His Honour then set out principles expressed by Lord Sterndale MR in Inland Revenue Commissioners v Gittus [1920] 1 KB 563 at 576 to the following effect:
"If the Act says that the schedule is to be used for a certain purpose and the heading of the part of the schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the schedule as though the schedule were operating for that purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the schedule or by the purpose mentioned in the Act for which the schedule is prima facie to be used."
90 In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 601, the High Court considered the effect of the heading "Consumer Protection" in the Trade Practices Act 1974 (Cth), noting that the heading was a part of the Act. As explained by Mason CJ, Deane, Dawson and Gaudron JJ:
"The general heading 'Consumer Protection' at the commencement of Pt V is part of the Act ( Acts Interpretation Act 1901 (Cth), s.13). It constitutes part of the context within which the substantive provisions of Pt V must be construed and should be taken into consideration in determining the meaning of those provisions in case of ambiguity. The heading does not, however, control the permissible scope of the substantive provisions of Pt V and cannot properly be used to impose an unnaturally constricted meaning upon the words of those substantive provisions (see Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 225; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 202)."
91 That principle was applied by Allsop J in Toben v Jones (2003) 129 FCR 515, in relation to a prohibition in the Racial Discrimination Act 1975 (Cth) with respect to acts done in public which are reasonably likely to offend, insult, humiliate or intimidate another person on the ground of race: s 18C(1). The issue was whether that offence was constrained by the heading to Part IIA of the Act in which they appeared, namely "Prohibition of offensive behaviour based on racial hatred". His Honour held at [137] that, whilst the heading to the Part was part of the Act, "and as such can give assistance to understanding the context and so the scope of a provision, a heading will generally not control words of provisions that are clear and unambiguous …". After reference to authority, including the cases referred to in the previous paragraph, his Honour continued:
"In this context, the function of the heading as a brief guide to the provisions within the power should be borne in mind … . Here, 'racial hatred' was a phrase recognised in the Convention as one form of racial discrimination. It had come, over time, to be a convenient short-hand, along with such phrases as 'racial vilification', to encapsulate the subject matter of provisions the subject of public debate in Australia in the 1970s, 1980s and 1990s …."
92 Applying these principles in the present case, the headings to Schedule 1 and Part 9 are not to be given an effect which would deny the words of clause 26 such operation as they clearly and unambiguously have. On the other hand, attention can be paid to the headings for the purpose of identifying the statutory context of clause 26, so as not to give its language an operation which extends beyond the clear purpose expressed in the headings, in the absence of unambiguous terminology.
93 The amendments to the Civil Liability Act, which were contained in Schedule 1 of the 2006 Amendment Act, at clause 1.5, were followed by an explanatory note. That note forms part of the extrinsic material which may be used to determine the meaning of a provision if the provision is "ambiguous or obscure": Interpretation Act, s 34(1)(b)(i) and (2)(e). The explanatory note in relation to clause 26 contains three paragraphs. The first identifies s 26A of the Civil Liability Act as it stood prior to the proposed amendment; the second paragraph identified the proposed amendment and the third paragraph read as follows:
"The proposed clauses extend to civil liability arising, and any award of damages in respect of such civil liability made, before the commencement of the clauses. However, those proposed clauses will not affect any final determination of legal proceedings made by a court or tribunal before the commencement of those clauses."
94 As will be seen below, the Appellant's contention as to the operation of clause 26, disregarding the problems already addressed, requires that the Court give a construction to sub-clause (4) which is inconstant with the headings to the Schedule and Part 9 and which is inconsistent with the explanatory note. The final source of assistance, namely the Second Reading Speech in relation to the 2006 Amendment Act, identifies the Respondent's case as being within the subject matter of the proposed amendment, and says that it will be necessary for this Court to take the amendment into account in determining this appeal: Hansard, NSW Legislative Assembly, 27 October 2006, p 3663. So much may be conceded: it provides no guidance as to how the appeal should be determined on this point. It follows that, unless sub-clause (4) can be given a clear meaning to the contrary, it should not be construed so as to interfere with an order of a court which finally disposes of the rights of the Respondent and the State in relation to an award of damages.
95 It is clear that the extended definition of "offender in custody" or "offender" will incorporate persons in the position of the Respondent, who are convicted before the commencement of the 1999 Act. Subclause (2) provides that the clause extends to an award of damages made before the commencement of the clause. As the variation of the definition in s 26A(1) means that the whole of Part 2A, including the divisions relating to the assessment of damages, must apply in relation to damages awarded before the clause commenced, that operation must be read down at least to avoid the need for such damages to be reassessed. That effect can only be achieved if, as must be the case, the statement in subclause (3) that the clause "does not affect" any "final determination" of legal proceedings made before the commencement of the clause, is understood to apply to a damages claim brought by an offender in relation to an injury received whilst he or she was "an offender in custody". However, the result of that construction is that the whole of Part 2A is inapplicable to the determination made in such proceedings because there is no distinction between those divisions of Part 2A which relate to the assessment of damages and Division 6, in relation to a "victim trust fund".
96 Subclause (4) treats the various provisions in the clause as internally consistent, each with the other, as appears from the use of the words "this clause" as having application in the prescribed circumstances. Thus, it provides that the clause applies "to" legal proceedings "that relate to the application of Division 6 of Part 2A to an award of damages". In other words, the extension to the definition of "offender in custody" and "offender" will affect the whole of Part 2A, but only if there has been no final determination of the relevant legal proceedings before the commencement of the clause on 29 November 2006. However, the extended definition may apply to proceedings that relate to the application of Division 6, even if the proceedings in which damages were awarded have already been finally determined. (The last proviso tends to confirm that sub-clause (3) applies to the damages claim.)
97 The Appellant would give this language a broad operation, so that Division 6 would apply to damages awards determined prior to the commencement of the new provision, where some other legal proceedings were on foot relating to the application of Division 6, which had not been finally determined. Thus the trigger for the engagement of Division 6 in the present circumstances was the commencement by the Respondent of legal proceedings seeking a declaration that the Division did not apply. Absent the current proceedings, the Respondent would be entitled to his damages; but because the State had refused to pay him, when, on the present hypothesis and findings set out above, it lawfully should have paid him, he was forced to institute proceedings. It was the institution of the proceedings which gave rise to the result the State sought to achieve.
98 A law which purports to define "rights", by conferring on any public servant with authority to commence proceedings the power thereby to change the law, may not itself be a "law". In effect, it delegates the power to change legal rights to undesignated public servants who can by the very commencement of proceedings engage the provision which deprives a person of his or her property. Furthermore, that somewhat extraordinary effect is achieved by a provision which does not purport to interfere with subclause (3), which provides that "the clause" does not "affect" any final determination of legal proceedings. Needless to say, if the clause in fact transformed a court judgment requiring the State to pay the Respondent money, unconditionally, into an obligation requiring the State to withhold money so awarded, subject to the operation of Division 6, it clearly "affected" the judgment.
99 There is, however, a different understanding which would give subclause (4) a less radical operation. As noted above, Part 7 gave Part 2A a more extended operation, for the purpose of applying Division 6. As has already been noted, it was not the purpose of Part 7 simply to sidestep the provisions of Part 2A, other than those affected by the changes it introduced. Similarly, the apparent purpose of clause 26 is to extend the operation of Division 6, by reference to the change in the definitions identified in subclause (1). To the extent that it has that effect, full authority may need to be given to its operation. However, as already noted, that effect will not engage Division 6 in relation to the award of damages made to the Respondent, the subject of the present proceedings, because they do not become "offender damages" merely because the Respondent now fits the definition of an "offender in custody".
100 If this conclusion were also wrong, it would be necessary to consider whether the proceedings relating to the application of Division 6 of Part 2A, involving the Respondent and the State, were finally determined by the judgment of the primary judge, or whether they are not finally determined until a determination of the present appeal.
101 My tentative view is that the proceedings which were heard by Sully J were not "finally determined" by his Honour's judgment. Each party had a right of appeal from that judgment, which the Appellant exercised in a timely manner. Other circumstances may give rise to different conclusions, but where it remains open to this Court to make a declaration in the form sought by the Respondent in his original summons, it is difficult to say that the proceedings commenced by the summons have been finally determined. Alternatively, this appeal was commenced before the commencement of the 2006 Amendment Act, and the issue arises in this Court in a proceeding which is not, until this judgment is delivered, "finally determined". The position might have been different if an appeal could have been brought only by leave, or in relation to an application for special leave to appeal from a decision of this Court. It is not necessary to entertain these considerations.