ADCO Constructions Pty Ltd v Goudappel and Anor

[2014] HCATrans 67

[2014] HCATrans 067

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S201 of 2013

B e t w e e n -

ADCO CONSTRUCTIONS PTY LTD ABN 001 044 391

Appellant

and

RONALD GOUDAPPEL

First Respondent

WORKCOVER AUTHORITY OF NSW

Second Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 APRIL 2014, AT 10.17 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR S.L.C. FLETT and MR W.A.D. EDWARDS, for the appellant.  (instructed by Moray & Agnew Solicitors)

MR J.B. SIMPKINS, SC:   If your Honours please, I appear with MR E.G. ROMANIUK, SC and MR L.G. MORGAN, for the first respondent.  (instructed by Leitch Hasson Dent Solicitors)

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MR S.J. FREE,  for the second respondent in support of the appeal.  (instructed by Workcover Authority of NSW)

FRENCH CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours will have our outline of submissions.

FRENCH CJ:   Thank you.  Yes, Mr Jackson.

MR JACKSON: Your Honours, this is a case where there is some complication in the series of legislative events, if I could call them that, which have taken place but the case turns, ultimately, on the effect to be attributed to clause 11 of Schedule 1 to the Workers Compensation Amendment (Transitional) Regulation 2012. May I indicate the way in which we would seek to approach the case? That is, first, by referring to the provisions on the operation of which we rely; secondly, by reference and challenge to the views expressed by the Court of Appeal and, thirdly, by going to the submissions relied on on behalf of the first respondent?

Could I come immediately, your Honours, to the first of those matters?  As your Honours will see from paragraph 6 of our submissions in‑chief, the first respondent, who is one of our senior employees, was injured in the course of his employment by us and that occurred on 17 April 2010.  Two days later he claimed workers compensation for lost wages and medical expenses.  Those were paid.  In July 2011, a year afterwards, of course, he underwent an examination for the purpose of an assessment of his whole person impairment resulting from the injury and the figure arrived at was six per cent.

Now, that gave him, your Honours, an entitlement to a sum of $8,250 for lump sum compensation pursuant to section 66 of the Workers Compensation Act.  May I take your Honours to that provision?  Your Honours should have a bundle entitled Appellant’s Substantive List of Legislation.  That has, your Honours, in the bottom right‑hand corner, a page number through it – page numbers throughout – and may I use those?

Your Honours, section 66 – prior to its amendment – can be seen at page 21 of the bundle.  You will see, your Honours, that as is apparent from section 66, subsection (1), there was an entitlement to permanent impairment compensation and then, as is apparent from section 66(2)(a), there could be permanent impairment compensation, even though:

the degree of permanent impairment is not greater than 10% ‑

That was the position prior to the amending legislation.  The Workers Compensation Act was then amended by the Workers CompensationLegislation Amendment Act 2012.  May I take your Honours to page 35 of the bundle?  Your Honours will see in the contents page that that contains two sections, 1 and 2, the name and commencement of the Act.  You will see those on page 37, and then the Act contained a number of schedules which were to become schedules to amend the Act in various respects.

There are two schedules that are germane – if I could invite your Honours to note for the moment – Schedules 2 and 12. The first being Schedule 2, being amendments relating to lump sum compensation which this was and, secondly, Schedule 12, amendments relating to savings and transitional provisions.

Could I go first to Schedule 2 which your Honours will see at page 69?  Might I ask your Honours to note the heading, “Schedule 2 Amendments relating to lump sum compensation”, and then your Honours will see that by item [5] in square brackets on the same page, section 66(1) to which I first took the Court is repealed and replaced by item 66 – I am sorry, by item [6] I should have said, your Honours.  Section 66(2)(a), to which I had also taken the Court, is repealed.  Now, the effect of those provisions, as the new section 66(1) makes clear, was that the permanent impairment compensation would only now apply if the degree of permanent impairment exceeded 10 per cent.

Needless to say, the amending Act contained various sometimes called savings, sometimes called savings and transitional provisions. They are found in Schedule 12, and could I take your Honours to page 95? Your Honours will see the heading to the schedule itself. They were “Amendments relating to savings and transitional provisions”. Schedule 12 performed two presently relevant functions. The first was, as your Honours can see from page 95, it inserted a new Part 19H into Schedule 6 to the Workers Compensation Act.  The second part was that it amended Part 20 of the schedule.  I will come to that a little later.

Could I deal with the first of those matters?  The first provision of the new Part 19H which is of present relevance is clause 3 which is at page 96.  Your Honours will see that clause 3(1) provides that:

Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:

(a)an injury received before the commencement of the amendment, and

(b)a claim for compensation made before the commencement of the amendment, and ‑ ‑ ‑

FRENCH CJ:   What was the commencement of the amendment?

MR JACKSON:   27 June, your Honour.

FRENCH CJ:   June.

MR JACKSON: It is in the chronology at the end of our submissions and I think the date is 27 June, your Honour, yes, 2012. Now, your Honour, if one looks at clause 3 by itself and if it had not been for the second provision of Part 19H to which I will come, the first respondent’s claim would have fallen within clause 3(1) and it would have fallen within clause 3(1) because, as I submitted a moment ago, the commencement date for the amendments was 27 June, but Part 19H also contained clause 15 which is at page 100 of the bundle.

Now, your Honours will see that it refers to an “amendment made by Schedule 2 to the 2012 amending Act” and Schedule 2 included the amendment to section 66.  Secondly, it said that such an amendment did not apply “to a claim for compensation made [before] 19 June 2012”.

FRENCH CJ:   That is to be read as a claim for lump sum compensation because of the heading.

MR JACKSON:   Yes, your Honour.  Could I just say something about that?  Your Honour, it is clear that if it is speaking about an amendment made by Schedule 2 it includes a lump sum compensation case.

FRENCH CJ:   Yes.

MR JACKSON:   The reason for my hesitation, your Honour, was that there was a debate in the courts below about whether the claim for lump sum compensation was one made when the claim for lump sum compensation was made or whether it was actually made at the time when the first claim, for example, for weekly payments of compensation.

FRENCH CJ:   That was agreed to be covered by 260 to 263 of the Workplace Injuries Management Act, or whatever it is called, I think.

MR JACKSON:   Yes.  Your Honour, we say the Court of Appeal was right on that point ‑ ‑ ‑

CRENNAN J:   No issue about it here.

MR JACKSON:   We accept that, your Honour, yes. Now, your Honours, if I could come back then to clause 15. If there had been nothing more, then the first respondent would not have been affected by the amendment and that was because his claim had been made before 19 June 2012.

FRENCH CJ: The point is clause 15 targets lump sum compensation entitlements and, as it were, exempts them from the general retrospective application of the amendment effected by clause 3.

MR JACKSON:   Yes, your Honour, we accept that. We accept that if there were nothing more, then the first respondent’s claim would not have been, in the end, affected by the amendments but there was, however, more. Your Honours, the “more” as it were, is found in the Workers Compensation Amendment (Transitional) Regulation 2012 which is at page 152.

Now, your Honour, those regulations contained clause 11 in Schedule 1 and you will see clause 11 set out at page 156. Clause 11 was one of the provisions inserted into Schedule 8 of the Workers Compensation Regulations by those amendments. Your Honours, there are two questions that arise about clause 11. The first is, what does it purport to do and, secondly, what is the power lying behind it. May I come to the question of construction first and then come to the question of the power to enact a regulation having the effect that clause 11 purports to have?

Your Honours, if one looks at the terms of clause 11 at page 156, clause 11 has two provisions. The first is clause 11(1), which sets out at the bottom of page 156, the general proposition that:

The amendments made by Schedule 2 to the 2012 amending Act –

and your Honours, those include the amendments to section 66 –

extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 –

That would extend to a claim made by the first respondent because his claim was first made in 2010 and it did not specifically seek compensation under section 66.

Now, clause 11(2) at page 157 then went on to make it, we would submit, very clear, that clause 15 of Part 19H was to be read subject to clause 11(1). It says:

Clause 15 of Part 19H . . . is to be read subject to subclause (1).

Your Honours, if I could pause at that point? Clause 11, in our submission, clearly, sought to amend the operation of clause 15 of the Act, but clause 11 was a regulation, clause 15 was part of the statute. Without statutory authorisation, the regulation could not amend the statute. We accept that, of course. So one asks, where then was the statutory authorisation to be found, and in that regard one goes back to the Workers Compensation Act ‑ ‑ ‑

FRENCH CJ:   Just before we do, Mr Jackson, on the constructional aspect, a claim that specifically sought compensation under section 66, does that have some statutory significance?  Is that to be found in the guidelines, or is it otherwise to be found ‑ ‑ ‑

MR JACKSON:   No, your Honour.  If I can put it this way?

FRENCH CJ:   Because 66 simply asserts the entitlement, I think, does it not?

MR JACKSON:  Yes, your Honour.  The position was that there was, perhaps, a relatively commonly held view that one had to apply for section 66 compensation.  No doubt, insufficient attention, as the Court of Appeal said, had been directed to the parts of the Act that said, you made, in effect, one claim for compensation and it covered everything.  So that meant – I am sorry, your Honour, I was going to say that whilst there were provisions in the guideline dealing with what one had to go through, in effect, to get lump sum compensation, there is not a statutory basis for saying there had to be a separate application.  What the regulation was dealing with is a claim that, as part of the claim, sought compensation under section 66.

FRENCH CJ:   So the agreement, as it were, or the common ground, before us that the original claim for compensation would have encompassed the lump sum entitlement does not bring that claim within the meaning of a claim that specifically sought compensation under section 66, there would have to be some express advertence to it?

MR JACKSON:   Yes.  It is not a case that falls within the words of 11(1) but not to a claim.

FRENCH CJ:   Yes.

MR JACKSON: So the result was that the amendments made by Schedule 2 did extend to the claim and you then see this clause 11(2) dealing with the operation of clause 15, the provision that otherwise would have applied. So, your Honours, it is a clear conflict between the provisions and the question then is where is the statutory authorisation. Your Honours, may I go to the various provisions dealing with regulation‑making powers under the Act?

FRENCH CJ:   So this is where we get into Part 20 and Part 19H?

MR JACKSON:   Yes, your Honour, but I should also refer to section 280, the general regulation‑making power.  There was a regulation‑making power in section 280.  One can see it at page 30 and, your Honours, it is in relatively standard terms, including in the opening words of 280 the phrase “not inconsistent with this Act”.  Your Honours will also see that in section 282 on page 31 it said “Schedule 6 has effect”.

Now, Schedule 6 contained as Part 20 an elaboration, if I could use that word, of the regulation‑making power and your Honours will see that in I should say two places.  One is page 32 and one is page 133.  Page 32 is before the amendment, 133 is after the amendment.  The relevance of the amendment, your Honours, was that it added – you will see at page 134 on the fourth line on the page it added the words “any other Act that amends this Act” to Part 20.

Perhaps I could stay with page 133, your Honours.  One of the amendments that was made was the addition of the words at the end of Part 20, clause 1(1), the words “any other Act that amends this Act”.  Your Honours, there are several features of Part 20 to be noted.  First, your Honours will see that the regulations referred to in clause 1(1) are regulations containing provisions of a saving or transitional nature consequent upon the enactment of the listed enactments which include “any other Act that amends this Act”.

Now, if one returns to clause 1(1) itself, your Honours will see that clause 1(2) provided that regulations might take effect from the date of assent to the relevant Act or from a later date. Your Honours, that meant that the regulations could not go back before the date of assent to the relevant Act. But that restriction was taken away by clause 5(1) of Part 19H of Schedule 6 which was introduced by Schedule 12 to the amending Act, and you will see that at page 96.

Now, your Honours will see at the bottom of page 96 there is clause 5(1).  It speaks of there being regulations under Part 20 that contain provisions of a saving of a transitional nature consequent on the enactment of the 2012 amending Act.  It provides specifically that if such regulations so provide they may take effect from a date that is earlier than the date of assent to the 2012 amending Act.  Your Honours, that takes away, in our submission, the restriction which was otherwise provided for by clause 1(2) of Part 20.

CRENNAN J:   Is the restriction about taking effect derived from anything in the interpretation of legislation provisions?  It just rings a vague bell that is all.

MR JACKSON:   Yes.  Well, your Honour, in the ordinary course, regulations take effect from a date specified (a) in the regulation, if not specified in the regulation then I think it is the date of publication in the Gazette – I will get your Honour the provision, if I may – but what your Honour will see is that this and the other provisions are dealing with Part 20 and your Honour will see that clause 5(1) is dealing specifically with regulations under Part 20.  Your Honour, that seems specifically directed to the provisions of clause 1(2) of Part 20 which otherwise provided that the regulations might take effect from the earlier – sorry, that the earliest date on which regulations might take effect was the date of assent to the relevant Act.

FRENCH CJ: What difference does that make in this case? The question really is whether the regulation, clause 11, displaces an accrued entitlement.

MR JACKSON: Yes, your Honour. Well, we would say that the terms of clause 11 make it clear that they are intended to backdate the operation of the provision and particularly by the effect they take away from clause 15 mean that the entitlement there might otherwise have been given ‑ ‑ ‑

FRENCH CJ: You do not have to do that analysis, do you, in terms of taking effect. It is rather whether there is an existing entitlement which is displaced by the operation of clause 11 cutting into the protection otherwise provided by clause 15.

MR JACKSON:   Yes.  Your Honour, I accept that.  The reason why I am going to clause 5 and its relationship to clause 20 is because underlying the reasons of the Court of Appeal there does appear to be some apprehension – we would say, with respect, misapprehension – of the relationship between clause 5 and Part 20.  What I am seeking to do is to indicate how each of the provisions of clause 5 affects the provisions of clause 20.

FRENCH CJ:   But do you need this for your argument?

MR JACKSON:   Well, I do, your Honour, in the sense as an emphatic – if I can put it that way – because what we say, if I can put it very shortly for the moment, is that if you go to clause 5 at pages 96 to 97, what you see first of all is that clause 5(1) takes away the part of Part 20, namely clause 1(2), that would have the effect that a regulation under Part 20 cannot go back before the date of the amending Act.

Then one goes to clause 5(2), and that relates to – and I go back to page 134 – it relates back to the rights aspect that your Honour was just raising with me, which is in clause 1(3), and saying:

To the extent to which a provision . . . takes effect from a date that is earlier than the date of its publication . . . the provision does not operate so as:

(a)to affect, in a manner prejudicial to any person . . . the rights of that person existing before the date of its publication in the Gazette ‑

We would say, your Honours, if one comes directly to this case, if one is looking at the terms of clause 11, it is not restricted by the terms of clause 1(3) because clause 5(2) says exactly that.

Your Honours, if one goes to, for a moment, clause 1(3) of Part 20, it says that “the provision does not operate” in the manner specified in (a) or (b), but in short, we would say that the words “does not operate” themselves have no operation because of the terms of clause 5(2).  If one goes then to clause 5(3) at page 97, it says that:

A provision referred to in subclause (1) has effect, if the regulations so provide, despite any other provision of –

Part 19H. Your Honours will have seen that clause 11 says – this is at the top of page 157 – that:

Clause 15 of Part 19H . . . is to be read subject to subclause (1) –

of clause 11. Your Honours, then what one sees in seeking to apply clause 5(3), one sees that clause 11(1) is a regulation which contains provisions of a saving or transitional nature consequent on the enactment of a law referred to in clause 1(1) of Part 20, namely, the amending Act. The provisions are saving or transitional because they determine the cases to which the amending Act will or will not apply, the date they take effect from, a date earlier than the date of assent to the amending Act, and the terms of clause 11 operate on claims made before 19 June 2012, and clause 11(2) makes it clear that clause 15 is to be read subject to regulation 11.

We submitted earlier, of course, one needs a source of power for the regulation, and that source of power, your Honours, is to be seen in clause 5 at page 97 where your Honours will see that clause 5(4) says that:

The power in Part 20 to make regulations that contain provisions of a saving or transitional nature . . . extends to authorise the making of regulations whereby the provisions of the Workers Compensation Acts are deemed to be amended in the manner specified in the regulations ‑ ‑ ‑

FRENCH CJ:   What is the relationship between that and 1(5) in Part 20?

MR JACKSON:   Clause 1(5) should be read with 1(6).  It came to an end in 1999. 

FRENCH CJ:   I see.  Of course it is, yes, sorry. 

MR JACKSON:   Your Honours, could I go then – we would say it is a case that falls – complicated, perhaps, to get there but in the end the result, we would submit, with respect, is fairly clear.  Could I go then to the Court of Appeal’s reasons?  Your Honours, the starting point is page 54, paragraph 24 of that court’s reasons.  The situation there discussed is that of the operation of Part 20, clause 1 but absent the operation of clause 5 of Part 19H to which they come.  The conclusion arrived at at that point in the consideration is that referred to in the last six lines of paragraph 24 of the Court of Appeal’s reasons and, your Honours, we would not disagree with that view expressed on that limited basis. 

But then at paragraph 25 the Court of Appeal begins to deal with clause 5.  Your Honours, if I could invite your Honours to keep, in effect, clause 5 at pages 96, 97 to hand for the moment, and if one goes on to paragraph 26 of the Court of Appeal’s reasons at page 55, in the second sentence it is said, of paragraph 26, that clause 5(1) permits a regulation to take effect from a date earlier than the date of assent to the amending Act.  Your Honours, of course, that is so. 

Could we note in passing there is no limitation on the “earliness”, if I could put that expression in inverted commas, of that date.  Nor, to put it more specifically, is there any reason why the regulation might not take effect as regulation 11 did in the present case with respect to events before 19 June 2012.  If one goes to the sentence in the fifth line at paragraph 26 commencing secondly, one sees a reference to clause 5(4) and what is then said is that it expands the terms of Part 20, clause 1(4).  Well, that is true enough in a sense.  Where error starts to emerge, however, we would submit, is in the second half of paragraph 26 of the Court of Appeal’s reasons.  There, it is said, your Honours, about seven lines from the bottom of that paragraph that:

The precise scope of cl 5(4) must, in any event, remain somewhat obscure.  Its operation is restricted to regulations of a “saving or transitional nature consequent on the enactment of the 2012 amending Act” –

Your Honours, if one goes to clause 11 at page 156 of the bundle, we would submit it could not be more obvious than that it is a transitional provision consequent on the amendment of the amending Act. It says that the provisions of the amending Act are to apply to events taking place before its commencement. Again, your Honours, one sees in the last three lines of paragraph 26 the statement that:

it is not obvious that –

the power in clause 5(4) -

would permit a regulation to do more than vary the savings and transitional provisions in Schedule 6 –

But that is the very thing.

FRENCH CJ: You say clause 15 falls into that category.

MR JACKSON: Yes, your Honour, yes. It is in a part headed “Savings and transitional provisions” for a start. That is the very thing that it does. Could I just say these things in that regard? Schedule 12 was entitled, as I said, “Amendments relating to savings and transitional provisions”. You will see that at page 95. Item 1 of Schedule 12 introduced the new Part 19H into Schedule 6 – again, page 95. Part 19H is entitled “Provisions consequent on enactment” of the amendment Act. That is again page 95.

We would submit, with respect, it is very clear that both clauses 3 and 15 of Part 19H are provisions dealing with the effect which the amending Act is to have in relation to events prior to the amending Act coming into operation.  They are – to go to the language of the last five lines of paragraph 26 of the Court of Appeal’s reasons “savings and transitional provisions in Schedule 6”.

Your Honours, one then goes to paragraph 27 of the Court of Appeal’s reasons.  It deals with clause 5(2).  Your Honours will recall that clause 5(2) at page 96 says that clause 1(3) of Part 20, does not limit the operation of the clause.  Your Honours, clause 1(3) of Part 20 allowed a regulation to operate from, but not before, the date of assent to the Act under which it was made.  Clause 5(1) of the new Part 19H clearly allowed regulations to commence at an earlier time.  That is what it says.  Clause 5(2) is inserted, we would submit, to make it clear that clause 1(3) of Part 20 does not prevent that occurring.

Could I go then to the discussion of the issue in paragraph 27. Your Honours, I will not read out paragraph 27, of course, but could I just say this. If one looks at what is said by the Court of Appeal there we would say this. If one adds together the terms of clauses 5(1), 5(2), 5(3) and 5(4) it is clear, it is submitted, that regulations may operate retrospectively. You will see that clause 5(3) refers to a provision necessarily - or a regulation - having effect despite any other provision of this part. The provisions of this part include clause 15. Clause 5(1) has to be read with the enlargement of power given by clause 5(4).

If one goes to paragraph 28 of the Court of Appeal’s reasons, your Honours will see the limited effect given to it. What we would say, your Honours, is that clauses 11(1) and 11(2) did prejudicially affect rights which had accrued prior to the date on which it had commenced. Clause 11(2) amended clause 15 and it was clause 15 which conferred the entitlement and the transitional regulation did backdate its operation to a date prior to the date of assent of the amending Act. Could I turn then to our learned friends’ written submissions and they, in our submission, seek to make essentially three points. The first is at paragraph 27 and in effect namely that:

transitional and savings provisions which will operate to retrospectively extinguish accrued rights require an express intention, or at least an intention which is sufficiently clear.

Your Honours, we would not disagree, but clause 11 could hardly be clearer. The second point, your Honours, is that made at paragraph 28, namely, that:

cl 5(2) . . . does not . . . mandate . . . the consequence . . . that the parliament was speaking with an express or specific intention to extinguish accrued rights in a retrospective manner -

Your Honours, it is clause 5(4) rather than clause 5(2) that confers the power and clause 5(2) is designed to remove any temporal impediments

otherwise provided for by clause 1(3) of Part 20.  The third point, your Honours, is the one at paragraphs 31 and 32 of the first respondent’s submissions, namely, that the provision should be construed beneficially, that is, in favour of the worker, if two interpretations are possible.  Your Honours, we would simply say here the provisions are very clear indeed.

Could I just say one further thing, your Honours?  Our learned friends’ outline of submissions which I have only seen relatively recently refers in paragraph 9 to the type of provision of which clause 5(4) is a member as being a “Henry XIII” provision.  Your Honours, either my history teacher or my learned friend’s Latin teacher was deficient.  Could I just say, your Honours, that if one goes to our chronology you will see that the date on which the claim for lump sum compensation was made, if I can put it that way, referring to what your Honour the Chief Justice was saying before, is 20 June 2012.

FRENCH CJ:   That was treated as made on or before the 19th though, was it not?  Is that common ground?

MR JACKSON: Yes. Your Honour, the provisions to which I think your Honour Justice Crennan may have been referring earlier about the commencement dates of enactments, they are dealt with in Part 3 of the Interpretation Act 1987 (NSW), sections 22, 23, 24 and 25. Section 24 says that:

If an Act or statutory rule provides that it shall commence, or be deemed to have commenced, on a particular day, it shall commence, or be deemed to have commenced, at the beginning of that day.

It does not really add anything, if I could put it shortly, to the provisions of the regulations themselves.  Your Honours, the orders we seek are as per the notice of appeal at page 68 of the appeal book if we were successful in the matter.  Your Honours, those are our submissions.

FRENCH CJ:   Yes, thank you, Mr Jackson.  Yes, Mr Kirk. 

MR KIRK:   May it please the Court.

FRENCH CJ:   Something to add, Mr Kirk?

MR KIRK:   A little but not a lot, for obvious reasons, with great respect to my learned friend.

Can I start with section 30 of the Interpretation Act to put this in a little bit of context? His Honour Justice Basten referred to this in passing at paragraph 8 of the judgment but can I take your Honours straight to section 30 and make some brief submissions about section 30? It is at page 216 at the bottom of the legislative bundle going over to 217. The terms are familiar. Your Honours will see in section 30(1):

The amendment or repeal of an Act or statutory rule does not –

and then your Honours will note –

(c)affect any right, privilege, obligation or liability acquired, accrued or incurred –

(e) is also of some relevance.  So that is the statutory protection of, to summarise, accrued rights and liabilities.  Subsection (2) adds to that ‑

Without limiting the effect of subsection (1) –

by indicating –

the amendment or repeal of an Act or statutory rule does not affect –

and your Honours will note –

(b)any right, privilege, obligation or liability saved by the operation of the Act –

So any saving provision within the amended or repealed Act is, in effect, preserved.  Then (d) adds to that in a slightly opaque way by referring to ‑

the operation of any savings or transitional provision contained in the Act or statutory rule.

It adds to (b) by introducing the notion of transitional provision.  It refers to “the Act or statutory rule” which plainly means that Act or rule which is amended or repealed.  It is possible that that would include transitional provisions introduced into an amended Act but it is not necessary to resolve that here.  What we did wish to emphasise is subsection (3).  Your Honours will see that this section applies:

in addition to, and without limiting the effect of, any provision of the Act or statutory rule by which the amendment or repeal is effected ‑

so in this context the amending Act itself. Now, obviously we do not suggest that that completely undercuts section 31 which does the work of preserving accrued rights. However, “provision” should be understood, in our respectful submission, as meaning any specific provision in the amending Act or rule dealing with the issues which are otherwise the subject of section 30(1) and (2). In other words, section 30(1) and (2) establish the generic provision but that is meant to be complementary to any specific provision dealing with these sorts of issues in the amending Act or rule.

FRENCH CJ:   All that says is that this is not a constitutional provision.

MR KIRK:   Yes, indeed, your Honour, and we would also seek to draw from it this proposition. That insofar as the first respondent submits, as we understand him to do, that some very high degree of clarity is required, some very strict scrutiny is applied with respects to authorisation of transitional provisions or, indeed, the construction of the provisions themselves, that cannot be supported in light of section 30(3) which does not imply that any particular high degree of clarity is required. That, in a sense, adds to, of course, the generic provision in section 5(2) of the Interpretation Act which is the one about unless contrary intention is shown.

CRENNAN J:   By the way, if it matters and it may not, it was section 39(1)(b) that I had in mind when I mentioned earlier the requirements about the coming into effect of the statutory rule.

MR KIRK:   There is also that phrase, and we certainly have not done a comprehensive survey, it comes up in section 41, or at least an analogous phrase does, which is about the effect of disallowed provisions, disallowed rules, and passing mention is also made in section 26 of the Interpretation Act as well but they are of fairly limited effect.

Can I seek to draw from that – actually, I might come back if I may?  Can I turn very briefly to our second topic which is the nature of transitional measures?  As my learned friend, Mr Jackson, has indicated there is no doubt here that what was authorised in a series of the provisions was savings or transitional measures.  In our respectful submission, it is of the nature of transitional provisions that they may affect accrued or existing rights or liabilities and that this is a further reason why it is not appropriate to take a strict approach to construing such provisions and we respectfully submit that one of the areas in the Court of Appeal’s reasoning was failing to take account of the fact that these are savings and transitional measures. 

To put that in a relatively obvious context when new legislation is introduced or when old legislation is amended, issues necessarily arise as to how and to what the new legal norms apply.  The sorts of questions that arise, as your Honours would appreciate, are do the new norms apply to applications which are on foot but not yet determined.  What set of norms apply to applications received after commencement but by reference to facts that occurred before commencement? 

There is very little judicial exegesis of what a savings or transitional provision is.  We have referred to some of the few cases in our written submissions.  Can I take your Honours very briefly to one which is the Australasian Meat Industry Employees Union Case (2000) 102 FCR 74 mainly because it just has a useful extract from Halsbury’s Laws of England?  If your Honours turn to page 94, this is in the joint – sorry, the report commences at page 74 and if I could take your Honours to page 94 in paragraph 42 of the joint judgment of the Full Federal Court your Honours will see two dot points which are taken from Halsbury’s Laws of England. 

We seek to draw a couple of implications from what is there stated and quoted approvingly by the Full Court.  As is implicit in that first dot point, when a new set of legislative norms is introduced or the old ones are modified, very difficult questions can arise of the kind that I just articulated.  This can create great difficulty and uncertainty in applying the general rules about accrued rights and so forth.  It is to – seeking to avoid such difficulty that savings and transitional provisions are directed.  They seek to provide a specific answer instead of having to fall back on the generic ones.  That is a further reason, in our respectful submission, why no particular high degree of scrutiny should be applied to their construction.  As I put earlier, it is of their nature that such provisions do affect existing rights and liabilities. 

As to what a transitional provision is, again, emerging from these two points, we would say there are relevantly two criteria:  one, that a transitional provision involves the transition from one legal regime to another, to a new one, and that the provision is temporary in its effects.  That comes out particularly from the House of Lords’ decision in Britnell which we have referred to in our written submissions. As my learned friend, Mr Jackson, put and I will not repeat it, clause 11 of the regulation here clearly was a transitional provision. It straddled the divide between the old and new provisions. It was temporary in effect.

GAGELER J:   We are simply concerned with whether it was a saving or transitional measure within the meaning of clause 1(1) of Part 20, I think.

MR KIRK:   Yes, and that phrase is also used in clause 5 of Part 19H which expands clause 1 of Part 20.

GAGELER J:   Were you seeking to use the Australasian Meat Industry Employees Case for some wider proposition?

MR KIRK:   No, what I am seeking to articulate, your Honour, is to elucidate what a transitional provision is and to seek to answer what we understand is put against us by the first respondent as to the strictness of construction which should be applied in relation to either the empowering provisions and/or the actual provisions enacted which are themselves the savings or transitional provisions.

Finally, if I can turn very briefly to one further aspect of the error, as we would respectfully put it, in the reasoning of the Court of Appeal – perhaps a couple of aspects.  In relation to Part 20, clause 1 – and your Honours can conveniently find it at page 52 of the appeal book – on one page we have Part 20, clause 1, and then at the bottom of that page and on page 53 we have Part 19H, clause 5, enabling easy comparison.

As my learned friend has emphasised, in clause 1(2) of Part 20 and again in clause 5(1), there is this phrase “take effect”.  In our respectful submission, that means take legal effect, do something to have a legal operation in relation to the time period at hand, being a time period that has already occurred.  That is consistent with the references that have been given by myself and my learned friend and by your Honour Justice Crennan to the Interpretation Act.  They are very different contexts, but it is a consistent construction.

FRENCH CJ: Does retrospectivity have any part to play in your argument, or is it simply a question of whether regulation 11 displaces the protection in respect of lump sum compensation entitlements afforded by clause 15?

MR KIRK:   As we understand the reasoning of Justice Basten ‑ ‑ ‑

FRENCH CJ:   I am just asking what is necessary for your argument.

MR KIRK:   We think it is necessary because, as we understand Justice Basten’s argument, the first step at paragraph 24 is to construe Part 20, clause 1 without regard to the effect of clause 5.  It leads to the conclusion that as a matter of general law, that does not permit affectation of accrued rights but, critically, his Honour seeks to set aside clause 1(3) as a step towards that conclusion, and that that is so is illustrated at the top of page 56 in the second line where his Honour said:

The absence of power under Part 20 to make a regulation prejudicially affecting rights which had accrued . . . did not derive from cl 1(3) . . . but from the absence of any expressed intention to that effect or intention derived by necessary implication –

Now, in our respectful submission, that analysis is to divorce from having any effect or any significance the very clause in Part 20, namely 1(3), which protects accrued rights.  Clause 3 limits the effect of clause 2 which permits

backdating.  It limits it in a limited way.  Clause 2, in our respectful submission, plainly authorises retrospective effect; that is, an effect on accrued rights or liabilities, that is subject to subclause (3), which then protects accrued rights and prevents imposition of liabilities, except on the State or on authorities of the State.

FRENCH CJ: You say that clause 11 of the regulation extinguishes the entitlement which otherwise existed to claim lump sum compensation where it has not specifically been sought.

MR KIRK: Yes, yes. The nub of the Court of Appeal’s decision is that clause 11 is invalid as not being supported by either Part 20, clause 1, or Part 19H, clause 5 ‑ ‑ ‑

CRENNAN J:   Where do we see that?

MR KIRK:   Page 58, first three lines, particularly the second sentence, your Honours.  That is actually the polling under challenge.

So the case is about power and about the construction of the power.  To go back to page 52, the effect of clause 1(2) in Part 20 is to enable backdating with retroactive effect on existing rights and liabilities subject to the qualification in subclause (3) which qualification does not apply to the State or an authority of the State, thereby plainly implying that otherwise accrued rights of the State can be detrimentally affected pursuant to subclause (2) and further, new liabilities can be imposed on the State or an authority of the State.  Yet all of that is not taken into account by his Honour Justice Basten.

One then comes to clause 5(1) of Part 19H where subclause (1) of clause (5) takes the date back further as to how far it can be backdated, whereas under Part 20 you could only go back prior to the date of publication of the regulation to the date of assent.  Now it can go beyond the date of assent.  Then the protection of accrued rights in clause 1(3) is expressly disapplied by subclause (2) of clause 5. 

Again, an error of the Court of Appeal, in our respectful submission, was to attribute no significance to the express disapplication of the protection of accrued rights in clause 1(3).  Yet that, in our respectful submission – even if a strict construction approach is adopted – plainly communicates the Parliament’s intention that Part 20, clause 1, as extended by Part 19H, clause 5, authorised regulations affecting accrued rights or liabilities.  Unless I can assist your Honours any further?

FRENCH CJ:   Thank you, Mr Kirk.  Yes, Mr Simpkins.

MR SIMPKINS:   Your Honours, the starting point, as the appellant acknowledges, is that stated by Justice Basten in the judgment below at paragraph 25 where at the point of that paragraph that Mr Jackson directed attention to his Honour construed Part 20, clause 1 as not permitting a regulation that interfered with accrued rights.  The primary issue on this appeal is whether that position has been altered by clause 5 in Part 19H and the subsidiary and secondary question is, if it has, whether the 2012 regulation is an effectual exercise of that expanded regulation‑making power.

The 2012 Act, when it came into force, saved the first respondent’s entitlement to claim lump sum compensation. That was done by Schedule 6, Part 19H, clause 15 which your Honours have been taken to. The provisions of that amending Act commence on 27 June 2012 and it was only some months later, namely, on 1 October 2012 that the 2012 regulation commenced. The central question is whether that 2012 regulation, which inserted provisions into Schedule 8 of the 2010 regulation, operated to deprive the first respondent of his right to claim lump sum compensation that had earlier been preserved by the 2012 Act.

What I would like to emphasise about that description of the legislative context is that after the amending Act came into force and for a period of some months the accrued rights of the first respondent were preserved and by a regulation made some months after the enactment of the amending legislation, purportedly by way of stipulation of a savings or transitional provision, those accrued rights were extinguished.

There is a question that I will come to as to whether or not a regulation which extinguishes rights otherwise preserved can be properly characterised as a savings or transitional regulation.  The proper construction of Part 19H, clause 5, obviously requires a consideration of the proper ambit of the regulation‑making power in Part 20 of the same schedule, namely Schedule 6.  Your Honours will find Part 19H in the substitute list of legislation bundle at page 127 and clause 5 itself appears on page 1 to 8.

The submissions of the appellant and of the second respondent seek to take advantage of what is claimed to be drawn from clause 5(2) at page 128, that clause making some stipulation in relation to clause 1(3) of Part 20, is said, as we understand it, that the conclusion to be drawn from this provision is that the limitations that otherwise might apply to backdating no longer apply and that the consequence of that is that there is now implied authority to do what previously was not permitted, namely to make regulations that affected accrued rights.  That is the first point that I need to deal with.

The further and alternative way that the argument appears to be advanced by the appellant and by the second respondent is to direct attention to clause 5(4) which permits regulations to be made which regulations have the effect of bringing about an amendment to the Act itself, described in the submissions as a Henry VIII or Henry XIII provision – I stand corrected, I apologise.

CRENNAN J:   Do you challenge the empowering point, that is to say, the efficacy of 5(4)?

MR SIMPKINS:   There is no doubt that a provision such as clause 5(4) can empower the making of regulations that amend an Act.  We do not challenge that.  What is at issue is that when you have a provision like clause 5(4) which permit such an event to occur, does it carry with it as a necessary concomitant on the authority that it confers that there is not only an entitlement to make amendments to legislation but to make amendments to legislation that affect accrued rights. 

As we understand it, what is said against us is that because this is a Henry XIII provision which deals with savings and transitional provisions which might otherwise be expected to affect accrued rights, it must carry the consequence, at least in this case, that the power to make amendments by regulation extends to a power to interfere with accrued rights and we challenge that aspect of the argument.  But we certainly do not challenge the proposition that you can confer, if you like, delegate a legislative authority on the Executive, for example.  I deal with both those matters at the end of 5.

Can I turn, firstly, to clause 5(2)?  It is important to understand the context in which clause 5(2) comes to be inserted.  Your Honours have Part 20 in the legislation bundle commencing at page 133 and, obviously, this is the context which provides a setting for clause 5, but in Part 20, clause 1(1) at page 133, makes broad provision for there to be regulations that are made.  The limitations of the power conferred are that the regulations must be “of a saving or transitional nature consequent on the enactment of” variously identified or generally described pieces of legislation. 

Under clause 1(2) there is an express but limited backdating authority, for want of a better expression.  The limit of the backdating authority being that a regulation can be permitted to take effect as from the date of assent.  So what then follows in clause 1(3) is to make provision for the potential consequence of that backdating, and so clause 1(3) provides that if there is an earlier date that the regulation takes effect on, then there are limitations as to its operation.

What is important, in our submission, to appreciate at the outset is that clause 20(2) provided for backdating.  It limited the backdating to the date of assent, so is the authority in an appropriate circumstance to make a regulation which is backdated so as to be operative during the whole or some part of the period from the date of assent to the date of publication.  When one goes back to Part 19H to look at clause 5 again – and this is at page 128 – it is dealing with a different period of ‑ ‑ ‑

FRENCH CJ:   Where does it say that the regulation was backdated?  The 2012 regulation commenced I think on ‑ ‑ ‑

MR SIMPKINS:   On 1 October.

FRENCH CJ:   ‑ ‑ ‑ 1 October 2012.

MR SIMPKINS:   It did.

FRENCH CJ:   Is there a provision that says it takes effect from an earlier date?

MR SIMPKINS: No, and there is a debate between the parties as to what the words “take effect” mean in the provisions that I have taken your Honours to. The two provisions, clause 11 and clause 15, being the sequential provisions dealing with the “transitional arrangements”, are all directed to claims which - for one side or the other of a cut‑off date described as 19 June 2012.

FRENCH CJ:   This is dealing with entitlements.  The Act creates the entitlements.

MR SIMPKINS:   It does.

FRENCH CJ: Section 66 creates the entitlement to lump sum compensation. So you have an entitlement. It is partly protected against the effect of the amendments by clause 15 and then that protection is, on their argument, displaced by clause 11 of the regulation.

MR SIMPKINS:   Yes, your Honour.

FRENCH CJ:   So that is simply a present effect of a regulation on an existing right.  I just wonder whether backdating is not a bit of a distraction here.

MR SIMPKINS:   Your Honour, it may or may not be, but on one view it is necessary to give consideration to what the words “take effect” mean.  Why?  Because clause 5(1) in Part 19H empowers the making of regulations that take effect in a particular period.

CRENNAN J:   So it bears on the restriction in Part 20, 1(2).  Do you agree with that?

MR SIMPKINS:   Yes, our submission is fundamentally to the effect that whatever clause 5 is doing in Part 19H, unless it is expressly being expanded, it can rise no higher than whatever the regulation‑making power is in Part 20.

CRENNAN J:   Yes, but I was asking you, just in the context of the Chief Justice saying perhaps backdating does not matter, I was asking you whether you – I was putting it in the negative.  You did not disagree, or let me say you agree, do you not, that (1) of clause 5 bears on the restriction in 1(2) of Part 20; that is to say, the restriction is taken away by 5(1).

MR SIMPKINS:   I agree with the first proposition but not with the second, with respect, so ‑ ‑ ‑

CRENNAN J:   How does it bear on it then?

MR SIMPKINS:   Well, I will try and explain that if I can.

CRENNAN J:   Yes, certainly.

MR SIMPKINS:   What Part 20 provides, as I was endeavouring to state earlier, is it provides for backdating ‑ and I will come and address whether that is an accurate description and I am just using it as shorthand for the moment ‑ but it deals with backdating for the period of a whole or some part of the date of assent through to the date of publication.  One then, with respect, does need, as your Honour Justice Crennan properly directs attention to, to understand what it is that Part 19H, clause 5(1) is doing.

What is notable is it actually is not undoing or restating what was in Part 20 about backdating but it is providing a further period of backdating, so Part 19H, clause 5(1) permits backdating to a date that is earlier than the date of assent.  So what we would submit by way of proper analysis is that if you are backdating for the period from date of assent to publication, then you are within the territory of Part 20, clause 1(2), but if you are backdating to a date earlier than the date of assent you are in the area of Part 19H, clause 5(1).  So they are two provisions ‑ ‑ ‑

CRENNAN J:   Standing together.  Yes I see.

MR SIMPKINS:   ‑ ‑ ‑that stand together, so we do not agree with the submissions your Honours are being favoured with by our opponents.  We would say, well, actually you read Part 19H, clause 5(1) as wiping the slate on backdating and setting up a new regime.

CRENNAN J:   I do understand what you are saying, yes.

MR SIMPKINS:   It becomes important for this reason, if that is right, that there then are two relevant backdating provisions ‑ and I will come and deal with whether that is an accurate description ‑ but if there were two relevant backdating provisions we have this position, that for a backdating that is in the more recent period, that is, from date of assent to publication, you cannot affect accrued rights because that is the Part 20 power and that is limited by Part 20 so that in that period you cannot affect accrued rights. 

It is said against us that if you are in the territory of Part 19H, clause 5(1) that the effect of clause 5(2) is you now can affect accrued rights so you end up with what seems to be an unlikely situation that the legislature intended but if you backdated before assent you could affect accrued rights but if you backdated between assent and publication you could not affect accrued rights.

CRENNAN J:   Does not that argument ignore the first couple of lines of 1(3)?

MR SIMPKINS:   Of which part, your Honour?

CRENNAN J:   Clause 1(3):

To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette –

So the effecting of accrued rights is directed to – is linked to backdating, is it not, in 1(3)?

MR SIMPKINS:   Except that if your Honour ‑ ‑ ‑

CRENNAN J:   That is to say, if a regulation is taking effect from the date of assent or a later date, it can affect accrued rights but under 1(3) if there is backdating of the effect, it cannot affect accrued rights.  Is that not the correct way of reading 1(2) and 1(3)?

MR SIMPKINS:   Your Honour, with respect, we would say no for this reason, that in Part 19H, clause 5(2) what is it in relation to clause 1(3) of Part 20 is that it does not limit the operation of this clause.  So the inquiry is what is the operation of clause 5 that is of relevance?  In our submission, the operation of clause 5 which is of relevance is the permitting of backdating to a date earlier than the date of assent in clause 5(1), so it is only in relation to that period of backdating that clause 5(2) has any work to do and then it is a question of trying to construe it and to understand what it is doing in that context. 

We say, the context is one where if we are right to say that these two provisions about backdating stand together then it cannot be a correct interpretation that you can affect accrued rights so long as you are backdating before the date of assent but between the period of date of assent and date of publication you cannot affect accrued rights.  There is no logical justification that one can infer for drawing that distinction.

KEANE J:   Is it significant that Part 19H is providing specifically for transitional provisions in respect of the operation of the 2012 amending Act, whereas Part 20 provides transitional provisions generally in respect of the whole bunch of Acts described in Part 20?

MR SIMPKINS:   There is no doubt that it is a proper consideration to have regard to, that Part 19H, clause 5 is making a statement about a subset of those pieces of legislation that are dealt with in Part 20, clause 1.  But it is still a question of, bearing that in mind as a context, what actually is being achieved.  The submission we make is that when you look at Part 19H, clause 5 it is not dealing with backdating full stop, it is dealing with backdating for a period that is earlier than the date of assent.  That is the limit of its express stipulation and operation.

KEANE J:   Specifically in respect of the consequences of the enactment of the 2012 Act.

MR SIMPKINS:   Yes, I readily accept ‑ ‑ ‑

KEANE J:   So that under the ordinary canons of construction, it is the specific provision that is dealing with the operation of this amending Act and its consequences.

MR SIMPKINS:   I readily accept that, and the point to be made against that, ultimately there being a matter of any particular significance, is that when you actually look at the express wording of Part 19H, clause 5, even understanding that that is the context of it, it is making an extension of the backdating authority for a period described as a period that is earlier than the date of assent, which is a different period of potential backdating to that identified in Part 20, clause 1(2).

The literal meaning of Part 19H, we say, is dealing with a different backdating issue to the one that is addressed in Part 20.  It is then a question of working out in that context, if that be a correct construction, what it is that clause 1(3) of Part 20 is doing.  He does not make sense of what is doing.  He is really making a statement about whether you can affect accrued rights or not.  Why?  Because there is no logical reason for permitting an effect on accrued rights if you backdate before the date of assent, but to preclude that after the date of assent.

One thing which is notable is that clause 5(2) does not say that clause 1(3) of Part 20 is inapplicable.  It could have just as readily said, if it was intended to, that clause 1(3) of Part 20 does not apply to this kind of backdating.  If one searches for a possible reason for the stipulation in clause 1(3) of Part 20, it is not hard to find a possible explanation.  If one goes back to Part 20 at page 134 of the legislation bundle, one appreciates that Part 20, clause 1(3) is a companion provision to Part 20, clause 1(2).  There is a backdating provision that goes back to the date of assent, and then there is clause 1(3) which says what the consequence of that is.

So, it is entirely likely – certainly, at least, possible that the legislative draftsman appreciating that was concerned that if clause 1(3) was related to that earlier, more restricted form of backdating, that it might be thought somehow to be inconsistent with the power being inferred in clause 5 of Part 19H to backdate to a more extended period.  In other words, the provision that is made about clause 1(3) in Part 19H may have just been inserted to ensure that it was not thought that there was any inconsistency between the empowerment in clause 5(1) to backdate before assent and would have been provided for in Part 20.

GAGELER J:   Mr Simpkins, can I try to reflect what I understand your argument to be on this point?  I understand you to be placing some weight on the opening words of clause 1(3) of Part 20 and to read the preservation of accrued rights by clause 1(3) as directed to the extent to which those rights would otherwise be affected simply by the backdating.

MR SIMPKINS:   Yes.

GAGELER J:  So it is insofar as the accrued rights would be affected by the backdating but not otherwise that clause 1(3) speaks.

MR SIMPKINS:   Yes.

GAGELER J:   Then you say, as I understand it, that clause 5(2) of Part 19H does not speak more widely to accrued rights than the accrued rights that would be affected by the particular backdating to which clause 5(1) refers.

MR SIMPKINS:   Yes, your Honour.

GAGELER J:   Is that the way you put it?

MR SIMPKINS:   Yes, your Honour.  So for the reasons I have been developing, we say that on the proper construction of clause 5(2) of Part 19H there is no removal of the limitation in relation to regulations that backdate to a time earlier than the date of assent.  What clause 5(2) is doing is by way of abundant caution to be making it clear that Part 20, clause 1(3), is not to be regarded as limiting the operation of clause 5(1), that is, the ability to backdate.

FRENCH CJ:   Does this depend upon a characterisation of item 11 in the Regulation when it extends to a claim for compensation made on or before 19 June – when it extends to the amendments, I am sorry – to a claim for compensation made before 19 June 2012 as a provision which takes effect from an earlier time?

MR SIMPKINS:   It does, with a qualified explanation.  So there are two questions.  One is a question of power and the question of power is do the provisions relied upon by the appellant and the second respondent permit a regulation to be made which affects accrued rights.  The second question which is assuming that there is and that on the proper construction of clause 5(1) what would be required is a regulation taking effect from a date earlier than the date of assent, is the actual regulation, such as a provision, namely, taking effect from a date earlier ‑ ‑ ‑

FRENCH CJ: Does clause 11 or item 11 take effect from a date earlier ‑ ‑ ‑

MR SIMPKINS:   Yes.

FRENCH CJ:    ‑ ‑ ‑than the date of its, in this case, publication October 2012?

MR SIMPKINS:   Therefore, it may well be necessary and result in the appeal to reach a view as to what the words “take effect” ‑ ‑ ‑

FRENCH CJ:   One view would be it simply is directed to an existing, albeit accrued, right and has a present operation.

MR SIMPKINS:   The competing intentions I think are for the first respondent, we say, that what “take effect” means is the stipulated date that the Act actually commences in operation which might be an anterior date.  For the appellant and the second respondent it is said, well, if you choose an antecedent historical fact as one of the criterion upon which the legislation hinges, that is taking effect at an earlier date because you are choosing an historical fact to make the provision applicable or not applicable.

Now, the legislation does not provide a definition of what “take effect” means. By legislation I mean the legislation that we are debating on the appeal. But what is plain is that the question is not only whether the legislation takes effect, but whether it provides that it takes effect from an earlier date. We would make the submission that the language of the legislation relevantly in this context, Part 19H, clause 5(1), when it requires that the regulations so provide that the legislation takes effect from an earlier date, requires an express stipulation of an earlier period of operation, not some kind of implication or inferred operation on an historical fact which would permit a regulation to be so characterised as taking effect from an earlier date. We say it has been an express provision which in its terms or as a matter of substance indicates that the relevant regulation is operational from a date earlier than the date of assent of the Act and we say clause 11 is not such a provision.

FRENCH CJ:   That is the critical characterisation for the purposes of your case.

MR SIMPKINS:   It is in relation to whether or not there has been an effectual use of the legislative authority that extends to creating the regulations which interfere with accrued rights.  But to go back to the submission that I was trying to make good, the first basis upon which it is said that the starting point provided by Part 20, clause 1, can be departed from is that when you look at clause 5(2) of Part 19H, it is really telling you something about the restrictions being removed and, for the reasons I have developed so far, we would say that is a misconstruction of clause 5(2).

The restrictions are not removed.  That provision is only about saying something about the ability to backdate.  It is clear, for example, that clause 5(2) does not say you cannot – that clause 1(3) of Part 20 does not limit the operation of the regulations made under this clause, so clause 5(2) is not directing itself actually to the limitations that one sees in clause 1(3) of Part 20 at all.  It is seeking to say something about whether you can backdate or not and, in our submission, it is seeking to clarify whatever inconsistency or uncertainty may remain from the fact that clause 1(3) of Part 20 in its context was dealing with a different period of backdating.

So we would say that on its proper construction clause 5(2) does not provide any basis for saying that the limitations are removed and so that accrued rights can be effective when you backdate provisions.  In any event, even if what clause 5(2) was doing was to remove a restriction, we would submit that the mere removal of the restriction does not in terms lead to a conclusion that actually the expanded regulation power permitted by Part 20 now permits accrued rights to be interfered with.  It is one thing to say restriction is removed.  It is another thing to say that the consequence of the removal of the restriction is implied authority now to affected accrued rights where there was none before.

The submissions that we have made in our outlines are broadly to the effect – and I will not labour them – that in order for the presumption against accrued rights being interfered with to be displaced, one needs either express language or clarity of intention, neither which is present in the wording that we see in clause 5, in particular, clause 5(2).

So if it is the case that clause 5(2), Part 19H does not assist a resolution of whether or not the power permits an impact upon accrued rights the further argument of the appellant and the second respondent needs to be addressed, which is it arises out of the fact that actually clause 5(4) contains a Henry VIII provision and such provisions – certainly when they are expressed in relation to provisions of a savings or transitional nature – carry with it the inevitable consequence that accrued rights can be affected.

We support the reasoning of Justice Basten in the way in which he approached clause 5 and its significance.  His Honour, as your Honours will appreciate, took the view that whatever was happening in clause 5 of Part 19H it all related back to the power which was conferred by Part 20.  Your Honours have heard Mr Jackson say that he accepts that that power, unless expanded, does not permit an interference with accrued rights.  His Honour Justice Basten took the view that there was nothing in clause 5 which indicated that that source of the regulation‑making power in Part 20 was in any way changed by provisions of clause 5 so as now to permit an effect on accrued rights.

Our submissions take as their starting point – that is our written submissions – that it is an insufficient analysis to merely identify something as a Henry VIII provision.  One has to identify what actually the provision is, in fact, authorising.  Here, the starting authority was Part 20 and there is nothing in the language of clause 5(4) which would permit a conclusion to be reached that the power in Part 20 which, hitherto, would not permit accrued rights to be affected now did permit accrued rights to be affected.

That then brings one back to Part 20 and what power it permits.  As I have indicated, we support the conclusions that Justice Basten reached in relation to that in the decision below.  So for those reasons in particular, our submission is that whether by reference to clause 5(2) or by reference to clause 5(4), the limitations on the regulation‑making power in Part 20 remain as they were and that authority in Part 20 does not permit a regulation to be made which affects accrued rights.

If we are wrong in that regard, then it does become necessary to determine whether or not there has been an effectual exercise of the regulation‑making power insofar as the regulation purports to affect accrued rights.  The submissions that we would make about the form of the exercise as opposed to the source of the power are these, and I will just state them briefly and then develop them if I may.  The first proposition is that the 2012 regulation was not relevantly a regulation of a savings and transitional nature.

The second proposition is that the 2012 regulation did not provide that it take effect from a date earlier than the date of assent.  The third proposition is that the 2012 regulation did not provide that it have effect, notwithstanding any other provision of Schedule 6.  The fourth proposition is that the 2012 regulation did not specify the manner of amendment to the Workers Compensation Act.  Now, I have touched on one or two of those as I have been addressing, so I can be brief in relation to some of them.

Insofar as it is contended that the 2012 regulation was a provision of a savings and transitional nature, the effect of the two provisions, clause 11 and clause 15, needs to be appreciated. The effect was that by clause 15 of the amending Act, the relevant amendments did not apply to claims before 19 June. The effect, however, of the provision made in the 2012 regulation in clause 11 is that the relevant amendments applied to claims before that date, whereas they previously did not apply, with a carve‑out for claims that sought specific lump sum benefits.

Now, that is not a savings provision.  The position that Mr Goudappel found himself in was that when the Act came into force with the savings provisions that it then had, his accrued rights were preserved.  The consequence of the 2012 regulation is that those accrued rights were taken away.  In our submission, one cannot characterise that consequence as being a consequence affected by a savings provision.  It certainly altered the savings provision, but the substantive effect of what was done was to take away rights, not to save rights.  In our submission, a proper signification of a saving provision is that the savings provision preserves certain rights, responsibilities and liabilities existing prior to the adoption of the statute which may have been lost as a result of the unrestricted adoption of the statute.

Now, in fairness to the appellant and the second respondent, neither of them actually seems to positively assert that clause 11 in the 2012 regulation was a savings provision. What seems to be suggested is it is a transitional provision. There are, we accept, limited authorities and such of the authorities as can be found are of limited assistance in determining the proper signification of a transitional provision. But, in our submission, a transitional provision is a provision which regulates the operation and effect of an amending Act during the period of transition from one statutory regime to another. This provision in clause 11 of the 2012 regulation did not deal with a period of transition. It did not provide some temporary measure as one regime was moved to another, and so it is not a savings provision and it is not a transitional provision.

FRENCH CJ:   It is a wasting provision, I suppose, in one sense that there is a finite number of claims to which you can apply.

MR SIMPKINS:   Yes, possibly.

FRENCH CJ:   There will be some time in the future when it has nothing to operate on?

MR SIMPKINS:   Yes, your Honour.  So even if your Honours are against us on the arguments we put about power, whatever power there is, is only a power in relation to making provisions of a savings and transitional nature.  If we are correct and this is not such a provision, then the regulation is invalid.

The second submission, I have really already developed, so I will not do more than just note that a further reason for invalidity is the 2012 regulation did not provide, in our submission, that it take effect from a date earlier than the date of assent.  That comes down to the difference of opinion about whether “taking effect” is a reference to the commencement of the legal operation of an Act, or “taking effect” means using some antecedent historical fact as the criterion for legislative application.  If, contrary to those submissions, there is a transitional or savings provision, then there is a requirement for there to be a particular form in which the regulation expresses itself.  In clause 5(4) of Part 19H, the requirement is expressed in these terms:

The power in Part 20 to make regulations . . . extends to authorise the making of regulations whereby the provisions of the Workers Compensation Acts are deemed to be amended in the manner specified in the regulations.

So, in the event that there is power, then it is necessary to consider, in giving consideration to the 2012 regulation, whether it is a regulation which deems the Act to be amended in a manner specified in the regulations.  There is certainly no reference to any deeming.  It would be a slightly odd concept to think that there might be some implied deeming.

The language, in our submission, is consistent and consistent only with there needing to be some express stipulation of deeming. It is suggested that there is because of an earlier provision in Schedule 8 in the 2010 regulation that I will come to, but the point I make at the moment is that, in our submission, in clause 5(4) of Part 19H there is a need to expressly deem, and there is certainly none that is in clause 11 itself. Apart from there needing to be a deeming, there is a need for the deeming to specify the manner of amendment, and in our summary outline handed up this morning, we have referred at paragraph 12 on page 2 to some of the authorities that identify that an obligation to specify is an obligation that in its ordinary sense requires clear and definite identifications in “unambiguously clear” language.

Our submission is that there is nothing in the 2012 regulation which is capable of being a deeming, let alone a deeming of the amendment in a manner specified.  So clause 5(4), if it otherwise might have provided power, has not been effectually exercised.  Now, what is said I think against that proposition is ‑ ‑ ‑

FRENCH CJ:   How would a specification work?  Deemed to be amended “in the manner specified” - if the regulation effects an amendment, what more could it say which would answer the description “in the manner specified”? 

MR SIMPKINS:   The submission we make is it would need to provide a particular indication of what was the language in the Act, that is in the unamended Act, which was being affected by the regulation.  Why should a regulation amending an Act be held to a higher level of specificity because it is important that the amendment not take place through inadvertence ‑ ‑ ‑

FRENCH CJ:   I understand that, I am just looking at the mechanism and how you specify a manner.

MR SIMPKINS:   The short answer you would give to the manner of specification is it would need to identify what is the provision which is being affected and the manner in which the provision is affected.  Specification requires clarity.  It is hard to imagine clarity without those aspects being attended to. 

An argument which is raised to deal with this problem is that the 2012 regulation, as your Honours will appreciate, made a change to a 2010 regulation.  Everything is done in a somewhat convoluted fashion.  The original form of the relevant part of the 2010 regulation is in the legislation bundle at page 146.  I will take your Honours to the amendment.  These are 2012 regulation‑amendment but what your Honours have at legislation bundle page 146 is the relevantly original form of Schedule 8 of the 2010 regulation.  In its original form it contained in clause 1(2) these words:

The provisions of Part 19H of Schedule 6 to the 1987 Act are deemed to be amended to the extent necessary to give effect to this Part.

This Schedule originally had just clauses 1 and 2, so that statement of the intended amendment when Schedule 8 was promulgated related to what followed in clause 2, namely, something about weekly payments – amendments. The 2012 regulation starts at page 148 of the legislation bundle – sorry, I should be taking your Honours, I think, to page 152 which is the transitional regulation 2012 and at page 154 item 5, you can see that what has been done is to insert the relevant amendments affected by the 2012 regulation into Schedule 8 that we have just been looking at and to start those changes at clause 3. Then, relevantly one reads through to page 156. Clause 11, as your Honours know, was included in this change to Schedule 8 to deal with the altered position that was desired and relates to lump sum compensation.

What is said by both the appellant and the second respondent is, as we would understand it, something along these lines, well, yes, it is true that when you actually look at the 2012 regulation, there is nothing that refers to deeming and there is nothing that specifies amendments, but that was all just placed into Schedule 8 and Schedule 8 itself had its own stand‑alone deeming provision and so whatever was placed into Schedule 8 got the benefit of the catch‑all deeming provision with the consequence that clause 5(4) was satisfied.

There are a number of problems with that submission.  The first problem is that, even if the legal analysis was correct, Schedule 8, clause 1(2) does not specify the amendments.  It certainly has the language of deeming but the language “deemed to be amended to the extent necessary to give effect to this Part” is not the language which specifies what the amendments are and, in our submission, is not a proper fulfilment of the statutory obligation provided for in clause 5(4) of Part 19H.

The second problem with it is that Part 19H, clause 5(4), in our submission, requires the deeming provision to be in the amending regulation, that is, in the 2012 regulation, not the 2010 regulation to which the changes were inserted.  Just to go back to the clause at legislation bundle page 128 to make good that point, clause 5(4) says that:

The power in Part 20 to make regulations . . . extends to authorise the making of regulations whereby the provisions of the Workers Compensation Acts are deemed to be amended in the manner specified in the regulations.

In our submission, that requires the deeming provision to be in the regulation which is making amendment.  It is not satisfied by a deeming provision that is otherwise standing in the legislation or statutory rule or regulation which is otherwise being altered.

A third and final reason for clause 5(4) not being satisfied by what appears otherwise in Schedule 8 is this, that if you go back to Schedule 8 in its original form at page 146 of the legislation bundle, there is a question of construction that needs to be attended to.

Schedule 8, clause 1(2), refers to amendments necessary to give effect to “this Part”.  In our submission, on a proper construction of Schedule 8, clause 1(2), the reference to “this Part” is not a reference to the part as it might be amended from time to time but is a reference to the part as it stood when the schedule was originally formulated.  The reason for that submission is that the statutory context for what appears in clause 1(2) of Schedule 8 was the obligation to identify in the regulation what the nature of the amendment was.  So, that deeming provision in clause 1(2) of Schedule 8 is relating to the particular amendments that were then reflected in the part as it then stood.  In our submission, one does not in this context read “this Part” as meaning that whatever other provisions might be lumped into Schedule 8, they are covered by the deemed amending to the extent necessary.

FRENCH CJ:   I suppose, on one view, you could read 5(4) as authorising the making of regulations whereby the provisions of the Workers Compensation Acts are amended as provided in the regulations, but you are saying that there is a kind of manner and form requirement for the valid exercise of power?

MR SIMPKINS:   Yes, your Honour, and for a very sound reason, because it may well be that whoever has decided to put these provisions in Schedule 8 actually has turned their mind to whether they are making an amendment, or it may well be that they are just added.  What clause 5(4) ought to require on its proper construction is a degree of precision in identification of the change and a degree of conscious deliberate thought to whether or not it is actually intended to make a change to the Act.

So, for those reasons, in our respectful submission, clause 5(4), even if it permitted regulations be made which affected accrued rights, has not be effectively exercised.  Then, two other possibilities need to be considered by probably can be fairly briefly dismissed.  Clause 5(3) of Part 19H permits, in effect, a regulation to be made which overrides provision in Part 19H and obviously divisional lump sum saving provision was in Part 19H.

If we are right about accrued rights not being permissibly disturbed by regulations made under clause 5, then it does not matter, but if there is ability to affect accrued rights, then it is necessary to construe what clause 5(3) means.  It obviously requires a provision referred to in subclause (1), so clause 5(1) requires, in effect, backdating before the date of assent, taking effect from a date that is earlier than the date of assent.

So, if we are correct on that point, clause 5(3) does not work. But if we fail on those two matters, then there is a question to be considered about whether relevantly clause 11 does make provision within the meaning of clause 5(3), so clause 5(3) requires a provision, in effect, that clause 11 apply “despite any other provision of this Part”. Clause 11 is obviously in a few places but one can turn it up at legislation bundle page 156. Clause 11(2) provides that:

Clause 15 . . . is to be read subject to subclause (1).

The words “subject to” are ordinarily construed as indicating a priority of application but an uncertainty of the necessity to determine that priority.  In other words, subject to normally does not necessarily reflect the fact or perceived fact of inconsistency and we have given your Honour a reference to authorities in the summary outline we handed up this morning at paragraph 20, footnote 5 to this ordinary construction of the words “subject to”.

So the submission we make is that clause 11(2) is not a statement in its terms but there is an inconsistency and that one has to apply clause 11(1) rather than clause 15. In other words, in our submission, clause 11(2) does not do what clause 5(3) of Part 19H requires, namely, it does not provide that clause 11 is applicable despite clause 15. It does not recognise the inconsistency and does not stipulate for the manner of resolution. It contemplates a possible inconsistency, nothing more.

FRENCH CJ:   That is to say, the regulation must provide that it has effect despite any other provision of this part.

MR SIMPKINS:   Yes.

FRENCH CJ:   As distinct from the “so provide” qualifying or referring back to the taking effect “as from the date”, et cetera.

MR SIMPKINS:   Yes, your Honour.  The other possible provision that might be argued to support the 2012 regulation is Part 20, clause 1(4).  Your Honour will find this at the legislation bundle, page 134, and your Honour will see that Part 20, clause 1(4) is expressed in similar but slightly different terms.  It also requires the regulations to stipulate that the regulation has effect “notwithstanding any other clause”.  I would repeat the submission that I have just made about the legal significance of that requirement.

But the other thing to bear in mind about this provision as a possible source of power is that it was stated by Justice Basten and accepted by the appellant on this appeal that Part 20, clause 1 does not permit a regulation to be made that affects accrued rights.  So whatever it is that Part 20, clause 1(4) does is really irrelevant if on its proper construction this regulation is interfering with accrued rights.

Your Honour, for those reasons, we would say that whatever provisions of the Act or the regulations are pointed to, they did not support the very drastic regulation that was made that took away the first respondent’s accrued rights.  It is hard to know whether, at the end of the day, anything will turn upon the proposition that this is remedial legislation.  It may well be that your Honours come to a clear view and that there are no competing interpretations, but, to the extent that your Honours do come to consider that there are competing constructions of the legislative provisions that are available - and we do call in aid the authorities that we have identified in our written outline which are broadly to the effect that this legislation, that is, the workers compensation legislation, is remedial, and that it is legislation that ought to be given, if you like, a large and generous interpretation.

One thing which is not clear from decisions such as Bird is the extent to which this principle of interpretation beneficially is a principle that one arrives at only if there is ambiguity - that is, if you have two competing interpretations - or whether it is part of the context which one bears in mind in approaching the text and structure of the legislation.  Our submission is that the current approach to statutory interpretation is to look at the context and not to require ambiguity.  In those circumstances we say a proper application of the remedial approach would be to give a beneficial interpretation at the outset without arriving at a necessity for ambiguity.  We say that that approach ‑ ‑ ‑

FRENCH CJ:   The context may illuminate constructional choices, may it not?

MR SIMPKINS:   Yes, that is correct.  But as I think I indicated, it is unclear whether this principle may or may not be of assistance.  It may, for example, be of assistance if your Honours have to construe the words “take effect”.  It may be of assistance if your Honours have to construe the words “provide” or “make provision”.  So, to the extent that some of these concepts are capable of competing contentions as to ambit, the submission we would make by reference to these authorities is that one would choose

the area of legislative operation which was most favourable to preserving a worker’s entitlements.  If your Honour please, they are our submissions.

FRENCH CJ:   Thank you, Mr Simpkins.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I deal with a number of matters raised in our learned friend’s submissions?  The first of them concerns clause 5(2), which your Honours will see at page 97, and the argument was that clause 5(2) is one which relates to clause 5(1), but if one looks at the terms of clause 5(2) it says that:

Clause 1(3) of Part 20 does not limit the operation of this clause.

“This clause” of course includes 5(3) and 5(4) as well as 5(1).  Clause 5(1), your Honours, if one goes to its own terms, is speaking of regulations “of a saving or transitional nature” which may provide that they:

take effect from a date that is earlier than the date of assent to the 2012 amending Act.

Now, what is meant by the question is, of course, what is meant by the term “take effect” as from that date, and a requirement that they so provide. If one goes to clause 11 at page 156, one sees that it is saying that:

amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012 –

Your Honours, pausing at that point, that is saying although one might have to consider it now and the law might operate as from the present time, at the same time the content of the regulation is something that is taking effect from a date earlier than the date of assent.  “Taking effect” is, we would submit, meaning no more than operate as from, or by reference to, a date earlier than the date of assent to the 2012 amending Act and that is specified in regulation 11.

GAGELER J:   Mr Jackson, is it something different from the notion of commencement that one gets from the New South Wales Interpretation Act?  Is “taking effect” different from “commencing”?

MR JACKSON:   Your Honour, in some senses, yes, and in some senses, no, I suppose.  I am sorry, I do not mean to give a variable answer, as it were.  The position is that – a question is ‑ one question can be when does something come into operation?  Now, ordinarily speaking, that will be take the simplest case at a time of the commencement of, say, an Act.  Whilst the Act may come into operation on a particular day its effect may be to alter the legal characterisation of things that have taken place before that day and things that have taken place after that day.  When one sees a provision like clause 5(1) at page 96 speaking of:

take effect as from a date that is earlier than the date of assent –

that, in our submission, is looking to the substance of the matter, in our submission, rather than referring perhaps only to the date on which the provision itself came into operation or it comes into operation.

CRENNAN J:   The commencement date?

MR JACKSON: Yes. Now, your Honour, the second point to which I wish to refer concerns the ways in which our learned friend says that the terms of clause 11 do not fit within the terms of clause 5. The first one is that the provision of clause 11 is said not to be a saving or transitional provision.

Your Honours, clause 11 deals with the disposition of matters in being at the time when the – in existence at the time when the amending Act came into effect. Clause 15 also was a saving provision or traditional provision or transitional provision dealing with the status of matters as at the time when the amending Act came into effect. Clause 11 is a provision which amends the saving or transitional provision of clause 15. It is itself a saving or transitional – probably transitional is a better word – directly within that concept.

Your Honours, the second point was that it is said that the 2012 regulations did not provide that they took effect from a date earlier than assent.  I think I have really dealt with that in dealing with the terms of regulation 11 and clause 5 already.  The third feature was that clause 5(4) requires there to be some specification in a very precise way, apparently, of the fact that:

the provisions of the Workers Compensation Acts are deemed to be amended in the manner specified in the regulations.

Your Honours, if one goes to clause 11(2), what one sees – the same effect might be said about 11(1) ‑ but if one goes to clause 11(2) one sees that it says that:

Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).

What that does is to affect the legal meaning to be attributed to a provision of the Act, and it does so in specific terms.  Now, your Honours should have copies of an extract from the decision of four Justices in Attorney‑General for the State of Western Australia v Marquet (2003) 217 CLR 545. The relevant passage is in the joint reasons at page 564, paragraph 46 where there was a question of the meaning of “amend” and “repeal”. Your Honours will see in the second sentence of paragraph 46:

It may readily be accepted that the central meaning of “amend” is to alter the legal meaning of an Act or provision, short of entirely rescinding it –

Now, that is exactly, your Honours, what clause 11(2) does, and it does so in a specific way and in the manner specified in that regulation.

It fits directly within clause 5(4) and, as your Honour the Chief Justice observed in the course of my learned friend’s argument, it may be that clause 5(4) requires no more or means no more than to say authorise the making of regulations whereby the provisions of the Workers Compensation Act are amended as provided in the regulations.  Your Honours, our learned friends refer also to clause 1(2) of the regulations at page 146.  It says:

The provisions of Part 19H of Schedule 6 to the 1987 Act are deemed to be amended to the extent necessary to give effect to this Part.

You add to that the provisions of the further amendments which include clause 11. It seems, if I may say so, with respect, somewhat heterodox not to read the whole of the regulations together, and regulation 1(2), read with regulation 11, seems to be saying the very thing that this argument of our learned friends complains about the absence of, if I could end the sentence in that way.

Your Honours, could I come then to the last matter with which I wish to deal and that concerns clause 11(2). The argument that is advanced, your Honours, is that that is somehow not within clause 5(3). We would submit one needs to ask why not, because it has effect to limit the operation of clause 15 and the limitation that our learned friends seek to impose upon it is (a) not very clear and (b) we would submit, not a natural limitation.

FRENCH CJ:   The premise is that this is a regulation which takes effect from a date earlier than the date of assent.  That is assuming the application of 5(1), I think you have accepted in your argument.

MR JACKSON:   Yes, your Honour.  We say it falls directly within 5(1).  One also should remember that 5(4), your Honours, is – 5(1) and 5(4) are both provisions which deal with the ambit of the regulation making.

FRENCH CJ:   Clause 5(4) is not a subset of the class of regulations referred to in 5(1).  That is a power in its own right which may cover things which take effect from an earlier date or – provided they answer the description “savings and transitional provisions”.

MR JACKSON:   Yes, and it is a very wide power, broadly expressed and a wide power.

FRENCH CJ:   I think that is why I was putting to you before the question as to the significance of the focus on the retrospectivity provisions.  But you say that you are accepting that the way that 11 is framed, one can say it is taking effect from an earlier date as a matter of substance?

MR JACKSON:   Yes, your Honour, yes.

CRENNAN J:   It commences on one date and takes effect as a matter of substance in relation to an earlier date.

MR JACKSON:   Yes.  Your Honours, those are our submissions.

FRENCH CJ:   Thank you, Mr Jackson.  The Court will reserve its decision.  The Court adjourns until 9.45 tomorrow for the pronouncement of orders.

AT 12.31 PM THE MATTER WAS CONCLUDED