WorkCover Authority of NSW (Inspector Keenan) v Lucon

For the reasons we have given we consider that view, although expressly stated to be tentative, was correct. 112 Before concluding, we should refer to one other feature of the defendants' submissions. The defendants sought generally, as to many of the elements of their arguments as to construction, to rely on and to emphasise the particular approach which courts have traditionally taken to the construction to penal statutes or penal provisions, in effect, to ground the contention that because of the nature of the proceedings any doubt as to the construction of relevant provisions should be resolved in their favour. 113 The general approach to be adopted in construing provisions of the kind which now require consideration was dealt with in the judgment of the Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 629 - 630, where it was said: [41] We consider that the appellant's reliance upon the line of cases in relation to the construction of penal statutes exemplified by the judgments in Beckwith v The Queen and Waugh v Kippen is misplaced. For example, in Waugh v Kippen it was stated, at 164: The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen (1976) 135 CLR 569, at p 576 as follows: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams (1935) 53 CLR 563, at pp 567 - 568; Craies on Statute Law , 7th ed. (1971), pp 529 - 534. The rule is perhaps one of last resort". The reference to the rule being one perhaps of last resort requires, because of certain submissions in this matter, some explanation. It means, generally speaking, that the rule only applies to require that an ambiguity as to the meaning of the provision be resolved in favour of an accused if the ambiguity is one which persists after the ordinary rules of construction have "run out". See, for example, Barker v The Queen at 355 and Chew v The Queen at 632. In the latter case, the court spoke of a situation where "all other indicia [have] failed". That is not the case here. However, there is a more fundamental difficulty with the appellant's arguments relying upon this principle of construction. As the above statements from Waugh v Kippen and Beckwith v The Queen illustrate, the principle applies where a court is construing a statute creating an offence so that the court will construe such a statute in favour of the subject by refusing to extend the operation of the statute creating the offence where the statute is ambiguous. That is not the issue in this case. The provision which creates the relevant offence is s 15 of the Act. Section 51A is clear on its face that it does not create any offence. Rather, it deals with the penalties available in relation to offences created by other sections of the Act, such as s 15, s 16 , s 17 and s 18. 114 We consider that passage represents the approach which should be adopted in the present reference although we would also add reference to the similar approach taken by Debelle J of the Court of Criminal Appeal of South Australia in Director of Public Prosecutions (Cth) v WJB (2000) 117 A Crim R 64 at 67 - 68 where his Honour said: [15] [Senior counsel] for the respondent sought to avoid this conclusion by calling in aid the principle of statutory interpretation which requires strict construction of a penal statute or of a statute which affects the personal liberty of the subject: see, for example, Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139. But that principle only applies in the case of ambiguity or doubt. As Walsh J said in Watson v Marshall (1971) 124 CLR 621 at 629, when noting that one must have regard to the warning in McLaughlin v Fosbery (1904) 1 CLR 546 at 559: "[I]n the interpretation of a Statute affecting personal liberty, supposition as to the intention of the legislature has no place. The function of the Court is limited to interpreting and giving effect to its will as expressed in the Statute."