Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shop, Distributive and Allied Employees' Association and Bernie Smith v Secretary, NSW Treasury [2018] NSWCATAP 84 Hearing dates: 23 March 2018 Date of orders: 11 April 2018 Decision date: 11 April 2018 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member J Kearney, Senior Member Decision: 1. Appeal dismissed Catchwords: Statutory interpretation – Retail Trading Act 2008 – held exemption from trading restrictions granted by previous legislation continued in force – appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Factories, Shops and Industries Act 1962 (NSW) Retail Trading Act 2008 (NSW) Cases Cited: Smith v NSW Treasury [2017] NSWCATAD 337 Re Macks; ex parte Saint [2000] HCA 62 Category: Principal judgment Parties: Shop, Distributive and Allied Employees' Association (first appellant) Bernie Smith (second appellant) Secretary, NSW Treasury (respondent) Representation: Counsel: A Rogers (appellants) K Richardson SC and P Strickland (respondent) Solicitors R Tonkli (appellants) Crown Solicitor NSW (respondent) File Number(s): AP 17/53787 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal NSW Jurisdiction: Administrative and Equal Opportunity Division Citation: Smith V NSW Treasury [2017] NSWCATAD 337 Date of Decision: 17 November, 2017 Before: K Ransome Senior Member File Number(s): 2016/0037 8480 REASONS FOR DECISION Background 1. In these proceedings the appellants, the Shop, Distributive and Allied Employees' Association and Bernie Smith representing that Association challenge a decision made by the respondent Secretary, NSW Treasury to exempt certain retail shops in the Bega area in the South Coast of NSW from restrictions which would preclude them from trading on Sundays and public holidays. The basis for the exemption was, in general terms, that they were situated in a holiday resort area. This challenge was initially heard by a Senior Member of this Tribunal and was dismissed. (See Smith v NSW Treasury [2017] NSWCATAD 337). These appeal proceedings are brought against that decision. 2. We have determined to dismiss the appeal. In essence, the decision under appeal is correct and there is no error of a kind which would justify intervention by us on appeal. However, because we have considered these proceedings independently of the reasons advanced by the Senior Member, and because we were informed by the parties that these proceedings have wider implications for the trading operations of other shops in holiday resort areas in NSW, we shall formulate our own reasons for disposing of these proceedings. The historical statutory matrix 1. The starting point is the Factories, Shops and Industries Act 1962 which in general terms required most shops to be kept closed on Sundays and public holidays. By section 89B of that Act the Minister for Industrial Relations was empowered to exempt shops from those trading restrictions for particular specified periods if they had large holiday populations during those periods. Any such exemption was to continue in force from year to year unless revoked or varied. That Act was later renamed the Shops and Industries Act 1962. 2. On 30 September 1987 the then Minister by Order published in the NSW Government Gazette No 193 rescinded certain prior shop exemptions and exempted shops in the Shire of Bega for certain periods including, relevantly, a period of "12 days which falls within the holiday period observed in April – May for public schools in the State of New South Wales." 3. The Shop and Industries Act was repealed by the Shop Trading Act 2008 which commenced operation on 1 July 2008. The name of that Act was later changed to the Retail Trading Act 2008. In general terms, by section 4, shops were required to be kept closed on "restricted trading days" which included, relevantly, Good Friday and Easter Sunday. That Act contained provisions granting general exemptions including small shops. As originally enacted section 10 of that Act enabled the Director-General to publish an order pursuant to an application by any person or at his or her own discretion to exempt a shop from a requirement to be kept closed which would otherwise apply under that Act. Any exemption granted could refer to a specified shop or a specified area and could be for a specified period or for an indefinite duration. 4. That Act also contained in the form as originally enacted transitional provisions which specifically applied to exemptions previously granted under the Shops and Industries Act which were, relevantly, in the following terms; Part 2 Provisions consequent on enactment of this Act 2 Exemptions under Shops and Industries Act 1962 (1) This clause applies to a shop: (a) for which an exemption (an existing exemption) was in force, immediately before the repeal of the Shops and Industries Act 1962, that permitted the shop to be kept open on a restricted trading day, and (b) that is not exempt from the requirement under this Act to be kept closed on a restricted trading day. (2) A shop to which this clause applies is taken to be exempted by the Director-General under section 10, subject to any conditions applicable to the existing exemption, from the requirement to be kept closed on any restricted trading day to which the existing exemption applied. (3) The Director-General may amend or revoke an exemption referred to in subclause (2). 1. No controversy arose in the course of the proceedings before the Senior Member or before us as to the effect of the provisions of clause 2 of the Transitional Provisions as they applied to the exemption previously granted by the Minister for Industrial Relations on 30 September 1987. Accordingly, under clause 2 (1) (a) shops in the Bega Shire which were previously exempt under the Shops and Industries Act were "taken to be exempted" pursuant to section 10 of the 2008 Act in the manner expressed in that original exemption even though no specific exemption had in fact been granted by the then Director-General. For completeness we note that the exemption came into being and applied contemporaneously with the commencement of operation of that Act. 2. The Shop Trading Act was further amended by the Shop Trading Amendment Act 2009 which, in effect, limited the circumstances in which the Director-General was empowered to grant an exemption, requiring satisfaction that there be "exceptional circumstances of the case in the public interest to do so…." having regard to a number of specific matters including the likely effect of the proposed exemption on the local economy, tourism, small businesses and other businesses in the area, and the likely effect on employees or persons working in the shop. Importantly, the amendment made to section 10 of the Act by the 2009 amendment contained an additional subsection (5) in the following terms; (5) An exemption has effect for the period, not exceeding three years, specified by the Director-General in the order. 1. In its amended form consequent upon the 2009 amendments, section 10 was in the following form; 10 Director-General may exempt shops from trading restrictions (1) The Director-General may by order, on application by the occupier of a shop, exempt the shop from a requirement under this Act to be kept closed. (2) The Director-General must not grant an exemption for a shop unless the Director-General is satisfied that it is in the exceptional circumstances of the case in the public interest to do so, having regard to the following matters: (a) the nature of the shop and the kinds of goods sold by the shop, (b) the need for the shop to be kept open on the day or days concerned, (c) the likely effect of the proposed exemption on the local economy, tourism and small businesses and other businesses in the area, (d) the likely effect of the proposed exemption on employees of, or persons working in, the shop. (3) An application for an exemption under this Division may not be made in respect of a shop that is not in existence when the application is made. (4) An exemption may: (a) apply in respect of one or more specified restricted trading days or all restricted trading days, or (b) apply in respect of specified times on a restricted trading day. (5) An exemption has effect for the period, not exceeding 3 years, specified by the Director-General in the order. (6) The period of the exemption may not be extended by an amendment to the order. (7) An exemption may be subject to conditions. 1. Consequently, the power of exemption granted to the Director-General was thenceforth limited in the following respects; 1.there was no power in the Director-General to order an exemption on his or her own initiative 2.an exemption could only be granted on application by the occupier of a shop and did not apply to any particular area 3.there had to be demonstration of "exceptional circumstances" as described 4.any exemption granted would take effect for a maximum period of three years which was not capable of being extended 1. The 2009 Amending Act also contained transitional provisions in the following terms; (Schedule 2 Part 2 was amended by the addition of clause 2(4) but for ease of understanding, we set out clause 2 as a whole with the addition in bold) Part 2 Provisions consequent on enactment of this Act 2 Exemptions under Shops and Industries Act 1962 (1) This clause applies to a shop: (a) for which an exemption (an existing exemption) was in force, immediately before the repeal of the Shops and Industries Act 1962, that permitted the shop to be kept open on a restricted trading day, and (b) that is not exempt from the requirement under this Act to be kept closed on a restricted trading day. (2) A shop to which this clause applies is taken to be exempted by the Director-General under section 10, subject to any conditions applicable to the existing exemption, from the requirement to be kept closed on any restricted trading day to which the existing exemption applied. (3) The Director-General may amend or revoke an exemption referred to in subclause (2). (4) Without limiting subclause (2): (a) section 13 applies to an exemption referred to in that subclause, and (b) the occupier of a shop that is subject to an existing exemption may apply under Part 3 of this Act for an order amending the exemption. Part 3 Provisions consequent on enactment of Shop Trading Amendment Act 2009 6 Definition In this Part: 2009 amending Act means the Shop Trading Amendment Act 2009. 7 Existing applications (1) This clause applies to an application for an exemption under section 10 made, but not finally determined, before the commencement of the 2009 amending Act. (2) Sections 10, 11 (2) and (3) and 11A–11C, as inserted by that Act, extend to any such application. 8 Existing exemptions (1) The amendments made by the 2009 amending Act do not affect the operation of an exemption granted after the commencement of this Act under Division 2 of Part 3 of this Act, and in force immediately before the commencement of the 2009 amending Act (an existing Departmental exemption). (2) An existing Departmental exemption is taken to have been made, and may be revoked or amended, under Division 2 of Part 3 of this Act as amended by the 2009 amending Act. (3) To avoid doubt, an existing Departmental exemption that applies in respect of a specified area or areas continues in force and may be so revoked or amended. (4) An existing Departmental exemption ceases to have effect 3 years after the commencement of the 2009 amending Act, or on the date on which it would otherwise cease to have effect, whichever occurs first. 1. We shall return to a consideration of these transitional provisions, the meaning of which is at the heart of the controversy in these proceedings. However before doing so, and in order to set the context in which the controversy arose we first refer to the exemption created by the Secretary NSW Treasury, the successor to the Director-General, on 23 March 2016 which is the subject of this appeal. That exemption was purported to be made under the Retail Trading Act 2008, obviously including at that time the 2009 amendments. The Secretary amended the original 1987 exemption by exempting shops in the Shire of Bega for an additional period commencing on Good Friday and ending on the following Easter Sunday, inclusive. The previous exemption referred to the period of 12 days falling within the public school holiday period observed in April – May, it being generally assumed that this period coincided with the Easter holiday period. However, this assumption did not always come to pass and the intention of the 2016 exemption was to exempt shops from the trading restrictions where the Easter holiday period fell outside the school holidays. The controversy between the parties 1. In summary, the appellants asserted that by reason of the provisions of the 2009 Amending Act, which in general terms limited exemptions to a three-year period, the general exemption applying to shops in the Shire of Bega had expired three years from the commencement of the operation of the 2009 amendments namely by 1 October 2012, and therefore the 2016 exemption was ineffective. That is, as and from 1 October 2012 there was no general exemption which applied to shops in that area affecting their right to trade during the Easter holiday period, no individual applications had been made by any occupier of any shop, and these shops were not permitted to open during this period. This argument was rejected by the Senior Member, and in these proceedings the respondent supported that decision. 2. In order to deal with the submission of the appellants, it is necessary to revert to the transitional provisions contained within the 2009 Amending Act, which we have set out above. The critical part is Clause 8 (1) which stated that the 2009 amendments which created the 3 year time limit "do not affect the operation of an exemption granted after the commencement of this Act under Division 2 of Part 3 of this Act, and in force immediately before the commencement of the 2009 amending Act (an existing Departmental exemption)." (our emphasis). 3. The appellants argued that the "existing exemption" which clearly applied by reason of the provisions of clause 2 (1) (a) of Part 2 of the Retail Trading Act 2008 as amended by the 2009 amendments was an "existing Departmental exemption" as defined in clause 8. We reject this construction because the definition of existing Departmental exemption refers to the operation of an exemption granted after the commencement of that Act. The word "granted" must refer to the process by which an exemption is created as provided for in that Act, namely an order granting an exemption made by the Director-General (see, for example, section 11 A of the Act). 4. This reference to an exemption granted after the commencement of the Act is to be compared with the effect of the provisions of clause 2 (2) of Part 2 which provides that a shop which was the subject of an existing exemption under the Shops and Industries Act 1962 is "taken to be exempted by the Director-General under section 10……." That is, that exemption comes into effect immediately upon and instantaneously with the commencement of the Act. It is not an exemption which is granted after the commencement of the operation of the Act. 5. That conclusion is reinforced by the usual approach to the meaning of "taken to be" which is that it introduces a fiction and represents a convenient method of describing something to be what it is not. See for example, McHugh J in the High Court of Australia in Re Macks; ex parte Saint [2000] HCA 62 at [115]] 6. Accordingly, the existing exemption as defined by clause 2 by which the general exemption which applied to shops in the Shire of Bega was taken to have been granted upon the commencement of the operation of the Act was not granted after that commencement and accordingly was not an existing Departmental exemption for the purpose of clause 8. As such, no 3-year time limitation period applied to it. (our emphasis). 7. The appellants also argued that clause 8(1) of the transitional provisions contained within the 2009 Amending Act created a special class of exemptions that were saved by the 2009 exemptions. The appellant argued that the absence of such a savings clause from clause 2 of the transitional provisions in the 2008 Act (see above) indicates an intention of the legislature that all other exemptions, including those "taken to be exempted" under clause 2(2) ceased to exist. The argument goes that the parliament chose to exclude one class but not another by clause 8(1) of the transitional provisions in the 2009 Act. 8. We reject this argument because the "existing exemptions" created by clause 2 (of Schedule 2 Part 2 of 2008 Act) continue in force. That is because the scheme of the transitional provisions is clear. Some exemptions ("existing exemptions" per clause 2) were carried forward by the transitional provisions of the 2008 Act. Some other exemptions ("existing Departmental exemptions" per clause 8) were carried forward by the transitional provisions of the 2009 Act. They are mutually exclusive classes. There is no reason in the words used to imply an abolition or revocation of the earlier class when creating the later class. Put simply, the two classes of exemptions were clearly intended to exist together. 9. The appellant said this argument was supported by the use in clause 2(2) of the words "A shop to which this clause applies.." which indicates an intention that the exemption only applies to a shop which was open before 1 July 2008 being the commencement date of the 2008 Act. The argument is that because the subject exemption applies to a region (Bega), while clause 2(2) applies to "a shop" indicates the parliament could not have intended the complexities that result from that (ie the exemption applying to some shops in the Bega region and not others). The argument goes that the logical answer to that confusion is that the parliament intended to revoke the "existing exemptions" created by clause 2(2) when it introduced the 2009 Act, or intended for them to expire three years later per the operation of the new s.10. 10. We do not accept this argument. There is adequate evidence that this result was not intended because parliament added clause 2(4) to the transitional provisions in the 2009 Act. Clearly the parliament did not intend to revoke or abolish the "existing exemptions" created under clause 2(2) because it provided a new method of seeking an amendment to such exemptions as provided in clause 2(4). 11. For these reasons, based on the clear explicit meaning of the words used in the relevant portions of the Act, we reject the arguments of the appellants, and to this extent the appeal must fail. 12. In approaching the resolution of this aspect of the appeal in this manner, we have not commented upon the careful and meticulous approach adopted by the Senior Member in dealing with this issue as contained within the reasons for Decision under appeal. We intend to do no disservice to those reasons which consider in some detail the historical development of the Act, the relevant principles which apply to the proper approach to the construction of legislation and additional provisions of the Act which are corroborative of the approach to construction adopted by the Senior Member and with which we agree. The proper parties 1. There is one other issue raised in these appeal proceedings concerning the standing of the first appellant, the Shop, Distributive and Allied Employees' Association. This Association was a party to the original application heard by the Senior Member who determined, consequent upon considering submissions made by the respondent, that it had no entitlement to bring the proceedings. There was never at any stage any controversy surrounding the entitlement of Mr Smith, the second appellant, to bring the proceedings because he did so as a representative of the Association. 2. In our opinion the Senior Member was clearly correct, and the appeal brought against this part of the Decision must fail. The matter is governed by section 12 of the Retail Trading Act 2008 which is in the following terms; 12 Administrative reviews by Civil and Administrative Tribunal (1) Any person who has applied for an exemption and is aggrieved by any of the following decisions may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision: (a) a determination of the Secretary to refuse to grant or to amend or revoke an exemption, (b) a determination of the Secretary as to the conditions subject to which, or the period for which, an exemption is granted. (2) Any other person who considers himself or herself to have a sufficient interest in an application for an exemption under this Division may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any such decision. (3) The Civil and Administrative Tribunal is not required to conduct an administrative review of a decision on the application of a person referred to in subsection (2) if it is not satisfied that the person has a sufficient interest in the application for exemption. (4) A representative of an industrial organisation of which persons employed or engaged in shops are entitled or eligible to become members may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions: (a) a determination of the Secretary to grant or to amend an exemption, (b) a determination of the Secretary as to the conditions subject to which, or the period for which, an exemption is granted. (5) In this section: industrial organisation means: (a) an industrial organisation of employees within the meaning of the Industrial Relations Act 1996, or (b) an association of employees registered as an organisation under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth. 1. Subsection (4) of section 12 clearly restricts entitlement to apply to this Tribunal to a "representative" of an industrial organisation, and accordingly excludes entitlement in such an organisation itself to make an application. The appellants sought to argue the matter by reference to notions of principal and agent, but these do not assist the appellants. The clear language of the subsection must operate in the manner in which it is obviously intended to do so. For these reasons this aspect of the appeal must fail. 2. In any event, nothing turns on the determination of this issue because Mr Smith clearly has standing to maintain the proceedings including this appeal. Order 1. For the reasons set out above, we make the following order, namely that the appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 11 April 2018 - Date of Orders and Decision amended to 11/4/2018 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2018