Act nor into the IR Act. However, there is nothing before me which would support the conclusion that the terms "association of employing contractors", "association of contract drivers" and "association of contract carriers", as those terms appeared in the 1991 Act and as those terms currently appear in the IR Act, are to be understood as including unregistered associations. Such an outcome would completely alter the industrial landscape for principal contractors and contract carriers as it existed under the 1940 Act. Further, such an outcome would render the registration provisions in Chapter 6 Part 5 of the IR Act otiose.
On the basis that the terms "association of employing contractors", "association of contract drivers" and "association of contract carriers" in the IR Act refer only to such associations as are registered, it follows that unregistered associations do not have access to the following provisions of the IR Act:

Section 322 - Agreements concerning contract conditions.
Section 332 - Compulsory conference with respect to disputes.
Part 7 of Chapter 6 - Compensation for termination of certain contracts of carriage.
Section 187 - Appeals to Full Bench from decision of Commission.
Part 1 of Chapter 5 - Principles of association.
Part 7 of Chapter 5 - Entry and inspection by officers of industrial organisations.
Chapter 7 - Enforcement Given the deliberate shutting out of unregistered associations from these provisions of the IR Act, it would be anomalous in the extreme if section 311 were, nevertheless, to be construed in a way which would permit unregistered associations to access the provisions of Chapter 6 Part 2, in particular sections 320 and 321, in the manner in which the NRTA is attempting to do so in these proceedings.

For the reasons expressed at paragraph 24 above, the term "any other association, which represents bailors or principal contractors who are, or some of whom are, parties to contracts of the class concerned", as that term appears in subsection 311(1)(c) of the IR Act, does not include unregistered associations. Properly understood, this term applies to registered associations of contract carriers which represents, in addition to contract carriers, bailors or principal contractors who are, or some of whom are, parties to contracts of the class concerned.
For the reasons set out above, the submissions of NRTA to the effect the term "association" where it appears in section 311 of the IR Act encompasses unregistered, as well as registered, associations must be rejected. It follows the NRTA does not have standing to make an application under sections 320 or 321 of the IR Act. That application must be dismissed.

Project Blue Sky v Australian Broadcasting Authority

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Cases Cited (18)