Shop, Distributive & Allied Employees' Association v Secretary, NSW Treasury

The relevant facts

1. On 30 September 1987 the then Minister for Industrial Relations made an order under s 89B of the 1962 Act that exempted shops in the Shire of Bega from certain trading restrictions in Division 3 of Part 4 of the 1962 Act on public holidays (the Exemption Order).
2. It was common ground that the Exemption Order remained in force until 30 June 2008. It was also common ground that the effect of the Original 2008 Act, which commenced on 1 July 2008, was to deem the Exemption Order to be an exemption under s 10 of the Original 2008 Act (the Deemed Exemption).
3. On 23 March 2016, the defendant made a decision under cl 2(3) of Part 2 of Sch 2 of the Consolidated Act to amend the Deemed Exemption to enable the shops subject to the exemption to trade between Good Friday and Easter Sunday (inclusive), when those public holidays fall outside the public school holiday period (the Amendment Decision).

The proceedings in the Civil and Administrative Tribunal

1. The plaintiffs challenged the Amendment Decision in the Civil and Administrative Tribunal on the basis that, by the time it was made, 23 March 2016, the Deemed Exemption had expired and that, accordingly, there was no valid exemption which it could amend. The plaintiffs argued that the Deemed Exemption had expired because the effect of the 2009 Amendment Act was to place a limit of three years on all exemptions and that, as the Amendment Decision was made more than three years after the commencement of the Amendment Act, it was no longer extant when the Amendment Decision was made.
2. The Tribunal rejected the plaintiffs' application. The plaintiffs then appealed to the Appeal Panel, which dismissed the appeal.
3. The question whether the Deemed Exemption had expired before 23 March 2016 is a question to be determined by reference to the legislation referred to above, the relevant provisions of which are summarised below.

Restrictions on trading

1. Part 4 of the 1962 Act, entitled "Restriction of hours of trade or work in certain industries", contained Division 3, which was entitled "Opening and closing hours of shops and warehouses". Section 84 of the 1962 Act, which regulated trading hours of shops on Sundays, provided that shops (with some exceptions) were to be kept closed on Sundays, except for the two Sundays immediately preceding Christmas Day: s 84(1). Section 85 of the 1962 Act, which regulated trading on public holidays, provided that general shops (other than small shops) were required to be kept closed on public holidays: s 85(1).

Exemptions on the application of a shopkeeper

1. Section 78A of the 1962 Act provided for exemptions from provisions of Division 3. It relevantly provided that a shopkeeper could apply to the Director-General for exemption from all or any of the provisions of the Division: s 78A(1). Such an exemption could be granted subject to conditions, or unconditionally; to take effect from the date of grant or at a later date; and for a specified period, or indefinitely: s 78A(4).

Exemption of holiday resorts

1. Section 89B(1) of the 1962 Act provided that the Minister may, on application, by order exempt an area within a holiday resort from the provisions of Division 3. Such applications were only to be made by the council of the area: s 89B(2). Section 89B(4) provided that an order was required to be published in the Gazette and would, until revoked or varied, remain in force from year to year in respect of the period of exemption specified in the order.

Rights to review by Administrative Decisions Tribunal

1. Under s 78AA of the 1962 Act a shopkeeper or occupier of a shop who was aggrieved by certain decisions had a right to review of the decision by the Administrative Decisions Tribunal (the predecessor to the Civil and Administrative Tribunal).

The Original 2008 Act

1. The Original 2008 Act, which commenced on 30 June 2008, repealed the 1962 Act: s 24. It defined "restricted trading day" as meaning "Good Friday, Easter Sunday, Anzac Day (but only before 1pm), Christmas Day or Boxing Day". This is to be contrasted with the 1962 Act which regulated trading on "public holidays", which was a larger category than that encompassed by the definition of "restricted trading day".
2. Section 4 of the Original 2008 Act required shops to be closed on restricted trading days, "subject to any exemption of a shop from the requirements of this Act under Part 3". Part 3 provided for exemptions, of which those in Division 2 could be granted by the Director-General. Section 10 of the Original 2008 Act relevantly provided: "10 Director-General may exempt shops from trading restrictions (1) The Director-General may, by order published in the Gazette, on application by any person or at the Director-General's discretion, exempt a shop from a requirement under this Act to be kept closed. (2) An exemption may: (a) apply in respect of one or more specified restricted trading days, or all restricted trading days, or (b) apply in respect of specified times on a restricted trading day, or (c) apply in respect of a specified shop or shops, or (d) apply in respect of a specified area or areas, or (e) be for a specified period or be indefinite. . . . (4) An exemption may be subject to conditions."
3. Section 12 of the Original 2008 Act provides that any person aggrieved by certain decisions could apply to the Administrative Decisions Tribunal for review of the decision.
4. Section 13 of the Original 2008 Act provided that any exemption granted by the Director-General under Part 3 was subject to the condition that staff could not be forced to work on a restricted trading day.
5. Schedule 2 of the Original 2008 Act made provision for exemptions which had been the subject of orders under the 1962 Act as follows: "2 Exemptions under Shops and Industries Act 1962 (1) This clause applies to a shop: (a) for which an exemption (an existing exemption) was in force, immediately before the repeal of the Shops and Industries Act 1962, that permitted the shop to be kept open on a restricted trading day, and (b) that is not exempt from the requirement under this Act to be kept closed on a restricted trading day. (2) A shop to which this clause applies is taken to be exempted by the Director-General under section 10, subject to any conditions applicable to the existing exemption, from the requirement to be kept closed on any restricted trading day to which the existing exemption applied. (3) The Director-General may amend or revoke an exemption referred to in subclause (2)."

The 2009 Amendment Act

1. The Original 2008 Act was amended by the 2009 Amendment Act, which commenced on 1 October 2009.

Schedule 1 to the 2009 Amendment Act: Amendment of the Original 2008 Act

1. Schedule 1 to the 2009 Amendment Act set out the amendments to the Original 2008 Act. Clause 3 of Sch 1 repealed ss 10 and 11 of the Original 2008 Act and inserted new sections, ss 10 and 11. It also inserted additional sections, ss 11A, 11B and 11C. The new and additional sections were, relevantly, as follows: "10 Director-General may exempt shops from trading restrictions (1) The Director-General may by order, on application by the occupier of a shop, exempt the shop from a requirement under this Act to be kept closed. (2) The Director-General must not grant an exemption for a shop unless the Director-General is satisfied that it is in the exceptional circumstances of the case in the public interest to do so, having regard to the following matters: . . . (3) An application for an exemption under this Division may not be made in respect of a shop that is not in existence when the application is made. . . . (5) An exemption has effect for the period, not exceeding 3 years, specified by the Director-General in the order. (6) The period of the exemption may not be extended by an amendment to the order. (7) An exemption may be subject to conditions." . . . 11C Application of Division to applications for amendment or revocation of exemption orders (1) An occupier of a shop that is subject to an exemption under this Division may apply for the amendment or revocation of the exemption order. (2) This Division applies to any such application in the same way as it applies to an application for an exemption."
2. It will be observed that the new s 10 no longer provided for an exemption to be granted for an area, but rather, exemptions were to be granted in respect of a particular shop and only in "exceptional circumstances". Further, applications could no longer be made by "any person" (as under s 10 of the Original 2008 Act). In addition, exemptions under the new s 10 could be granted for no longer than 3 years, which could not be extended by amendment to the order and required a fresh application and a further order after that period had elapsed.
3. Section 12 was amended by the 2009 Amendment Act to confer a right to review by the Administrative Decisions Tribunal on "any other person who considers himself or herself to have a sufficient interest in an application for an exemption under [Division 2]".
4. Clause 10 of Sch 1 to the 2009 Amendment Act provided for the following to be inserted after cl 2(3) in Sch 2 in the Original 2008 Act: "(4) Without limiting subclause (2): (a) section 13 applies to an exemption referred to in that subclause, and (b) the occupier of a shop that is subject to an existing exemption may apply under Part 3 of this Act for an order amending the exemption."
5. Clause 11 of Sch 1 to the 2009 Amendment Act provided for the following to be inserted after Part 2 of Sch 2 to the Original Act: "Part 3 Provisions consequent on enactment of Shop Trading Amendment Act 2009 . . . 7 Existing applications (1) This clause applies to an application for an exemption under section 10 made, but not finally determined, before the commencement of the 2009 amending Act. (2) Sections 10, 11 (2) and (3) and 11A-11C, as inserted by that Act, extend to any such application. 8 Existing exemptions (1) The amendments made by the 2009 amending Act do not affect the operation of an exemption granted after the commencement of this Act under Division 2 of Part 3 of this Act, and in force immediately before the commencement of the 2009 amending Act (an existing Departmental exemption). (2) An existing Departmental exemption is taken to have been made, and may be revoked or amended, under Division 2 of Part 3 of this Act as amended by the 2009 amending Act. (3) To avoid doubt, an existing Departmental exemption that applies in respect of a specified area or areas continues in force and may be so revoked or amended. (4) An existing Departmental exemption ceases to have effect 3 years after the commencement of the 2009 amending Act, or on the date on which it would otherwise cease to have effect, whichever occurs first."
6. The Original 2008 Act was subsequently amended to substitute "Secretary" for "Director-General", wherever it appeared in the Act.

The Consolidated Act

1. The only amendments to the Original Act which are of present relevance which were not contained in the 2009 Amendment Act are the addition of s 12(4) and (5) by cl 10 of Sch 1 of the Shop Trading Amendment Act 2010 (NSW) (the 2010 Amendment Act). The new sub-sections provide as follows: "(4) A representative of an industrial organisation of which persons employed or engaged in shops are entitled or eligible to become members may apply to the Administrative Decisions Tribunal for a review of any of the following decisions: (a) a determination of the Director-General to grant or to amend an exemption, (b) a determination of the Director-General as to the conditions subject to which, or the period for which, an exemption is granted. (5) In this section: industrial organisation means: (a) an industrial organisation of employees within the meaning of the Industrial Relations Act 1996, or (b) an association of employees registered as an organisation under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth."
2. This amendment is relevant solely to ground 6.
3. The Explanatory Note for the Shop Trading Amendment Bill 2010 (NSW), which became the 2010 Amendment Act, said relevantly: "Schedule 1 [10] amends section 12 of the Principal Act to allow certain industrial organisations of employees to apply to the Administrative Decisions Tribunal for reviews of certain decisions of the Director-General of the Department of Services, Technology and Administration (the Director-General) relating to exemptions under the Principal Act, including decisions to grant exemptions."

The plaintiffs' submissions

1. The plaintiffs' submissions can be shortly summarised. Mr Rogers submitted that the terms of the new s 10 inserted by the 2009 Amendment Act were highly significant. He accepted that the Deemed Exemption did not fall within the definition of "existing Departmental exemption" in cl 8 of Part 3 of Sch 2, which was added to the Consolidated Act by the 2009 Amendment Act. However, he submitted that the Deemed Exemption was taken to be subject to s 10, because of the deeming provision in the Original 2008 Act and therefore it was affected by the amendments to s 10 made by the 2009 Amendment Act, including the provision that the exemption had effect for a period not exceeding 3 years. He contended, on this basis, that, even assuming the Deemed Exemption had not commenced until 1 October 2009 (being the commencement date of the 2009 Amendment Act), it would have well and truly expired by the time the Amendment Decision was made on 23 March 2016. Accordingly, Mr Rogers argued that the Deemed Exemption was no longer operable as it had expired and the Amendment Decision was invalid as there was nothing to which it could apply by way of amendment.
2. Mr Rogers also submitted that, as a matter of construction, the Deemed Exemption could not apply to all shops in the area, but rather only to those which were built before 1 July 2008. This argument formed the basis of grounds 4 and 5, which were not pressed. Mr Rogers also relied on the argument in support of his submission that the Original 2008 Act effected a substantial shift in the legislative scheme, which meant that exemptions did not apply to shops in an area generally but only to existing shops in the area.

The Exemption Order, the Deemed Exemption and the Amendment Decision in the context of the legislative scheme

1. In order to address the parties' submissions, it is necessary to analyse the relevant instruments in the context of the legislation.
2. The Exemption Order was not expressed to have a time limit. As such it remained in force from year to year: s 89B(4) of the 1962 Act. The Exemption Order permitted shops within the specified area to be kept open on certain days (public holidays) which included restricted trading days. The Original 2008 Act did not exempt such shops from the requirement to be closed on a restricted trading day. Accordingly, cl 2(1) of Sch 2 of the Original 2008 Act made applicable cll 2(2) and (3) to the Exemption Order, which was included within the expression "an existing exemption".
3. Thus, when the Original 2008 Act was passed, cl 2 of Sch 2 applied to deem shops in the specified area to be exempted by the Director-General under s 10, subject to any conditions applicable to the existing exemption (that is, the Exemption Order), from the requirement to be kept closed on any restricted trading day to which the existing exemption applied. The deeming provision created a new type of exemption, being an existing (pre-30 June 2008) exemption which would be subject to the provisions of the Original 2008 Act. This new type of exemption, defined above as including the Deemed Exemption, could be varied or revoked by the Director-General: cl 2(3), Sch 2 of the Original 2008 Act.
4. The effect of the Original 2008 Act was that there were two types of exemptions: "existing exemptions", such as the Deemed Exemption, which were created by cl 2(2) of Sch 2; and new exemptions granted pursuant to s 10 on or after 30 June 2008.
5. Section 10 of the Original 2008 Act provided the machinery for the creation of the new exemptions. No such machinery was required for the "existing exemptions" which had, by definition, already been created before 30 June 2008. Thus, the provisions of s 10 themselves had no application to the existing exemptions, although the other provisions in Division 2 of Part 3 did apply to them, just as they applied to exemptions granted pursuant to s 10.
6. When the 2009 Amendment Act commenced, the legislature added another category of exemptions to the two considered above: those created pursuant to the (new) s 10 on or after 1 October 2009, being the commencement date of the 2009 Amendment Act. It was thus necessary for Parliament to make provision, in the 2009 Amendment Act, for the following three types of exemptions: 1. The "existing exemptions" which were created as a result of cl 2(2) of Sch 2 of the Original 2008 Act (including the Deemed Exemption) from exemptions which had been granted under the 1962 Act; 2. The exemptions which had been granted by order of the Director-General under s 10 of the Original 2008 Act (from 30 June 2008 until 30 September 2009), which were defined in the 2009 Amendment Act as "existing Departmental exemptions"; 3. Any exemptions (from 1 October 2009) granted under s 10 of the Consolidated Act.
7. Category (1) was the subject of express provision in cl 10 of Sch 1 to the 2009 Amendment Act (as set out above). It confirmed that s 13 applied to an exemption in cl 2(2) of Sch 2 to the Consolidated Act and conferred a power on an owner of a shop that was subject to an existing (Category (1)) exemption to apply for an order amending the exemption.
8. Category (2) was the subject of express provision in cl 8 of Part 3 of Sch 2 to the Consolidated Act. Of present importance, it provided, in cl 8(4), that an "existing Departmental exemption" ceases to have effect 3 years after the commencement of the 2009 amending Act, or on the date on which it would otherwise cease to have effect, whichever first occurs. Thus, a time limit was imposed on category (2) exemptions, which was not imposed on category (1) exemptions.
9. Category (3) was the subject of express provision in the new sections 10, 11, 11A, 11B and 11C. Category (3) exemptions were limited to a period of 3 years: s 10(3) of the Consolidated Act.
10. It can be seen from the analysis above that Parliament expressly provided for three categories of exemptions, the characterisation of each of which was determined by the time the exemption was created.
11. I consider the flaw in the plaintiffs' argument to be that it elides the distinction between categories (1) and (2). The effect of the plaintiffs' submissions is that, once the Deemed Exception was created on 30 June 2008 by the operation of cl 2(2) of Sch 2 of the Original 2008 Act, it was governed by the machinery provisions of s 10 of the Original 2008 Act and could therefore be affected by an amendment (such as the one made by the 2009 Amendment Act) to s 10. I do not accept this analysis. For the reasons given above, I consider that the effect of cl 2(2) of Sch 2 of the Original 2008 Act was to put the exemptions granted under the 1962 Act (including the Deemed Exemption) in the same position as exemptions granted under s 10 of the Original 2008 Act, in so far as the other provisions of the Part were concerned. What cl 2(2) of Sch 2 of the Original 2008 Act did not do was to make the provisions of s 10 themselves applicable to such exemptions.
12. Because I regard the legislative intention as clear, it is not necessary to have resort to the principles against retrospectivity in s 30(1)(c) of the Interpretation Act 1987 (NSW), which apply subject to contrary intention: s 5(2) of the Interpretation Act.

The "existing shops" question

1. While I accept, in accordance with fundamental principles of statutory construction, that an Act must be read as a whole, I am not persuaded of the relevance of the submission about existing shops to the questions that arise with respect to grounds 1, 2 and 3 on this appeal. I accept the submission made by Ms Richardson SC, who appeared with Mr Strickland for the defendant, that it is not appropriate that this Court express a view, in an appeal pursuant to s 83 of the CAT Act, about a question that did not arise before the Appeal Panel and which does not arise in the determination of the appeal in this Court.

Conclusion on grounds 1, 2 and 3

1. For these reasons, the Appeal Panel was correct to dismiss the plaintiffs' appeal. The appeal against the Panel Decision ought be dismissed.

Ground 6

1. Mr Rogers contended that s 12(4) of the Consolidated Act ought be construed to entitle an industrial organisation, such as the first plaintiff, to apply to the Civil and Administrative Tribunal for review in its own name and not through a representative. The Appeal Panel decided that this was not within s 12(4) of the Consolidated Act, which conferred the right on a "representative" of such an organisation. I am satisfied that this amounts to a decision within the meaning of s 83(1) of the CAT Act.
2. As the Explanatory Note does not reveal why Parliament chose to use the formulation of "representative of an industrial organisation", rather than "industrial organisation", the ascertainment of legislative intention is largely speculative. One possibility is that Parliament intended that members of a particular industrial organisation be able to appoint a representative to apply to the Civil Administrative Tribunal in circumstances where the industrial organisation as a whole did not have a particular interest in such an application. This situation could occur if, for example, the members of the Shop, Distributive & Allied Employees' Association located in the Bega area wanted to challenge the Amendment Decision. Another possibility would be to allow for circumstances where an industrial organisation did not have legal personality or where there was some doubt as to who had standing to speak on its behalf.
3. While it is a fundamental principle of statutory construction that statutes be construed in accordance with their purpose, the absence of identifiable purpose in the use of particular words does not permit a court to refrain from giving effect to the statute in accordance with its terms. The plain meaning of s 12(4) is that it is a representative of an industrial organisation who has the right to apply for review and not the industrial organisation itself. In these circumstances, the decision of the Appeal Panel to uphold the decision of the Senior Member to remove the Shop, Distributive & Allied Employees' Association as a party was plainly correct.

Costs

1. There would not appear to be any reason why costs ought not follow the event in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. However, as I have not heard the parties on costs, I will make provision for an application for a different order to be made in writing to my Associate.

Orders

1. For the reasons given above, I make the following orders: 1. Grant leave to the plaintiff to appeal in respect of grounds 1, 2, 3 and 6 of the summons. 2. Dismiss the appeal. 3. Subject to order (4) below, order the plaintiffs to pay the defendant's costs of the proceedings. 4. If either party seeks a different order from order (3) above, direct that party to make an application in writing to my Associate within seven days hereof, supported by submissions and any evidence in support of the application and direct that the other party have a further seven days to respond, with the intention that any such application be determined on the papers.

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