Optus Administration Pty Ltd v Saluwadana

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0062

OPTUS ADMINISTRATION PTY LTD (ACN 055 136 804)	Applicant
v
NAJ SALUWADANA	First Respondent
MAGISTRATES’ COURT OF VICTORIA	Second Respondent

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JUDGES:	EMERTON P, TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2023
DATE OF JUDGMENT:	3 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 266
JUDGMENT APPEALED FROM:	[2023] VSC 243 (Richards J)

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STATUTORY INTERPRETATION – Company charged with failure to pay former employees’ full amount of long service leave entitlements accrued under statute – Where charges initially particularised as specific offences occurring on date employment ended – Magistrate granted leave to amend charges – Charges subsequently particularised as continuing offences to date outstanding long service leave entitlements paid – Company sought judicial review of magistrate’s decision and order – Primary judge dismissed proceeding – Whether s 9(2) of Long Service Leave Act 2018 creates continuing offence – Leave to appeal refused.

Long Service Leave Act 2018, ss 9, 36; Long Service Leave Act 1992, s 72; Sentencing Act 1991, s 111.

Joseph v Worthington (2018) 272 A Crim R 292, distinguished – Solicitor to the Board of Trade v Ernest [1920] 1 KB 816; Jones v Lorne Saw Mills Pty Ltd [1923] VLR 58, considered – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied.

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Counsel
Applicant:	Ms F Gordon KC and Mr M Minucci
First Respondent:	Mr E Nekvapil SC and Ms D Price
Second Respondent:	No appearance
Solicitors
Applicant:	Ashurst
First Respondent:	Wage Inspectorate Victoria
Second Respondent	No appearance

EMERTON P
TAYLOR JA
KAYE JA:

In March 2021, Naj Saluwadana of the Wage Inspectorate Victoria (‘WIV’) charged Optus Administration Pty Ltd with five offences under s 9(2) of the Long Service Leave Act 2018 (‘Act’), alleging that Optus had failed to pay five former employees the full amount of their long service leave entitlements.
The charges against Optus were initially particularised as specific offences that occurred on the date upon which the employment of each employee ended. However, WIV subsequently sought to amend the charges to particularise the offences as continuing offences that occurred between the date on which each employee ceased to be employed by Optus and the date on which it paid their outstanding long service leave entitlements.
Optus opposed the amendment of the charges, but, on 17 December 2021, the magistrate gave leave to amend the charges. His Honour published detailed reasons for his decision on 27 January 2022.
The charge sheet as originally filed on 30 March 2021 contained five charges, the first of which read:
1. On 31 March 2020, at Pascoe Vale South in the State of Victoria, Optus Administration Pty Ltd (Optus) contravened s 9(2) of the Long Service Leave Act 2018 by failing to pay Lea Runas the full amount of their long service leave entitlements as at that date.
Particulars
a)Lea Runas was employed by Optus from 12 March 2013 to 31 March 2020.
b)As at 31 March 2020, Lea Runas was entitled to long service leave entitlements, equating to $6,293.93.
c)On 31 March 2020, Optus paid Lea Runas $5,275.39 in long service leave entitlements, being $1,018.54 less than their full entitlement.[1]
[1]Optus Administration Pty Ltd v Saluwadana [2023] VSC 243, [13] (‘Reasons’).
The remaining four charges followed the same format in relation to the other four Optus employees.
Following the amendment of the charge sheet on 17 December 2021, all five charges were particularised as continuing offences. The first amended charge now reads:
1. From On 31 March 2020 to 29 January 2021, at Pascoe Vale South in the State of Victoria, Optus Administration Pty Ltd (Optus) contravened s 9(2) of the Long Service Leave Act 2018 by failing to pay Lea Runas the full amount of their long service leave entitlements as at that date.
Particulars
a)Lea Runas was employed by Optus from 12 March 2013 to 31 March 2020.
b)As at 31 March 2020, Lea Runas was entitled to long service leave entitlements, equating to $6,293.93.
c)On 31 March 2020, Optus paid Lea Runas $5,275.39 in long service leave entitlements, being $1,018.54 less than their full entitlement.
d)On 29 January 2021, Optus paid Lea Runas their full entitlement of long service leave.[2]
[2]Ibid [16].
Each of the other four charges was amended to allege that the offence continued until 29 January 2021, when Optus paid each of the former employees their full entitlement for long service leave.
In the proceeding below, Optus sought judicial review of the magistrate’s decision and order made on 17 December 2021. It contended that the decision to permit the amendment involved jurisdictional error and the amended charge sheet did not disclose a valid charge because conduct captured by s 9(2) of the Act was not capable of being alleged and particularised as a continuing offence. Optus sought an order in the nature of certiorari, quashing the magistrate’s decision and order to grant leave to amend the charge sheet, and an order in the nature of mandamus, remitting the amendment application to the Magistrates’ Court of Victoria to be determined according to law.
The primary judge dismissed the proceeding, concluding that the magistrate was correct to hold that s 9(2) of the Act provided for a continuing offence, and that there was no error in the decision to grant leave to amend the charge sheet.
Optus now seeks leave to appeal the decision of the primary judge on a single ground:
The primary judge erred in concluding that s 9(2) of the Act was capable of being charged and particularised as a continuing offence. Consequently, the primary judge erred in failing to find that the decision and order of the Magistrates’ Court of Victoria were affected by jurisdictional error.
Among other things, Optus seeks orders that the orders of the primary judge be set aside and that in their place, it be ordered that the decision and order of the Magistrates’ Court of Victoria made on 17 December 2021 to grant leave to the WIV to amend the charge sheet in proceeding M11027529 be quashed and the matter be remitted to the Magistrates’ Court to be heard and determined according to law.

Statutory framework

The Act came into effect on 1 November 2018, repealing and replacing the Long Service Leave Act 1992 (‘1992 Act’).
Section 6 of the Act provides that an employee who completes seven years of continuous employment with one employer is entitled to an amount of long service leave on ordinary pay equal to one-sixtieth of the employee’s total period of continuous employment.
At the relevant times, s 9 of the Act provided:
What happens if employment ends before leave is taken?
(1)If an employee’s employment ends (other than because of the employee’s death) before the employee has taken all the long service leave to which the employee is entitled, the employee is taken to have started long service leave on the day that the employment ended.
(2)On the day referred to in subsection (1), the employee’s employer must pay the employee the full amount of the employee’s long service leave entitlement as at that day.
Penalty:In the case of a natural person, 12 penalty units for each day during which the offence continues;
In the case of a body corporate, 60 penalty units for each day during which the offence continues.
Note
Section 43 applies to an offence against this subsection.
The offence created by s 9(2) of the Act is a summary offence by reason of ss 109 and 112 of the Sentencing Act 1991 (‘Sentencing Act’), with the consequence that a proceeding for an offence under s 9(2) must be commenced within 12 months after the date upon which the offence is alleged to have been committed.[3]
[3]Criminal Procedure Act 2009, s 7(1).
The history of the provision governing the payment of long service leave entitlements when a period of employment ends before leave is taken was raised by the parties as relevant to the construction issue in hand.
The equivalent provision to s 9 in the 1992 Act was s 72, which provided:
What is to happen if employment ends before leave taken
(1)If the employment of an employee ends before he or she has taken all the long service leave to which he or she is entitled, the employee is to be regarded as having started to take his or her leave on the day the employment ended.
(2)On that day the employee’s employer must pay the employee the full amount of the employee’s long service leave entitlement as at that day.
Penalty: 20 penalty units.
(3)An employee’s long service leave entitlement under this section includes any entitlement that accrued as a result of the ending of the employee’s employment.[4]
[4]Reasons (n 1) [8].
In 2021, s 9 of the Act was amended by s 75 of the Industrial Relations Legislation Amendment Act 2021 to read as follows:
What happens if employment ends before leave is taken?
(1)If an employee’s employment ends (other than because of the employee's death) before the employee has taken all the long service leave to which the employee is entitled—
(a)the employee is taken to have started long service leave on the day on which the employment ends; and
(b)the full amount of the employee’s long service leave entitlement, calculated as at the day on which the employment ends, is due and payable to the employee on that day.
(2)The employer of an employee referred to in subsection (1) must pay the employee the full amount of the employee’s long service leave entitlement.
Penalty:In the case of a natural person, 12 penalty units for each day during which the offence continues;
In the case of a body corporate, 60 penalty units for each day during which the offence continues.
Note
Section 43 applies to an offence against this subsection.
(3)The obligation imposed under subsection (2) to pay the employee’s long service leave entitlement continues from the day on which the entitlement accrues under subsection (1)(b) until the employer has paid the full amount of the entitlement to the employee.
Section 111 of the Sentencing Act is also relevant. It explains the effect of the penalty provided in s 9(2) of the Act as follows:
Location and effect of penalty provisions
A penalty set out at the foot of a provision of an Act, subordinate instrument or local law must, unless the context otherwise requires, be construed as indicating that a contravention (whether by act or omission) of the provision is an offence against the Act, subordinate instrument or local law punishable on a finding of guilt (with or without recording a conviction as required by section 7) by a penalty not exceeding that set out.

Case law

In Joseph v Worthington,[5] this Court held that the predecessor provision to s 9(2) — s 72(2) of the 1992 Act — created a specific offence. Apart from the penalties at the foot of each provision, there are no relevant differences between the wording of s 9(2) and s 72(2).
[5](2018) 272 A Crim R 292; [2018] VSCA 102 (‘Worthington’).
In Worthington, an employer was convicted of failing to pay long service leave entitlements to a former employee who had resigned. The offence was charged as a continuing offence. On appeal, the County Court of Victoria accepted that the offence was a continuing offence and dismissed the appeal. An application for judicial review of that decision was also dismissed. Once again, the offence was held to be a continuing offence.
On appeal to this Court, Osborn JA (with whom Tate and Niall JJA agreed) held that the offence was not a continuing offence. Section 72(2) imposed an obligation to pay the long service leave entitlement ‘on that day’, ‘that is, the day upon which it accrues pursuant to s 72(1)’, and the offence was created ‘by reference to this obligation’.[6] Osborn JA stated:
It may be accepted that s 72(1) results in a continuing obligation to pay long service leave entitlements (for which, as mentioned, there can be recovery by means of a civil claim) but it does not follow that s 72(2) creates a continuing summary offence. The elements of the offence are plainly stated in the subsection itself. The offence was complete on the day the employment ended and the required payment was not made.[7]
[6]Ibid 308 [84]–[85].
[7]Ibid 309 [93].
Having analysed the authorities, Osborn JA articulated the rationale upon which the conclusion was based in the following terms:
The fundamental question in the present case may be articulated by reference to this distinction, namely whether s 72(2) creates an offence by reference to a specified date or time or on the other hand is directed to “non-observance” of a continuing nature.
In turn, the authorities as a whole can be divided between those which characterise the relevant provision as one concerned with continuing “non‑observance” or as one concerned with non‑compliance with a specific requirement to meet the statutory time limit.[8]
[8]Ibid 301–2 [49]–[50].
It will be seen that Optus relies heavily on this analysis and the authorities canvassed by his Honour.
In the Court below, Optus argued that s 9(2) of the Act was cast in almost identical language to s 72(2) of the 1992 Act, which had been construed in Worthington as creating a specific offence. The only textual indication that s 9(2) was intended to create a continuing offence was in the penalty provision, which had to be treated as separate and distinct from the offence provision.
Optus argued further that in circumstances in which the Act was passed by the Victorian Parliament on 8 May 2018, after this Court had delivered judgment in Worthington on 23 April 2018, the ‘re-enactment presumption’ applied. Optus submitted that the legislature should be taken to have adopted this Court’s construction of s 72(2) of the 1992 Act and to have intended that s 9(2) of the Act would have the same meaning.
WIV submitted that Worthington contained a useful discussion of the distinction between continuing and non‑continuing offences, but relied upon the observation of Cussen J in Jones v Lorne Saw Mills Pty Ltd[9] to the effect that the ‘ordinary way’ of creating a continuing offence was to provide a penalty for each day that the offence continued. WIV argued that the words ‘on the day’ and ‘as at that day’ in s 9(2) did not preclude the obligation to pay from being read as a continuing obligation. In particular, the phrase ‘on the day’ merely specified when the employer had to pay the employee the outstanding long service leave entitlements, and a failure to pay at that time was an offence. However, the offence could continue until a payment was made, as was the case in R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd.[10]
[9][1923] VLR 58 (‘Lorne Saw Mills’).
[10][1965] VR 615 (‘Barelli’s Bakeries’).

Decision of the primary judge

The primary judge commenced her reasons for decision[11] by setting out the statutory framework, the magistrate’s reasons for decision and the parties’ submissions on the proper construction of s 9(2). The judge then observed that while the words in the first sentence of s 9(2) of the Act — the words of obligation — are very similar to the words in the first sentence of s 72(2) of the 1992 Act, they are not identical.[12] Her Honour noted:
Significantly, the context of the two provisions is quite different … [and] [t]he modern approach to statutory interpretation insists that context be considered in the first instance, and in its widest sense.[13]
[11]Reasons (n 1).
[12]Ibid [48].
[13]Ibid [48], citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); R v A2 (2019) 269 CLR 507, 520–1 [32]–[33] (Kiefel CJ and Keane J).
Her Honour observed that the second part of s 9(2) — the penalties set out at the foot of the provision — was ‘an obvious and important difference’ distinguishing s 9(2) from s 72(2) of the 1992 Act.[14] The difference was both textual and contextual: textual because it concerned the text of the entire provision; and contextual because the penalty immediately followed the words of obligation in the first part of the provision.[15]
[14]Ibid.
[15]Ibid [49].
The judge considered the penalty set out at the foot of s 9(2) to be decisive of whether the offence was specific or continuing. According to her Honour, it was settled that the ‘ordinary way to treat an offence as a continuing offence is to provide a penalty for each day during which the offence continues’.[16] Referring to this as a ‘drafting convention’, the judge stated that:
In a provision that adopts [this] drafting convention, it is clear that the legislature intended to create a continuing offence. … By providing a penalty ‘for each day during which the offence continues’, Parliament [has] indicated in the ordinary way that an offence against s 9(2) was a continuing offence. …[17]
Indeed, s 9(2) could only be construed as creating a specific offence only if the words ‘for each day during which the offence continues’ [were] ignored or … treated as otiose. To give those words no meaning, and no work to do, would be contrary to the principle that ‘a court construing a statutory provision must strive to give meaning to every word of the provision’.[18]
[16]Ibid [51], citing Lorne Saw Mills (n 9) 65.
[17]Ibid.
[18]Ibid [52], citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [71] (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky’).
The judge rejected Optus’ submission that the words of the first part of s 9(2) were intractable and could not be interpreted to create a continuing offence.[19] Her Honour held that:
In light of Parliament’s clear intention to create a continuing offence, the phrase ‘on the day’ can be understood to specify when an employer must pay outstanding long service leave entitlements to an employee, but not the day on which the offence was complete.[20]
[19]Ibid [53].
[20]Ibid.
Having regard to the wider context of the provision, the judge referred to the explanation of cl 9 in the Explanatory Memorandum for the Long Service Leave Bill 2017 that, ‘[a]s this is a “continuing offence” the penalty applies for each day during which the offence continues’.[21] This, in her Honour’s view, was a very clear statement of the Parliament’s intention.[22] Her Honour also referred to the Minister’s second reading speech, which explained that it was intended to replace the 1992 Act ‘with a new [A]ct that is fairer, more flexible, and better suited to the modern workplace’ and which, in relation to compliance, contained increased penalties for offences.[23]
[21]Ibid [54], citing Explanatory Memorandum, Long Service Leave Bill 2017 (Vic) 3.
[22]Ibid.
[23]Ibid, citing Victoria, Parliamentary Debates, Legislative Assembly, 24 August 2017, 2527, 2528 (Natalie Hutchins, Minister for Industrial Relations).
Further, her Honour stated that:
[T]he evident purpose of s 9(2) [was] to secure employers’ compliance with their obligation to pay departing employees their long service leave entitlements when their employment ends. This purpose is best promoted by giving full effect to the words in the penalty part of the provision, and reading s 9(2) as creating a continuing offence.[24]
[24]Ibid [55].
As to the re-enactment presumption relied on by Optus, the judge, having set out the sequence of events culminating in the Parliament’s enactment of the Act, concluded that it was ‘highly artificial’ to suggest that the Parliament had considered and accepted this Court’s interpretation of s 72(2) of the 1992 Act in Worthington.[25]
[25]Ibid [59].

Finally, her Honour ‘[did] not consider … Optus [to be] assisted by the principle that an ambiguity in a penal provision should be resolved in favour of the most lenient construction’.[26] According to her Honour, the penalty for the offence in s 9(2) is not ambiguous and clearly creates a continuing offence.[27] The purpose of s 9(2) is best achieved by interpreting it as creating a continuing offence.[28]
[26]Ibid [61].
[27]Ibid.
[28]Ibid.

Submissions

Optus identified the issue on appeal to be whether the penalty at the foot of s 9(2) outweighs (or overcomes) the language of the provision itself. In summary, Optus submits that because s 9(2) stipulates a time for the performance of the obligation to pay the long service entitlement, it creates an obligation that is complete on the day that the date for performance arises. The contrary argument (that propounded by WIV) looks to the way in which the penalty at the foot of the provision is expressed and says that, because the penalty is expressed by reference to each day during which the offence continues, that is decisive and sufficient to alter the nature of the obligation in s 9(2). Optus submits that the expression of the penalty in that way could not, and does not, have the effect of changing the character of the obligation.
According to Optus, Osborn JA in Worthington clearly described the distinction in issue in this appeal. Optus emphasises the centrality of the presence or absence of a statutory time limit in the formulation of the obligation imposed by the provision, and the fact that s 9(2) contains a specific legislative stipulation of a time limit by which the obligation to pay must be completed.
In this context, Optus submits that the primary judge erred in holding that the penalty at the foot of s 9(2) was determinative. According to Optus, her Honour overstated what she described as a ‘settled way’ of indicating a continuing offence and a ‘drafting convention’, and underrated the importance of the legislative stipulation of a time limit, which would ordinarily be treated as signifying that the offence is completed on the deadline for performance.
Optus further submits that the proposition that there exists such a ‘drafting convention’ is to misread the authorities upon which the proposition is apparently based.
Counsel for Optus referred the Court to the decision of Cussen J in Lorne Saw Mills[29] to examine his Honour’s reference to Solicitor to the Board of Trade v Ernest,[30] in which Avory J stated that ‘[t]he ordinary way to treat an offence as a continuing offence is to provide a penalty for each day …’.[31] Cussen J observed that, ‘apart from such a provision as to each day, a [s]tatute may indicate by its general terms that an offence is or may be a continuing one … by the use of the expression “non‑observance,” …’.[32] However, a case could be conceived in which the non‑observance ‘would have relation to a specified or indicated day or time, and then this result would not follow’.[33]
[29]Lorne Saw Mills (n 9) 64.
[30][1920] 1 KB 816 (‘Ernest’s case’).
[31]Ibid 823.
[32]Lorne Saw Mills (n 9) 65.
[33]Ibid.
According to Optus, in these passages Cussen J was ‘far from saying’ that providing a penalty expressed to accrue day by day would be sufficient to create a continuing offence. The fact that his Honour conceived a case in which non‑observance would have a relation to a specified or indicated day or time — which would mean there was no continuing offence — involved his Honour acknowledging the very principle on which Optus relies. Optus submits that there is no authority in which words imposing a penalty ‘for each day’ or ‘as to each day’ have been applied to hold that an offence is a continuing offence despite the stipulation of a legislative time limit for compliance with the obligation.
Optus contends that there is no basis in Ernest’scase for the submission that there is a recognised drafting convention of a kind that could displace the very clear words in the description of the elements of the offence. In Ernest’scase, the Court recognised that the offence for which the penalty was imposed was the offence of furnishing a statement, and not the offence of allowing a statement containing false particulars to remain on the register.[34] This was to be contrasted with another provision in the same statute, which imposed a penalty for default in furnishing a statement of particulars, and which provided that a person who was in default should be liable to a fine for every day during which the default continued.[35] Avory J observed that there was no indication in the first provision of any intention to render the offence a continuing one.[36] It was in this context that his Honour spoke about the ‘ordinary way’ to treat an offence as a continuing offence.
[34]Ernest’s case (n 30) 822 (Earl of Reading CJ).
[35]Ibid.
[36]Ibid 823.
Optus submits that, in any event, s 111 of the Sentencing Act overcomes any suggestion that Avory J’s remark in Ernest’scase is to be taken as stipulating the effect to be given to a penalty at the foot of a provision. Section 111, Optus submits, underscores the very important distinction between the rule that is set out in the provision — be it a prohibition or an obligation — and the effect of inserting a penalty at the foot of the provision that stipulates the consequences of contravention of that rule. The penalty provision (or the penalty part of the provision) takes as its starting point the existence of the rule and the fact that the rule has been contravened. While the penalty part of a provision might assist in construing the rule or prohibition, it is not capable of overriding the plain meaning of the rule. When the court is looking to determine whether an offence is of a continuing or a specific kind, it must focus on the nature of the obligation or prohibition in question. The penalty provision plays a subsidiary role.
In relation to the statement in the Explanatory Memorandum beginning with, ‘[a]s this is a continuing offence’, Optus stressed that this involved an assumption, based on the pre‑Worthington understanding, that the offence was a continuing offence. However, it was not a statement of an intention to effect a radical re-conception of the nature of the obligation in question.
Counsel for Optus took the Court through the line of authority considered in Worthington on the significance of a statutory provision stipulating a deadline for the performance of an obligation. According to Optus, the cases draw a conceptual distinction between, on the one hand, a finite obligation fixed by reference to a point in time and, on the other hand, allowing a state of affairs to continue or perpetuating a state of affairs, which is the gist or the gravamen of continuing offences.
It is convenient to have regard to those authorities at this point, as they form the basis for Optus’ submissions.
Larking v Great Western (Nepean) Gravel Ltd (in liq)[37] was a civil appeal in which the High Court considered whether a duty to fence was a continuing one. Dixon J explained the effect of the presence or absence of a fixed deadline or point in time for the performance of an obligation in the following way:
If a covenantor undertakes that he will do a definite act and omits to do it within the time allowed for the purpose, he has broken his covenant finally and his continued failure to do the act is nothing but a failure to remedy his past breach and not the commission of any further breach of his covenant. His duty is not considered as persisting and, so to speak, being for ever renewed until he actually does that which he promised. On the other hand, if his covenant is to maintain a state or condition of affairs, as, for instance, maintaining a building in repair, keeping the insurance of a life on foot, or affording a particular kind of lateral or vertical support to a tenement, then a further breach arises in every successive moment in time during which the state or condition is not as promised …[38]
[37](1940) 64 CLR 221.
[38]Ibid 236.
In Sloggett v Adams,[39] the statute permitted service of a notice requiring a landowner to eradicate noxious plants within 28 days, and it provided that a breach of the notice was an offence. Because of the 28‑day deadline for performance, the New South Wales Supreme Court held that the offence was not a continuing offence. Street CJ said:
The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences.[40]
[39](1953) 70 WN (NSW) 206 (‘Sloggett’).
[40]Ibid 208.
The offence in Sloggett was held not to be a failure to eradicate noxious plants generally, but a failure to eradicate noxious plants within the prescribed 28‑day timeframe. It was therefore held to be a specific offence.[41]
[41]Ibid.
In Welsh v Cornfoot,[42] a statutory time limit of one month from the time of incorporation or allotment of shares was imposed for performance of an obligation to lodge a document under the Companies Act 1961. Lush J held that at the expiration of that time limit, any offence was complete and the offence was of a non-continuing or non-continuous nature.[43] His Honour stated:
The authorities cited to me show, I think, that as a general rule when a time for compliance with a statutory requirement is fixed, the offence of non-compliance is complete at the end of that time and the offence is not a continuing one.[44]
[42][1973] VR 21 (‘Welsh’).
[43]Ibid 25.
[44]Ibid 26.
In contrast, the decision in Barelli’s Bakeries[45] that the offences of failing to pay the amounts of wages prescribed were continuing offences placed significant emphasis on the fact that the statute did not fix a time for performance. Likewise, in Williamson v Betterlay Brick and Block Laying Pty Ltd,[46] the Queensland Court of Appeal construed a provision imposing a duty to maintain a safe workplace as creating a continuing obligation.
[45]Barelli’s Bakeries (n 10).
[46](2020) 3 QR 594.
Optus submits, based on its review of the authorities, that the words of Avory J in Ernest’s case have not been applied to a case where there is a statutory specification of a time limit for performance of an obligation. As a result, the penalty at the foot of s 9(2) cannot be construed as overriding the very clear description of the nature of the obligation.
As a further matter, Optus points to s 36 of the Act, which creates offences where ‘adverse action’ is taken against an employee because he or she is entitled to long service leave. Like s 9(2), the penalty provision in s 36(1) specifies penalty units ‘for each day during which the offence continues’. However, the penalty provision applies to different forms of adverse action, including some which cannot possibly be continuing, such as dismissal.[47] It follows, Optus submits, that it is impermissible to reason from the way in which the penalty provision is expressed to conclude that an offence is a continuing offence.
[47]See Long Service Leave Act 2018, s 36(6).
Finally, Optus relies on the principle that penal provisions in a statute should be construed strictly, and that any ambiguity should be resolved in favour of the person against whom the provision is sought to be applied.
In response, WIV relies on the proposition that when Parliamentary Counsel draft a statutory provision, they do not start with a blank slate: they have generally applicable provisions in the toolbox that they draw upon in drafting. The deployment in the penalty provision of the words ‘for each day during which the offence continues’ is one such drafting tool. According to WIV, the primary judge was correct to consider that this drafting convention is dispositive. It is a mechanism that provided an ‘elegant solution’ based upon an understood drafting convention that would signify, by a simple form of words, that the offence to which the penalty applied was intended to be a continuing one.
In this regard, WIV referred to the decision of this Court in Waterfront Place Pty Ltd v Minister for Planning.[48] Waterfront Place concerned the application of what was called the ‘general extension’ rule in s 44(3) of the Interpretation of Legislation Act 1984 — a rule for the counting of days — which applies to the construction of statutes unless ‘a contrary intention’ appears. The Court referred to the judgment of Gleeson CJ[49] in Attorney-General (Qld) v Australian Industrial Relation Commissions,[50] in which his Honour said:
Acts of Parliament are drafted, and are intended to be read and understood, in light of the [interpretation statute]. A particular Act, and the [interpretation statute], do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.[51]
[48](2019) 59 VR 556 (‘Waterfront Place’).
[49]Ibid 565 [36] (Maxwell ACJ, T Forrest and Emerton JJA).
[50](2002) 213 CLR 485.
[51]Ibid 492–3 [8].
Thus, WIV submits, s 9(1) of the Act has been drafted by reference to s 44(1) of the Interpretation of Legislation Act 1984, which provides that when the period in question is expressed to begin on, or be reckoned from, a particular day, the counting rule is that that day shall not be included in the period. The deeming in s 9(1), that long service is taken to have started on the day that the employment ended, was drafted based on an understanding that it would be construed by reference to s 44(1). Similarly, it is submitted, Parliamentary Counsel drafted s 9(2) by reference to available construction provisions and conventions, including s 111 of the Sentencing Act. A common drafting convention for inclusion in the foot of the provision, where a penalty is included to engage s 111, is a reference to ‘each day during which the offence continues’.
According to WIV, this could have been done by expressly stating that an offence is committed on each day that payment is not made. However, Parliamentary Counsel has deployed the toolbox in the context of the background provisions against which the legislation was drafted, being s 111 of the Sentencing Act.
WIV submits that the penalty provision is substantive. If a penalty is set out at the foot of a provision, it gives rise to a command. It means that a contravention is an offence against the Act, which is punishable upon a finding of guilt by the imposition of a penalty not exceeding the penalty set out. The maximum penalty is specified in terms that require s 9(2) to be read as a whole so that the obligation to pay the long service leave entitlement continues until the entire entitlement is paid.
WIV points out that Optus must rely on part of the text of the penalty in s 9(2) because without the penalty, there would be no offence at all. As a result, what Optus asks the Court to do is to strike through the words ‘for each day during which the offence continues’ each time occurring.
WIV submits that the drafting convention used was an elegant and simple way for Parliamentary Counsel to provide that it is a continuing offence. It is only if that convention is not used that the analysis, which appears in the authorities canvassed by Optus, becomes relevant. WIV describes the cases referred to as being in ‘the remainder subset’ where the convention has not been deployed. To disturb a longstanding drafting convention in the way that Optus invites the Court to do is to disturb the orderly drafting conventions used by Parliamentary Counsel in a manner that is unwarranted.
WIV took the Court to Welsh to point to a different passage from that relied upon by Optus and referred to by Osborn JA in Worthington. In Welsh, Lush J referred to the judgment of O’Bryan and Gillard JJ in Barelli’s Bakeries,[52] where their Honours said that the question as to whether an offence is of a continuing or a continuous nature is ‘solved by ascertaining what is the precise nature of the offence’.[53] To this, Lush J added that ‘the terms of the statute are the first source from which the nature of the offence is to be ascertained’, referring to Ernest’scase.[54] His Honour then said:
But not only is there no such provision in the Companies Act 1961 except the default penalty provisions applicable after conviction, but provisions in earlier Acts for day-by-day penalties … have disappeared in the later revisions of the Act. These considerations point to the classification of the present offences as non‑continuing or non‑continuous.[55]
[52]Welsh (n 42) 26.
[53]Barelli’s Bakeries (n 10) 620.
[54]Welsh (n 42) 26.
[55]Ibid 26.
To similar effect, in R v Catholic Life & Fire Assurance & Annuity Institution Ltd,[56] Denman J of the Queen’s Bench Division held that the words ‘for every day during which such default continues’ meant that the default itself continued, notwithstanding ‘any number of days’ had elapsed.[57]
[56](1883) 48 LT 675.
[57]Ibid 677 (Hawkins J agreeing at 677).

Consideration

The question in this appeal is one of statutory interpretation. It is fundamental that the exercise of construing a statutory provision begins and ends with the text of the provision.[58] The meaning of the text requires consideration of its context, which includes the general purpose and policy of a provision.[59]
[58]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (‘Alcan’); Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
[59]Project Blue Sky Inc (n 18) 381 [70] (McHugh, Gummow, Kirby and Hayne JJ); Alcan (n 58) 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ).
Section 9(2) of the Act contains an obligation to make a payment on a particular day. It also contains a penalty provision that, by reason of the operation of s 111 of the Sentencing Act, makes failure to make the payment an offence. The penalty provision specifies the number of penalty units that may be imposed ‘for each day during which the offence continues’. The penalty payable is based on the number of days during which the payment remains outstanding. The provision is expressed to create an offence that ‘continues’ until payment.
The judge considered this to be dispositive. We agree.
Optus’ case rests on disconnecting the part of s 9(2) that creates the obligation to pay from the part of s 9(2) that creates the offence of non-payment (the penalty provision). It may be accepted that if the part that creates the obligation is construed on its own, Worthington and the line of authority referred therein would apply. The obligation comes to life on a specified day, being the day upon which the employment ends. In the absence of any words or other indicia to the contrary, the words in the first part of s 9(2), like those in s 72(2) of the 1992 Act, create a statutory obligation, fixed by reference to a specific or stipulated point in time, with the consequence that the obligation is not a continuing one. It would follow that the offence was not a continuing one.
However, the first part of s 9(2) does not stand alone. While the penalty provision considered in Worthington read simply, ‘Penalty: 20 penalty units’, the penalty provision in s 9(2) contains the additional words, ‘for each day during which the offence continues’. The construction advanced by Optus elides or excises those words.

As WIV submitted, without the penalty provision, s 9(2) does not create an offence. Optus does not dispute that it is an offence to fail to satisfy the obligation in s 9(2). Optus submits, in effect, that meaning must be given to so much of the penalty provision as is necessary to create the offence, but that the eight words at the end must be construed as carrying no meaning.
We reject that construction.
In construing a statutory provision, a court must strive to provide meaning to every word.[60] This is a well-established principle of statutory construction.[61] A construction that fails to give ‘operative effect’ to all the words of a section should be avoided where possible.[62] In SZTAL v Minister for Immigration and Border Protection,[63] Kiefel CJ, Nettle and Gordon JJ explained the principle of construction more broadly as follows:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[64]
[60]Project Blue Sky Inc (n 18) 382 [71] (McHugh, Gummow, Kirby and Hayne JJ).
[61]See Northern Land Council v Quall (2020) 271 CLR 394, 424 [61] (Kiefel CJ, Gageler and Keane JJ), citing Project Blue Sky, 382 [71] (McHugh, Gummow, Kirby and Hayne JJ); Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, 679 (Mason J).
[62]RBK v Montague (2022) 67 VR 545, 548 [11] (Beach, Niall and Macaulay JJA). See also Victoria v Thompson (2019) 58 VR 583, 590 [32] (Beach and Osborn JJA, Kennedy AJA).
[63](2017) 262 CLR 362 (‘SZTAL’) (citations omitted).
[64]Ibid 368 [14].
It is necessary to give meaning to the words, ‘for each day during which the offence continues’. They mean that the number of penalty units specified may be imposed for each day of non-payment of the long service leave entitlement. In so doing, those words inform the nature of the obligation that arises ‘[o]n the day’ referred to in s 9(1). The obligation must be construed as arising on that day, but as being ongoing for so long as payment is not made.
Having regard to the need to give meaning to all of the words in s 9(2), we reject the submission that the penalty provision is somehow subsidiary to, and must give way to, the part of the provision that creates the obligation. Section 9(2) must be, and can be, made to work as a whole.
It is unnecessary to decide whether words like ‘for each day during which the offence continues’ amount to a drafting convention. We observe only that words such as these are frequently used in legislation and often in the absence of any other words expressing the intention to create a continuing offence. So much was acknowledged by Avory J in Ernest’s case and Cussen J in Lorne Saw Mills, where his Honour recognised, in addition, the case of ‘non-observance’ as giving rise to the implication that the offence is a continuing one.
The existence in s 36 of the Act of forms of ‘adverse action’ that are necessarily singular and fixed in time does not detract from this analysis. Because some (albeit not all) forms of adverse action may be continuing, the words ‘for each day during which the offence continues’ in s 36 have work to do. The existence of some non-continuing adverse actions does not make reasoning from the penalty provision impermissible.
Before us, there was some debate about the significance of the acknowledgement in the Explanatory Memorandum that the offence in s 9(2) is a ‘continuing offence’. Optus submitted that this was no more than a reflection of the understanding at that time (pre-Worthington), that the provision and its antecedents created continuing offences: it did not speak to the proper construction of s 9(2). In our view, nothing turns on the words in the Explanatory Memorandum. The history of the provision and extrinsic materials may assist in determining the meaning of a statutory text and assist in divining the mischief to which it is directed, but they cannot displace the clear meaning of the text.[65] In this case, the meaning is apparent from the text.
[65]Alcan (n 58) 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ).
It follows from the foregoing that the principle that penal statutes be narrowly construed (relied upon by Optus) is of no assistance. In our view, s 9(2), read as a whole, is not ambiguous.
Likewise, the fact that the legislature has amended s 9 to remove the words, ‘[o]n the day’ in s 9(2) and enact s 9(3) to make express the continuing nature of the obligation to pay, does not cause us to depart from the construction that we have identified as the proper construction of s 9(2) based on the plain words of the text of the provision. Nor do we consider that the provision should be construed on the basis that the legislature intended to enact the effect of the decision in Worthington. Such a submission is not only speculative, it is not supported by any words suggesting the contrary.
We are cognisant that as the offence in s 9(2) is a continuing offence, employers are subject to a ‘daily penalty’ of 60 penalty units, which could add up to a very high maximum penalty (21,900 penalty units for each twelve-month period) for the summary offence of underpaying long service leave entitlement. This maximum penalty is higher than the maximum penalties for every indictable offence under the Occupational Health and Safety Act 2004 other than for workplace manslaughter. We are also cognisant that the twelve-month time limit imposed by s 7 of the Criminal Procedure Act 2009 for the commencement of a proceeding for a summary offence will not start running until any underpayment has been rectified by the employer, and that the existence of a continuing offence could result in prosecutions taking place many years after the default.
Those are not considerations that bear on the construction of the provision. They are not a proper or sufficient basis for departing from the plain and unambiguous language of the statutory provision.

Conclusion

The proposed ground of appeal is not made out. Leave to appeal will be refused.

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[2023] VSCA 266

3 November 2023