Smith v NSW Treasury

Case •

[2017] NSWCATAD 337

•

17 November 2017

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Smith v NSW Treasury [2017] NSWCATAD 337
Hearing dates:17 March 2017
Date of orders: 17 November 2017
Decision date: 17 November 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: K Ransome, Senior Member
Decision:

(1) The Shop, Distributive and Allied Employees’ Association is removed as a party.

 (2) The decision under review is affirmed.
Catchwords:

RETAIL TRADING – exemption from trading restrictions – whether exemption made under repealed 1962 Act still effective and capable of amendment

  STATUTORY INTERPRETATION – effect of repeal of Act on order made under repealed Act – transitional provisions – meaning of “taken to be exempted” under new Act - “grandfathering” of existing exemptions – effect of later amendment of new Act – intention of Parliament
Legislation Cited: Factories, Shops and Industries Act 1962
Shops and Industries Act 1962
Retail Trading Act 2008
Shop Trading Amendment Act 2009
Interpretation Act 1987
Cases Cited: Thiess v Collector of Customs (2014) 250 CLR 664 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Project Blue Sky v Australia Broadcasting Authority (1998) 194 CLR 355
Maxwell v Murphy (1956) 96 CLR 261
Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Category:Principal judgment
Parties: Bernie Smith (Applicant)
NSW Treasury (Respondent)
Representation:

Counsel:
AG Rogers (Applicant)
TL Wong and PR Gaffney (Respondent)

  Solicitors:
NSW Crown Solicitor’s Office (Respondent)
File Number(s):2016/00378480

REASONS FOR DECISION

  1. This application is about whether a decision made by the Secretary, NSW Treasury on 23 March 2016 which would allow shops in the Bega Valley Shire Council area to trade on Good Friday and Easter Sunday each year was effectively made.

  2. The issues to be determined in this case are essentially ones of statutory interpretation and involve the interaction between provisions of the Retail Trading Act 2008 (the 2008 Act) and its predecessor, the Factories, Shops and Industries Act 1962 (subsequently renamed the Shops and Industries Act 1962) (the 1962 Act).

Legislative background

  1. The 1962 Act contained provisions which, among other things, regulated the trading hours of shops in NSW. Shops (other than certain defined classes of shop) were not permitted to open for business on Sundays and public holidays (ss 84 and 85). However, under s 89B of the 1962 Act, the Minister administering the Act could exempt certain areas outside of Sydney, Newcastle and Wollongong from the trading restrictions contained in ss 84 and 85. In order to exempt the area from the trading restrictions the Minister had to be satisfied that the area was, or was within, a holiday resort and that during the period of the exemption it had a holiday population that was large by comparison with its normal resident population (the threshold requirements).

  2. On 30 September 1987 the then Minister, being satisfied that the Shire of Bega area met the threshold requirements, made an order exempting the area from the trading restrictions set out in ss 84 and 85 of the 1962 Act and specified the periods for which the exemptions were to apply. One of those periods was “the period of twelve days which falls within the holiday period observed in April-May for public schools in the State of New South Wales”. This period generally included the Easter long weekend, except in those years where Easter fell outside the school holidays. The order was published in the NSW Government Gazette on 18 December 1987 as required under the 1962 Act. The order continued in effect unless and until it was revoked or varied (s 89B(4)).

  3. The 1962 Act was repealed with effect from 1 July 2008 and replaced by the 2008 Act.

  4. Under s 4(1) of the 2008 Act shops in NSW are not able to trade on certain days of the year, including on Good Friday and Easter Sunday. However, there are a number of exemptions to these general restrictions for particular types of shops. In addition, as originally enacted, s 10 of the 2008 Act permitted the Director-General, upon application or at his or her discretion, to exempt shops from the restrictions. The exemption could be in respect of a specified shop or a specified area and could be for a specified period or of indefinite duration. In determining whether to grant an exemption, the Director-General was required to take into account matters set out in s 10(3).

  5. Schedule 2 of the 2008 Act set out transitional and savings provisions. Clause 2 of Schedule 2 refers specifically to exemptions which had been made under the 1962 Act.

  6. The parties agree that the effect of the transitional and savings provisions was to continue an exemption from the restricted trading requirements for shops in the Bega Shire area that were exempted under the order made pursuant to s 89B of the 1962 Act. The parties do not agree on other aspects of the effect of the transitional and savings provision and this is discussed further below.

  7. Section 10 of the 2008 Act was amended with effect from 1 October 2009 by the Shop Trading Amendment Act 2009 (the 2009 amending Act). These amendments made significant changes to the exemption regime. Importantly, the amendment did not include a power for the Director-General to exempt a shop from the trading restrictions at his or her own discretion – an application from an occupier of a shop was required to trigger the exercise of the power. In addition, a public interest test had to be met before the Director-General could grant an exemption; an exemption could only be made in respect of a shop, not an area; and an exemption remained in force for a period of three years only and could not be extended.

  8. A new clause 8 inserted into Schedule 2 of the 2008 Act contained transitional provisions dealing with the extent to which the 2009 amendments would apply to exemptions made prior to the commencement of the 2009 amending Act.

The decision under review

  1. The decision under review was made on 23 March 2016 by the Secretary, NSW Treasury. I note that the decision itself is undated but other material filed with the Tribunal by the respondent satisfies me that the decision was made on 23 March 2016.

  2. The decision, which was said to be made under clause 2 of Schedule 2 of the 2008 Act (set out in paragraph 7 above), amended the exemption relating to the Bega Shire which had been made by the then Minister on 30 September 1987 under the 1962 Act. The amendment was intended to ensure that shops in the Bega Valley Shire Council area covered by the exemption could trade on Good Friday and Easter Sunday in years when those dates did not coincide with the school holidays.

  3. The applicant argues that this amendment could not in fact have been made.

Standing of the applicants

  1. The application for review of the Secretary’s decision named the Shop, Distributive and Allied Employees’ Association as the First Applicant and Bernie Smith as representative of the Shop, Distributive and Allied Employees’ Association as the Second Applicant. Mr Smith is the Secretary of the NSW Branch of the First Applicant.

  2. The respondent contends that the First Applicant has no standing to bring the application. Section 12 of the 2008 Act sets out who may apply for review of a decision concerning an exemption:

12 Administrative reviews by Civil and Administrative Tribunal

(1) Any person who has applied for an exemption and is aggrieved by any of the following decisions may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision:

(a) a determination of the Director-General to refuse to grant or to amend or revoke an exemption,

(b) a determination of the Director-General as to the conditions subject to which, or the period for which, an exemption is granted.

(2) Any other person who considers himself or herself to have a sufficient interest in an application for an exemption under this Division may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any such decision.

(3) The Civil and Administrative Tribunal is not required to conduct an administrative review of a decision on the application of a person referred to in subsection (2) if it is not satisfied that the person has a sufficient interest in the application for exemption.

(4) A representative of an industrial organisation of which persons employed or engaged in shops are entitled or eligible to become members may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions:

(a) a determination of the Director-General to grant or to amend an exemption,

(b) a determination of the Director-General as to the conditions subject to which, or the period for which, an exemption is granted.

  1. Sub-section 12(1) is not relevant to this application as it concerns “any person who has applied for an exemption” and neither the First nor Second Applicant made such an application. The First Applicant states that, if it is a “person” within the meaning of s 12(2), then it has standing to bring the application. The First Applicant also states that, even if it is not a “person”, it should still be able to bring the application on the basis that it cannot be intended that a principal (the registered organisation) cannot do what its agent (a representative of a registered organisation) can in s 12(4).

  2. The respondent, however, points out that, like s 12(1), s 12(2) is concerned with “an application for an exemption” and in this case there is no such application. The decision that is under review in this application is a decision to amend an exemption. The only provision that refers to review of a decision to amend an exemption is s 12(4). That provision is very specific in stating that a “representative of an industrial organisation” may make an application for review. I agree with the respondent that the provision is very clear that it is the representative and not the organisation that has standing to make the application. I also consider that, because of the specificity of that provision, questions of principal and agent do not arise.

  3. The First Applicant therefore has no standing to make the application for review and is removed as a party. The correct applicant is Bernie Smith as representative for the Shop, Distributive and Allied Employees’ Association. There is no dispute that the Shop, Distributive and Allied Employees’ Association is an industrial organisation.

  4. The First Applicant is therefore removed as a party.

Principles of statutory construction

  1. There are a number of principles of statutory construction which must guide the consideration of the meaning of the various statutory provisions involved in this case. In its simplest terms statutory construction involves attribution of meaning to the text of a statute. In Thiess v Collector of Customs (2014) 250 CLR 664 at 671 citing Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519, the High Court stated

“… the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.”

  1. In the interpretation of a provision of a statute, regard is to be had to the statutory purpose. Under s 33 of the Interpretation Act 1987 a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.

  2. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". Furthermore, a court or tribunal construing a statutory provision must strive to give meaning to every word of the provision: Project Blue Sky v Australia Broadcasting Authority (1998) 194 CLR 355 at 381-382.

  3. With these principles in mind, I now turn to the construction of the various provisions at issue in this case.

Effect of repeal and subsequent amendment of the 2008 Act

  1. The parties have very different views of the effect of the repeal of the 1962 Act and subsequent amendment of the 2008 Act which replaced it. Their views are summarised below.

The applicant’s position

  1. The applicant states that, upon the repeal of the 1962 Act, any exemption granted under s 89B of the 1962 Act ceased to have any operation. Upon commencement of the 2008 Act, by virtue of the transitional provisions, the exemption granted for shops in the Bega Shire on 30 September 1987 became an exemption granted under s 10 of the 2008 Act (and did not continue in force under the 1962 Act). The exemption was then operable from 1 July 2008 pursuant to the provisions of s 10 of the 2008 Act (not the earlier 1962 Act).

  2. A secondary argument mounted by the applicant is that it was only those shops which were in existence at the time of the repeal of the 1962 Act and introduction of the 2008 Act which had the benefit of the transitional provisions contained in the 2008 Act. The relevant clause in the transitional provisions referred to “a shop”. The exemption therefore continued for shops which were in existence at the time of the repeal and introduction of the new Act but any new shop was not covered by that existing exemption from 1 July 2008.

  3. When s 10 of the 2008 Act was amended in 2009 to provide that exemptions granted under s 10 were limited to three years duration, the exemption for the shops in the Bega Shire, along with all other exemptions in existence at the time, was subject to that limitation. The exemption therefore ceased to operate, either on 1 July 2011 (three years after it came into existence on 1 July 2008) or on 1 October 2012 (three years after the commencement of the amending Act on 1 October 2009).

  4. The applicant states that, when the Secretary, NSW Treasury made his decision on 23 March 2016 to “amend the section 89B exemption relating to the Shire of Bega”, there was in fact no such exemption still in existence and therefore capable of amendment. This was because the s 89B exemption had ceased to operate on 1 July 2008 with the repeal of the 1962 Act and commencement of the 2008 Act.

  5. The Applicant states that, even if the purported amendment made on 23 March 2016 can be treated as an amendment of the exemption granted on 1 July 2008 pursuant to the transitional provisions of the 2008 Act, it is ineffective as that exemption had expired at the latest on 1 October 2012.

  6. The applicant submits that it therefore follows that there could be no amendment of an exemption which no longer existed.

The respondent’s position

  1. The respondent argues that the shops that were exempted by the exemption of 30 September 1987 made under the 1962 Act were taken to be exempt after the commencement of the 2008 Act by operation of clause 2(2) of Schedule 2 of the 2008 Act. The transitional provisions in clause 2 of Schedule 2 had the effect of deeming the Director-General to have granted an exemption of indefinite duration to those shops which were previously the subject of the 30 September 1987 exemption. That is, the existing exemptions were “grandfathered in” under clause 2 of Schedule 2 and the terms on which they were deemed to be exempt were crystallised at the time the 2008 Act commenced.

  2. The three year time limit introduced by the amending Act 2009 did not apply to the deemed exemptions grandfathered in under clause 2 of Schedule 2 of the 2008 Act. This is made clear by the transitional provisions in the 2009 amending Act which applied the three year time limit to exemption orders made after the 2008 Act commenced and before the amendment, but not to exemptions grandfathered in when the 2008 Act commenced.

  3. The respondent states that the deemed exemption has been in force at all times since the commencement of the 2008 Act and the decision of the Secretary made on 23 March 2016 amending that exemption was capable of taking effect.

Effect of the repeal of the 1962 Act and enactment of the 2008 Act

  1. The starting point in the consideration of whether the decision made by the Secretary was one which could validly be made involves examining the effect of the repeal of the 1962 Act and enactment of the 2008 Act on the order made by the then Minister under the 1962 Act. As noted above, the parties agree that the exemption continued but differ on the nature of the continuing exemption.

  2. The applicant states that the exemption made under the 1962 Act did not continue in force but became an exemption operable from 1 July 2008 pursuant to the provisions of s 10 of the 2008 Act. The applicant also makes a secondary argument that the continuing exemption only applied to shops in existence at the date the 2008 Act commenced (1 July 2008) and not to shops which have come into existence since that date. This is because s 10 of the 2008 Act applies to shops and not certain areas as did s 89B of the 1962 Act.

  3. On the applicant’s submissions, those shops in the Bega Shire which had the benefit of the exemption on 30 June 2008 continued to be exempted from the trading restrictions from 1 July 2008 (in the terms set out in s 89B determination). Their rights from 1 July 2008 were determined by s 10 of the 2008 Act.

  4. It is necessary to look carefully at s 10 and the savings and transitional provisions set out in Schedule 2 to the 2008 Act. Section 10 as enacted on 1 July 2008 gave the Director-General a power to exempt a shop from the requirement to kept closed on certain days. (This power is now exercised by the Secretary.) Factors which the Director-General must take into account before exercising the power to grant an exemption are set out in s 10(3). The exemption is made when a determination is made by the Director-General and the order published in the Gazette.

  5. Clause 2(2) of Schedule 2 to the 2008 Act specifically applies to exemptions made under the 1962 Act which were in force immediately before the repeal of that Act. It provides:

2 Exemptions under Shops and Industries Act 1962

(1) This clause applies to a shop:

(a) for which an exemption (an existing exemption) was in force, immediately before the repeal of the Shops and Industries Act 1962, that permitted the shop to be kept open on a restricted trading day, and

(b) that is not exempt from the requirement under this Act to be kept closed on a restricted trading day.

(2) A shop to which this clause applies is taken to be exempted by the Director-General under section 10, subject to any conditions applicable to the existing exemption, from the requirement to be kept closed on any restricted trading day to which the existing exemption applied.

(3) The Director-General may amend or revoke an exemption referred to in subclause (2).

  1. It is evident from clause 2(2) that its purpose was to enable exemptions granted under the 1962 to continue in force under the 2008 Act. The exemptions were also to continue in force “subject to any conditions” applicable to the 1962 Act exemption.

  2. That the exemptions were to continue is made clear by the Second Reading Speech for the 2008 Act by the Parliamentary Secretary which states:

The bill contains transitional provisions which mean that no shop that currently enjoys unrestricted trading hours will become subject to new restrictions under this bill. These include the grandfathering of existing exemptions which have previously been granted to allow trading on public holidays in certain “holiday resort” areas.

  1. The Explanatory Note states that Schedule 2 “continue[d] in force” exemptions applying to shops that, immediately before the commencement of the 2008 Act, were exempt from the requirement to stay closed on restricted trading days.

  2. In the Second Reading Speech, the Parliamentary Secretary went on to say that the Director-General of Commerce would also retain a power to grant exemptions from trading restrictions. This power was able to be exercised by the Director-General after the commencement of the 2008 Act in accordance with the provisions of s 10. It is clear from the legislation itself and the Second Reading Speech that the exercise of the Director-General’s power was prospective. That is, it applied to new exemptions from the commencement of the 2008 Act and could be exercised either upon application by any person or at the Director-General’s discretion.

  3. It is also apparent that the new Act intended to deal with exemptions which were in place prior to the commencement of the 2008 Act and which were not otherwise covered by specific statutory exemptions in Division 1 of Part 3, for example, small shops, by way of the transitional provisions in clause 2(2) of Schedule 2. Clause 2(2) states that that the relevant shops are “taken to be exempted by the Director-General under section 10”. The applicant states that the effect of clause 2(2) is to, in effect, convert the exemption made in 1987 to one made under s 10 of the 2008 Act (and, therefore the provisions of s 10 apply to its operation).

  4. However, no new exemption order was made by the Director-General under s 10 for the shops in the Bega Shire following the processes set out in s 10 after commencement of the 2008 Act. There was no application by any person for such an exemption and the Director-General, of his or her own motion, did not make an exemption under the new s 10.

  5. Of importance in clause 2(2) of Schedule 2 is the use of the words “taken to be exempted by the Director-General under section 10”. I agree with the respondent’s submissions that the effect of clause 2(2) is in fact to deem the Director-General to have taken the steps necessary for such an exemption to take effect. The provisions in Schedule 2, which include clause 2(2), operated upon commencement of the 2008 Act, not after. A deemed exemption in the form of an order made under s 10 by the Director-General therefore came into existence at the time the 2008 Act commenced.

  6. The effect of clause 2(2) was therefore to deem an exemption order to have been made under s 10 for an indefinite period for shops in the Bega Shire on the days specified in the original order. The existing exemptions were “grandfathered” in by virtue of clause 2 (2).

  7. How the exemptions preserved by the provision in clause 2(2) were to be dealt with in the future was also provided for by clause 2 of Schedule 2. Clause 2(3) specifically permitted the Director-General to amend or revoke an exemption referred to in clause 2(2). How such a “grandfathered” exemption was to be dealt with in the future, either by way of revocation or amendment, was therefore governed by the provision set out in clause 2(3), and not by any other provision in the 2008 Act, including s 10.

  8. Furthermore, it is clear that at the time the 2008 Act commenced there was no need for an application by anyone for such an exemption to be amended or revoked after commencement of the 2008 Act. The Director-General could therefore amend or revoke an exemption at his or her discretion. I note that a new sub-clause, clause 2(4) was inserted into clause 2 by the 2009 amending Act. Under this new clause an occupier of a shop could apply to the Director-General to amend an exemption which had been grandfathered in under clause 2(2). From 1 October 2009 therefore a grandfathered exemption could be amended or revoked in the two ways established by clause 2(3) and clause 2 (4).

The effect of the 2009 amendments

  1. As set out above, the 2009 amending Act made significant amendments to s 10 of the 2008 Act. Of most relevance to this matter is that from 1 October 2009 exemptions could only be made for a period of three years (s 10(5)). The applicant’s position is that the three year period applied to the exemptions created by clause 2(2) of Schedule 2 to the 2008 Act, that is, the exemptions which continued after the repeal of the 1962 Act.

  2. The respondent submits that the amendment of s 10 and, in particular, the inclusion of the three year time limit in s 10(5), had no effect upon the existing exemptions which had been grandfathered in when the 2008 Act commenced.

  3. Again, it is necessary to look to the amendments and to the savings and transitional provisions. There can be no doubt that one effect of the 2009 amending Act was to make any exemption granted from 1 October 2009 (the date the amendments took effect) valid for a maximum of three years only. What then of exemptions made prior to 1 October 2009?

  4. The 2009 amending Act made specific provision for those exemptions which had been granted after the 2008 Act commenced on 1 July 2008 and prior to the commencement of the 2009 amending Act. A new clause 8 was inserted into Schedule 2 of the 2008 Act. Clause 8 applies to exemptions granted after the commencement of the 2008 Act and which were still in force immediately before the commencement of the 2009 amending Act. Clause 8 permits exemptions which had been made after commencement of the 2008 Act in respect of an area, not just particular shops, to continue even though, from 1 October 2009, s 10 would allow an exemption only to be made in relation to a shop.

  5. Clause 8 also provides that an exemption granted after the commencement of the 2008 Act which was still in force immediately before the commencement of the 2009 amending Act ceases to have effect three years after the commencement of the amending Act. Any exemption, therefore, that had been granted by the Director-General from 1 July 2008, would expire on 1 October 2012 (three years after commencement of the 2009 amending Act) or on an earlier date if that was the date specified in the order granting the exemption.

  6. As I understand it, both parties agree that the Bega Shire exemption is not caught by the transitional provisions in clause 8 as it applies to those exemptions made under s 10 from 1 July 2008 which were still in force when the 2009 amending Act commenced.

  7. The applicant states that, because clause 8 only refers to a specific sub-set of exemptions, Parliament intended that all other shops, that is, all shops, other than those for which an exemption was granted between 1 July 2008 and when the 2009 amending Act commenced, are affected by the amending Act. The shops that are affected are therefore shops for which an exemption is sought from 1 October 2009 and shops for which an exemption was in place at the time the 2008 Act commenced and which was preserved on commencement of that Act. This latter category included shops in the Bega Shire whose exemption had been preserved under clause 2(2) of Schedule 2.

  8. The applicant submits that no question arises about any retrospective effect of the amending Act, as all s 10(5) does is impose a time limit. The applicant submitted that the Parliament, quite reasonably, imposed a cap of three years on exemptions from trading restrictions so that the party claiming the benefit of the exemption can establish every so often that continuation of the exemption is appropriate.

  9. The applicant referred to the presumption concerning the preservation of accrued rights under new laws and submitted that the imposition of a cap as in this case does no violence to that presumption. The applicant submitted that the imposition of such a cap is consonant with the principles espoused by the High Court in Maxwell v Murphy (1956) 96 CLR 261.

  10. The applicant argues that, because the exemption relating to the Bega Shire became an exemption under s 10 when the 2008 Act commenced, it then became subject to the time limitation in s 10(5) when the 2009 amending Act commenced on 1 October 2009. That exemption would therefore expire on 1 October 2012. The applicant also argued that the exemption may well have expired on 1 July 2011, three years after it came into existence.

  11. As set out above when discussing what occurred when the 2008 Act commenced, at that time no order was in fact made under s 10 in relation to shops in the Bega Shire. The exemption was deemed to have been made under s 10 so that it continued to have effect consequent upon the repeal of the 1962 Act. How that exemption was amended or revoked is also dealt with in clause 2.

  12. Indeed, s 10 does not purport to affect or modify orders already made. Section 10 confers a power to make an exemption order and, if the power is exercised, an order is made exempting a shop from a requirement that it be kept closed. The order then operates on the terms specified in the order as to the days or times on days when trading may be undertaken. From 1 October 2009 the Director-General could only make an order for a maximum of three years. The powers of the Director-General are therefore constrained by s 10(5) but only constrained when exercised. There is nothing in s 10(5) to indicate that the sub-section has any operation independent of the exercise by the Director-General of the power to grant an exemption. It therefore does not impose, or purport to impose, any condition on an exemption previously granted.

  13. In amending the 2008 Act in 2009, the Parliament clearly turned its mind to what should happen to exemptions which were granted after the commencement of the 2008 Act but before the commencement of the 2009 Act. The Parliament made a clear decision that those exemptions would continue in the same terms but they would need to be scrutinised after three years to determine if they could continue. The Parliament could have made amendments to clause 2 to ensure that the exemptions the subject of that clause, that is, those made under the 1962 Act, were subject to the same restriction. It did not.

  14. It is apparent that the intention of the legislature was that clause 2 and clause 8 would sit side by side. Clause 2, in referring to exemptions made under the 1962 Act refers to “existing exemptions”, clause 8 refers to “existing Departmental exemptions” which are those made after the commencement of the 2008 Act and in force immediately before the commencement of the 2009 amending Act.

  15. It is also clear that the transitional regime in clause 2 continued after the 2009 amending Act and introduction of clause 8. As noted above, the 2009 amending Act inserted a new sub-clause, clause 2(4), which would not have been necessary if clause 2 had no further work to do.

  16. I agree with the submissions of the respondent which are to the effect that the 2008 Act as amended sets up a regime whereby there are rules governing what might loosely be called three sets of exemptions for shops not otherwise exempted under the legislation:

Exemptions made from 1 October 2009

  1. From 1 October 2009 exemptions may be granted by the Director-General under s 10 of the Act on application by the occupier of a shop. An exemption can only be granted in respect of a shop, not an area, and is limited to a maximum of three years duration. The Director-General, before granting the exemption, must be satisfied as to the matters set out in s 10(2). The exemption can be amended or revoked on application of the occupier of the shop subject to the exemption (s 11C).

Exemptions made from 1 July 2008 up to 1 October 2009

  1. Exemptions made from 1 July 2008 when the 2008 Act commenced up to the commencement of the 2009 amending Act 2009 were made in accordance with the provisions set out in s 10 as it was originally enacted. Those exemptions, by virtue of clause 8 of Schedule 2 continued in force. An exemption in relation to an area continued in force, even though no such exemption could then be made. Under the transitional provisions in clause 8, the time limit of three years was imposed on those exemptions. Clause 8 also set out how an exemption made between 1 July 2008 and the commencement of the 2009 amending Act could be amended or revoked. The provisions of s 11C of the Act applied.

  2. These exemptions, by virtue of clause 8(4) expired on 1 October 2012.

Exemptions made under the 1962 Act

  1. Exemptions that had been made under the 1962 Act were preserved by virtue of clause 2(2) of Schedule 2 to the 2008 Act. The 2009 amending Act did not affect their preservation and these exemptions continue in force on the same terms as to their application and duration as set out in the original order.

  2. These exemptions can be amended or revoked in accordance with the methods set out in clauses 2(3) and 2(4).

  3. The applicant submits that it cannot be the intention of Parliament that some shops have a three year limit on an exemption from restricted trading days but another class of shops has an open-ended exemption. The applicant pointed out that it could well be that different shops of the same kind in the same location could potentially fall into this category. In my view, that is exactly what Parliament has done and intended to do.

  4. Clause 2 of Schedule 2 has preserved the right of shops in holiday resorts that were granted an exemption from restricted trading prior to the commencement of the 2008 Act to trade on the terms set out in the exemption that was made at the relevant time. In the case of shops in the Bega Shire, that exemption is indefinite.

Was the amendment of the order effective?

  1. As can be seen from the above description of the three classes of exemptions existing today, there are well defined mechanisms for amending or revoking each of these classes of exemptions. The respondent referred to Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 where Gavan Duffy CJ and Dixon J held:

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”

  1. The applicant argued that the Anthony Hordern case has no application in the current circumstances but that argument was predicated upon the assumption that Parliament intended all shops to be subject to the three year exemption. As set out above, that is not the case. Applying this principle, it is apparent that clause 2 of Schedule 2, having provided the mechanism by which exemptions made under the 1962 Act were preserved, or grandfathered in, under the 2008 Act, also provided the only mechanism by which they could be amended or revoked.

  2. It was therefore within the power of the Secretary to amend the order in respect of shops in the Bega Shire.

  3. The order made by the Secretary on 23 March 2016 stated:

“Under Schedule 2, part 2, Clause 2(30 of the Act this day I have decided to amend the section 89B exemption relating to the Shire of Bega made by Mr pat Hills, Minister for Industrial relations, on 30 September 1987 and published in the Government Gazette (No. 193 – 18 December 1987) under the former Factories, Shops and Industries Act 1962…”

  1. The applicant submitted that, as the Secretary purported to amend “the section 89B exemption relating to the Shire of Bega”, the amendment was ineffective as the s 89B exemption ceased to operate on 1 July 2008. The respondent concedes that perhaps the Secretary ought not have referred to s 89B, but states that the order makes clear that what is being amended is the order previously made under s 89B of the 1962 Act as preserved under clause 2 of Schedule 2 of the 2008 Act. The respondent stated that the s 89B order had to be referred to as this is what triggered the continuation of the exemption under clause 2(2) and the power to amend contained in clause 2(3).

  2. In my view, the order is clear, although perhaps a little inelegant, in that what it seeks to amend is the exemption order which continued in force after the commencement of the 2008 Act and which was not affected by the amendments made in 2009. It is also clear that the Secretary is exercising powers under clause 2(3) of Schedule 2 to the 2008 Act.

  3. I therefore find that the order was effectively made.

Scope of the exemption

  1. The applicant submitted, as noted above, that it was only those shops which were in existence at the time of the repeal of the 1962 Act and introduction of the 2008 Act which had the benefit of the transitional provisions contained in the 2008 Act because the transitional provisions referred to “a shop”. The exemption therefore continued for shops which were in existence at the time of the repeal and introduction of the new Act but any new shop was not covered by that existing exemption from 1 July 2008. There are no doubt many shops in that situation in the Bega Shire.

  2. This raises the question of to what shops does the amendment made by the Secretary on 23 March 2016 apply. That is not a question which needs to be decided in this application, although I do note that the exemption was an area exemption. The only questions for me is whether the Secretary had the power to make the decision made on 23 March 2016 and whether that was the correct or preferable decision.

  3. I have decided that the Secretary did have the power to make the amendment. The amendment therefore applies to those shops which are within the scope of the order as in force by virtue of clause 2 of Schedule 2.

Correct or preferable decision

  1. The applicant has not provided any evidence that, if the decision was one that could be made by the Secretary, it was nevertheless not the correct or preferable decision to extend the exemption to trading on Good Friday and Easter Sunday in years where those days did not fall within the school holidays.

  2. The respondent has provided a report by Mr Peter Valerio who has expertise in tourism and economic development. The analysis undertaken by Mr Valerio demonstrates that the Bega Shire is a tourist destination and that the Easter period exceeds all other holiday periods in terms of visitor numbers.

  3. The respondent also provided an affidavit of Ms Vicki Telfer, Executive Director, Industrial Relations Group, NSW Treasury. Ms Telfer gave details of the shops which are not otherwise exempted from the trading restrictions imposed by the 2008 Act in the various towns within the Bega Shire. She also provided information about the economic profile of the area, including the number of tourism related businesses and people employed in the tourism industry. Information was also provided about various events which may be attractive to tourists and which are timed to coincide with the Easter period.

  4. The criteria which were formerly set out in the 1962 Act which allowed an area to be designated as a holiday resort are no longer in existence. In fact, there are presently no specific criteria which would apply to the exercise of the Secretary’s power to amend the order. The Secretary’s power must, however, be exercised on the basis of relevant considerations.

  5. Importantly, under the terms of the order, only staff who freely elect to work can be required to work on the days in question.

  6. On the basis of the information provided I am satisfied that there are a significant number of shops which would be affected if the amendment is not made and that these shops supply goods which may otherwise not be available in the Bega Shire area. I am also satisfied that this could well have a dampening effect upon tourism and the local economy.

  7. The amendment does no more than permit shops within its scope to trade every Easter, rather than only when Easter falls within the school holidays.

  8. I am therefore satisfied that the correct or preferable decision is that shops in the Bega Shire be exempted from trading restrictions which would otherwise apply in the period which commences on Good Friday and ends on Easter Sunday, both days inclusive.

Orders

  1. The Shop, Distributive and Allied Employees’ Association is removed as a party.

  2. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 17 November 2017

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Statutory Material Cited

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Residual Assco Group Ltd v Spalvins [2000] HCA 33
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
Residual Assco Group Ltd v Spalvins [2000] HCA 33