John Holland Pty Ltd v Victorian Workcover Authority [2009] HCATrans 236 (24 September 2009)

Last Updated: 1 October 2009

[2009] HCATrans 236

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M16 of 2009

B e t w e e n -

JOHN HOLLAND PTY LTD (ACN 004 282 268)

Plaintiff

and

VICTORIAN WORKCOVER AUTHORITY

Defendant

Office of the Registry
Sydney No S121 of 2009
No S122 of 2009

B e t w e e n -

JOHN HOLLAND PTY LTD (ACN 004 282 268)

Applicant

and

INSPECTOR NATHAN HAMILTON

First Respondent

ATTORNEY-GENERAL FOR NEW SOUTH WALES

Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 24 SEPTEMBER 2009, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR G.J. HATCHER, SC and MR S.P. DONAGHUE, for the plaintiff in M16 of 2009 and the applicants in S121 of 2009 and S122 of 2009. (instructed by Harris & Company)

MR P.J. HANKS, QC: If the Court pleases, I appear with MS F.I. GORDON for the defendant in the first matter and for the Attorney-General for Victoria intervening in the second matters. (instructed by Corrs Chambers Westgarth Lawyers and Victorian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friends, MR J.V. AGIUS, SC and MS A.M. MITCHELMORE, in the first matter for the Attorney-General for New South Wales who intervenes and in the case of the two removal applications for both respondents. (instructed by Crown Solicitor (NSW) and Workcover Authority)

MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, in each matter I appear with MR C.P. YOUNG for the Attorney-General of the Commonwealth intervening under section 78A of the Judiciary Act. I should say, your Honours, that as the arguments have been presented in writing it would seem to us to be most efficient if I were to say anything I want to say after South Australia. (instructed by Australian Government Solicitor)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR S.A. McDONALD, on behalf of the Attorney-General for South Australia intervening in support of the defendants in the first matter and the respondents in the second. (instructed by Crown Solicitor’s Office (SA))

MR J.D. McKENNA, SC: May it please the Court, I appear with MR A.M. POMERENKE for the Attorney-General for the State of Queensland intervening in all matters. (instructed by Crown Law)

FRENCH CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, may I deal first with the order in which we would seek to make our submissions. Your Honours heard the Solicitor-General for the Commonwealth indicate a desire to follow South Australia. We would seek to, so far as the argument raised by the section 78B notice on behalf of South Australia is concerned, deal with that aspect more or less at the same time as our reply. So, your Honours, what I would propose to do, subject to the Court, of course, is to go immediately to the matters involved other than those issues.

Your Honours, the proceedings before the Court relate to, in the case stated, the relevant provisions and I will come to them very shortly, of the Occupational Health and Safety Act 2004 (Vic), and in the applications for removal, the relevant provisions of the Occupational Health and Safety Act 2004 (NSW). In each matter, the underlying question is whether, and to what extent, section 4 of the Occupational Health and Safety Act 1991 (Cth) renders inoperative in section 109 terms in relation to the plaintiff, various provisions of the two State Acts to which I referred.

Your Honours, more specifically, there are three issues in each matter, which if I could state them shortly are first, whether once - and if I could describe us as the “plaintiff” for simplicity - the plaintiff became subject to the Federal Act it ceased to be liable for conviction for offences alleged to have been committed against the State Acts, prior to it becoming subject to the Federal Act. That is really, your Honours, the underlying question.

The second aspect is whether the provisions in the State Acts that purport to empower the inspectors to commence proceedings under those Acts are invalid to the extent that they purport to authorise the commencement of proceedings against the plaintiff on or after 14 March 2007 - might I pause to say that is the date on which we became subject to the Commonwealth Act, I will come to the detail in just a moment. Your Honours, could I just mention in passing that I think in one or perhaps two places in the records, you will see that date put as 15 March. The correct date is 14 March, as we understand it. The third aspect, your Honours, is whether the proceedings against the plaintiff which have been, we would say, purportedly commenced, are incompetent.

Your Honours, may I go immediately to the several legislative provisions that are involved, and could I go first to the Victorian Act. Your Honours will see in section 2 of that Act the objects set out in broad terms and your Honours will also see, in section 2(2) the expression of the intention of the Parliament of the State -

that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.

Your Honours will see those there set out. From there one goes to sections 7 and 8, and those are provisions which confer various functions and powers on the body described as “the Authority”, and in particular, if I go to section 7, your Honours will see that in section 7(1)(c) it says that the Authority has the following functions:

(c) to monitor and enforce compliance with this Act and the regulations -

and then your Honours will see in section 8(2), it is provided that –

the Authority has all the functions and powers that an inspector has under this Act or the regulations.

Your Honours, an “inspector” is defined in section 5(1), as perhaps one might as expect, “an inspector appointed under Part 9” of the Act and “Authority” is defined in the same section to mean, to put it shortly, the defendant in the proceedings.

Your Honours, the charges in the present case can be seen - and I am about to seek to relate them to the provisions of the Act that deal with it - in the case stated book at pages 71 to 73. The provisions of the Act to which they relate – and I will come to these in just a moment – are sections 21 and 23. If your Honours would look at page 71 of the case stated book, you will see that on that page, about point 3 on the page, is the first of the four counts there referred to, on page 72 are the second and third, and on page 73 the fourth of those counts. If I could ask your Honours to, in effect, keep those pages open for just a moment, could I take your Honours to the substantive provisions to which they relate. Your Honours will see section 21 of the Act, and it provides in section 21(1) that –

An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

Your Honours will then see in subsection (2) that particular circumstances are adverted to which would amount to a contravention of subsection (1), and then you will see in subsection (4) –

An offence against sub-section (1) is an indictable offence.

Your Honours will then see in subsection (2) that particular circumstances are adverted to which would amount to a contravention of subsection (1) and then you will see that subsection (4) makes an offence against subsection (1) an indictable offence. Now, your Honours, could I invite your Honours to note particularly paragraph 21(2)(e), and your Honours will see that it relates to provision of “information, instruction, training or supervision to employees” et cetera.

Your Honours, if one could keep open those provisions for a moment. The first of the counts at page 71 relates to section 21(1) itself, the opening words of it, the opening part of it, and then your Honours will see also a reference to section 21(2)(a), so it is a combination of those provisions. In relation to the second count, your Honours will see that it relates to section 21(1) and section 21(2)(e) and, in particular, failure to provide “information, instruction, training”, et cetera.

The third count is 21(1) and 21(2)(e) again, and your Honours will see from the particulars it is failure to provide supervision, et cetera. Your Honours, if one goes to the fourth count on page 73, your Honours will see that it relates to a provision to which I have not earlier taken your Honours, that is section 23. Section 23(1) provides, as your Honours will see, that “persons other than employees of the employer are not exposed to risks to their health or safety” et cetera.

So, your Honours, the charge has been brought, as your Honours will see from page 71 of the case stated book about point 6, by an inspector appointed under the Act. Your Honours will see the side note, “Who made the charge(s)?”. Your Honours will see from the case stated itself at page 36 in paragraph 7 that he “was an inspector appointed under the” Act. Your Honours, his power to lay the charge derives from section 130(1) of the Act, and your Honours will see section 130(1)(b).

Your Honours, may I go then to the relevant provisions of the New South Wales enactment. Your Honours will see the objects set out in section 3. Then, your Honours, section 8(1):

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

You will see that elaborated upon in the several paragraphs which follow. Then section 8(2) deals with person other than employees. Could I pause to note, your Honours, that so far as section 8(1) is concerned, that is the provision on which the charge is based in S121 and so far as section 8(2) is concerned, that is the provision on which the charge is based in S122. I will come to that in just a moment, your Honours.

GUMMOW J: Mr Jackson, is there any territorial connection explicitly laid out in either the Victorian or the New South Wales Act?

MR JACKSON: Your Honour, I think the answer is no. Of course one would have the normal Interpretation Act provision that – your Honour, may I check that – and of course also, your Honour, one would expect, prima facie, absent the Acts Interpretation Act provision to be treated as applying to the Territory or the State subject to any contrary intention.

GUMMOW J: At least as to the offences.

MR JACKSON: Yes, your Honour. Your Honours, could I just also refer to section 12 of the New South Wales Act, and it is the provision which creates the offences. The proceedings in each instance were brought by Mr Hamilton, an inspector under the Act, pursuant to section 106(1)(c). Your Honours will see if one goes to the joint application book at page 30 the proceeding instituted by Mr Hamilton, and your Honours will see about point 7 or 8 on the page the reference to section 8(1) of the Act. The other charge is at page 38 and about the same point on that page you will see the reference to section 8(2). Your Honours, may I turn now to the provisions of the Commonwealth Act.

GUMMOW J: Just before you do that, Mr Jackson, section 107 of the New South Wales Act has a limitation provision as to the time for instituting proceedings. Does the Victorian Act have such a provision?

MR JACKSON: I will just have to check that. I think there is, your Honour. I think it is around 130 – 132, my learned friend suggests.

GUMMOW J: Section 132?

MR JACKSON: Might I just say, your Honours, something in relation to what your Honour has put to me. I will be coming to this later, of course, but there seems to be a great deal of reliance in the submissions on behalf of the States on the notion, which we accept of course, that the effect of section 109 inconsistency does not mean that the beast, as it were, is put down forever. What it does mean of course, is that the State enactment can revive if the Commonwealth Act that creates the inconsistency is repealed or otherwise effected but, your Honours, what often would happen is that any time for instituting proceedings may have elapsed in any event once the State Act comes alive again, and on the other hand, what frequently seems to happen is that when a Commonwealth Act has ultimately been repealed, the State Act really is one that is no longer of utility because of changed circumstances or because it has been known that the Commonwealth Act is going to be repealed. The result is that State legislation is put in in a new and fresher form. But, your Honours, that is a passing observation, with respect.

Your Honours, could I go then to the Commonwealth Act. May I start your Honours with the definition of “employer” in section 5(1). It means, relevantly, paragraph (c):

a non-Commonwealth licensee.

The definition of “non-Commonwealth licensee” is, your Honours will see, again in the same subsection and it:

means a body corporate:

(a) for which to which a licence under Part VIII of the Safety, Rehabilitation and Compensation Act 1988 is in force . . .

(b) that was an eligible corporation for the purposes of that Part when the licence was granted; and

(c) that is not a Commonwealth authority for the purposes of this Act.

Your Honours, that takes one to the definition of “eligible corporation” in section 4 of the Safety Rehabilitation and Compensation Act, and your Honours, if one goes to that Act, it:

means a corporation in respect of which a declaration is in force under section 100 –

of that Act and your Honours it is not in dispute, I think, that we are such a corporation. In fact, in the case-stated proceedings, it is an agreed fact that from 14 March 2007 we became a non-Commonwealth licensee and therefore an employer within section 5 of the Commonwealth Act. You will see that in paragraph 6 of the case stated, page 36, and it is not put in issue in the applications in relation to New South Wales. So we are an employer, and have been since 14 March 2007, to whom the Commonwealth Act is applicable.

That takes one to section 4 of the Commonwealth Act and it is the critical provision in the proceedings. Your Honours, it is clear that it is seeking to define a field, to put it loosely, in the sense that your Honours will see from section 4(1) that the Act is intended to apply to the exclusion of any law of a State to the extent that the law of the State has two characteristics. One characteristic is that the law of the State relates to occupational health and safety. The other is that the law of the State would otherwise apply, that is, were it not for the operation of section 109, and apply in relation to employers, “employers” being a term defined as I submitted earlier.

Your Honours, can I return to the application of the provision to the present case in just a moment, but might we also make the following comments about it. The first is that this is a case where there is in the Act an express statement of the area, or the field, whatever term one chooses to use, in the sense to which the Commonwealth intends the Act to be independent of any State law and independent in the sense that no State law will apply in that area.

The express statement in that way means that it is difficult to regard the context of section 4(1) as being very governed by the precise provisions which it makes in relation to employers, employees and so on in relation to the future, as it were, because what one sees is that section 4(1) has said we cover the field, we make some provision, we make no provision, but the field is ours, one in which we are the sole body. But, your Honours, one then sees the breadth of that proposition is recognised as one which may have the effect or may have unintended consequences, perhaps, and that is what one sees section 4(3) as being intended to cover.

HAYNE J: Just before you come to 4(3), I am not sure I understand the premise that you have just stated. Do you mind putting it again?

MR JACKSON: Yes, your Honour. I was going to put it in very brief form and I was going to seek just to come in a few moments to it. The point I am seeking to make your Honours is this. Our learned friends suggest – they say you must read down section 4(1) by reference to the context, and when they say the context they include things such as the fact that there was no provision in the substantive parts of the Act that deals with the circumstances such as those with which we are concerned and also that no part of the Act works – no part of the substantive provisions works backwards to deal with events that have taken place in the past. The point we are seeking to make about it is that one does not derive anything from that when one looks at a case where there is a specific provision dealing with the ambit of the field that is to be excluded from the State law.

GUMMOW J: Does it not come down to the words in 4(1) perhaps, namely, what is conveyed by the phrase “this Act” and what is conveyed by the expression “to apply” and what is conveyed by the phrase “to the exclusion”?

MR JACKSON: Yes, your Honour. Well, your Honour, it does, but when one says “this Act” and “intended to apply”, what we would say about that is that it is saying – one has to put the various concepts to which your Honour referred from section 4(1) together and putting them together what it is saying, we would say, is that so far as a law of the State relates to occupational health or safety and would otherwise apply in relation to an employer under the Act, to put it shortly, this Act covers the field. When I says “this Act covers the field”, it means that what is there in the Act is there, what is not there is something that maybe in a State Act is still not something that applies.

HAYNE J: Under the expression, “employer” has a temporal element relevantly?

MR JACKSON: Well, it does, your Honour, yes, it does, and because one has to - - -

HAYNE J: The temporal element being supplied by the words “is in force” in the definition of “non-Commonwealth licensee”.

MR JACKSON: Yes.

HAYNE J: Is there any other temporal element overtly supplied in the definitions other than those three words?

MR JACKSON: I think not, your Honour. No, I think not.

HAYNE J: What is the effect of the supply of that temporal element in the definition?

MR JACKSON: The effect of the supply of it, your Honour, is that section 4(1) applies at all times while a temporal element is applicable, and what that means in practical terms is that the provisions of the State Act that might otherwise apply during that time do not apply. To put it more specifically, and I will come to this shortly, your Honours, we would say that, inherently, the nature of the State laws in question is that they are ones which relate to occupational health and safety in the sense that you have the creation of an offence, you have the penalty for it and provision making it – criminalising it and you have the provision which enables that to go before a court.

Now, so far as going before the court, at the very least, and the imposition of the sanction for it, we would say that is an Act relating to occupational provision relating to occupational health and safety as much as the provision which created the offence, and it is in a temporal frame that the Commonwealth Act applies.

CRENNAN J: Does that temporal element mean that one can read “employers, employees or the employment of employees” as meaning those covered by this Act?

MR JACKSON: I am sorry, I did not quite hear the last thing your Honour said.

CRENNAN J: Does that mean one would read those expressions, “employers, employees or employment of employees” as though the words covered by this Act are missing?

MR JACKSON: Your Honour, the concept of employee and employer, if I can just take those two for the moment, each is a defined term, but the obligations cast by the Act are not entirely cast in terms of obligations of an employer towards employees. You can see that, for example, by, I think, section 17 dealing with the duties of employers towards third parties. Your Honours, we would submit that when section 4(1) is speaking of “employers, employees or the employment of employees”, then what you have is a situation where it is speaking of a law of a State which relates to occupational health or safety and would otherwise apply in relation to a person who is an employer under the Commonwealth Act.

GUMMOW J: Another view, or a view of the operation of 4(1) may be that this is the sort of section which appears in various Commonwealth legislation. It was in the Workchoices to some extent, was it not?

MR JACKSON: Indeed, your Honour. Somewhat similar, yes. Subsection (1) is similar, the other provision slightly different.

GUMMOW J: But it is designed to get rid of arguments that there is no inconsistency because the State regime would not create this offence the Commonwealth Act does and so forth, that the offences do not coincide.

MR JACKSON: Well, your Honour, I am going to come to the core passage in Work Choices shortly, but what it is, in our submission - - -

GUMMOW J: That is to say that it does work on an assumption of contemporaneous action, a contemporaneous operation of the two statutes.

MR JACKSON: Well, your Honour, the answer, with respect, is yes and no.

GUMMOW J: That must be one operation of 4(1) to deal with that situation.

MR JACKSON: Yes, your Honour. No question about that, your Honour. I should perhaps have mentioned, your Honours, section 4(5), which I have not mentioned specifically. It simply says that a law in section 4(1), to put it shortly, means a provision of the law as well as a law in toto, as it were. What I was going to say was this, your Honours, that it is clear, we would submit, that there are cases where the Commonwealth is entitled to say whatever be the laws of the State we intend to legislate in this way we intend not to cover the field and whether the Commonwealth legislation does or does not do something equivalent to the State legislation or something different from or less than or does not touch a particular area of the field, then a section like section 4(1) is a provision which indicates that the field is to be covered without regard to State law. But, of course, if one adopts the broad brush approach of, say, section 4(1), then the possibility of there being circumstances where it may seem inappropriate to arrive at such a result is ameliorated, as we have said in our written submissions, by a provision like section 4(3).

FRENCH CJ: Given that 4(1) obviously does not operate directly on State laws, it engages 109, and identifies the existence of an intention to cover some field, does it mark out the precise boundaries of the inconsistency or does one look to the balance of the Act for that?

MR JACKSON: Well, your Honour, the answer, we would submit, is in this case one looks at section 4(1) and one does not need to go elsewhere. It is possible that there might be cases where there was a law that did not quite fit within section 4(1) but was specifically dealt with without reference to inconsistency as such in part of the substantive provisions of the Act. There is no question for immediate purposes about the constitutional ability to enact a provision of this kind as being a law with respect to, amongst other things, corporations. One then has a situation, your Honours, where one looks to see the ambit of the provision, section 4(1).

Your Honours, could I just go to section 4(3) for a moment. It is important, your Honours, because if one looks at its words, it recognises expressly that section 4(1) may operate in such a way that it may exclude a State law but not deal with the subject itself. It does that, your Honours, because it says if a State law deals with a matter relating to occupational health or safety – words that go back to 4(1) – that is not dealt with by or under this Act, the regulations may prescribe the law as not being intended to be excluded by the Act.

I have not taken your Honours to the other exception to section 4(1), and that is provided by subsection (2) and, your Honours, the terms on sections 14 and 15 of the Act. Your Honours will see section 14(1):

if a workplace is controlled by a contractor for construction or maintenance purposes:

(a) this Act, other than section 20, does not apply to that workplace while it is so controlled; and

(b) this Act, other than section 20, does not apply to work performed by contractors at that workplace while it is so controlled; and

(c) this Act, other than Parts 1 and 2 and section 82, applies to work performed by employees at that workplace while it is so controlled:

(i) only if the regulations so provide –

et cetera. Your Honours, if one goes to section 15, it refers to:

Where an employee ordinarily performs his or her work at a particular place but that place is neither Commonwealth premises nor non-Commonwealth licensee premises, this Act, other than Parts 1 and 2 and section 82, applies . . .

(a) only if the regulations so provide –

And of course “employee”, your Honours, is a term which by section 5(1) has the meaning given in section 9. When one goes to section 9, your Honours will see in subsection (1), in particular 9(1)(c), that an employee is:

a non-Commonwealth licensee employee (see subsection (3A)).

So the Act is dealing with employers and employees. Now, your Honours, if I could go back to section 4(1) for a moment, the provisions of the two State laws to which we have made reference and which are in contention in these proceedings, in our submission, are provisions which, first of all, prescribe the standards for occupational health and safety, secondly, they criminalise breaches of those standards and, thirdly, they provide the means for prosecuting those alleged to who have breached those standards. Your Honours, they are laws, those provisions, section 4(5). They relate, in our submission, to occupational health and safety, they seem at the heartland of it really, and they are all related matters and, in our submission, section 4(1) is applicable.

Your Honours, I referred earlier to Work Choices and, in our submission, the observations made by the Court in Work Choices (2006) 229 CLR 11. Could I go first, your Honours, to the provision in issue in those proceedings or, relevantly, in issue at page 150. I think I have got that wrong.

GUMMOW J: Page 159, I think.

MR JACKSON: I am sorry, your Honour, I misread that. At page 159 and your Honours will see section 16(1) there set out. The structure of the provision is discussed in the next couple of paragraphs, up to paragraph 348. Your Honours will see obvious similarities with section 4(1) and a slightly different way of dealing with provisions that are sections 4(2) and 4(3) in the current Act.

If one goes to the joint reasons at page 166, your Honours will see in paragraphs 369 and 370 two things; first of all, what is set out there as being the Commonwealth’s arguments in paragraph 369 but then an adoption of them in paragraph 370. May I invite your Honours to look at each of those paragraphs and can I draw your attention to a number of matters on the way through. Your Honours will see in the second sentence of paragraph 369 the contention from the Commonwealth that:

it was open to the Commonwealth Parliament to indicate the relevant field it intended to cover to the exclusion of State law, that s 109 would then operate even though the Commonwealth had not made its own detailed provisions about every matter within that field which State law dealt with, and that it sufficed for the Commonwealth to have some provisions dealing with aspects of the field, leaving others unregulated.

Your Honours will see then the next sentence, which I will not read out, and we would refer your Honours to the remainder of that paragraph. Then, if one goes to paragraph 370 it was said:

The Commonwealth’s submissions are to be preferred. Western Australia pointed to nothing in s 109 itself or in the case law on s 109 suggesting that s 109 will not cause Commonwealth law to prevail over an inconsistent State law and render it invalid to the extent of the inconsistency unless the Commonwealth law provides some regime for regulating each particular aspect of the topics dealt with by the State law.

Your Honours, that is elaborated on through the remainder of the paragraph and we would submit that the observations made in those two paragraphs are ones which apply equally to section 4(1).

GUMMOW J: Now, the submission by Western Australia was set out at paragraph 350.

MR JACKSON: Your Honour, the head of power argument – the first argument was one that was not successful. The second argument is the Wenn v Attorney-General argument which is, I think, dealt with a little further on in the - - -

GUMMOW J: Dealt with starting at paragraph 371.

MR JACKSON: Yes, your Honour, and in particular paragraph 372. The argument really had quite a bit against it and your Honours may recall that the Native Title Act Case, for example, dealt very fully with those types of issues.

FRENCH CJ: That was in connection with the provision that native titles shall not be extinguished other than in accordance with this Act.

MR JACKSON: Yes. Your Honour, perhaps I can give your Honours a reference to that passage in the Native Title Act Case. That is Western Australia v the Commonwealth [1995] HCA 47; (1995) 183 CLR 373. The passage commences at page 465 at about point 4 on the page and goes on for several pages.

FRENCH CJ: I suppose there is a halfway house – perhaps not a halfway house – but if one looks to 4(1), or provisions of that kind, as defining the field and therefore the boundaries of inconsistency without reference to the substantive provisions of the Act itself, one ends up seeing section 9 being used in the way that gets very close to a bare invocation of power to exclude operation of a State law, does one not? Section 109 operates on inconsistency not on a statement of intention.

MR JACKSON: Quite so, your Honour, yes. But what you have is – if one starts, for example, from section 51(xx) and says there may be a law with respect to corporations, corporations of particular kinds of those mentioned in the Constitution, one starts from the fact then that those corporations are corporations which operate in a legislative regime where you have the Constitution, laws of the Commonwealth and laws of the State. Now, because section 51(xx) and the other provisions in section 51 are not exclusive to the Commonwealth, it means that a corporation in many of its activities can be subject to a law of a State, but the same subject matter can be the subject of a law of the Commonwealth.

Now, one of the most common situations that would arise is where a corporation is engaged in, for example, building, engineering, construction works or works of that kind, because in the ordinary course of events much of the related law is likely to be law of the State. One has a situation where in order to say that the laws which will apply to a corporation under section 51(xx) are laws which are laws made by the Commonwealth, it is necessary, and equally within power, we would submit, to clear the field, as it were, and to say laws satisfying this generic description are State laws, do not have an application, and that, in our submission – or no longer have an application and that is what section 4 is doing. The ability to do that, your Honours, has been discussed in a number of cases and one is I think referred to in paragraph 372 in the Work Choices Case to which I referred a few moments ago.

HAYNE J: At some point in your argument, Mr Jackson, recognising that 4(5) says that “‘law’ includes a provision of a law”, could you identify which provisions of the Victorian Act it is that are affected by 4(1)?

MR JACKSON: Yes, your Honour, I will. I think I can do that now actually. Perhaps I should do it at the end so that your Honour will know specifically.

HAYNE J: Because therein lies the difficulty about the temporal operation, I suspect.

MR JACKSON: Yes. Your Honour, could I just say, they start from the provisions of sections 21 and 23. Now, what I was going to say about those is that we do not say that those provisions had no operation, but we do say they have no continuing operation from the time the Commonwealth Act came relevantly into effect. Similarly, we say that section 130, which enabled the institution of the proceedings, was a provision which had no continuing effect after the Commonwealth Act came into operation, so far as we are concerned. The proceedings were instituted after we had become a Commonwealth – not employee – non-Commonwealth employer.

HAYNE J: Again at the risk of taking you off your course, the notion of continuing effect in relation to 21 and 23 is a notion that I think may require a little expansion, for is it not said that the incidents which are alleged to have occurred occurred when the plaintiff was not an employer as defined in the federal Act?

MR JACKSON: Quite, your Honour.

HAYNE J: Yes, and those incidents revealed that there had then been a commission of the various offences – that is a matter of dispute, of course, but it is said that the offences had been committed. What do you mean by continuing effect of 21 and 23 if the offence alleged was committed and had by then been committed?

MR JACKSON: Well, your Honour, what I mean by that – your Honour asked me what provisions - - -

HAYNE J: Yes.

MR JACKSON: Yes. Insofar as the provisions are concerned, what I said I think was that we accepted that those provisions applied up to the time the Commonwealth law came into effect, to put it shortly. We accept that what has taken place under those, whether it is correctly or not the subject of a contravention of those provisions, is something that is unaffected itself by the Commonwealth legislation. What we do say, however, is that the ability to take proceedings in respect of those contraventions is something that has gone by virtue of our coming under the Commonwealth enactment, and that applies to the provisions which are the provisions which enable the prosecution of it, and your Honours to put it shortly, enable the prosecution of the proceedings.

Your Honours, I was going to say that one can see similar views being expressed in relation to the operation of section 16 of the Work Choices Act in a decision in the Full Court of the Federal Court of which your Honour Justice Kiefel was a member. That is Tristar Steering and Suspension Limited v Industrial Relations Commission of New South Wales [2007] FCAFC 50; (2007) 158 FCR 104. Could I refer your Honours to page 107, paragraph 11, in your Honour’s reasons, and then to paragraphs 15 and 16 on page 108. Your Honour said in paragraph 15:

Section 16 discloses a clear intention to exclude that area of relations from State law . . .

It is not necessary in these circumstances to inquire further and examine and contrast particular provisions -.

Justice Gyles we refer to at page 109, paragraph 21, and then Justice Buchanan at page 114, paragraph 45. Could we note, your Honours, and adopt in relation to section 4 what his Honour said on the fifth line on page 115:

The words “in relation to” are broad. They are not confined to exclude only actual regulation of specific rights and obligations but anything done by or under a State –

law and your Honours will see the remainder of that paragraph. Your Honours, could we refer next to the arguments that have been mounted by the States on the basis of the temporary nature of inconsistency under section 109, temporary and temporal?

Your Honours, much emphasis had been placed in their submissions upon the fact that there is a temporal aspect to invalidity under section 109 and, your Honours, we would accept immediately that that is so. Invalidity under section 109 does not mean that that State law is void ab initio in the sense there was no power to make it. What it does mean - - -

FRENCH CJ: There are two senses in which “temporary” and “temporal” are being used in argument, are there not? One is the point you are now addressing which is the temporary nature of the inoperativeness of State laws and the other, which perhaps you will come to, is the temporal breach of the field in which inconsistency is said to operate.

MR JACKSON: Your Honour, yes, I do intend to deal with both those aspects, your Honour. As to the first, what inconsistency under section 109 means is that the State law does not operate during the period of inconsistency. It does not have, your Honour, some kind of half-baked operation. The short fact is that - - -

FRENCH CJ: It is just resting, like the parrot.

MR JACKSON: It is sort of like the ghost in the cupboard waiting to burst forth, in a way, and probably never will, but in reality, your Honour, one can understand some lingering enthusiasm on the part of States for the notion that the State law, it is there, one accepts that. The fact of the matter is though that the State law is not operative. One has to give that part of section 109 its true meaning. The State law has no operation. That is what section 109 says and it is in the same position during that period as if there were no power to make it. That is what inoperative means. Your Honours, so it has no operation.

One can see in a number of cases the discussion of that concept. Could I just give your Honours some references without taking your Honours to the detail of it. You can see it in the decision in Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268. Could I refer your Honours to pages 274, 278 and 286. Also, your Honours, University of Wollongong v Metwally (1984) 158 CLR 447 at pages 456, 462, 473 and 484 to 485. Your Honours, there has been some controversy about the actual result in Metwally raised from time to time, but the underlying principle, relevantly, is not in question.

Your Honours, here the inconsistency for which we contend is an existing inconsistency. This takes me, I think, to the point your Honour the Chief Justice was making before. It is an existing inconsistency and, your Honours, so far as the existing inconsistency is concerned, what you have is a situation where if the State laws continue to operate, what you have is the provisions of the State laws to which I referred earlier being, we would submit, laws that relate to occupational health and safety, being laws that are utilised during the period when they are inconsistent. It is, your Honours, to put it in one way, as short and as simple as that. You have the provisions of the two Acts which deal with prosecutions for contraventions of the Act being utilised at a time when the Act, of which they form part, is one which is, by virtue of section 4(1) and section 109 operating upon it, inconsistent.

Your Honours, it would only be that section 4(1) does not apply if one can in some way describe the State laws, under which those provisions exist, as being laws which do not fall within the description in section 4(1). Your Honours, the laws that provide for the enforcement of those contraventions are laws which, in our submission, are provisions of the law relating to occupational health and safety and it is difficult to see that they do not relate to occupational health and safety when they say you can be penalised and convicted for there having been a breach of other provisions of the Act.

HAYNE J: What operation are you giving to and would otherwise apply?

MR JACKSON: Would otherwise apply, your Honour, if the State law were in force. I am sorry, that is putting it too shortly. Would otherwise apply if the State law were in force and would apply to the persons who fall within those - - -

HAYNE J: Who now fall?

MR JACKSON: Yes, your Honour. That is because of the defined term. Your Honours, could I move to another argument which is advanced against us. It is put that we are seeking to give the Commonwealth Act an operation which is in some way retrospective. Your Honours, we would say that that is not the case. We do not suggest that the Commonwealth Act had any application at the time of the events, the subject of the charge. The Commonwealth Act changes nothing in relation to those events. What it does do is to provide by section 4(1) that the State laws have no further operation. It is operating prospectively.

Your Honours, could I deal with another aspect, and it is this, that reference is made in some of the State submissions to there being no evidence of intent by the Commonwealth Parliament to deal with this question and, in particular, to deal with it in the way in which we say it has. The first thing we say, your Honours, is that section 109 is of course concerned with inconsistency of laws, not with the motivations or intentions in any subjective way, one would think, of the legislators themselves. Could I refer in that regard to a short passage in AG v Andrews [2007] HCA 9; (2007) 230 CLR 369. It is at page 408 in paragraph 86 in the reasons of four members of the Court:

As was pointed out by Gleeson CJ and Heydon J in APLA Ltd v Legal Services Commissioner (NSW):

“Inconsistency between a State law and a federal law does not spring from the political motives . . . Section 109 is concerned with inconsistency of laws –

Your Honours, there can be section 109 inconsistency in circumstances where there was no intention, no conception of the existence of a particular State law or that it might have a particular effect. The question is simply whether there exists inconsistency between the two laws. If so, section 109 mandates the result. But the second thing, your Honours, about this is that the States also rely on an absence of particular reference to the topic in the parliamentary materials and that is, in our submission, misplaced. Your Honours, one does not ordinarily, in relation to parliamentary materials, see the precise issue referred to in that material. Sometimes one does, but not always very often, and perhaps not always very satisfactorily.

But could we just say, in this case, the supplementary explanatory memorandum to the relevant amending legislation demonstrated, in our submission, that to the extent to which it is apposite to consideration of the matter that section 4(1) in the form in which it currently appears was intended to have a broad operation with any difficulties that might be brought about by that are ameliorated by section 4(3).

Could I take your Honours to that document. It is the supplementary explanatory memorandum and the heading up the top is 2004, 2005, 2006, et cetera. The pages have, first of all, roman numbers at the bottom of the page. If I could take you to i, you will see that there was a proposal in the first paragraph to:

amend section 4 . . . to exclude State and Territory OHS laws from applying to employment covered by the Act except where those State and Territory laws are specifically prescribed by Commonwealth regulation.

You will see then, your Honours, at page ii, about halfway down the page there is a reference in the first four lines of the middle paragraph to the scope of the Act enabling “corporations to apply for a licence”, et cetera. Your Honours will then see at the bottom of that page a proposal that:

section 4 of the Act be amended . . . The amendment to section 4 will support the amendment on coverage because it will give certainty about whether, and to what extent State and Territory laws apply to employment covered by the Act.

You will see the objective set out on the top on page iii, and then your Honours, the heading “The Problem”. The paragraph commencing about point 4, the third line:

Section 4 was therefore originally intended to ensure that there were no gaps in protection for Commonwealth employees –

et cetera. Then your Honours, if I could remain on the same page, the fifth to last line:

The result is that employers covered by the Act are in a position where there is uncertainly about whether, or to what extent, particular State and Territory OHS laws apply to them.

On page iv, halfway down the page, five options are listed, and option C is the one that was adopted, and then option C is discussed on page v, and your Honours will see the first two lines under the heading, and then immediately under that “The advantages of this option are”, and the fourth dot point:

provides the clearest demarcation between Commonwealth and State and Territory OHS laws.

There are references to disadvantages on the next page. You will see the first of the dot points:

it could give the appearance of denying Commonwealth employees the benefits of State and Territory OHS laws. However this option need not involve the removal of any real benefits provided relevant subject areas are prescribed . . . or Commonwealth regulations are made to cover those areas.

Then, your Honours, page vii, the bottom of the page:

Licensees strongly supported the proposed amendment to section 4 to ensure that they would only be subject to one OHS regulatory regime.

Page ix, at the top of the page:

The Australian Government considers that an amendment to section 4 is necessary to provide a clear demarcation between federal and State and Territory OHS laws . . . and therefore provide certainty for employers . . . Option C is the preferred option.

In the notes on the amendments on the following page you will see a discussion under 1.1 of the proposed amendments. So that, your Honours, of course one does not obtain a result from looking at those at that discussion, but the point that can be seen is that it supports the view that there was to be a wide operation of section 4(1) with, of course, there being provision in section 4(3) to deal with cases where perhaps the reach went, for practical purposes, too far.

FRENCH CJ: Just so I have the large picture correct, and I may be oversimplifying it, do I understand that on your argument there is an extinguishment of liability for contraventions of provisions allegedly committed prior to the grant of the licence which is not of itself the result of the direct operation of section 109, but rather because the State Act is rendered inoperative there is a flow-on consequence equivalent to that of a repeal so far as the actual offence goes, and then prospectively that the Act is rendered inoperative in relation to those mechanisms which will allow prosecution for such an offence even if the liability had survived and that is a direct result of 109?

MR JACKSON: Yes, your Honour, I think that is so. Your Honour, what we would say in relation to the repeal provisions is that the view taken – well, your Honours, perhaps I can endeavour to summarise it? I was just going to come on to those aspects of it now.

FRENCH CJ: Well, if you want to, yes.

MR JACKSON: Could I just say this? We have dealt with these aspects in our written submissions in paragraphs 23 to 48, and I was going to seek to summarise what we there say as our submissions in-chief. Your Honours, we would start in a sense from the common law position and say that the principle of the common law was that subject to two qualifications a prosecution could not be maintained after the legislation creating the offence had been repealed. We seek to move on to the constitutional area but may I just start at that point? There was an exception in relation to completed matters, and if there were a completed matter then the fact that the legislation had been repealed did not mean that one could go on undoing what had been done.

Your Honours, the second thing was that there was an exception in relation to circumstances where the repealing legislation otherwise provided, and the latter exception led to the enactment of the more general provisions of the Acts Interpretation Act and Interpretation Acts of various jurisdictions. There is a difficulty with the operation – if I can just say one thing about the operation of Acts Interpretation Acts – if they purported to continue the operation of a State law – and I am speaking of a State Interpretation Act – which was otherwise inoperative because of section 109, then the Acts Interpretation Act provision itself, in our submission, would be invalid because it would contravene the Constitution.

Your Honours, could we then say this, that if one goes then to look to see what is a position in the operation of section 109, it is very difficult to see, we would submit, where you have section 109 rendering inoperative a State law why the situation which would result from that would differ from that that was the position, say, if the Act had been repealed. Undoubtedly, one can say that the State law is inoperative and inoperative for the future, but that is really no different, we would submit, from saying that a State law has been repealed with there being no provision for continuance of prosecutions or institution of prosecutions in circumstances where there is no Interpretation Act or similar provision.

Your Honours, that, I think, comes to perhaps the first point your Honour was putting to me. The second point, your Honours is this, that we would say no matter how one looks at it, you have a situation where in relation to the prosecution of persons under the State laws, the State laws that authorise that to be done are laws which themselves fall within the operation of section 4(1).

HAYNE J: Why?

MR JACKSON: They fall within it, your Honour - - -

HAYNE J: In the face of 130(5) which observes the position of the DPP?

MR JACKSON: Your Honour, what section 130 is doing – the proceedings, your Honours, to which both section 130(1) and section 130(5) are proceedings for an offence against this Act. Your Honours, whether the prosecution, the one maintained by an inspector, whether it be maintained by the Director of Public Prosecutions or whether it be one, if one made the assumption, that it could be brought by an individual, and that is contrary to a decision, I think, of the Victorian courts, but, in any event, it is a proceeding for an offence under the Act.

Your Honours, if one starts from the position that the substantive provisions of the Act – and by that I mean sections 21 and 23 – create norms of conduct and also provide for there to be offences, the prosecution of those offences is intimately connected with them and, your Honours, those provisions themselves fall within the description set out in section 4(1). If they did not, that is the end of the case, of course, but they do. It would be, if I say so, with respect, a curious result to say that the provisions which are in the same Act and which relate to the way of enforcing the offences created by the provisions are not as much in relation to, et cetera, in terms of 4(1) as the provisions which created the offence in the first place. Your Honour, I do not think I can advance it beyond that, but that is the term in relation to – is to be given an appropriately broad meaning.

GUMMOW J: Mr Jackson, at some stage, I think, in construing section 4, we are going to have to look at what was said by Justice Mason in General Motors back in [1977] HCA 34; 137 CLR 545 at 562 to 563, namely, a section like section 4 is just an aid in the application of 109. It does not, of its own force, have any operation on 109.

MR JACKSON: Your Honour, the expression “operation on 109” is - - -

GUMMOW J: I think one has got to look at the passages at 562 and 563 of [1977] HCA 34; 137 CLR 545 sooner or later because I think they encapsulate some of the applicant’s concerns the Chief Justice and I are putting to you at various stages this morning.

MR JACKSON: Your Honour, could I just say this that one does need – I will come back to that, may I do later – but could I just say this in relation to it. That case is one which is, in a sense, the start of a number of decisions dealing with this topic.

GUMMOW J: Yes, leading up to Work Choices.

MR JACKSON: Yes. What I was going to say in relation to it, your Honour, is just this, that one should not underestimate the ambit of a provision like section 4(1) because section 4(1) is designed, we would submit, to clear away the question whether a State law could apply. It does so in a way which itself is a law with respect to that topic. One is dealing in this case with corporations, so you have a law with respect to the topic and the Parliament is saying that laws of a State do not apply to a corporation under the Act as from a certain point. So, your Honour, it does have a substantive and independent effect and, your Honours, one should not read down that term; that is what it is saying.

Your Honours, could I just say this in relation to the Interpretation Act provisions, we had referred to this in some detail in our written submissions in-chief. As we understand the position, it does not seem to be contended by New South Wales or Victoria that their interpretation provisions could apply if there is otherwise inconsistency. I had not proposed to deal with that further. If there is some submission made about that, perhaps I could deal with it in reply.

Your Honours, could we say that, in our submission, the common law rule is one which should be applied and we would submit that if a statute cannot support future punishment after the statute has been repealed by Parliament, it should not have a greater operation where it has become inoperative, not because of parliamentary choice, as it were, but because of the operation of the Constitution itself and a fortiori, we would submit, the Constitution operates.

Your Honours, we would submit that that contention is supported by the decisions to which we have referred in our written submissions in-chief. Could I take your Honours to paragraphs 32 to 34 first of all. Your Honours will see we sought to deal in that in the succeeding paragraphs with cases where there has been some ceasing to have effect otherwise than by repeal; Ex parte Dunne referred to in paragraph 34 being a case where the Act was a temporary operation and it expired. Your Honours will see the passage that we have highlighted. We refer also, your Honours, in paragraphs 37 to 40 to the two decisions of the Supreme Court of the United States.

The general position, we would submit, is that which is set out in Dignan’s Case, and we refer to that your Honours in our written submissions commencing a little earlier at paragraph 26. ;Your Honours will see in paragraphs 26 to 29 that we have quoted from Justice Dixon. The essence of it is that, subject to two exceptions, the matters that are transactions past and closed on the other hand are law to the contrary, that:

if the statute be necessary for any farther step, it must be in force at the time of taking that farther step.

Your Honours will see the passage is quoted in paragraph 29. Your Honours, could we go on then to the question of authorisation of the prosecution. I dealt with this partly in the way through. What we would say, your Honours, is this, that the inspector’s authority to prosecute derives from section 130 of the Victorian Act. He was purportedly given authority pursuant to that section on 12 September 2008. Your Honours will see that in paragraph 8 of the stated case. At that time, we would say, that could not be done because at that point the State Act could have no operation in relation to the plaintiff, and your Honours, to use the words of Justice Brennan in University of Wollongong v Metwally (1984) 158 CLR 447 at page 473, his Honour said, we adopt those words, saying section 130 was:

incapable of creating or affecting legal rights or obligations: its legal force and effect are sterilized.

The proceedings, your Honours, in New South Wales were instituted on 20 October 2007, again after 14 March and, your Honours, in our submission, the same situation would obtain. Your Honours, could I go then to the last issue and that is one to which we have referred in our written submissions, page 17, paragraphs 67 to 73. Your Honours, I really do not think I want to add anything further to our submissions in that regard.

Your Honour asked me what provisions we were challenging. What we would seek to say, your Honours, is this. You have, so far as the Victorian proceedings are concerned, sections 21 and 23. What we say in relation to those is that those provisions were in force and applicable to the plaintiff until 14 March 2007. Thereafter they were no longer applicable, meaning by that that although there may have been a breach before that date, proceedings could not thereafter be brought to punish in relation to those breaches and that section 130, to the extent to which it may have authorised, that was a provision which was inoperative but invalid in terms of section 109. Your Honour would refer to the equivalent provisions of the New South Wales – perhaps I could put them on a piece of paper, your Honour, and give them to the Court.

FRENCH CJ: You would require some refinement of the declaration you were seeking in page 11 of the case stated, I think, because that is a global non-application, “insofar as”, et cetera, rather than by reference to particular provisions, I think.

MR JACKSON: Yes, your Honour. Your Honour, we would not seek more, I think, than the answers to the questions at page 37 of the case stated book.

FRENCH CJ: I am sorry. Of course, yes.

MR JACKSON: Your Honour, those are our submissions.

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

MR HANKS: Thank you, your Honours. Your Honours, we propose to focus on the submissions we have filed for the defendant in the first proceeding. It might be presumptuous of us to speak on behalf of the intervening Attorney until we have heard from the defendant in the second proceeding. We doubt that we will have anything to say other than to adopt our written submissions in that matter.

There is no dispute between the defendant and the plaintiff in the first proceeding that the Commonwealth Parliament can express its intention to cover a field to the exclusion of State law, but the real question, obviously between the parties, is, what is the field that, according to section 4(1), the Federal Act is intended to cover.

The field is identified, or at least some clues to its identification are given in section 4(1), and as our friend, Mr Jackson, put it, a State law that has two characteristics is excluded, namely, a State law that relates to occupational health and safety and a State law that would otherwise apply in relation to employers, employees, and the employment of employees.

It is our submission that the description of the field lies in the closing phrase of section 4(1), that is the description of the field is crucial to the resolution of the issues in this case. To put it in practical terms, can it be said that the provisions of the Victorian Act which made it an offence for a person to engage in certain activities were provisions which are -sections 21 and 23 - can it be said that they would otherwise apply in relation to an employer, for example, if the prosecution of the plaintiff were to be continued. In our submission, the answer to that is no, because the prosecution of the plaintiff does not involve the application of any provision of the State Act in relation to an employer.

The prosecution is brought in relation to the plaintiff’s conduct when it was not an employer. As we know, the plaintiff is only an employer under the federal Act while its licence under the SRC Act is in force. The plaintiff holds a licence which was granted in December 2006, but that was a licence which authorised it to become a self-insurer under the Safety, Rehabilitation and Compensation Act to accept liability for workers’ compensation. When the amendments that were made to the federal Occupational Health and Safety Act commenced on 14 March 2007, it then became an employer, but it became an employer because its licence under Part VIII of the SRC Act was in force.

CRENNAN J: Well, it became an employer covered by this Act.

MR HANKS: Indeed, an employer for the purposes of the Occupational Health and Safety Act, the federal Act. It was not such an employer before that date. It was not such an employer when the Acts that constitute the alleged offences occurred. To put it as simply as I can, we say that to apply sections 21 and 24 of the Victorian Act to the plaintiff in relation to its activities in October 2006 at Morwell, to do that is not to apply the State Act in relation to an employer, it is to apply it in relation to a non-employer.

To turn this object a little on its axis, to determine whether a prosecution does involve the application of the State Occupational Health and Safety Act in relation to a person who is “an employer”, one must focus on the Acts that are said to constitute the offence and we say those Acts must be the Acts of an employer as defined. In the case of a non-Commonwealth licensee like the plaintiff, to repeat the point, they must be Acts of the corporation for which licence under Part VIII of the SRC Act was in force at the time of the Acts.

FRENCH CJ: Are these submissions put on the premise that section 4(1) tells us everything we need to know about the field covered by the Commonwealth Act?

MR HANKS: Only when read in context, your Honour. We would not want to leave the Court with that impression, that you take section 4(1) out of the Act and read it in isolation and there are other provisions we say which would assist or, indeed, illuminate an understanding of the intention of the Parliament, which is what we are concerned with after all. If we might just at that point respond to a point that our friend, Mr Jackson, made this morning. We are not concerned with the motivation of the Parliament, obviously, but we are critically concerned with its intention. Although it is true that section 109 picks up the Commonwealth law and gives it supremacy over a State law in the case of inconsistency, the kind of inconsistency with which we are concerned is dependent on the intention of the Commonwealth Parliament.

GUMMOW J: Yes, more than the intention of the Commonwealth Parliament though, is it not? You have to actually find some section in the substantive part of this Act and then say there is an inconsistency. Then someone says, no, there is not, it does not appear to be a textual collision, and then the reply is, look at section 4(1). That is how it works.

MR HANKS: Yes, that is right.

GUMMOW J: You have to begin with the substantive part of the federal Act. It is not an animus contrahendi type argument in a contract case.

MR HANKS: No.

GUMMOW J: You have to begin with two statutes. That is what Sir Anthony Mason was saying in GMAC.

MR HANKS: Yes, I appreciate that.

GUMMOW J: That is the only way in which you can get sections like 4(1) valid.

MR HANKS: Well, I think your Honour and I are agreed that the fundamental question is - - -

GUMMOW J: What we are lacking at the moment is any reference to any substantive provision in the federal Act.

MR HANKS: I doubt that I can do that systematically, your Honour, but I can and I do intend to take the Court to a number of provisions in the federal Act which we say illuminate - - -

GUMMOW J: Part II, for example, and then the schedule dealing with enforcement.

MR HANKS: The point I wanted to make, and which I will develop shortly, was that there are a number of provisions in the federal Act which indicate that the Act explicitly has a limited coverage, and to take as an example of that, if one goes to section 9, where one has the meaning of “employee”, and goes to subsection (3A), your Honour will see that this defines a “non-Commonwealth licensee employee”, that in short terms is an employee of the plaintiff, but it is subject to subsection (3B), and that subsection takes out of the category of “non-Commonwealth licensee employee” those employees who were not covered by the licence issued by the Safety, Rehabilitation and Compensation Commission.

So the Act immediately recognises that there is potentially a class of employees of a corporation that is given a licence that will not be treated as employees for the purposes of the Occupational, Health and Safety Act, because they will lie outside the definition of “employee” found in section 9(1).

Now, if our friends are right that all you need to ask when you apply section 4(1) is whether you have a State law that is being applied to a non-Commonwealth licensee like the plaintiff, is it being applied to the plaintiff, that is the only question you need to ask, and if it is, that State law is excluded by section 4(1).

FRENCH CJ: To the extent that you argue a temporal limit on the field of inconsistency, it must come out of the provisions relating to the tying of the definition of “employee” to the grant of these licences, because that is an event which happens at a point in time.

MR HANKS: That is so, your Honour. I think there really are two points that we make fundamentally. One is that temporal point, that the definition of “employer” has built into it intrinsically a temporal limitation. You are only an employee while you hold a licence. The second point we make is that if one has regard to the explicit omissions from coverage in the federal Occupational Health and Safety Act it is manifestly implausible that the Parliament intended to give section 4(1) the operation that our friends say it has, namely, that it would exclude the operation of a State law that applies to an employer.

If that were the case, for example, this class of employees that are not brought within the federal Occupational Health And Safety Act would be left completely unprotected. It would be impossible, on our friends’ argument, for the State Act to apply to them or the State Act to apply to their employer. It would be impossible for the State Act to create any duties so far as their employer is concerned. There must be more to the language that is used in section 4(1) than our friends would allow. When it talks of a State law that would otherwise apply in relation to the employer, it is drawing our attention to the connection or the relationship between the application of that law and the employer as defined in the Act.

FRENCH CJ: You talk of protection. We are dealing here with a case concerning the application of a penal liability. Does the success of the plaintiff’s argument have a consequence for any provisions, if there be any, relating to civil liability or entitlements to compensation?

MR HANKS: Certainly not entitlements to compensation maybe, but, perhaps to step back from that proposition, of course, they are already dealt with in the overriding effect of Part VIII of the Safety, Rehabilitation and Compensation Act. If one goes to section 108A(1), this posits the situation where a licence has been issued by the commission to a corporation that is declared to be eligible by the Minister. That is all dealt with in previous provisions. If the licence is issued and if it authorises the licensee to accept liability to pay compensation, then the licensee is liable to pay compensation under this Act. If we then go to subsection (7), the licensee has no liability under a law of the State or Territory to pay compensation in respect of an injury, loss, damage - - -

GUMMOW J: These are the provisions that we were considering in Andrews’ Case, are they not?

MR HANKS: That is right. This is part of the background to the Andrews’ Case, your Honours, although in the case of section 108A(7) it is explicitly limited to injury, loss or damage or death after the licence comes into force. There is an explicit limitation.

FRENCH CJ: I was addressing the question of an analogous situation in relation to the offence situation we are dealing with here.

MR HANKS: Yes. Well, in relation to that situation the clear effect of the limiting words in section 108A(7) would be that the plaintiff would have a liability to pay compensation. Let us assume that an employee was injured in Victoria in October 2006 in the course of employment, then the Accident Compensation Act (Vic) would create a liability and that liability would be preserved, notwithstanding the grant of the licence in December 2006, be preserved by section 108A(7). There is one more example perhaps I could give the Court about the difficulties which are such as to render our friends’ reading of section 4(1) quite implausible that would be created if we read that subsection as excluding State laws that would apply to a corporation once it entered the federal Act. Section 98 of the Victorian Act authorises an inspector to:

enter a place that the inspector reasonably believes is a workplace at any time during working hours.

Just going back to the definition provision in section 5(1):

workplace means a place . . . where employees or self-employed persons work.

It is hardly a controversial proposition that an employer such as the present plaintiff could occupy and control a workplace where employees of other employers work. On our friend’s construction of section 4(1), there would no power available to an inspector to enter that workplace in order to check on the working conditions of employees of other employers in that workplace. In our submission, there must be more to the operation of section 4(1) than our friends submit.

What one needs to ask when one is faced with a particular State occupational health and safety law, one needs to ask whether it is being applied in relation to the employer, that is, the holder of the licence at the time of the application of a State law, and also whether the conduct that the State law purports to control or regulate, or the standard which the State law purports to set, is conduct or behaviour of the “employer” as defined in its capacity as an employer.

At some point our friends raised the objection in their reply that this construction for which we contend would lead to, as it were, an indeterminate effect. It would be difficult for employers to determine from time to time or day to day whether they were or were not subject to State occupational health and safety laws. But, in our submission, no more difficult than the typical problems of statutory construction that arise in the operation of any statute. The operation of any statute has to be worked out on a case-by-case basis, inconvenient as that may be.

I had intended to adapt something that your Honour Justice Kiefel said in the Tristar Case [2007] FCAFC 50; 158 FCR 104when your Honour was speaking of section 16(1). Referring to what your Honour said in paragraph 10, we would say that section 4(1) may be said to mark out the field of occupational health and safety obligations and duties of, amongst other persons, a corporation in its capacity as a non-Commonwealth licensee, and therefore an employer, to its employees and to others as the subject of the Commonwealth’s exclusive law-making – of course with certain exceptions identified in subsections (2) and (3).

The territory that is marked out is the territory where the State occupational health and safety law would otherwise apply in relation to employers, employees and the employment of employees – that is, where there a connection, a relationship, between the conduct that the State or Territory law purports to regulate and one of those elements identified in section 4(1) – employers, employees or the employment of employees.

Could I say something about the point made in paragraph 14 of our friends’ reply. Towards the end of that paragraph our friends say:

If the Federal OHS Act reveals an intention to displace State law, State law is displaced with whatever consequences that follow, whether or not the Commonwealth Parliament intended those consequences to follow.

Our friends have cited in the footnote Viskauskas v Niland. It is our submission that that is a highly problematic statement. As I said a little earlier, we are concerned with the kind of inconsistency that depends on the intention of the Commonwealth Parliament. To go back to the classic statement of Justice Dixon in Ex parte McLean, has the Commonwealth stated its intention that its law is to be the only law regulating a particular matter. Indeed, that was a passage from Ex parte McLean that was quoted in Viskauskas v Niland. I should give your Honours the reference in Viskauskas v Niland, which is referred to in our friend’s footnote 5, is in [1983] HCA 15; 153 CLR 280 and the relevant quotation from Ex parte McLean is on page 291.

The inquiry that has to be undertaken is an inquiry into the intention of the Commonwealth Parliament. Did it intend to exclude State law and if it did, what State laws did it intend to exclude? We think our friends are suggesting, with their reference to Viskauskas v Niland, that that was a case where consequences were unintended by the Parliament when it enacted the Racial Discrimination Act. If that is their intention, we join issue with them. In fact, in Viskauskas the High Court found that the Commonwealth Parliament did intend to exclude the operation of State discrimination laws dealing with racial discrimination. The exclusion was not unintended, it was deliberately intended. It was intended because the subject matter of the Racial Discrimination Act was the subject which the Court concluded was most appropriately dealt with by a single code and also because the terms of the Racial Discrimination Act indicated that intention.

Now, it might be said that that consequence was regretted by a later Parliament, hence the enactment in 1983 of an amendment to the Racial Discrimination Act to make clear that it was intended to have a concurrent operation and hence, of course, the litigation that led to Metwally v University of Wollongong, but it cannot be said that the consequence was unintended by the Parliament that enacted the Racial Discrimination Act. So here we need to identify what it is that the Commonwealth Parliament intends to cover so as to exclude the operation of State laws.

We do that, in our submission, by reference to the two criteria. Does the State law or is the State law one that relates to occupational health and safety? Generally speaking, not a difficult inquiry. Secondly, would the State law otherwise apply in relation to employers, employees or the employment of employees in a setting where each of those terms derives its meaning from the Occupational Health and Safety Act itself? Each of those is a defined term.

In the leading provision “employers” is defined, as has been said, temporally. That is why we say that there is no inconsistency in applying to the plaintiff sections 21, 24 in relation to its conduct as a non-employer, and so far as initiating and persisting with the prosecution after it became an employer, in our submission that involves no application of, for example, section 130 of the Victorian Act in relation to an employer, because what is being enforced here is a duty or an obligation that arose by reason of events in October 2006, before it became an employer.

That might be an appropriate point at which to draw your Honours’ attention to the judgment of the High Court in Hume v Higgins [1949] HCA 5; 78 CLR 116. There are some, I think, distracting complexities about the procedural history in this case that we need not concern ourselves with. It is sufficient to note that there was a prosecution of Hume for an offence under certain national security regulations that were in force in Tasmania. By the

time the prosecution reached the point of decision the regulations that created the offence had ceased to operate in Tasmania, and the question was whether the prosecution could be continued.

We draw your Honours’ attention to the observation of Justice Dixon at page 132. Before we go too far we have to offer this caveat, but in large part, what his Honour was dealing with was a question of constitutional power, but the propositions that his Honour outlined in that passage that starts at 132, about point 6 on the page and continues to the second-last line on the same page, recognises, as his Honour ultimately put it “the general policy of the law” that serious offences should remain punishable indefinitely. So even when the law creating the offence ceased to operate there was still in force a provision supporting the prosecution and that should be permitted to operate.

Now, in our submission, what his Honour is recognising is that a person commits an offence at a particular time, notwithstanding that the law subsequently goes out of operation in one way or another, and here it might be said, possibly by our friends, it certainly is said by our friends, that the provisions creating the offence have gone out of operation in relation to the plaintiff. Notwithstanding that, the offences which have been committed should be punished. The same point is made by Justice Rich on pages 127 to 128. Your Honours will see that Justice Rich said at about the third line on page 128:

It is almost inherent in any legal system that a liability to punishment should continue to exist until the offence is expiated.

So it is here, the prosecution brought by the Inspector appears to expiate an offence committed by a non-employer, and the continuation of the prosecution does not involve the application of section 130 or any other provision of the Victorian Act in relation to an employer. The connection between the prosecution, the connection between the invocation of sections 21 and 24 and the plaintiff, is not a connection with an employer. Your Honours, subject to our not resiling from anything we have said in writing, those are the oral submissions.

FRENCH CJ: Thank you, Mr Hanks. Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours, I think that my learned friend, Mr Hanks, and myself make essentially the same argument, so I am not going to, I hope, repeat what he has already dealt with. I will just deal with a number of matters shortly, perhaps on the same theme. My friend, Mr Jackson, has taken your Honours to the relevant provisions of the New South Wales legislation, and it seems to us that they do not raise different issues from those provisions of the Victorian statute.

As to the federal legislation, your Honour Justice Gummow raised the question of what provisions of it might be inconsistent with the relevant State legislation, and we would say that the answer to that question is that none are and that is really because the whole tenor of the federal legislation is to deal with the conduct of licensees under that legislation while they are licensees during the period that they are licensees.

We would, however, simply note that the general duties that are placed on employers by section 16 of the federal legislation are – I will not take your Honours to it but they are really premised on the notion of a duty that is imposed on an employer, as defined in that legislation, and in relation to employees, again as defined in the federal legislation. The objects of the federal legislation are set out in section 3 and we note that section 3(f) seeks to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations, again we would say, an indication of the fact that the federal legislation would not be designed to prevent prosecution under State legislation for conduct prior to the time of the federal licence coming into operation.

As my learned friend, Mr Hanks, has said, it is a question of the intention of the federal legislation as expressed in section 4(1) and combined with the effect of section 109 that is in issue in these proceedings. As at the time of the conduct in question which was 2 November 2005, of course the federal legislation would not have otherwise applied, to use the language of section 4(1), in relation to the applicant as an employer, because at that time it did not meet the definition of “employer” in section 5 and nor would it have applied in relation to the applicant’s employees as they would not have met that definition which is in section 9(3A) of the legislation.

But we would say the same in relation to the time of the initiation of the prosecution, which was I think 26 October 2007, because we say that at that time the State law would not have otherwise applied in relation to the employer in this case, despite by that time, being a non-Commonwealth licensee, unless the conduct in question had been undertaken at a time when the employer had that status under the federal legislation. Putting it perhaps another way, the time of the conduct, we would say, is the nexus between the notion of exclusion that is contained in section 4(1) and the employer who is engaged in the conduct in question.

Your Honours, in our submission, an application of the purpose of approach to statutory interpretation very much reinforces the construction that Mr Hanks and myself have argued for in these proceedings. I have already referred to the objects of the federal legislation, but we say that the contention made by my learned friend, Mr Jackson, would be inconsistent with those objects because it would leave unprotected the welfare of employees who are not protected, in this instance, by the federal statute.

We have set out in our written submissions the reference to the importance of context in statutory interpretation in Project Blue Sky. I will not take your Honours to it, your Honours will be familiar with that, and the statement to much the same effect by Justice McHugh in Eastman 214 CLR 318 at paragraph 22 of the judgment, but set out in paragraph 40 of our written submissions.

We have also quoted those in our written submissions from the explanatory memorandum to the occupational health and safety and the SRC Legislation Amendment Act 2006 which noted that the legislation was designed to maintain consistency across the scheme through an integrated approach to workers compensation and occupational health and safety. Notions of consistency and integration, we would say, are also inconsistent with the argument that is put by my learned friend, Mr Jackson, in this case. That quote is set out at paragraph 44 of our written submissions and we would say that would hardly suggest an intention to preclude prosecutions under State law for offences occurring before the federal legislation applied to the employer in question. The same document, that explanatory memorandum stated:

that the relevant amendments to s 4 were necessary “to provide a clear demarcation between federal and State and Territory OHS laws in employment covered by the Act” –

We would say the words “employment covered by the Act” are significant in that context. That is set out at paragraph 46 of our written submissions. Finally, in terms of that material of that nature, we would refer to the – and it is set out in paragraph 16 of the Commonwealth’s written submissions – the Minister’s speech in the main committee on the supplementary explanatory memorandum where he said that:

s 4 of the Federal OHS Act would “reduce duplication of occupational health and safety laws” because “employers” and “employees” could otherwise be “subject to both Commonwealth and state and territory laws on the same subject matter”.

It seems to us again to indicate that it is not this kind of situation to which section 4(1) is designed to apply. We have referred in our written submissions to section 15(AA) of the Acts Interpretation Act (Cth) as to the preference for a construction that would promote the purpose or object underlying the legislation in question. Your Honours, two final matters. Your Honour Justice Gummow referred to the judgment of Justice Mason in General Motors [1977] HCA 34; 137 CLR 545 at 562 and 563 and if I could just read two

sentences from Justice Mason’s judgment where he said on page 562, about point 5:

Where the Commonwealth Parliament’s intention to cover the field is in question, the question is to be resolved as a matter of statutory construction. In resolving such a question it is material to consider any provision in the relevant Commonwealth statute which throws light on the intention of the statute to make exhaustive or exclusive provision on the subject with which it deals.

Which is one reason why we say that the Commonwealth statute here taken overall, looked at in its complete tenor, does not support a notion of inconsistency in this particular case.

Your Honours, finally in relation to the Work Choices Case, and my learned friend, Mr Jackson, has taken you to the passages on which he relies, but it is true that section 16(1) of the legislation there was in somewhat similar terms, and employs somewhat of the same concept, but we would say that it assumes, and we would say perhaps also that the judgment assumes that the conduct in question, the conduct of which section 16(1) was aimed, that is conduct dealt with by State legislation was conduct occurring while the employer in question had that status under the federal legislation, so that it is different from this particular case where that is the precise, really, point of difference between those two pieces of legislation. I do not think there is anything I can really add, your Honours, unless there are any other matters.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Solicitor for South Australia.

MR HINTON: If the Court pleases. We received the plaintiff/applicant’s response to our submissions on the section 78B notice this morning - I do not complain about that.

GUMMOW J: You were rather late in the first place.

MR HINTON: It was, if your Honour pleases. The plaintiff does not submit that section 4(1) withdraws State jurisdiction and goes so far as to contend that it is not an issue that this Court needs to decide in this case, and indeed, the parties make no submissions on the topic at all.

In those circumstances South Australia does not intend to pursue the argument contained in its section 78B notice. We reserve those arguments for another day. With respect to the matters that are in dispute, we are content to rely upon our written submissions and to adopt the submissions of the respondents and the other interveners. If the Court pleases.

FRENCH CJ: Yes, thank you. Solicitor for the Commonwealth. You will be short now, Mr Gageler?

MR GAGELER: I feel a bit let down, your Honours. Can I say one or two things very briefly on the main issue. There is a sentence in the judgment of Sir Owen Dixon in Wenn’s Case which is apposite to the present. It is [1948] HCA 13; 77 CLR 84 at page 120 and it introduces the passage that then gets frequently quoted in later cases. But what his Honour says right at the top of the page is:

This is a case where the Federal legislation undertakes a regulation or statutory determination of the very subject and then goes on to express an intention that it shall be an exhaustive declaration of the law on that particular subject.

It is important when one turns to section 4, which is the focus of the argument of both the plaintiffs and the defendants in the present case, that it begins with the words “this Act”.

It is critical to recognise that this Act, that is, the Commonwealth Act, operates prospectively to impose on an employer, as temporally defined in section 5, relevantly, that the duties in Part 2, and to provide for the civil and criminal enforcement of those duties by Part 5 and by Schedule 2, all of that to achieve the objectives set out in section 3. So when you read in section 4 “this Act”, one has to recognise that it is this Act as so applying.

The section then says “is intended to apply to the exclusion” not of all State laws within a specified description; that was section 16(1) of the Workplace Relations Act. That language does not appear here. What is excluded here is very much – or targeted – it is “any law” meaning, when it is read with subsection (5), any provision of a law, one needs to look quite specifically, to the extent that the provision would otherwise apply in relation, relevantly, to employers as so defined who, whilst employers as so defined, are subject to the duties in this Act and subject to the mechanisms of enforcement in this Act. That is the way in which section 4 operates.

So that when one comes to ask, is section 21 of the Victorian Act or section 23 of the Victorian Act, to the extent to which it applies to a corporation before it became an employer within the meaning of this Act, is that section to that extent applying in relation to an employer? The answer fairly readily is no. Similarly, with section 130 of the Victorian Act, one could take the equivalent provisions in the New South Wales Act, if one asked, to the extent that that provision is providing for the prosecution of a corporation in respect of an offence alleged to be committed under the

Victorian Act before the corporation became an employer, is it to that extent applying in relation to an employer? The answer, adopting a purposive construction, is, in our respectful submission, obviously not.

HAYNE J: I may be wrong, but I think that the operation for section 4(1) for which the plaintiff contends would be achieved by stopping it at the words “relates to occupational health or safety”.

MR GAGELER: Yes, leaving out the important qualifications. If the Court pleases, those are our submissions.

FRENCH CJ: Thank you, Mr Solicitor. Mr McKenna.

MR McKENNA: May it please the Court, we are content to rest on our written submissions and do not wish to add anything.

FRENCH CJ: Thank you, Mr McKenna. Mr Jackson.

MR JACKSON: Your Honour, would it be convenient if I started my reply after lunch?

FRENCH CJ: Yes.

AT 12.41 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

[NOT TRANSCRIBED – INAUDIBLE TO 2.16.30 PM]

MR JACKSON: .....and civil equivalent proceeding and so on. Now, your Honours, when one says “this Act”, the reference is to an Act which, from the time at which it comes into force in relation to an employer or an employee, does contain substantive and procedural laws which are to apply forthwith. The terms of section 4(1) then go a little further, because what it says is that the Act will apply to the exclusion of a State law, and the State law is one having characteristics. The first, as I submitted earlier, is that the law of the State relates to occupational health or safety.

Your Honours, one comes then to the second part of this part of section 4(1), which is that the State law would otherwise apply, that is, in our submission, if not excluded in relation to employers. Now “employers” is, of course, a defined term and it is a term which is defined as not just applying to non-Commonwealth licensees, but also to the Commonwealth and to Commonwealth authorities. One sees, your Honours, that the terms of section 4(1) should not, we would submit, be construed in a narrow way because one is speaking after all, not just non-Commonwealth licensees, but also the Commonwealth and Commonwealth authorities.

Your Honours, could I just say that if one looks at the two State enactments in question here, your Honours will see that each of them purports to bind the Crown in any of its capacities. May I refer to section 118 of the New South Wales Act and to section 6 of the Victorian Act. Your Honours, the point I would seek to make from that is that one would not be inclined, in our submission, to read down section 4(1) in its content because it does have an operation which applies to the Commonwealth, Commonwealth authorities and the persons in the position of the plaintiff in this case.

Your Honours, one then goes to section 4(3) which does make it clear that there may be matters of occupational health or safety which are not dealt with under the Act, but would otherwise be dealt with by State law. Bearing that in mind, one goes back then to section 4(1) and one sees the reference to “employers”. Your Honours, there is fundamentally a temporal aspect in section 4(1) because it looks at the position as at the time when the Commonwealth Act is applicable and for section 4(1) to have an operation in relation to a company in the position of the plaintiff, it has to be at the time section 4(1) is being considered, it has to be a body which is then a non-Commonwealth licensee.

In those circumstances there is no reason, we would submit, why one would not treat the words of section 4(1) as having their ordinary operation rather than try to read into them words that are not there or in some other way seek to reduce the ambit of the provision. A good reason why one would not seek to do that, your Honours, is because of the presence of section 4(3) which recognises the possibility that section 4(1) having a broad operation may include cases which it seems better not to include and provides for that. Your Honours, could I just say this, that the provision assumes, as I submitted a moment ago, that the employer is a non-Commonwealth licensee, other employers, persons who under that category remain subject to State law.

The second matter with which I wish to deal, your Honours, is this. If one goes back to the General Motors Acceptance Corporation Case [1977] HCA 34; 137 CLR 545, to which your Honour Justice Gummow referred before lunch, that case was concerned with a provision which stated that the provisions of a part of the Trade Practices Act were not intended to exclude the operation of a law of a State. Could I take your Honours to the observation of Justice Mason at page 562, at about point 6 on the page. Your Honours will see that his Honour said:

So much may be accepted without denying the existence of legislative power in the Commonwealth Parliament to make clear its intention either to cover the field or to refrain from so doing.

Now, your Honours will see the remainder of that paragraph, in particular, the reference which may be construed in one of two ways, where his Honour said in the last sentence that:

A provision in a Commonwealth statute which indicates or tends to indicate whether the statute is intended to make such exhaustive or exclusive provision upon a topic within a head of Commonwealth legislative power is itself a valid law, though it cannot operate of its own force to invalidate or render inoperative a State law.

What his Honour is talking about there, in our submission, is that he is saying that it is section 109 which affects the invalidation, not the provision of the Commonwealth law by itself. Now, your Honours, that is so, we would submit. It appears from the position which had developed a little – if that is the correct word – by the time of the Native Title Case in [1995] HCA 47; 183 CLR 373. Your Honours, it is a relatively short passage to which I wish to refer. If one goes to page 466 in that case, about point 7 on the page, your Honours will see that his Honour, dealing with this topic, says:

Such a State law is rendered inoperative not because the Commonwealth law directly invalidates the State law - - -

GUMMOW J: What page are you reading from?

MR JACKSON: Page 466, your Honour. It is the last paragraph commencing about point 7. Perhaps I should start that paragraph. He said:

If the application of State law to a particular subject matter be expressly excluded by a valid law of the Commonwealth, a State law which is expressed to apply to the subject matter is inconsistent . . . Such a State law is rendered inoperative not because the Commonwealth law directly invalidates the State law but by force of s 109 of the Constitution.

Then, your Honours, one goes to the first new paragraph on page 467 where his Honour said:

The critical question is the scope of Commonwealth legislative power. Provided the power supports a Commonwealth law making its regime exclusive and exhaustive –

they are speaking about the power supporting it –

the law may validly exclude in terms the application of State law to the subject matter.

There is a discussion then of the Botany Municipal Council Case. Then at the bottom of that page their Honours say:

Where it is within the legislative competence –

and your Honours will see the expression “legislative competence” –

of the Commonwealth Parliament to prescribe an exclusive statutory regime, a Commonwealth law which merely expressly an exclusion of the operation of a State law is not construed as an attempt to invalidate the State law directly. It is construed as an expression of intention that the Commonwealth law should have exclusive operation. Being construed . . . the Commonwealth law is within power.

Your Honours, we would submit that if one has a Commonwealth law which is within the head of Commonwealth power, and that is perhaps putting it tautologously, but if one has that, then it is possible, in our submission, for a law falling within that ambit to say that the laws of the State shall have no application in an appropriate case. What I mean by an appropriate case is that if one goes to a provision like section 4(1) dealing relevantly with corporations - with section 51(xx) corporations, then what the provision is saying is to describe in relation to areas of activity of some of those corporations, whether State laws are or are not to apply.

Your Honours, it is not just a provision saying State laws are sterilized; you cannot legislate in respect of this. It is saying these laws do not apply, and we are, in the event, we, the Commonwealth, are legislating for the future and if it goes too far, it is thought, you have section 4(3). Your Honours, could I come then to a third matter, and that concerns the regulations made under the workplace - - -

HAYNE J: Can I just delay you a moment on that second matter. You have been examining by reference to the Native Title Act Case the exclusive statutory regime that you say is created by the federal Act here. It is, is it, an exclusive statutory regime relating to occupational health or safety for licensed employers, regardless of when the events concerned happened?

MR JACKSON: Yes, quite, your Honour.

HAYNE J: Yes.

MR JACKSON: The definition of “employer” in the three groups that can be, it can only apply to someone who is a licensed – and then, your Honour, as I said too many times, perhaps section 4(3) would apply to ameliorate the situation. Your Honours, what I was going to - - -

GUMMOW J: The argument to which those passages in the Native Title Act Case - the argument to which they were responding appears at pages 381 and 382, does it not?

MR JACKSON: Your Honour is bringing back painful memories, I am afraid. Yes, a bad argument, I think, your Honour.

GUMMOW J: The argument was that section 11 purported to control the legislative powers of the States, et cetera, and it goes beyond marking out the extent to which the federal law is to operate to the exclusion of the State law.

MR JACKSON: Yes. I think, your Honour, that captures the essence of it so far as one can recall. The next matter with which I wish to deal is section 16 of the Workplace Relations Act which contained a provision to which reference was not specifically made before, and that is section 16(2)(b) which allowed the making of regulations saying that 16(1) of that Act did not apply to laws of a State or Territory and if I could refer your Honours to the regulations that were made in that regard. One sees in the second page of the document under the heading “Division 2 Act excludes some State and Territory laws”, your Honours will note that paragraph 1.2(1) said that:

subsection 16(1) of the Act does not apply to a law of a State or Territory of a kind that is mentioned in this regulation.

Then your Honours will see subsection (2). Trouble was taken to say that:

Subsection 16(1) does not apply to a law of a State or Territory . . . to the extent to which it relates to a compliance with an obligation:

(a) under:

(i) that law . . .

which would otherwise be excluded by subsection 16(1) of the Act; and

(b) in respect of an act or omission which occurred prior to the reform commencement.

The point I make about it, your Honours, is simply that the course which might be followed by section 4(3) has been adopted in an earlier context. It is not an extraordinary thing to be suggesting.

Could I turn then, your Honours, to the reliance on the decision of the Court in Hume v Higgins [1949] HCA 5; (1949) 78 CLR 116 at 127. In essence, it appears to have been held in that case that section 15 of the Defence (Transitional Provisions) Act 1946, which your Honours will see referred to at the bottom of page 122, was a provision which was authorised by the defence power and enabled the continuance of prosecutions for breaches of the regulations, not the Act itself, the regulations the force of which had come to an end before the time of conviction. But the dicta that emerged in the case, in our submission, support the contentions we have advanced about the common law position and about moving it on to the extent to which that case deals with it at all, to the constitutional position.

Could I refer to Chief Justice Latham first. At page 122 your Honours will see at about point 3 on the page – and I mention this for this reason – his Honour said, “The Court must therefore apply the law as it exists at the present time”. The proceedings were not an appeal to the court in the strict sense. They were a removal to the court and the law of the court from which it was removed was the one that was applicable. His Honour then said:

A person cannot be convicted under a law which has been repealed or which has expired unless there is some statutory provision preserving liability –

He went on to quote, your Honours, from Halsbury and then said:

Where a statute or a regulation is repealed the Acts Interpretation Act 1901-1948, ss 8 and 50, preserve liabilities incurred before the repeal.

He said they did not apply to the present case for the reasons set out in the last sentence of that paragraph. He then set out at the bottom of the page the provision of section 15 and went on to say at the top of page 123, six or seven lines down:

Thus s 15 applies to the offence alleged and authorizes a conviction if the statute . . . is still in operation.

Then, your Honours, at the bottom of the page, in the last paragraph, he said:

But it is argued that the Act of 1946 could not validly continue the Economic Organization Regulations in operation during 1947 because the defence power –

had expired, to put it shortly. Then, your Honours, if one goes to page 124, about 10 lines down, his Honour said:

In my opinion, regard being had to the existing circumstances and the uncertainty of the immediate future, the regulations could properly be continued in operation –

and went on to say that he thought he might be convicted of an offence under regulation 21 because of the continued operation of section 15. Justice Rich, at page 126, your Honours will see, about 10 lines down the page said:

Of course when a regulation goes out of operation it is no longer possible to contravene it. But so far as the statute is concerned past contraventions which under s 15 of the Act amounted to offences remain punishable under a law still in force, namely, s 15.

That relates to his view of the defence power. You can see that about two-thirds of the way down the page where his Honour said:

It must be incidental to a power of the peculiar character of the defence power to take legislative measures for the purpose of placing the country once again upon a peace footing.

Your Honours will see that goes on through the remainder of that page. He came in the end to the view, about halfway down page 127, that:

Nothing occurred between December 1946 and May 1947 which could possibly form a foundation for a contention that the content of the defence power had in the interval so diminished that the regulations could no longer be supported.

Your Honours will see about two-thirds of the way down the page he said:

For, once there was a contravention of the regulations while they were operative, s 15 made the contravention an offence. Any subsequent cesser of the regulations could not mean that the liability for the offence came to an end. If the liability had been created only by the regulations, the doctrine explained in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan might have had this consequence. For it is probably true that the Acts Interpretation Act does not displace the operation of this doctrine when the cesser is the result of a contraction of constitutional power.

Your Honours, one sees it is in that context that the observation upon which our learned friends rely, at the top of page 128, is made. Justice Dixon at page 129 in the second new paragraph on the page refers to, at about point 4 on the page, the invocation by the defendant of:

the principle of the common law that once a law creating an offence or other liability has gone out of force, then except as to matters past and closed, it is just as if the law had never existed.

Your Honours will see the reference in the next couple of sentences and the reference to section 8 of the Acts Interpretation Act, so his Honour appears to be treating the principle as one which is applicable. He goes on to say at page 131 at about point 4 on the page:

The point is that the offence is not created by the regulations . . . The offence is created by s 5 -

and then he goes on to say, your Honours, and this in the last 10 lines or so on the page, that the intention of section 15 is that it remain in force and that there be able to be prosecutions pursuant to that provision. You will see that referred to at the top of page 132. If I could go to Justice Williams at the bottom of page 140, you will see that he again speaks of section 15 and it goes through to the top of page 141. Your Honours, here there is no question of the State provisions, which are relevant, which are all State provisions not being the subject of section 109, in effect. Section 109 would have the effect that section 4 would make those provisions ones which were no longer operative.

The penultimate matter I want to deal with is this. My learned friends relied upon section 98 of the Victorian Act as somehow being adverse to the contentions which we make. Your Honours, if one goes to section 98 of the Victorian Act – it is the provision which allows an inspector to enter a workplace – it was said that if it be the case that we, having a licence under the Commonwealth Act, were working at that workplace and some other people were working at the same workplace, our presence would make it impossible for an inspector to go there for the purpose of performing functions under the State Act in relation to the

employer and employees of the person who did not have a licence under the Commonwealth Act.

Your Honours, that is difficult to see, with respect, that the inconsistency would affect the Inspector’s powers in relation to employer/employees of someone who was not a non-Commonwealth licensee under the Commonwealth Act. In our submission, it does not advance the matter one way or the other.

Could I come to the last matter - to the issue your Honour Justice Hayne was asking me about, about what provisions were involved, and so on. Your Honour, could I respond by going to the orders that are sought in the proceedings. May I go to the case stated book first, and your Honours will see that the questions are set out at page 37 with a qualification to which I will come in just a moment, if I may, with respect, your Honours. Your Honours will see the three questions in paragraph 11 are ones that set out, so far as relevantly in our submission, the provisions involved.

May I say however that there is one error to which we have contributed in these. Your Honours will see that the references in a number of paragraphs are to section 21, whereas in fact the fourth count is under section 23. We would be asking your Honour Justice Hayne to amend the case stated by changing section 21 to sections 21 and 23 in paragraphs 9, 11 subparagraph (1), 11 subparagraph (2) and 11 subparagraphs (3)(a) and (3)(b). Your Honours, I have not mentioned this to my learned friend, but we would invite your Honour to do so.

HAYNE J: If there is no opposition to it, Mr Jackson, of course I would make those amendments. It would be necessary, though, I think, for your side, would it not, to file an amended case stated and to provide the Court with copies of the document as so amended.

MR JACKSON: Thank you, your Honour. Your Honours, that is the Victorian position. So far as the New South Wales provisions are concerned, could we refer your Honours to the applicant’s submissions in support of the application for removal. Now, your Honours, in paragraph 24 of that document we set out the orders that we seek and your Honours will recall that the relevant provision, or the substantive relevant provision was section 8 of the New South Wales Act. That is referred to in proposed order 2. Your Honours, those are our submissions.

FRENCH CJ: Yes, thank you, Mr Jackson. The Court will reserve its decision and adjourn to 10.15 am on Tuesday, 29 September 2009.

AT 2.46 PM THE MATTER WAS ADJOURNED