The Director, Transport Safety v Metro Trains Melbourne Pty Ltd
[2019] VSC 215
•5 April 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2018 01591
| THE DIRECTOR, TRANSPORT SAFETY | Plaintiff |
| v | |
| METRO TRAINS MELBOURNE PTY LTD (ACN 136 429 948) | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 March 2019 |
DATE OF JUDGMENT: | 5 April 2019 |
CASE MAY BE CITED AS: | The Director, Transport Safety v Metro Trains Melbourne Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 215 |
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JUDICIAL REVIEW – Effect of scheme transferring metropolitan passenger operations to national control – Appointment and authority to prosecute under the Rail Safety Act 2006 (Vic) – Effect of repeal of the relevant provisions – Effect of ss 14(2) and 17(1) of the Interpretation of Legislation Act 1984 (Vic) – Preservation of repealed statutory provisions by necessary implication – Doctrine of implied saving – Application for an order in the nature of certiorari – Rail Safety Act 2006 ss 20(1), 21(1) – Transport (Compliance and Miscellaneous) Act 1983 (Vic) ss 228T, 229A(1), 229B – Transport (Safety Schemes Compliance and Enforcement) Act 2014 ss 1, 3, 105(1)(b), 145, 146 – Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Act 2013 (Vic) ss 22, 23, 103.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Hanks QC with Ms F Gordon | Russell Kennedy |
| For the First Defendant | Dr D Neal QC with Mr R O’Neill | Herbert Smith Freehills |
| No appearance for the Second Defendant |
HIS HONOUR:
Introduction
The Director, Transport Safety (‘the Safety Director’) applies for an order in the nature of certiorari under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) quashing the decision of the Magistrates’ Court of Victoria at Melbourne to dismiss charges against Metro Trains Melbourne Pty Ltd (‘Metro Trains’).
On 22 February 2014, a fatal accident occurred at a suburban railway station, when a passenger seeking to board a moving train fell between the platform and the train after doors were held open for him by others on the train (‘incident’).
On 4 January 2017, Metro Trains was charged with offences under ss 20 and 21 of the Rail Safety Act 2006 (Vic) (‘Rail Safety Act’). The charges were laid by Paul Paciocco, a transport safety officer, as informant, and were dismissed by the Magistrates’ Court on the basis that Mr Paciocco did not have authority to do so.
The finding of lack of authority was made on the basis that Mr Paciocco had ceased to be authorised under s 229A(1) of the Transport (Compliance and Miscellaneous) Act 1983 (Vic) (‘Transport Compliance Act’) to bring proceedings for offences under ss 20 and 21 of the Rail Safety Act.
The relevant changes which occurred to Mr Paciocco’s authority as a transport safety officer are:
(a)on 21 May 2012, Mr Paciocco was appointed by the Safety Director as a transport safety officer for a period of three years under s 228T of the Transport Compliance Act. On the same day, he was authorised by the Safety Director as a transport safety officer to prosecute for offences against a relevant transport safety law under s 229A(1)(b) of the Transport Compliance Act;
(c)on 16 May 2014, Mr Paciocco was appointed by the Safety Director to exercise the powers of a transport safety officer under a transport or infrastructure safety law as defined in s 3 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 (Vic) (‘Transport Safety Schemes Act’);
(d)on 19 May 2014, Mr Paciocco’s appointment under s 228T of the Transport Compliance Act was revoked by the Safety Director; and
(e)on 14 April 2015, Mr Paciocco was authorised by the Safety Director to prosecute for offences against a transport safety or infrastructure law under s 105(1)(b) of the Transport Safety Schemes Act.
The offence provisions
Sections 20(1) and 21(1) of the Rail Safety Act as in force on the day of the incident respectively provided:
A rail infrastructure manager must, so far as is reasonably practicable, ensure the safety of rail infrastructure operations carried out by the rail infrastructure manager.
Penalty: …
In the case of a body corporate, 9000 penalty units.
…
A rolling stock operator must, so far as is reasonably practicable, ensure the safety of rolling stock operations carried out by the rolling stock operator.
Penalty: …
In the case of a body corporate, 9000 penalty units.
Old informant restriction
Following amendment in 2012, the restrictions imposed by the Transport Compliance Act on the prosecution of offences against a relevant transport safety law were in the following form on the day of the incident:
(a)Section 229A provided:
(1)Proceedings for an offence against a relevant transport safety law may be brought only by—
(a) the Safety Director; or
(b)a transport safety officer with the written authorisation of the Safety Director...
…
(3)A transport safety officer who brings proceedings may conduct the proceedings before the court.
(4) Nothing in this section prevents –
(a)the Director of Public Prosecutions from bringing a proceeding for an indictable offence against a relevant transport safety law; or
(b)a member of the police force from bringing a proceeding for an offence against a relevant transport safety law.
(‘the old informant restriction’)
(b)Section 229B provided:
(1)Proceedings for an indictable offence against a relevant transport safety law may be brought—
(a)within 3 years after the offence is committed or the Safety Director becomes aware the offence was committed;
…
(c)Section 2(1) of the Transport Compliance Act defined ‘relevant transport safety law’ to include the Rail Safety Act.
Reforms and the national scheme
In 2013 and 2014, major changes occurred to the governance and regulation of railways in Australia. National schemes agreed by the Council of Australian Governments (‘COAG’) in June 2009 led to new governance arrangements and regulatory changes across Australia. South Australia was the host jurisdiction for the national rail regulation scheme, and passed a template national law in 2012. The rail sector in Victoria was brought under national control while tramways, tourist and heritage railways remained in State hands. The Safety Director and transport safety officers continued to play a key role under the national scheme as implemented in Victoria.[1]
[1]Explanatory Memorandum, Transport (Safety Schemes Compliance and Enforcement) Bill 2014 (Vic) 2.
The implementing legislation enacted in 2013 and 2014 included:
(a)the Rail Safety National Law Application Act 2013 (Vic) (‘Rail Safety National Law Application Act’);
(b)the Transport Safety Schemes Act; and
(c)the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Act 2013 (Vic) (‘Rail Safety (Local Operations) Act’).
The salient provisions of the national scheme came into force on 19 May 2014 – almost three months after the date of the incident.
Section 1 of the Transport Safety Schemes Act states:
The purpose of this Act is to provide a scheme for the enforcement of transport system safety legislation by—
(a)re-enacting, with modifications, provisions of the scheme under the [Transport Compliance Act] for the enforcement of transport system safety legislation; and
(b)adopting and adapting provisions from the Rail Safety National Law.
Changes made by the Transport Safety Schemes Act included:
(a)ss 145 and 146 repealed ss 229A and 229B of the Transport Compliance Act; and
(b)s 3 defined ‘transport safety or infrastructure law’ to include the ‘Rail Safety (Local Operations) Act’.
Changes made by the Rail Safety (Local Operations) Act included :
(a)s 22 substituted a new provision for s 20 of the Rail Safety Act;
(b)s 23 repealed s 21 of the Rail Safety Act; and
(c)s 103 renamed the Rail Safety Act as the Rail Safety (Local Operations) Act.
New informant restriction
Section 105 of the Transport Safety Schemes Act restricted the class of persons authorised to commence proceedings under that Act or a transport safety or infrastructure law:
(1)A proceeding under this Act or a transport safety or infrastructure law…may only be commenced by—
(a) the Safety Director; or
(b)a transport safety officer with the written authorisation of the Safety Director (either generally or in a particular case); or
(c) a police officer.
…
(5)Despite subsection (1), the Director of Public Prosecutions may commence a proceeding for an indictable offence against this Act or a transport safety or infrastructure law.
(‘new informant restriction’)
Extrinsic material
Rail Safety National Law Application Act
The explanatory memorandum to the Bill for the Rail Safety National Law Application Act described the national rail safety law as representing ‘an updating of the current framework’. It stated that the key changes arose from the applied laws approach and the establishment of a national regulator, whilst leaving the underlying regulatory scheme unchanged.[2]
[2]Explanatory Memorandum, Rail Safety National Law Application Bill 2013 (Vic) 2.
In the Second Reading Speech for this Bill, the Minister for Public Transport said:
Consistent with this approach, rail safety regulation will continue to be provided in Victoria by the director, transport safety, or Transport Safety Victoria, the current industry regulator. The director will operate under a service level agreement or SLA with the national rail safety regulator along with sufficient accompanying delegations to ensure an effective, robust and practical arrangement. In recognition of the importance of good rail safety to Victorians, the bill provides that the minister and the director must both sign the SLA to ensure approval of the arrangement at both policy and operational levels.[3]
[3]Victoria, Parliamentary Debates, Legislative Assembly, 7 March 2013, 823 (Terry Mulder, Minister for Public Transport).
Transport Safety Schemes Act
The explanatory memorandum to the Bill for the Transport Safety Schemes Act described transition from the Transport Compliance Act in these terms:
As foreshadowed, a number of provisions are repealed from the [Transport Compliance Act] and substantially re-enacted in the Bill…
The effect is that appointments, directions and things such as improvement and prohibition notices are taken to be appointments, directions and notices under the Bill…For this reason, specific transitional provisions are not required to be included in the Bill.
...
Currently, transport safety officers are appointed under section 228T of the [Transport Compliance Act]. The effect of section 16 of the Interpretation of Legislation Act is that,[4] from the commencement of the relevant provisions in the Bill, a transport safety officer is taken to be appointed under the equivalent provisions in the Bill. The appointment is taken to be subject to the same conditions as and for the term of the appointment under the [Transport Compliance Act].[5]
[4]No party submitted that s 16 of the Interpretation Act assisted in the resolution of the issues in dispute in this proceeding.
[5]Explanatory Memorandum, Transport (Safety Schemes Compliance and Enforcement) Bill 2014 (Vic) 7–8.
The explanatory memorandum stated:
Clause 145 repeals section 229A of the [Transport Compliance Act], which determines who may bring prosecutions for offences against a relevant transport safety law, which is being replaced by the provisions in the Bill.[6]
[6]Ibid 109.
In the Second Reading Speech for this Bill, the Minister said:
The main purpose of this bill is to improve compliance and enforcement support for Victoria's local rail, bus and marine safety schemes.
…
…good compliance and enforcement provisions are essential to the effectiveness of regulatory schemes, particularly those which support public safety.
…
More particularly, the bill is needed to avoid anomalies.
…
The bill is complex in parts. Accordingly, detailed information about its provisions and their impact and origin is set out in the explanatory memorandum...[7]
[7]Victoria, Parliamentary Debates, Legislative Assembly, 20 February 2014, 457–458 (Terry Mulder, Minister for Public Transport).
Rail Safety (Local Operations) Act
The explanatory memorandum to the Bill for the Rail Safety (Local Operations) Act described the prime purpose of the Bill as to confine the scope of the State’s Rail Safety Act to domestic rail operations. A natural consequence of the change was that the Bill renamed the Rail Safety Act as the Rail Safety (Local Operations) Act in recognition of its abridged coverage.[8]
[8]Explanatory Memorandum, Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 (Vic) 2.
In the Second Reading Speech for this Bill, the Minister described the prime purpose of the Bill as ‘simply to modify the scope of Victoria’s existing rail safety statute – the [Rail Safety Act] - as a result of Victoria’s entry into the national scheme’.[9]
[9]Victoria, Parliamentary Debates, Legislative Assembly, 7 March 2013, 831 (Terry Mulder, Minister for Public Transport).
Interpretation provisions
Section 14(2) of the Interpretation of Legislation Act 1984 (Vic) (‘the Interpretation Act’) provides:
Where an Act or a provision of an Act—
(a)is repealed or amended;
…
the repeal, amendment…of that Act or provision shall not, unless the contrary intention expressly appears—
…
(e)affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;
…
(g)affect any investigation, legal proceeding or remedy in respect of anything mentioned in paragraphs (e) to (f)—
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced…as if that Act or provision had not been repealed or amended...
Section 17(1) of the Interpretation Act provides:
A reference in an Act to that Act or to any provision of that Act…shall, unless the contrary intention appears, be construed—
(a)if the Act…has been amended, as a reference to the Act…as amended and in force for the time being;
(b)if the Act…has been re-enacted or re-made (with or without modification), as a reference to the Act…as re-enacted or re-made and in force for the time being;
(c)if the Act…has been re-enacted or re-made (with or without modification) and subsequently amended, as a reference to the Act…as subsequently amended and in force for the time being;
…
Magistrates’ Court decision
The Magistrate identified the issue in dispute as whether the informant needed to, and did hold the necessary appointment and authorisation to initiate proceedings pursuant to the repealed ss 20 and 21 of the Rail Safety Act when proceedings were initiated. He held that the Rail Safety Act did regulate Metro Trains, but that the Rail Safety (Local Operations) Act did not. After referring to ss 14 and 17 of the Interpretation Act, and the decision of Byrne v Garrisson,[10] his Honour held that the repealed provisions were not included in the definition of ‘transport safety or infrastructure law’ in s 3 of the Transport Safety Schemes Act. The definition referred to the Rail Safety (Local Operations) Act, but not to the Rail Safety Act.
[10][1965] VR 523 (‘Byrne’).
The Magistrate held that to commence proceedings, the informant needed to be properly appointed and authorised. The appointment and authorisation given to the informant under the Transport Safety Schemes Act was not a power to initiate proceedings in relation to the repealed provisions of the Rail Safety Act.
As a result, the Magistrate held that when the proceeding was instituted, the informant was not properly authorised. The proceeding was a nullity.
Safety Director’s submissions
The Safety Director submitted that the Magistrate fell into jurisdictional error when he held that Mr Paciocco was not authorised to bring the proceeding.[11] The Safety Director relied on two submissions. The primary submission was not put to the Magistrate. The alternative submission was rejected by the Magistrate.
[11]Referring to the Administrative Law Act 1978 (Vic) s 10.
The primary submission proceeded in three steps:
(a)in the absence of clear and express statutory language to the contrary, any person may lay an information for an offence of a public character;
(b)the effect of the repeal of s 229A(1) was to remove the restriction on persons authorised to prosecute for offences against ss 20 and 21 of the Rail Safety Act; and
(c)s 14(2) of the Interpretation Act preserved Metro Trains’ liability under ss 20 and 21 of the Rail Safety Act despite their replacement or repeal, but did not preserve the restriction in s 229A(1).
The alternative submission was in substance that:
(a)Mr Paciocco was given authority under the Transport Safety Schemes Act to bring proceedings for an offence against ‘a transport safety or infrastructure law’;
(b)the expression ‘transport safety or infrastructure law’ in the Transport Safety Schemes Act included the Rail Safety (Local Operations) Act;
(c)the Rail Safety (Local Operations) Act was a renamed and amended version of the Rail Safety Act;
(d)s 17(1)(a) of the Interpretation Act provided that a reference in an Act that has been amended shall, unless the contrary intention appears, be construed as a reference to the Act as amended and in force for the time being; and
(e)the Magistrate misconstrued the provisions of the Transport Safety Schemes Act when he held that the reference to the Rail Safety (Local Operations) Act did not extend to and include the Rail Safety Act.
Metro Trains’ submissions
Metro Trains submitted:
(a)where an Act restricts the class of persons who are authorised to bring a prosecution for an offence, proof that the person bringing the charge is within the authorised class and holds written authorisation, is essential to the validity of the charge;
(b)while authorisation is not an element of the offence, once the defence takes an objection as to whether the prosecutor is authorised to bring the charge, it will be necessary to prove authorisation on the balance of probabilities;[12]
(c)it was not the intention of the legislature, in repealing s 229A(1) of the Transport Compliance Act, to permit any member of the public to prosecute for offences under the Rail Safety Act that predated the repeal; and
(d)to the contrary, s 105 of the Transport Safety Schemes Act introduced similar informant restrictions for the comparable offences in the new legislation.
[12]Relying on AB Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298, 309 [26] (‘AB Oxford’).
Principles of statutory construction
The principles of statutory construction are well established. In Project Blue Sky Inc v Australian Broadcasting Authority, the High Court held that:
...the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have…The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[13]
[13]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (emphasis added).
The plurality of the High Court emphasised the importance of context in SZTAL v Minister for Immigration and Border Protection:
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... 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.[14]
[14]SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, 940–941 [14] (Kiefel CJ, Nettle and Gordon JJ).
In Esso Australia Pty Ltd v The Australian Workers’ Union, the High Court held that:
The Court’s ability to construe a statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have. It is not the Court’s function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation...[15]
[15]Esso Australia Pty Ltd v Australian Workers’ Union (2017) 92 ALJR 106, 123 [52] (Kiefel CJ, Keane, Nettle and Edelman JJ) (emphasis added).
These principles are consistent with s 35 of the Interpretation Act, which requires that when interpreting a provision of an Act, 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.
Legislative intention
I now turn to consider the legislative intention of Parliament when the national scheme was implemented. The Transport Safety Schemes Act repealed the old informant restriction in s 229A of the Transport Compliance Act and introduced the new informant restriction in s 105. The old and new informant restrictions are very similar. The new informant restriction reflects improved drafting of the old informant restriction with one substantive change. The old informant restriction applied to proceedings for an offence against ‘a relevant transport safety law’. The new informant restriction applies to proceedings for an offence against ‘a transport safety or infrastructure law’. This latter expression is defined in a way that is appropriate for rail governance and regulation under the new national scheme.
There can be no doubt that the legislature in enacting the national scheme for the governance and regulation of rail transport sought to give effect to the agreement made at COAG. Under the COAG agreement, the rail sector was transferred to national control, but with the Safety Director and transport safety officers continuing to play a key role. There is no indication in the Transport Safety Schemes Act, or in the other statutes that form part of the national scheme, of any intention that proceedings for offences under the Rail Safety Act prior to 19 May 2014 were to be freed from the old informant restriction so as to be open to anyone in the community who wished to prosecute for an offence.
A legislative change from the old informant restriction to a common informant regime would involve a radical change in transport safety prosecutorial policy and practice. There is nothing in the legislation or extrinsic material concerning the national scheme that suggests such an intent. It would have been a remarkable change, particularly as it would apply to the prosecution of offences prior to 19 May 2014 under the Rail Safety Act, but not to offences after this date which would be governed by the new informant restriction. There is no hint in the language of the statute, or the extensive extrinsic material relating to the national scheme, that Parliament intended to repeal the old informant restriction as it applied to offences under the Rail Safety Act prior to the commencement of the Transport Safety Schemes Act and the introduction of the new informant restriction.
The following reasons also confirm that it was not the legislature’s intention to repeal the old informant restriction as it applied to offences under the Rail Safety Act prior to the commencement of the Transport Safety Schemes Act:
(a)The first purpose of the Transport Safety Schemes Act set out in s 1 is the
re-enactment with modification of provisions under the Transport Compliance Act for the enforcement of transport safety legislation. The modifications of which s 1 speaks are those resulting from the introduction of the new national scheme. The second purpose is the adoption and adaption of provisions from the Rail Safety National Law. The maintenance of the old informant restriction in relation to offences under the Rail Safety Act is consistent with the re-enactment of the provisions of the Transport Compliance Act. This purpose is not achieved if the existing enforcement arrangements, including the old informant restriction, are removed in relation to past offences.
(b)Secondly, the new informant restriction is very similar to the old informant restriction. There is nothing that suggests that the old informant restriction was to be repealed in relation to past offences. This would be a surprising interpretive outcome given the adoption of a similar informant restriction for the future.
(c)Thirdly, repeal of the old informant restriction would lead to the inconsistent treatment of offences against the Rail Safety Act. Charges heard and determined prior to the commencement of the national scheme would be subject to the old informant restriction. Charges heard and determined after the national scheme commenced would not even though those charges related to past events. Such an interpretation would be illogical, irrational and capricious.
(d)Fourthly, the effect of the old informant restriction was to commit enforcement of rail safety breaches under the Rail Safety Act to the Safety Director, transport safety officers appointed by the Safety Director, police and the Director of Public Prosecutions. While police were only included in the old informant restriction in 2012, that restriction had been substantively in force at least since 1983. It is a significant policy decision that prosecution of rail safety offences be confined to persons with technical safety expertise, or appointments which would give experience in rail safety matters or prosecutions generally. In practical terms, the policy position protected rail operators from the risk of prosecution by members of the public at large. It is not the Court’s role to comment on whether such a restriction is desirable or otherwise, but only to note that it was important, and had long been the position.
(e)Fifthly, the extensive explanatory memoranda constituting the national scheme and the Parliamentary debates do not suggest that the removal of the old informant restriction for offences committed prior to 19 May 2014 under the Rail Safety Act was envisaged or contemplated when the national scheme was adopted.
I conclude that the consideration of legislative intent suggests that the interpretation of the Transport Safety Schemes Act principally urged by the Safety Director is an unlikely one.
Safety Director’s primary submission
The Safety Director sought to advance his submissions by reference to the provisions of the Interpretation Act and authority.
First, the Safety Director referred to the principle that the right of a member of the public to lay an information of a public nature is not to be denied in the absence of clear and express language.[16] The right depends on the intention of the legislature as expressed in the terms of the statute.[17]
[16]Relying on Armstrong v Hammond [1958] VR 479, 480–481 (Herring CJ, O’Bryan, Dean, Sholl and Adam JJ).
[17]Sargood v Veale (1891) 17 VLR 660, 662 (Higinbotham CJ, A’Beckett and Hodges JJ); Brebner v Bruce (1950) 82 CLR 161, 173 (Fullagar J); Steane v Whitchell [1906] VLR 704, 705 (Hood, Cussen and Chomley JJ).
Here, as I have set out above, the intention of the legislature is to restrict the class of persons who can undertake prosecutions under rail safety legislation, and is found in the express provisions of the Transport Compliance Act and the Transport Safety Schemes Act. Although expanded in 2012 to include police officers, the old informant restriction had been in operation for many years.
The Safety Director then sought to contend that the old informant restriction was procedural, rather than substantive, in character.
In Yrttiaho v Public Creator (Qld), the High Court considered the effect of a change to court rules, after an action in negligence commenced, which reduced the period of time that could elapse without a party taking a step in the proceeding before a court order would be required to permit a fresh step from six to three years.[18] The issue was whether the six year period was preserved by s 20 of the Acts Interpretation Act 1954 (Qld).
[18]Yrttiaho v the Public Curator of Queensland (1971) 125 CLR 228 (‘Yrttiaho’).
Gibbs J held that s 20(1)(c) and (e), which is the Queensland counterpart of s 14(2)(c) and (e) of the Interpretation Act, operated to preserve accrued rights, but did not operate to preserve the procedure to be followed in the course of legal proceedings.[19] The provision in question was classified as procedural and not substantive.
[19]Menzies, Windeyer and Walsh JJ agreeing, Barwick CJ dissenting.
In Maxwell v Murphy, Dixon CJ said:
a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced…is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.[20]
[20](1957) 96 CLR 261, 267 (Dixon CJ).
Adopting a summary of the principles from a Canadian decision,[21] Dixon CJ said:
unless the language used plainly manifests in express terms or by clear implication a contrary intention:
(a)A statute divesting vested rights is to be construed as prospective.
(b)A statute, merely procedural, is to be construed as retrospective.
(c)A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.[22]
[21]Dixie v Royal Columbian Hospital (1941) 2 DLR 138, 139–140 (Sloan JA).
[22]Ibid 270.
In my view, the legislative restriction in the class of persons who are authorised to prosecute under the Rail Safety Act is substantive, and not merely procedural. A criminal charge can only be commenced in a manner authorised by law.[23] In AB Oxford, the Court of Appeal held that proof of authorisation is essential to the validity of a prosecution for an offence.[24] If objection is taken, it is necessary for the prosecutor to prove the authorisation on the balance of probabilities. The standard of proof is the balance of probabilities because the authorisation is not an element of the offence.[25]
[23]Criminal Procedure Act 2009 (Vic) ss 5–7.
[24]AB Oxford (n 12) 309 [26] (Nettle JA, Callaway JA and Byrne AJA agreeing), referring to R v Waller [1910] 1 KB 364, 366; R v Bates [1911] 1 KB 964, 965.
[25]Ibid.
There is a very important difference in substance between an offence where prosecutions can be undertaken by a limited class of specified persons, and a situation where anyone at all can bring a prosecution. In the first case, a defendant can have the prosecution dismissed if not brought by a specified person. In the second, the defendant is exposed to prosecution by any member of the public.
In Byrne, Gowans J considered the effect of s 7(2) of the Acts Interpretation Act 1958 (Vic) which provided (as does s 14(2) of the Interpretation Act) that any legal proceeding may be instituted as if the repealing Act had not been passed.[26] As in the repealed legislation, legal proceedings in respect of liability and penalties could only be instituted with the consent of the Attorney General, a power in the Attorney General to give the necessary consent arose by necessary implication despite the repeal of the former legislation. If legal proceedings for prior offences can continue to be instituted as if the repealing Act had not been passed, the machinery and provisions necessary to do so must be preserved.
[26]Byrne (n 10) 531.
Likewise, in the present case, the repeal of s 229A of the Transport Compliance Act by the Transport Safety Schemes Act must, by necessary implication, bring with it the consequence that the Safety Director has power to give written authorisation to prosecute to transport safety officers under the repealed Act who can then bring and conduct proceedings under the repealed Act. If it were otherwise, the enforcement machinery of the repealed Act would break down. The right to institute legal proceedings under the repealed Act would be undermined or lost.
The Safety Director made two submissions to distinguish Byrne. Firstly, it was submitted that the decision was decided prior to the decision of the High Court in Yrttiaho, and overlooked the principle that s 14(2) does not preserve procedural rules. Secondly, he submitted that the reasoning of Byrne was not endorsed in the Full Court decision of Sutton v Bradshaw,[27] despite the references in that decision to it.[28]
[27][1988] VR 920 (‘Sutton’).
[28]Ibid 924–925 (Kaye J), 928–929 (Brooking J).
Both submissions must be rejected. As I have said, informant restrictions such as the old informant restriction and the new informant restriction are not merely procedural. They have the substantive effect of restricting the class of persons authorised to prosecute, and permitting a defendant to obtain the dismissal of a charge not brought by an authorised person. There is no inconsistency between the decision of Gowans J in Byrne and the decision of the High Court in Yrttiaho. The endorsement by Kaye J of Byrne occurred in the context of a wider principle found in Maxwell,[29] to the effect that where rights and procedures are dealt with together, the intention of the legislature may well be that the old rights are to be determined by the old procedure and that only the new rights under the substituted section are to be dealt with by the new procedure.[30] Application of this principle leads to the same conclusion as that reached in Byrne.
[29]Roy Wilson and Brian Galpin, Maxwell on the interpretation of statutes (London Sweet & Maxwell, 11th ed, 1962) 219.
[30]Sutton (n 27) 925.
In Sutton, the Full Court considered the offence of driving with an excessive blood alcohol level. The evidentiary provision for admitting a certificate proving the breath test result had been repealed. Kaye J held that the evidentiary provision was saved by necessary implication.[31]
[31]Ibid 926.
Kaye J cited the decision of Sargant J in Re Hale’s Patent,[32] where the procedure to obtain compensation for the infringement of a patentee’s rights by the Crown was held not to have retrospective operation. The Court construed the statute so as to give effect to the intention of the legislature, where that intention was clear or derived by necessary implication.[33]
[32][1920] 2 Ch 377.
[33]Sutton (n 27) 925.
Brooking J referred to Yrttiaho and the dissent of Barwick CJ in that decision, holding that the considerations were different where Parliament had repealed a penal provision and the accompanying procedural sections. Brooking J said:
It would be sensible and convenient…if, in a case like the present, the repeal of the Division left intact not only liability in respect of offences already committed but also the procedural apparatus created by the Division for prosecuting those offences.[34]
[34]Ibid 928–929.
In the event, Brooking J held that the admission of a certificate proving the breath test result was not a minor procedural adjunct to the offence in question, but was intended to facilitate proof of one of the essential elements of the offence.[35] His Honour noted the legislative commitment at the time to certainty in prosecutions of this type and the need to give effect to legislative intention.[36]
[35]Ibid 930.
[36]Ibid.
Gray J arrived at the same conclusion, distinguishing Yrttiaho and construing s 14(2)(g) of the Interpretation Act as preserving the provisions authorising the admission of the breath test certificates.[37]
[37]Ibid 931, 936.
Doctrine of implied saving
In Commissioner of State Revenue v Bulzomi, the Court of Appeal considered whether the ‘show cause’ procedure found in provisions of repealed stamp duty legislation was preserved.[38] After reviewing the relevant decisions, the Court of Appeal held that the doctrine of implied saving recognised in Sutton preserved this procedure given its close interrelationship with the liability provision which was an accrued substantive right, and unarguably survived. The procedural provision clarified the concepts of the principal provision and materially assisted in ascertaining the scope and satisfaction of the right.[39]
[38](2009) 24 VR 643 (Redlich and Dodds-Streeton JJA, Hargrave AJA) (‘Bulzomi’).
[39]Ibid [118] (Dodds-Streeton JA).
Bulzomi was followed and applied in Terasof Pty Ltd v Roads Corporation.[40] Robson J adopted the common law principle of implied saving where a provision was necessary for the effective operation of the legislative scheme of which it was a part and that provision was not preserved by the Interpretation Act. The maintenance of the demerits register for tow truck drivers after the repeal date of the old Act was held to be necessary for the effective operation of the legislative scheme to deal with offences committed before the old Act was repealed. Robson J noted that the new Act sought to maintain the system of suspension of tow truck licences where sufficient demerit points were incurred for breaches of the new regulations.[41]
[40][2011] VSC 199.
[41]Ibid [54]–[56].
Finally, the Safety Director sought to distinguish both Sutton and Bulzomi. As to Sutton, it was said that the provisions under consideration were unlike the link in the present case between the old informant restriction and the offence in question. As to Bulzomi, the Safety Director said that the repeal of provisions in the present matter did not eliminate a proceeding or the availability of remedies as in that case.
While the provisions under consideration in Sutton and Bulzomi inevitably differ from those in the present case, the legislative restriction of informants to particular classes, and the requirement that transport safety officers be authorised by the Safety Director are inextricably intertwined with the conduct of prosecutions under ss 20 and 21 of the Rail Safety Act. If the offence provisions are to be preserved despite their repeal, then it follows, by necessary implication, that the requirement for the informant to be authorised by the Safety Director, also continues after the repeal.
The capacity of the Safety Director to appoint transport safety officers to prosecute offences committed before the Act was repealed must also continue by necessary implication. It cannot be that Parliament intended that rail safety prosecutions would be impeded due to a shortage of available informants. While the Safety Director or the Director of Public Prosecutions (in the case of indictable offences) can also prosecute, this might be inappropriate or inconvenient in the individual case.
I conclude that the primary submission by the Safety Director must fail.
Safety Director’s alternative submission
The Safety Director submitted:
(a)the new informant restriction was intended to replace the old informant restriction, and the associated mechanism for appointment and authorisation;
(b)the authorisation of informants to prosecute transport safety offences was an important feature of the national scheme to ensure the safety of rail operations, and was maintained in the Transport Safety Schemes Act. The legislature did not intend that the power to grant authorisation would be unavailable for offences committed before 19 May 2014, or that the prosecution of those offences would be impeded;
(c)when the 2014 amendments were made, it was foreseeable that there were offences that had been committed under the Rail Safety Act which were yet to be prosecuted and were within the three year limitation period;[42]
(d)even if not revoked, the appointment of Mr Paciocco as a transport safety officer would have lapsed on 20 May 2015; and
(e)the construction advanced by Metro Trains would have the effect of narrowing the class of persons who could bring proceedings for rail safety offences committed before the 2014 amendments.
[42]Transport Compliance Act s 229B(a).
The Safety Director contended that the definition of ‘a transport safety or infrastructure law’ in the Transport Safety Schemes Act should be taken as applying to prosecutions under the Rail Safety Act. In substance, this means that the new informant restriction applies to prosecutions under the Rail Safety Act which precedes in time the commencement of the Transport Safety Schemes Act in May 2014. It also means that the reference to the Rail Safety (Local Operations) Act in the expression ‘a transport safety or infrastructure law’ in this Act must also be taken as referring to the Rail Safety Act.
The submission fails in both aspects. First, there is no reason why the new definition of ‘transport safety or infrastructure law’ should be taken as applying to prosecutions for offences committed prior to May 2014, rather than the definition of ‘relevant transport safety law’ which was in operation at the time, and which applied to all other prosecutions under the Rail Safety Act. Secondly, there is no reason to treat the reference to the Rail Safety (Local Operations) Act which applied only to tramways, tourism and heritage railways, as including metropolitan passenger rail and other operations transferred to national control.
Section 17(1)(a) of the Interpretation Act does not assist the Safety Director’s submission. Under s 17(1)(a), a reference to the Rail Safety Act might be taken as a reference to the Rail Safety (Local Operations) Act. In the absence of s 17(1)(a), a reference in a statutory provision to an Act would refer only to the Act in the form that it was when the referring provision was enacted.[43] Section 17(1)(a) extends the operation of the statutory provision to include later versions of the Act in force at the time the provision was enacted. None of this means, however, that the reference in the Transport Safety Schemes Act to the Rail Safety (Local Operations) Act includes the Rail Safety Act as in force at an earlier point of time.
[43]D C Pearce and R S Geddess, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 279 [6.22].
There are additional reasons why the Safety Director’s alternative submission must fail:
(a)The national scheme was designed to cede control of the governance and regulation of the metropolitan rail network to the Federal government. State control of tramways, tourist and heritage railways remained. It makes no sense to treat the reference to the Rail Safety (Local Operations) Act as extending to, and including rail operations that were expressly excluded from its operation. The preferable construction is for the relevant provisions of the Rail Safety Act to continue to apply to offences committed prior to the repeal of that Act.
(b)There is no need for the new informant restriction to replace the old informant restriction with respect to offences committed prior to the repeal of the old informant restriction. The old informant restriction is available and appropriate in relation to proceedings under the Rail Safety Act.
(c)There is no lack of mechanism for the Safety Director to appoint transport safety officers to prosecute charges. That mechanism was preserved by necessary implication. The appointment of Mr Paciocco would have continued for the full period of three years had it not been revoked. There is no reason why the Safety Director could not have renewed his appointment on expiration or appointed other officers as transport safety officers to prosecute the charges.
(d)There is no gap in the enforcement of the Rail Safety Act. As I have said, Mr Paciocco’s appointment as a transport safety officer could have been renewed, or other officers appointed. The Safety Director and the Director of Public Prosecutions were also eligible and available to undertake the prosecution.
Conclusion
For the reasons given, the Safety Director’s primary and alternative submissions both fail. The Magistrate was correct when he rejected the alternative submission. The application by the Safety Director for an order in the nature of certiorari quashing the decision of the Magistrates’ Court must be dismissed.
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