Ipsofactoj.com: International Cases [2001] Part 10 Case 2 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

New Zealand Employers

Federation Incorporated

- vs -

National Union of Public

Employees

RICHARDSON P

KEITH J

BLANCHARD J

TIPPING J

McGRATH J

24 SEPTEMBER 2001


Judgment

Richardson P

SUMMARY:

Issues and Result

  1. The primary question of law involved in this appeal from the Employment Court pursuant to leave granted by this court on 2 May 2001 is whether the registration of a union by the Registrar of Unions under Part 4 of the Employment Relations Act 2000 (ERA) prior to the commencement date of the ERA, namely 2 October 2000, is the exercise of a power which is "necessary or desirable to bring, or in connection with bringing" the enactment into operation within the exception provided by s11 of the Interpretation Act 1999. The certificate of registration issued by the Registrar on 3 October certified that the National Union of Public Employees Incorporated (NUPE) was registered under the ERA on 29 September 2000.

  2. In our judgment granting leave we recorded (para [31]) that the proper interpretation and application of s11 affects all enactments and that there is little authority to provide adequate guidance as to the kinds of pre-commencement decisions which may be made in the administration of statutes before they come into force.

  3. A further question canvassed orally in the argument of the appeal was whether the Registrar could be taken to have intended that the registration take effect on 2 October, when the Act came into force, or on 3 October, when the certificate was issued. An associated question is whether the lodging by NUPE of the application for registration and the accompanying statutory declaration, both dated 25 September, was to be regarded as incidental to the exercise by the Registrar of his power and duty to register, not as a premature and fatal flaw; and, in particular, whether by issuing a certificate the Registrar must be taken to have acknowledged that registration occurred as from the date when he had the ability and obligation to effect registration.

  4. The third issue is whether, if the Employers Federation succeeds, it should have relief in the form it seeks, namely a declaration that NUPE has not been properly registered as a union within the meaning of the ERA and that the purported registration on 29 September, as a union, was of no legal force and effect. The answer has potentially wide ramifications for the legal effect of the actions of NUPE and the other 19 entities which on the face of the documentation were registered as unions before the ERA came into force, and for other entities which applied before then for registration but were subsequently registered.

  5. Each member of the court has written a separate judgment. In accordance with the views of the majority the appeal is allowed, the orders made in the Employment Court are quashed and the declarations sought by the Employers Federation are granted. Validating legislation may be considered appropriate but that decision is, of course, for the legislature.

    THE STATUTORY PROVISIONS

  6. Section 11 of the Interpretation Act 1999 is a limited exception to the rule that an enactment has no effect prior to its date of commencement (ss7 and 8). It reads:

    Exercise of powers between passing and commencement of legislation

    (1)

    A power conferred by an enactment may be exercised before the enactment comes into force or takes effect to—

    (a)

    Make a regulation or rule or other instrument; or

    (b)

    Serve a notice or document; or

    (c)

    Appoint a person to an office or position; or

    (d)

    Establish a body of persons; or

    (e)

    Do any other act or thing for the purposes of an enactment.

    (2)

    The power may be exercised only if the exercise of the power is necessary or desirable to bring, or in connection with bringing, an enactment into operation.

    (3)

    The power may not be exercised if anything that results from exercising the power comes into force or takes effect before the enactment itself comes into force unless the exercise of the power is necessary or desirable to bring, or in connection with bringing, the enactment into operation.

    (4)

    Subsection (1) applies as if the enactment under which the power is exercised and any other enactment that is not in force when the power is exercised were in force when the power is exercised.

  7. While certain other provisions of the ERA will require mention, the immediately material provisions for present purposes are ss13, 14 and 15. They provide:

    13

    Application by society to register as union

    (1)

    A society that is entitled to be registered as a union may apply to the Registrar of Unions to be registered as a union under this Act.

    (2)

    An application must be made in the prescribed manner and must be accompanied by—

    (a)

    a copy of the society’s certificate of incorporation under the Incorporated Societies Act 1908; and

    (b)

    a copy of the society’s rules as registered under that Act; and

    (c)

    a statutory declaration made by an officer of the society setting out the reasons why the society is entitled to be registered as a union.

    14

    When society entitled to be registered as union

    (1)

    A society is entitled to be registered as a union if—

    (a)

    the object or, if the society has more than 1 object, an object of the society is to promote its members’ collective employment interests; and

    (b)

    the society is incorporated under the Incorporated Societies Act 1908; and

    (c)

    the society’s rules are—

    (i)

    not unreasonable; and

    (ii)

    democratic; and

    (iii)

    not unfairly discriminatory or unfairly prejudicial; and

    (iv)  

    not contrary to law; and

    (d)

    the society is independent of, and is constituted and operates at arm’s length from, any employer.

    (2)

    In deciding whether a society is entitled to be registered as a union, the Registrar of Unions may rely on the statutory declaration made under section 13(2)(c).

    15

    Registration of society as union

    (1)

    The Registrar of Unions must register a society as a union if the society—

    (a)

    applies, in accordance with section 13, to be registered as a union; and

    (b)

    is entitled to be registered as a union.

    (2)

    Immediately after registering a union, the Registrar of Unions must give a certificate of registration in the prescribed form to the union.

    (3)

    The certificate of registration is conclusive evidence that—

    (a)

    all the requirements of this Act relating to the registration of the union have been complied with; and

    (b)

    on and from the date of registration stated in the certificate, the union is registered as a union under this Act.

  8. The ERA received the Royal Assent on 19 August 2000 and came into force on 2 October (s2), that day rather than 1 October, which was a Sunday, no doubt being chosen because it was a business day. The Employment Relations (Prescribed Matters) Regulations made on 18 September 2000 (SR 2000/185), which pursuant to s13(2) prescribe the manner in which applications to be registered as unions must be made, also came into force on 2 October (reg 2).

    THE BACKGROUND

  9. In the course of its decision of 13 February 2001 the Employment Court held that NUPE had the necessary status as a union registered under the ERA to issue strike notices and encourage participation in strike action based on those notices by veterinarians employed by the Verification Agency of the Ministry of Agriculture and Forestry (MAF). The Attorney-General on behalf of the Director-General of MAF had filed a statement of claim in the Employment Court and had sought an injunction restraining action by NUPE and other defendants, broadly members or agents of NUPE (the second to fifth respondents on this appeal), the first ground advanced by MAF being NUPE's apparently premature registration as a union. The Registrar, now the sixth respondent, the New Zealand Council of Trade Unions Incorporated (CTU), now the eighth respondent, and the Employers Federation were given the opportunity of being heard and took part in the Employment Court proceedings.

  10. Mr M G Hobby was appointed Registrar of Unions on 20 September 2000. He said that the department anticipated that there would be approximately 100 employee associations applying for registration on or about 2 October and was concerned that there might be a log-jam, with the possibility of delays in processing of applications resulting in employee organisations not being in fact registered as at 2 October, thus preventing them from immediately performing their roles under the ERA. Unions were to have a key role in ensuring that employees had an effective voice in employment matters and unions were given the sole right to represent employees in collective bargaining, but had to be registered under the Act to do so, as well as to exercise various other rights and responsibilities under the Act. Mr Hobby's understanding of in-house legal advice given orally was that unions could be registered prior to 2 October 2000 in reliance on s11 of the Interpretation Act on the basis that the registration of unions in readiness for 2 October 2000 could reasonably be regarded as desirable in connection with bringing the ERA into operation.

  11. Employee associations, through the CTU, had been advised that the Registrar could register unions prior to 2 October 2000. The e-mail from the General Manager of the Industrial Relations Service to the CTU of 12 September advised that staff would be available to begin processing applications on 18 September and that his aim was to turn around applications within a week at most but that if over 200 applications were received at the same time the Service might not be able to meet that target.

  12. As it happened, 40 applications for registration were received prior to 2 October and the 20 unions which were registered before that date include some of the largest in the country. And we were advised at the Bar that collective agreements currently covered about 21% of New Zealand employees.

    THE EMPLOYMENT COURT JUDGMENT

  13. The Chief Judge concluded that the exception contained in s11 applied for reasons which he expanded on but summarised in this way (para 80):

    It was not necessary for bringing the Employment Relations Act 2000 into operation to register the first defendant as a union on any date prior to 2 October 2000. However, in connection with bringing it into operation, it was necessary that any society desiring to be registered as a union by 2 October 2000 should be able to secure registration that day. It was therefore necessary (or at least desirable) to receive applications for processing prior to that day as in the case of some applications questions might have arisen requiring investigation and this might not be capable of being achieved within 1 day without an application of resources that could not reasonably be expected to be made available.

    Once it is accepted that applications could be lodged in advance of 2 October 2000, it is unrealistic and unnecessary to separate registration from processing as the former flows from the latter and the Registrar of Unions has no discretion in the matter. He is merely performing a ministerial act.

    And, he ended (para 105):

    At the end of the day, my conclusion is that when the Employment Relations Act 2000 came into force on 2 October 2000, any employees desiring to advance their collective interests were entitled to expect to be able to act at once through a union duly registered. Accordingly, if any unions had sought to be registered and had failed to achieve registration by 2 October, that will have engendered a delay that the employees were not obliged to sustain. The Registrar was quite right to recognise this even if, as it turned out, there was no opening of floodgates and the processing of applications was made relatively straightforward by the Act.

  14. The Chief Judge appeared to recognise that unions registered before 2 October could, before that date, give notices initiating bargaining, exercise rights of access to workplaces and allocate union education leave (para 94) but considered it most unlikely that any significant action would have been taken by any union to the prejudice of employers in the short period between being advised of its registration and 2 October (para 98).

  15. It will be noted from the second bullet point in para 80 that it was accepted before the Employment Court that applications for registration could be "lodged" in advance of 2 October 2000 without, it seems, any distinction being drawn between the lodging of factual material such as copies of the relevant certificate of incorporation and rules ahead of 2 October and the formal making of the application and statutory declaration once the ERA was in force.

    WHETHER PROSPECTIVE REGISTRATION ALLOWED

  16. I pause to consider whether, notwithstanding the acceptance in the Employment Court that the registration was on 29 September, there is room for the argument foreshadowed in para [3] above and advanced by Mr Brown on behalf of the CTU that the Registrar could be taken to have intended that registration take effect on 2 October, when the Act came into force, or 3 October, when he issued the certificate of registration.

  17. It is clear from Mr Hobby's affidavit and its exhibits that on 29 September he received NUPE's application and the recommendation by his staff member to register the union. He stamped the recommendation with the seal of the Registrar and recorded his agreement and the same day telephoned NUPE and left a message: "Registered 29/9, paper work to follow".

  18. Mr Hobby records that because of the delay in the printing of certificates of registration NUPE's certificate was not issued until 3 October. It was sent to NUPE under cover of a letter which simply recorded NUPE's registration as a union and attached the registration certificate and advised NUPE of particular staff members to contact if they required any further information.

  19. Clearly, the Registrar intended that registration take effect on 29 September. The certificate ultimately issued on 3 October recorded that NUPE was registered on 29 September. The Registrar advised NUPE of that without qualification the same day. Section 15(2) required the Registrar to issue the certificate of registration "immediately after registering a union". The delay in completing the paper work was due to the unavailability of printed certificates.

  20. There is nothing in the evidence to justify the inference that on 3 October the Registrar turned his mind again to whether in terms of s15(2) NUPE was entitled to be registered as a union. The Registrar had made and informally notified that decision on 29 September. Further, the advice on which he was acting was that he could legally register the union before 2 October, not that if he did so it could or would be taken not to have effect until 2 October. That advice had been conveyed to the CTU and the only reasonable inference is that employee associations, in making their applications, and the Registrar, in processing and approving the applications, did so on the footing that registration could and would take place before 2 October and with immediate effect prior to the coming into force of the ERA.

  21. In short, there is nothing in the material before the court to support the proposition that the Registrar must be taken to have intended that registration not take effect until 2 October, and there is nothing in the statutory language to support the possibility that an act of registration should only take effect prospectively on that date. Indeed, in terms of s11(4) of the Interpretation Act subs (1) of that section applied as if the ERA was in force when the power was exercised. In other words, the scheme of s11 in that respect precludes the possibility of a deemed or desired prospective operation of an act taking place before 2 October.

    SECTION 11 OF THE INTERPRETATION ACT

  22. Like its predecessor s12 of the Acts Interpretation Act 1924, s11 of the 1999 Act allows in a limited way for the exercise of certain specified powers between the passing and the commencement of an Act or Regulation. Similar provisions exist in the United Kingdom, Australia and Canada permitting the exercise of certain powers provided for in legislation, the commencement date of which is postponed (Interpretation Act 1978 s13 (UK); Pearce, Statutory Interpretation in Australia (2nd ed) para 6.6; and Côté, The Interpretation of Legislation in Canada, p68).

  23. The object of such provisions is obvious. As Tucker LJ said in R v Minister of Town and Country Planning, Ex parte Montague Burton Ltd [1951] 1 KB 1, 6 in relation to s37 of the Interpretation Act 1889 (UK):

    The words in s37 referring to regulations, bye-laws, notices, prescribed forms, and so forth, make it clear that matters of that kind may be made under s37 so that the necessary machinery will function as soon as the new Act comes into operation and things shall not come to a standstill by reason of the repeal of the existing Act.

  24. The two requirements imposed by s11(1) and (2) on which the argument in the present case has turned are, first, that the powers to which it relates are limited to those specified in the various paragraphs of subs (1) and, second, that any such powers are exercisable only where the action "is necessary or desirable to bring, or in connection with bringing, an enactment into operation". Section 11(1)(a) and (c) were invoked in the present case to provide for the making of regulations and the appointing of the Registrar respectively, so that what might be described as the governmental administrative machinery was functional when the Act came into force on 2 October. There can be no doubt that those two steps which were expressly contemplated by the specific language of paras (a) and (c), and the associated steps to set up an administrative structure, met the necessary or desirable test under s11(2).

  25. Previously, under s12 of the Acts Interpretation Act 1924, as under s37 of the 1889 United Kingdom statute and s13 of the 1978 statute, the yardstick employed was "necessary or expedient". But as Burrows, Statute Law in New Zealand (2ed 1999), 354 observes, the change to "necessary or desirable" was probably only cosmetic. It may be that "desirable" was thought to be more readily understood by everyone under the legislation than "expedient". Certainly it is difficult to say that the shades of meaning of those two words have any different effect.

  26. Obviously, however, the provision is not to be construed narrowly. Nevertheless, there are limits to its scope which must be recognised. The crucial question is whether the registration of employee organisations incorporated under the Incorporated Societies Act 1908 as unions under the ERA is the doing of an act in terms of s11(1)(e) which is desirable to bring or in connection with bringing the ERA into operation.

  27. Importantly, registration is not a step which the Registrar may take simply on his or her own initiative. It is dependent on the existence of an application by an employee organisation which satisfies the requirements of ss13 and 14. An employee society may apply for registration if it "is entitled to be registered as a union" (s13(1)). The subsection thus proceeds on the premise that at the time it makes the application the employee organisation is entitled to be registered. That premise also underlies s13(2) and s14 and is reinforced by s15. The application must be made in the prescribed manner. "Prescribed" means prescribed by regulations made under the Act (s5) and, consistently with the Act, the Regulations came into force on 2 October (reg 2).

  28. Then, in terms of s13(2), an application for registration must be accompanied by a copy of the society's certificate of incorporation under the Incorporated Societies Act and a copy of its rules as registered under that Act and "... a statutory declaration made by an officer of the society setting out the reasons why the society is entitled to be registered as a union". It is necessarily implicit in those provisions that the society with those rules then and there claims to be entitled to be registered as a union. They are not directed to what the position may or will be at a future date.

  29. Next, s14(1) imposes requirements as prerequisites of entitlement to registration. Some of those requirements (e.g. s14(1)(c) and (d)) involve judgment and may involve making inquiries, in perhaps rare cases, of the employee society and others and even determination by the Employment Relations Authority under s161(h) and (i).

  30. Finally, in terms of s15(1) the society must be entitled to registration if it has applied in accordance with s13 and is entitled to be registered. The subsection envisages that the Registrar will consider and determine the application with those papers before him or her. As well, it is implicit in s15(2), providing for the immediate issue of a certificate of registration, and s15(3) describing the effect of the certificate, that entitlement must be present at the time when the application is made and it is determined. To put it another way, ss13 and 14 have to be in operation and be satisfied before the obligation on the Registrar to register a society as a union can be discharged.

  31. In short, ss13, 14 and 15 require that the employee organisation have the legal status for registration as a union both at the time it applies for registration and at the time it is registered, and there is no power in that regard which the Registrar can exercise before the ERA comes into force.

  32. It follows, in my view, that s11 cannot be invoked to support the actions of NUPE in seeking registration on 25 September and the Registrar in granting NUPE's registration as a union on 29 September. Those statutory steps could only be taken once the ERA was in force. They cannot be said to be directed to bringing the ERA into operation.

  33. By contrast, there are no such time constraints on the face of the ERA for setting the administrative machinery in readiness. Thus, the making of Regulations (s237), the appointment of the Registrar (s27), the establishment of statutory institutions and appointments to those bodies (e.g. mediation services (s144) and the Employment Relations Authority established by s156, to which appointments are made pursuant to ss167 and 172), and the approval by notice in the Gazette by the Minister of courses of employment relations education (s72) do not require prior action on the part of anyone other than those responsible for the administration of the legislation. There is a clear distinction under the legislation in this regard between actions of the Executive in readying the administrative machinery of the ERA and actions taken by others, including employee associations, once the Act comes into force. In essence, s11 is a governmental powers provision, not also directed to the exercise of private powers under the substantive provisions of enactments.

  34. Further, there is no indication elsewhere in the ERA that its purposes would be frustrated if the registration of unions could lawfully take place only on or subsequent to its coming into force. There was no hiatus. The Employment Contracts Act 1991 remained in force until 2 October and the transitional provisions of ss242 to 253 of the ERA provided for the continuation of employment contracts in force immediately before the commencement of the ERA and for a phasing out of the old and phasing in of the new. Parliament must have envisaged collective bargaining beginning gradually and over a period rather than by mass action on the part of employee associations as soon as 2 October dawned.

  35. To sum up, the scheme of the legislation in this respect is that employee associations were not seen as part of the governmental administrative institutions necessary or desirable for bringing the ERA into force. The employee organisations could not exercise substantive rights conferred by the ERA until registered. It was for the particular employee association to elect whether and when to apply for registration but it was only when that step was validly taken that the Registrar could exercise the powers and duties conferred by s15.

  36. It was submitted, however, that compliance with the principles underlying the International Labour Organisation Convention 87 on Freedom of Association in accordance with s3(b) of the ERA, required that the formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organisations and that the ILO's Freedom of Association Committee has ruled that "Any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No 87" (Freedom of Association: Digest of Decisions and Principles of Freedom of Association Committee of the Governing Body of the ILO (4th ed (1996) ILO), paras 249 and 251).

  37. It does not follow that mass registration of unions before the ERA came into force was necessary or that, even with appropriate forward planning, there would inevitably have been a logjam preventing employee associations and their members from exercising their rights and responsibilities under the ERA. I am unable to accept the primary submission by Mr Marshall for the Registrar of Unions that registration of unions shortly before the ERA came into force was necessary or desirable to bring the ERA into operation.

  38. Those concerned with the administration of the new legislation or affected by it did not have to start from scratch only when it was enacted. And, whatever limitations there were on planning in the run-up to its final passage, everyone had six weeks' notice of the fine and final detail of the statute after it received the Royal Assent and before it came into force. For its part the department could have extended the consultations which they had with the CTU and major employee associations to inviting those employee associations which would be seeking early registration to provide for preliminary checking, and well ahead of 2 October, the material that ss13 and 14 would require to be furnished formally in terms of those provisions once the ERA was in force and, as well, to give advance notice if, for any reason, they particularly desired to be registered on or shortly after 2 October.

  39. Judged by the limited material provided to the court in the Registrar's affidavits in relation to NUPE and the other 19 employee associations prematurely registered, there is every justification for concluding that in the great run of cases such preliminary vetting by the department could have been completed expeditiously and that there need not have been any significant delay in the formal checking of the applications made when the ERA was in force and so in the registration of NUPE as a union under the Act. In that regard I agree with the Chief Judge (para [13] above) that the processing of applications was made relatively straightforward by the ERA. Certainly, apart from assertions about logjam concerns, there is nothing in the material before the court to explain why in an appropriately ordered way the department could not have geared itself to register, as promptly as the particular circumstances required, any employee association seeking immediate or early registration as a union.

  40. In short, on analysis of the two statutes I am satisfied that neither the right of employee associations to seek registration nor the power and duty of the Registrar to consider applications and register qualifying employee associations arose until the Act came into force. Further, there were no administrative imperatives requiring earlier registration and such as to call into question those clear conclusions as to the scheme of the ERA and the interpretation of s11 of the Interpretation Act.

  41. Finally, if employee associations could apply for registration and be registered before 2 October there would seem to be no reason why, as the Chief Judge foresaw (para [14] above), they were not then free to act as unions performing their statutory role. For example, giving notices initiating bargaining, a function specifically mentioned by the Chief Judge, could readily be seen as furthering the stated object of the ERA (s3(a)(iii)) to build productive employment relationships by promoting collective bargaining through unions. And s12 does not draw any relative distinctions in identifying the four stated objects of Part 4 relating to unions as being: "(a) to recognise the role of unions in promoting their members’ collective employment interests; and (b) to provide for the registration of unions that are accountable to their members; and (c) to confer on registered unions the right to represent their members in collective bargaining; and (d) to provide representatives of registered unions with reasonable access to workplaces for purposes related to employment and union business." There are no clear indications in the legislation or in principle as to where and how to draw the line in determining what a union might or might not do before 2 October if entitled to be registered before that date.

    RELIEF:

    The Employment Court Judgment

  42. In his judgment of 2 February 2001 granting the interim injunction restraining strike action as sought by MAF the Chief Judge noted that, while the consequences of the registration of NUPE prior to 2 October needed further consideration, he found the argument that s11 of the Interpretation Act did not go so far as to authorise the registration of unions ahead of 2 October logically attractive; and that if this argument ultimately prevailed, "it may be necessary for Parliament, if it is so minded, to validate the Registrar's actions if other unions have been registered in this way and have perhaps settled collective employment agreements subsequently in reliance on the validity of registration prior to 2 October 2000".

  43. In his subsequent substantive judgment of 19 February, but after rejecting the challenge to the validity of the registration of NUPE, the Chief Judge added that even if the Registrar's action in registering NUPE was invalid, the trivial nature of the error should in the exercise of the court's equitable jurisdiction not be allowed to be available to defeat the defendants' right to strike.

  44. The Chief Judge considered it most unlikely that any significant action would have been taken by any union in the short period between being advised of its registration and 2 October 2000. There was, he said, no detriment to MAF continuing from the premature registration of NUPE and it was unlikely that any other employer would have been prejudiced by the registration of other unions prior to 2 October. On the contrary, considerable chaos could be caused in many workplaces if the court were to strike down the union's registration merely because the Registrar of Unions acted in an efficient manner and anticipated by a matter of a few days the coming into force of the Employment Relations Act 2000 and his duties under it. He referred to s5 of the Judicature Amendment Act 1972 and to a number of cases where courts had refused relief where there would otherwise have been a risk of disruption, likely public inconvenience and commercial uncertainty, adding that the Employment Court had realism as its hallmark and was unlikely to be easily moved by overly technical arguments.

    The Rival Arguments Summarised

  45. Mr Barton submitted that the court should grant the two declarations as sought (para [4] above). As noted in the judgment of this court granting leave, there were still live issues between the parties (para [36]) and there is also a foreshadowed claim against NUPE for damages arising from allegedly illegal strike action. Mr Barton submitted that the premature registration of NUPE was fatally flawed and, even without a declaration of invalidity, because the act of registration lacked lawful justification, NUPE and other similarly placed employee associations would remain at risk. There was no justification for refusing a declaration and every reason for sending a clear message as to the invalidity of the purported registration. In that regard he also submitted that s5 of the 1972 Act was not engaged.

  46. Counsel for the respondents all submitted that the court should exercise its undoubted discretion and refuse declaratory relief, essentially for the reasons identified by the Chief Judge, and that it should also validate the Registrar's decision under s5 of the 1972 Act. The Registrar made his decision to register NUPE in good faith and on legal advice; he did so to avoid a possible logjam of processing applications on 2 October; NUPE did not act on the registration until after 2 October; neither the Employers Federation nor anyone else suffered any prejudice as a result of the Registrar's decision; and to grant a declaration would cause needless disruption and uncertainty in the employment relations environment.

  47. As to s5, it was submitted that, while the Employment Court proceeding was not by way of application for review under s194 of the ERA, s194(1) also applied to proceedings where, as here, a declaration is sought in relation to the purported exercise by the Registrar of a statutory power of decision and where, pursuant to s212(2), in the absence of Employment Court rules in point such proceedings are regulated by the rules applicable to proceedings founded on judicial review in the High Court so far as they are applicable and with all necessary modifications.

    Discussion

  48. Section 5 of the Judicature Amendment Act 1972 provides:

    Defects in form, or technical irregularities

    On an application for review in relation to a statutory power of decision, where the sole ground of relief established is a defect in form or a technical irregularity, if the Court finds that no substantial wrong or miscarriage of justice has occurred, it may refuse relief and, where the decision has already been made, may make an order validating the decision, notwithstanding the defect or irregularity, to have effect from such time and on such terms as the Court thinks fit.

  49. Assuming for present purposes that s5 can fairly be characterised as a rule regulating the practice and procedure of the court, and that the section is otherwise applicable, I am satisfied that the premature purported registration of NUPE is not a defect in form or a technical irregularity.

  50. The absence of any power to make that decision on 29 September, and on consideration of an application which could not lawfully be made before 2 October, is far more than a formal defect or technical irregularity. It is a matter of prime substance. The power, as invoked, simply did not exist. The process adopted was fatally flawed.

  51. There remains the further question whether, even though that statutory pre-condition to validation could not be satisfied, the court should exercise its discretion to refuse the relief sought. On the one hand there is no suggestion that NUPE was not entitled to apply for registration and to be registered as a union on 3 October. It may fairly be said that neither MAF nor the Employers Federation has suffered any specific prejudice. As well, NUPE and the Registrar acted in good faith, and while it might be argued that on such a basic and important question of capacity the Registrar or the department should have obtained a written legal opinion and NUPE or the CTU could have obtained its own legal advice, particularly given the absence of any relevant New Zealand authority under s11 directly in point, the legal question is arguable as is apparent from the different conclusions reached by the Employment Court and this court and the views of the minority in this court. Highlighting the illegality by a declaration of invalidity would immediately put the prematurely registered associations in a hopeless position and lead to considerable administrative confusion unless and until Parliament legislated.

  52. On the other hand, the lawfulness of registration goes to the heart of the relationship between union and employer and the plea to avoid administrative chaos has to be weighed alongside two other considerations. One is the high public policy requirement that statutory officers ensure they keep within their powers and are accountable in law, not expecting to be excused even though they caused the problem. As Taylor, Judicial Review, A New Zealand Perspective 57, para 2.42 observes, "The sanction of invalidity is itself an incentive to good administration." The other is that to refuse relief would still leave undesirable uncertainty as to the rights and liabilities of employee associations, employees and employers in respect of past and future actions. The refusal of a declaration would not prevent an employer from challenging the legality of an employee association's registration in other proceedings, e.g. in the foreshadowed claim to damages (see para [45] above). It could not confer on NUPE a legal status under the ERA which it could not lawfully achieve on 29 September 2000. As de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed, 1995) para 20-015 note:

    There can be no purpose in purporting to keep alive a decision which is devoid of all content. Subject to there being some purpose in obtaining the decision of a court, if a court comes to the conclusion that a decision is totally invalid and of no effect, it will normally readily be prepared to grant a declaration to this effect.

  53. Finally, as Chief Judge Goddard noted (para [42] above) validating legislation may be considered appropriate but that decision is, of course, for the legislature.

  54. I am satisfied that the prima facie entitlement of the Employers Federation to the declaration of invalidity sought should not be withheld as a matter of discretion and, on the contrary, that granting the declaration would serve the important public purposes of vindicating the law and emphasising the proper scope of administrative anticipation of the coming into force of legislation.

  55. I also agree on this and other issues on the appeal with the further reasons set out in the judgments of Tipping J and McGrath J.

    RESULT

  56. In accordance with the views of the majority the appeal is allowed, the orders made in the Employment Court are quashed and the declarations sought by the Employers Federation (para [4] above) are granted. If any questions of costs or other matters arise, counsel may submit memoranda.

    Keith J

  57. Legislation

    (i)

    becomes law when, in the case of an Act of Parliament, the Bill which has been passed by the House of Representatives is assented to by the Sovereign or the Governor-General (Constitution Act 1986 s16), and, in the case of regulations, is made by Order-in-Council

    (ii)

    comes into force on the date of commencement stated or provided for in the Act or the regulations or, in the absence of such a provision, on the day after it is assented to, in the case of Acts, or it is notified in the Gazette, in the case of regulations (Interpretation Act 1999 ss 8-10)

    (iii)

    may be able to be invoked after it becomes law but before it is in force, that is between the times identified in (i) and (ii), in particular under s11 of the Interpretation Act

    (iv)

    may have effect in respect of matters which precede its coming into force notwithstanding the principle that legislation does not have retrospective effect (Interpretation Act s7; see also eg ss 17-22).

  58. This appeal is about the third matter. Could the Registrar of Unions register a union under Part 4 of the Employment Relations Act 2000 (ERA) in the period between the date when the Act became law, 19 August 2000, and the date when it came into force, 2 October 2000?

  59. In that same period the Registrar himself had been appointed under s27 of the Act, and relevant regulations – the Employment Relations (Prescribed Matters) Regulations 2000 (2000/185) – had been made under s237. Like the Act, the Regulations provided that they were to come into force on 2 October 2000. Among other things, they prescribe the forms for applications for registration and for certificates of registration.

  60. Those steps, taken under the Act but before it came into force, are the ones most relevant to the present issue, but another step of some relevance is the setting up, under part 5, of a committee to prepare a code of good faith and the work done on that before 2 October. The code itself was not approved until that after date.

  61. It is not disputed that the Registrar could be appointed and the regulations made in exercise of the powers conferred by s11 of the Interpretation Act:

    11

    Exercise of powers between passing and commencement of legislation

    (1)

    A power conferred by an enactment may be exercised before the enactment comes into force or takes effect to—

    (a)

    Make a regulation or rule or other instrument; or

    (b)

    Serve a notice or document; or

    (c)

    Appoint a person to an office or position; or

    (d)

    Establish a body of persons; or

    (e)

    Do any other act or thing for the purposes of an enactment.

    (2)

    The power may be exercised only if the exercise of the power is necessary or desirable to bring, or in connection with bringing, an enactment into operation.

    (3)

    The power may not be exercised if anything that results from exercising the power comes into force or takes effect before the enactment itself comes into force unless the exercise of the power is necessary or desirable to bring, or in connection with bringing, the enactment into operation.

    (4)

    Subsection (1) applies as if the enactment under which the power is exercised and any other enactment that is not in force when the power is exercised were in force when the power is exercised.

  62. What is disputed is whether the Registrar could, in exercise of the anticipatory power conferred by s11, exercise his power of registration before the ERA came into force. Is the action of registering a union the exercise of a power conferred by that Act to "do any other act or thing for the purposes of [the ERA and] necessary or desirable to bring, or in connection with bringing, [the ERA] into operation"? In stating the question in that way I use the wording only of para (e) of subs (1) since I agree that the action of registration does not "establish" the union in terms of para (d).

  63. Section 11 can be traced back to a 1903 amendment to the Interpretation Act 1888, which incorporated into New Zealand law s37 of the Interpretation Act 1889 (UK). Similar provisions are found in many Commonwealth interpretation statutes. The terms of the 1903 provision were taken unchanged into the 1908 and 1924 Acts Interpretation Acts. The 1924 provision read as follows:

    12

    Exercise of statutory powers between passing and commencement of an Act

    Where an Act that is not to come into operation immediately on the passing thereof confers power to make any appointment, to make or issue any instrument (that is to say, any Proclamation, Order in Council, order, warrant, scheme, rules, regulations, or bylaws), to give notices, to prescribe forms, or do anything for the purposes of the Act, that power may, unless the contrary intention appears, be exercised at any time after the passing of the Act, so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof, subject to this restriction: that any instrument made under the power shall not, unless the contrary intention appears in the Act or the contrary is necessary for bringing the Act into operation, itself come into operation until the Act comes into operation.

  64. The 1999 Act confers powers which are broader in a number of respects. First, while the substitution of the word "desirable" in subs (2) for "expedient" may have no significant effect (a matter on which I express no view), its inclusion in subs (3) in addition to "necessary" does widen the scope of that provision. The power now conferred by that subsection was widened despite its removal from the equivalent United Kingdom provision (Interpretation Act 1978 s13) and a Law Commission recommendation that that course be followed here (A New Interpretation Act (NZLC R17 1990) clause 5 and para 277).

  65. Secondly, the new provision applies to powers conferred by "an enactment" and not simply by "an Act" with the consequence, given the definition of "enactment" in s29 as meaning the whole or a portion of an Act or Regulation, that s11 now extends to the exercise of powers conferred by regulations which are not yet in force.

  66. Thirdly, the power may now be used not only if the exercise of the power is necessary or desirable to bring the Act into operation but also "in connection with bringing it into operation".

  67. Fourthly, Parliament by adding subs(4) has emphasised the full force of the power which is to be used on an anticipatory basis. In particular, it is not only the enactment conferring the power that is to be treated as in force but so also is "any other enactment that is not in force". I take it that the reference is to any other enactment, not yet in force, that is relevant to the exercise of the power.

  68. A change in wording also underlines the nature of the power conferred by s11. The new provision, unlike the old, distinguishes clearly between "the coming into force" of legislation, on the one side, and "bringing it into operation," on the other. The change, consistently with the reading given to the old provision and its equivalents, clarifies the purpose of helping give fuller substantive effect to the legislation by enabling the making of necessary or desirable provision which is effective right from the time the legislation comes into force. In that sense, the power is used in support of the lawmaker’s will to have the new law operating more effectively or conveniently from that time. The provision is not to be read narrowly (see eg Usher v Barlow [1952] 1 Ch 255, 259-60, 262 (CA); Novacic v Cooper (1973) 21 FLR 436, 445-46 (FC ACT SC); and J F Burrows Statute Law in New Zealand (1999) 353). Against that background I turn to consider the provisions of the ERA relating to unions and in particular to their registration.

  69. Part 4 of the ERA concerns the registration and operation of unions. It begins with this statement of its object:

    12

    Object of this Part

    The object of this Part is—

    (a)

    to recognise the role of unions in promoting their members’ collective employment interests; and

    (b)

    to provide for the registration of unions that are accountable to their members; and

    (c)

    to confer on registered unions the right to represent their members in collective bargaining; and

    (d)

    to provide representatives of registered unions with reasonable access to workplaces for purposes related to employment and union business.

  70. Sections 13 to 17 deal with the registration of unions and related matters, including the cancellation of registration. Under s18 the union is entitled to represent its members in relation to any matter involving their collective interests as employees, and under ss19-25 unions may have access to workplaces. In terms of s26 employers must allow union members to attend union meetings. The final set of provisions (ss27-30) in the Part concerns the Registrar and related matters. Part 5 follows with its provisions for collective bargaining in good faith – a process in which the relevant union has an essential role. That role is emphasised at the outset of the Act by the statement of its object in s3 (especially in s3(a)(iii) and (b)), and then in the statement of the obligations of good faith in s4 and in the provisions about freedom of association in part 3. Section 3 provides:

    3.

    Object of this Act

    The object of this Act is—

    (a)

    to build productive employment relationships through the promotion of mutual trust and confidence in all aspects of the employment environment and of the employment relationship—

    (i)

    by recognising that employment relationships must be built on good faith behaviour; and

    (ii)

    by acknowledging and addressing the inherent inequality of bargaining power in employment relationships; and

    (iii)

    by promoting collective bargaining; and

    (iv)

    by protecting the integrity of individual choice; and

    (v)

    by promoting mediation as the primary problem-solving mechanism; and

    (vi)

    by reducing the need for judicial intervention; and

    (b)

    to promote observance in New Zealand of the principles underlying International Labour Organisation Convention 87 on Freedom of Association, and Convention 98 on the Right to Organise and Bargain Collectively.

  71. The government in its general policy statement in the Explanatory Note to the Bill, after mentioning those provisions, continued as follows:

    In order to address the issues underlying its objectives, the Bill therefore promotes the voluntary organisation of employees via unions and collective bargaining as the best means of redressing bargaining power imbalances, while giving individuals the choice as to how their terms and conditions are negotiated, either individually or collectively. Alongside this is the notion that the employment relationship itself should be conducted in a manner that promotes good faith, fair dealing and mutual trust and confidence between the parties.

    In particular, the Bill requires employers and unions to conduct their collective relationships in good faith.

  72. The House of Representatives Select Committee on employment and accident insurance legislation, in reporting the Bill back to the House after considering the Bill and the many submissions on it, said this about Part 4:

    A number of unions and employees, and some others, specifically gave support to the bill’s promotion of independent unions, and union rights and privileges. We also heard opposing, and at times vehement, statements from employers, and from some employees, who regard unions as outdated and inherently confrontational. Linked with this was support for employment relationship dealings to be undertaken directly between employers and employees, rather than through a third party, such as a union.

    We have sought advice and considered these issues at length. The underlying central policy of this legislation, however, is the promotion of employees’ collective rights through unions, and the establishment of union rights. This policy approach is based on voluntary unionism and contestability between unions. The majority is not recommending any change to this underlying policy or to the overall objects of Part 4, other than clarifying changes to clause 19 on the cancellation of union registration.

    The central role given to unions by the ERA marks a major departure from the earlier law. The Employment Contracts Act 1991 which the ERA replaced accorded no express role to unions.

  73. To return to the terms of s11(1)(e) of the Interpretation Act, one of "the purposes" of the ERA would be supported by the early registration of unions which have important exclusive rights under it. That is not to suggest that those unions would be able to exercise their substantive rights before the Act comes into force (for those rights are not "powers" in terms of s11 which is concerned with public powers); nor is it suggested that all unions would have to, or indeed would even want to, be registered by the date the Act came into force. What this case concerns is the question whether the step of registering applicant unions is "desirable" to bring the Act into effective operation or in connection with that process. The facts, conveniently gathered in the President’s judgment, show that a significant number of unions did wish to have the advantage of registered status from the outset. They must have seen that as desirable, as did those administering the Act, and the Employment Court has held. While the Chief Judge’s ruling might have been more clearly stated, he did decide that it was necessary, or at least desirable, to receive applications for processing before 2 October and that it was unrealistic to separate registration from processing since, he said, the Registrar has no discretion. "He is merely performing a ministerial act." On the finding of desirability, it is to be recalled that the appeal to this Court is on questions of law only; ERA s214(1). On the Registrar’s power, I would note that while it is closely circumscribed, he does have to assess the papers to decide that they establish the entitlement (compare s14(2)); and that, more broadly, the holder of a statutory power may of course be under a duty to exercise it in a particular way; eg Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, 222-223, 229-230, 241.

  74. That wish of NUPE and the action of the Registrar must, however, be tested against the provisions of ss13 to 15 of the ERA and the related regulations.

  75. Under ss13 to 15 a society incorporated under the Incorporated Societies Act 1908 is entitled to be registered if it

    1. has the object of promoting its members’ collective employment interests;

    2. has rules that are not unreasonable, are democratic, are not unfairly discriminatory or unfairly prejudicial, and are not contrary to law; and

    3. is independent of any employer.

    On its applying in the prescribed manner, such a society must be registered by the Registrar who must then give the union a certificate of registration in the prescribed form. That certificate is conclusive evidence that the requirements of the Act relating to registration have been complied with and that on and from the date of registration the union is registered as a union under the Act. Registration is subject to cancellation under s17, either on the application of the union or on an order made by the Employment Relations Authority on the ground that the union no longer complies with the requirements for registration. The 2000 regulations prescribe the forms for NUPE’s application to register as a union and for the certificate of registration to be issued by the Registrar. In this case those forms were used, the application, along with the associated statutory declaration, being made before the Act came into force, and the certificate of registration being issued after the Act came into force (it appears, because of printing delays).

  76. In terms of s11(1), the Registrar has "a power conferred by an enactment" to register unions. The purpose of the Act relating to the facilitating of collective bargaining through unions would be promoted were he to exercise that power on an anticipatory basis, with the registration becoming effective once the Act is in force. His power is a public power, for s11 does appear to be focused on such powers. It is true that the power relates to bodies outside the public or governmental sphere, but s11 does not in its terms incorporate any limit excluding the exercise of power in relation to such bodies. In this respect it is perfectly general. Should it, for instance, make any difference to the application of s11 if the employment relations education being approved under part 7 of the ERA is being offered by a private or public provider (compare eg Novacic) or whether breath testing devices are manufactured privately or publicly (eg Hayward v Eames, Kirkpatrick v Harrigan [1985] RTR 12, 18)?

  77. Mr Barton QC, for the appellant, urged on us a distinction which may be seen as related. It is between providing the machinery or structure that will enable the legislation to work and to be effective on its commencement date, on the one hand, and an action taken under the Act itself in furtherance of the objectives of the Act, on the other. It is a distinction, the argument continues, that is cardinal to the upholding of the principle of law that no obligations, rights or duties can arise until an Act of Parliament which imposes such obligation, right or duty comes into force : Wilson v Dagnall [1972] 1 QB 509 CA. That principle is not however engaged by the facts of this case. NUPE was not claiming to exercise any rights under the ERA (for instance of access to workplaces) before 2 October nor alleging any breach of a duty imposed by the statute by an employer arising from any events preceding that date; as indicated, I do not see such actions as being taken in the exercise of powers that fall within s11, and accordingly I disagree with the statement by the Chief Judge that unions registered before that date could have taken such actions. Further, the claimed distinction does not appear to be reflected in s11 nor to be supported by the stated principle. Section 11 plainly contemplates "actions [being] taken under the Act itself in furtherance of the objectives of the Act" – so long as those actions come within the terms of s11 in other respects. Next, the section does not distinguish in the way proposed between machinery and structure, on the one side, and actions taken under the Act in furtherance of its objective, on the other. Indeed, by its very terms, it provides for acts to be done for "the purposes of [the] enactment". In my view, the Registrar’s power falls within both the plain terms of s11 and its purpose – to have new legislation operating conveniently and effectively from the very beginning.

  78. The sections of the ERA require the society to make an application. Those sections were not in force at the time the application was made. Could they nevertheless be invoked? I consider that they could be. If the power to register is available to the Registrar then, in terms of subs (4) of s11, subs (1) is to apply as if not only the provisions conferring power on the Registrar, but also related provisions of the ERA, were in force. Those provisions include those governing the application. Given the extended scope of the word "enactment", s11 also applies, as appropriate, to the forms prescribed by the Regulations. Accordingly, I conclude that the Registrar, before the Act came into force, did have power to receive the application and supporting documents which were lawfully submitted to him and to exercise his power to register NUPE with the registration being effective no earlier than when the Act came into force.

  79. That conclusion leaves one problem. The registration certificate states that NUPE was registered from 29 September 2000. I agree with the argument made by Mr Marshall, for the Registrar, that the Employment Court may in appropriate circumstances, in proceedings such as these, use the power to correct defects in form or technical irregularities, conferred by s5 of the Judicature Amendment Act 1972. That power is available by way of ss194(1) and 212(2) of the ERA. On the basis that the Registrar had power on 29 September 2000 to register NUPE as from 2 October, the error in date in the certificate is properly to be seen as no more than a defect in form or a technical irregularity. That error could be corrected under s5.

  80. I also agree with the judgment of Blanchard J. For the reasons he gives and the reasons given in this judgment, I would dismiss the appeal.

    Blanchard J

  81. I have found the question of the scope of s11(1)(e) and (2) in the circumstances giving rise to this case to be of considerable difficulty. In the end, I find myself persuaded by Keith J’s judgment that the Registrar did have power to register unions prior to 2 October on the basis that the registration was effective from that date.

  82. The outcome of the Registrar’s actions which will now result from the decision of the majority is, I believe, most regrettable. I confess that I have looked for a means of avoiding it.

  83. It seems to me that any fault of the Registrar should not be visited upon NUPE and other unions which in good faith did as the Registrar invited them. The subsequent conduct of NUPE in the dispute which arose between the meat inspectors and their employer had nothing to do with the status of its registration. I imagine that Parliament will now consider rectifying the position on that basis.

  84. But in the view I take that would not be necessary, for I consider that, both for the reasons given by Keith J and by the alternative route which I believe is also available, in the particular circumstances the Court is properly able to construe the Registrar’s actions in a manner which treats the registration as having been validly accomplished.

  85. I do not accept the argument advanced by Mr Brown QC, for the CTU, that the Registrar must be taken as a matter of fact to have intended that registration take effect at the time when he issued the certificate of registration or at any other time than as specified therein. Obviously, the Registrar thought he had registered the union on 29 September. His certificate was intended by him to evidence that event, having been delayed only by the printing process. I agree also that he did not actually turn his mind on 3 October to NUPE’s entitlement to be registered.

  86. However, it is plain that before 2 October the Registrar had received all material necessary for NUPE to become registered when the Act came into force and that the Registrar had on 29 September taken the view that NUPE was entitled to be registered. He had not changed that view by 2 October and there was no basis for him to do so.

  87. The documents had been prepared a few days before 29 September. The declaration was made on NUPE’s behalf on 25 September. The application bore the same date. They were received by Mr Hobby on 26 September. I can see no reason why they could not have been held until 2 October and then processed, with a certificate issued confirming registration on that date.

  88. The statutory declaration sufficiently evidenced the union’s position. It stated the union office held by the maker, Mr Finlayson; that the union had an object of promoting its members’ collective employment interests; that it was incorporated under the Incorporated Societies Act 1908; that its rules were not unreasonable, democratic, not unfairly discriminatory or unfairly prejudicial and not contrary to law; and that it was independent of and was constituted and operated at arms length from any employer. These were the matters which under s14 govern entitlement to registration as a union. The Registrar was permitted to rely on a statutory declaration, but was not obliged to do so (s14(2)).

  89. The application stated that it had accompanying it a copy of the certificate of incorporation under the 1908 Act, a copy of the registered rules and the statutory declaration "setting out the reasons why the society is entitled to be registered as a union". Notably, however, and perhaps fortuitously, that statement of entitlement appears in the application, not in the declaration itself. While the declaration could be taken to be made only as of its own date, at which there could have been no such entitlement, there is no reason why the application document cannot be taken to be referring to the first point in time at which a legal entitlement to registration would exist, so as to operate as an application when that time arrived.

  90. There could surely be no objection to an application which was forwarded to the Registrar ahead of the commencement date of the Act and processed on that date even though it bore an earlier date of signature.

  91. The Registrar was obliged under s15(1) to register the society as a union (a) when he held an application made in the prescribed manner (i.e. by the regulations already promulgated) accompanied by a copy of its rules and a statutory declaration setting out reasons why the society was entitled to be registered (s13(2)); and (b) when the society was entitled to be registered (s15(1)(b)). As at 2 October that state of affairs existed for the first time. The Registrar did have such an application in proper form (so accompanied) and the society was so entitled. How can it have vitiated the effectiveness of the application that the Registrar had already purported to register it at an earlier date – an act which was a nullity?

  92. In such circumstances when the Registrar took the further step of acknowledging registration by issuing a certificate he must be taken to have been acknowledging that the registration occurred as from the date on which he had both an ability to effect registration of unions and an obligation under s15 to register NUPE. He had already checked the documents tendered by NUPE and he had no reason at the time of issuing the certificate or at any earlier time to believe that the state of affairs disclosed in them had changed – and indeed it had not. There was, in particular, no need for the declaration to have been made on 2 October. If it be said that the declaration, being made before 2 October, could not be a declaration under s13(2)(c), my answer is that, in terms of s14(2), the Registrar was not obliged to rely upon a statutory declaration under that section. He had an equivalent, namely a declaration made under the Oaths and Declarations Act 1957 covering the same ground - even if technically it could not be said to have been made under s13(2)(c) because there was no entitlement to be registered at the time it was made.

  93. Applications of various kinds for registration under a statute are frequently accompanied by a declaration stating the position of the applicant but made a short time earlier. A common instance is an application for the incorporation of a society under s7 of the Incorporated Societies Act 1908, which must be accompanied by a declaration by an officer to the effect that a majority of members has consented and that the accompanying rules are the rules of the society. To my knowledge no one ever suggested that such a declaration had to be made on the same day that the application was delivered to the Registrar. Considerable practical difficulties would be caused in many cases if such a procedure had to be adopted.

  94. Obviously if a declaration had been tendered which had been made so long beforehand that the position may have changed, the Registrar might have been justified in seeking an updated confirmation. But that course would not have been necessary or justified in this case.

  95. It was suggested in argument that because the section in the Act making it an offence to mislead the Registrar (s30) could not operate before 2 October, it might have been impermissible for him to accept and act on documents bearing an earlier date. But the answer to that point is that presentation after 2 October of documents which were, or had by then become, misleading may be caught by the section. And in my view, s30 could extend to catch someone who tendered such documents before 2 October intending that on or after that date the Registrar should be misled when he acted on them. The offence would be completed on the latter occasion.

  96. In a situation in which the only deficiency is the timing by the Registrar of the act of registration and in which he had an obligation under s15 to register NUPE, having in his office documents sufficiently demonstrating its entitlement, the registration must be taken to have occurred as from 2 October. The Registrar’s act of acknowledging registration by issuing the certificate must be taken to be in law an acknowledgement of registration at the point when the union ought properly to have been registered by him.

  97. For these reasons I would dismiss the appeal.

    Tipping J

  98. Section 11 of the Interpretation Act 1999 constitutes an exception to the ordinary and obvious rule that nothing can be done under an enactment until it has come into force. The exception is concerned with powers conferred by an enactment which may be exercised prior to its coming into force. Section 11(1) refers to various particular powers and then makes in paragraph (e) residual reference to a power to do any other act or thing for the purposes of the enactment in question. But the generality of those words is narrowed by the requirement specified in both subsection (2) and subsection (3) that for a power to be exercised before the Act comes into force, its exercise must be necessary or desirable to bring, or in connection with bringing, the enactment into operation.

  99. The crucial question therefore becomes whether it is necessary or desirable to exercise the power in order to bring, or in connection with bringing, the enactment into operation. The concept of bringing an enactment into operation involves a distinction between getting an enactment ready to operate, and actually operating its substantive provisions. The distinction is between putting in place the infrastructure necessary or desirable to make the enactment work on the one hand, and, on the other, the actual operation of its substantive provisions. In my view the power in issue in this case falls into the latter non-qualifying category and, in any event, its premature exercise is inconsistent with the legislative framework of which it forms part. I shall address that point first.

  100. Section 13(1) of the Employment Relations Act 2000 (the Act) gives power to a society which is entitled to be registered as a union, to apply to the Registrar to be registered as a union under the Act. Such application must be made in the prescribed manner and must be accompanied by copies of the society’s certificate of incorporation and rules. It must also be supported by a statutory declaration setting out the reasons why the society is entitled to be registered as a union. These statutory requirements immediately raise the issue whether a society is entitled to be registered as a union before the Act comes into force. The concept of entitlement is difficult to reconcile with the kind of power referred to in s11 of the Interpretation Act. The connotation is of a legal right to registration, provided the statutory criteria are met. Rights cannot accrue under an enactment until it comes into force.

  101. The Registrar’s power to register under s15 of the Act, and it is in reality a power to perform a duty, is contingent on the applicant society being entitled to registration. I cannot accept that there is any such entitlement until the Act has come into force. Furthermore, the so-called power of the Registrar under s15 is not a power of a kind which easily fits within the terms of s11 of the Interpretation Act. It is not a discretionary power; in reality it is a duty to register if the applicant satisfies the statutory criteria, some of which involve matters of judgment on the part of the Registrar.

  102. The statutory declaration required to be made by an officer of the applicant society under s13(2)(c) of the Act, and upon which the Registrar is entitled to rely in terms of s14(2), is directed to the reasons why the society is entitled to be registered. If, as I would hold, that entitlement does not arise until the Act comes into force, the declaration cannot properly be made before that time. If it is made earlier, it is necessarily claiming an entitlement to registration at a future time. That would not be consistent with the clear need, inherent in the statutory provisions read together, for the declaration to assert a present, not a future entitlement to be registered. This analysis is also consistent with s30 of the Act which makes it an offence to mislead the Registrar. That provision is obviously designed to provide a sanction for a misleading statutory declaration. Clearly no offence of misleading the Registrar can be committed under s30 until the Act has come into force. The legislation does not contemplate applications being formally made (as opposed to informal prior dialogue) before the coming into force of the Act. It must therefore follow that no society can be registered as a union until the Act has come into force.

  103. These various inter-linked points demonstrate with some clarity that the power (more accurately the duty) of the Registrar to register a society as a union cannot have been intended to operate prior to the coming into force of the enactment which confers the power. The power cannot therefore be one which qualifies under s11 of the Interpretation Act for premature exercise. Furthermore I regard the power vested in the Registrar to register a qualifying society as something which goes beyond putting in place the infrastructure necessary or desirable to make the Act work. In reality it is a power in the nature of a duty which falls to be exercised as part of the operation of the substantive provisions of the Act. It is a power of a substantive not a preparatory kind.

  104. I find myself unable to take the view that the Registrar’s act of registration should be treated as having occurred or taken effect on 2 October 2000. The evidence demonstrates that this was not what the Registrar either did or thought he was doing. Acting on advice he thought he had the power to register on 29 September 2000 and that is what he purported to do. To hold that because he was unable lawfully to register on 29 September, the Registrar should be treated as having done something he demonstrably did not do, is, with respect to Mr Brown QC’s skilful advocacy, to adopt a fiction to avoid an unfortunate consequence. Neither as a matter of evidence, nor as a matter of principle, do I consider it would be appropriate to do so.

  105. Nor do I consider the issue by the Registrar of the certificate of registration after the Act came into force can be treated as if it were in law a separate act of registration. The Registrar thought he had already effected registration. By issuing the certificate he was performing an act intended to evidence an earlier registration; he was not registering the society as a union again. If he had been, the date of registration recorded on the certificate could not have been 29 September 2000. In my view it is artificial to treat the Registrar as having done something in law which he demonstrably did not do in fact. Furthermore this line of reasoning would lead to the law generally treating people who had acted prematurely as if they had acted after being empowered.

  106. It is for these reasons, and those referred to in the judgments of Richardson P and McGrath J, that I consider the Chief Judge fell into error when he concluded that s11 did authorise the registration of societies as unions prior to the coming into force of the Act. In his summary at paragraph 80 of his judgment, cited at paragraph [13] of the President’s judgment, the Chief Judge said that it was necessary that any society desiring to be registered as a union by 2 October 2000 should be able to secure registration that day. Putting the matter in that way correctly implies that registration could not be secured any earlier.

  107. But the Chief Judge then reasoned, in a rather circular way, that to achieve registration on 2 October 2000, it was necessary, or at least desirable, for the Registrar to receive applications for processing prior to that day with the consequence that prior registration was also possible. In making that observation the Chief Judge inadvertently jumped the issue whether the legislative scheme as a whole was consistent with the concept of a premature application. As the relevant provisions of the Act viewed as a whole clearly signal that premature applications are not contemplated, s11 of the Interpretation Act cannot be invoked simply on the basis of a perception that it is necessary or at least desirable that premature applications be accepted.

  108. Even if premature applications had been consistent with the legislative scheme, and thereby capable of coming within the compass of s11, there is a further difficulty in the Chief Judge’s reasoning. He was of the view that if applications could be "lodged" prematurely, it was unrealistic and unnecessary to separate registration from processing, as "the former flows from the latter". The Registrar had no discretion in the matter. He was, the Chief Judge said, simply performing a ministerial act. The description of an application as being "lodged" in advance implies that it is not made until the Act comes into force. But, that point aside, it does not follow that even if an application could be made prematurely, it must therefore be capable of being granted and registration effected prematurely.

  109. Although, for the reasons earlier given, I do not consider the Act enabled applications to be made prematurely, even if s11 were held to authorise the Registrar to receive applications before the Act came into force, it does not necessarily follow from that conclusion that the Registrar could act on the applications and grant them prematurely. I do not therefore see as sound the Chief Judge’s reasoning that a power to apply prematurely must inevitably imply a power to register prematurely. To say that the Registrar had no discretion to refuse a qualifying application and was merely performing a ministerial act does not support that conclusion.

  110. It is fair to observe that the Chief Judge was acting on an acceptance by both parties in his Court that applications could be lodged prematurely. I am not sure whether a distinction between lodging an application and formally making it was then intended. But, all that aside, I cannot accept that the Chief Judge’s conclusion followed from the premise upon which he was acting. I mention this for completeness because, as earlier indicated, I am satisfied the application and registration regime contained in ss13-15 of the Act is such that neither premature application nor premature registration is consistent with that regime.

  111. As to remedy, I also agree with the judgments of the President and McGrath J. I regard the constitutional points made by McGrath J as important. But for me the crucial aspect of this branch of the case is the illogicality and inconvenience involved in this Court saying to the appellant yes, you are right, the Registrar could not register any union prior to 2 October 2000 but we are not going to say that formally by way of a declaration. Where would that leave other issues between these parties or indeed between the unions concerned and other parties? This Court would effectively, albeit not formally, have declared the legal position in a way binding on all Courts in New Zealand. When remedies as of right were in issue the absence of a formal declaration in this Court could hardly leave other Courts free to reach a different conclusion on the validity of the Registrar’s premature registration process.

  112. It may be thought a little old fashioned to raise the difference between void and voidable decisions or actions. But here it is not a question of setting aside the Registrar’s decision to register the union prematurely as if it were a voidable decision or action. His purported registration was not in law registration at all. Once that position is reached a conclusion to that effect is essentially a declaration anyway. Although an action which the actor had no power in law to undertake may have presumptive validity until adjudicated upon by the Court, there cannot logically be a conclusion that the actor had no power at all to do the act, yet the Court will simply treat the act as valid by not making a declaration. To take that approach is really positive validation in disguise, and for the reasons given by the President, with which I agree, there can be no question of validation here.

  113. Although the remedy of declaration is a discretionary one, I can see no sensible basis for declining to make a formal declaration in this Court. Indeed I consider that to withhold a declaration would only create unnecessary difficulties and potential uncertainties for all involved. It is far better that the legal position be put beyond any doubt. It will be for Parliament to determine whether, on an appraisal of the balance of advantage and disadvantage on all sides, validating legislation should be enacted.

  114. For these reasons I would allow the appeal with the consequences stated by the President.

    McGrath J

  115. I agree that this appeal should be allowed, generally for the reasons stated in the judgment which the President has prepared. I also agree with the judgment of Tipping J. First, it is not open on the facts, as Mr Brown QC argued for the Council of Trade Unions, to treat the circumstances in which the Registrar of Unions on 29 September 2000 endorsed his agreement to the recommendation that he register the National Union of Public Employees, other than as intended to have immediate effect. Secondly, contrary to the argument of Mr Marshall for the Registrar and Mr McKenzie for other respondents, the relevant provisions of the Employment Relations Act 2000 and the Interpretation Act 1999, give no right to apply for nor capacity to approve registration of associations of employees prior to commencement of the Employment Relations Act. As well, the legislation does not contemplate that there could be a legitimate prior act of registration which would only take effect on commencement of the Employment Relations Act.

  116. Section 11 of the Interpretation Act has not previously come before this Court. It is the contemporary expression of s12 of the Acts Interpretation Act 1924 which was the previous statutory provision governing anticipatory exercise of powers. This Court indicated that there were limits to the scope of the earlier provision in NZ Maori Council v Attorney-General [1996] 3 NZLR 140. In that case the assistance of s12 was sought to support an argument that the Crown was able to enter into a conditional contract to sell shares in a state enterprise in advance of the coming into effect of enacted legislation removing a prohibition on such a sale. In rejecting the argument the majority judgment of the Court pointed out that it could not be said to be necessary or expedient for the effectiveness of the Act concerned that a conditional sale had occurred prior to its commencement, when the Act was perfectly capable of operating prior to conclusion of such a sale. The judgment went on: (pp163-164)

    There is no gap in the legislation which needs to be filled, nor will the parliamentary intention in any way be frustrated if a sale cannot take place until a moment after the Act is in force.

  117. Section 11 of the Interpretation Act provides as follows:

    11

    Exercise of powers between passing and commencement of legislation

    (1)

    A power conferred by an enactment may be exercised before the enactment comes into force or takes effect to—

    (a)

    Make a regulation or rule or other instrument; or

    (b)

    Serve a notice or document; or

    (c)

    Appoint a person to an office or position; or

    (d)

    Establish a body of persons; or

    (e)

    Do any other act or thing for the purposes of an enactment.

    (2)

    The power may be exercised only if the exercise of the power is necessary or desirable to bring, or in connection with bringing, an enactment into operation.

    (3)

    The power may not be exercised if anything that results from exercising the power comes into force or takes effect before the enactment itself comes into force unless the exercise of the power is necessary or desirable to bring, or in connection with bringing, the enactment into operation.

    (4)

    Subsection (1) applies as if the enactment under which the power is exercised and any other enactment that is not in force when the power is exercised were in force when the power is exercised.

  118. In my view the phrase "necessary or desirable" in s11(2) of the Interpretation Act carries no different meaning to "necessary or expedient" in its predecessor. It follows that the approach to the Acts Interpretation Act provision in the 1996 New Zealand Maori Council case should continue to be applied to s11. In the present case the Employment Relations Act was perfectly capable of operating from its stipulated commencement date subject only to the governmental infrastructure necessary for exercising the substantive powers previously being put in place. That was done as the judgment of the President records. There is no gap in the legislation which needs to be filled and the overall parliamentary intention will not be frustrated if applications for registration cannot be made and considered until commencement of the legislation. Accordingly the requirements of s11(2) for anticipatory exercise of statutory powers is not met.

  119. While I recognise that s11 of the Interpretation Act is not to be read restrictively, and in this case give its terms full effect with that in mind, Parliament’s clear intention, in my view, was that the substantive powers of Part IV of the Employment Relations Act, should only become effective after commencement of that Act.

  120. Once the correctness of both the analysis of the legislation in the President’s judgment, and its application to the facts, is accepted the remaining issue is whether relief should be withheld. The relief that was claimed by the Attorney-General as plaintiff in the Employment Court, and which was sought before us by the appellant, was pleaded in the first amended statement of claim as follows:

    (e)

    That a declaration be issued declaring that the (National Union of Public Employees)is not as at the date of issue of the declaration an incorporated society that has been properly registered as a union within the meaning of the Employment Relations Act 2000.

    (f)

    And further that the (National Union of Public Employees’) registration on 29 September 2000 as a union is of no legal force and effect.

  121. Insofar as Mr Marshall’s argument that declaratory relief should not be granted by this Court relied on the power to validate defects in form or technical irregularities under s5 of the Judicature Amendment Act 1972, I accept that this provision is available to the Employment Court in the circumstances provided for in s212(2) of the Employment Relations Act. The present proceedings which, as indicated, seek a declaration are in my opinion covered by virtue of the combined effect of ss194 and 212 of that Act. I agree, however, with the view expressed in the judgment of the President that on its terms s5 cannot be used to validate what has happened in this case. The flaws in the "registration" process go well beyond mere defects in form or technical irregularities for the reasons given in both that and this judgment.

  122. I also agree that the Court should not refuse to grant the relief sought in the exercise of its residual discretion in what is essentially a judicial review proceeding.

  123. In my view the constitutional significance of the irregular acts taken by the Registrar strongly indicates that the Court should grant relief in the form of making the declaration sought. In constitutional terms the registration of the associations of employees prior to the authorising statute coming into force was an intrusion by the executive into the legislative function of Parliament. The scope of that exclusive function extends, of course, to stipulating when legislation enacted by Parliament comes into force. At times Parliament may delegate to the executive the power of commencement, as it did in the case of the legislation enabling sale of shares in a state enterprise considered in the 1996 New Zealand Maori Council case. Here the Act simply stipulates a commencement date. Whichever mechanism is used the premature exercise by the executive of substantive powers conferred by the legislation trespasses into the area of exclusive Parliamentary jurisdiction.

  124. The need for care by the courts themselves in relation to proceedings concerning commencement of statutes was recognised by this Court in the 1996 NZ Maori Council case (see the discussion at p165 of that case of R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513 H.L.). The Fire Brigades Union case concerned judicial review of failure to exercise a delegated commencement power, and the need in that context for Courts to avoid trespassing into the legislative function was emphasised. What happened in this case indicates the similar need for the executive to be sensitive to over-reaching its constitutional functions by exercising powers before Parliament intended they be available.

  125. In this case the judicial branch of government is called on to interpret and apply statutory law on a question of anticipatory exercise of statutory powers. As indicated, I regard that as going to the line of demarcation between the functions of the two political branches. A declaration by the Court on the matter will bind the executive.

  126. I am not insensitive to the complications a declaration by the Court may present, including those for respondents and others who have acted in good faith on the basis of governmental advice. These may be thought to require validating legislation but that is not for the Court to decide. Were the Court to refrain, however, from making a declaration, even though satisfied the executive has trespassed into the functions of the legislature, it would be failing to discharge its own constitutional function and raise questions as to its independence (see Electoral Commission v Tate [1999] 3 NZLR 174 CA). This in my view is the principal reason why a declaration must be made in the terms of the judgment prepared by the President.


Cases

R v Minister of Town and Country Planning, Ex parte Montague Burton Ltd [1951] 1 KB 1; Usher v Barlow [1952] 1 Ch 255; Novacic v Cooper (1973) 21 FLR 436; Julius v Lord Bishop of Oxford (1880) 5 App Cas 214; Hayward v Eames, Kirkpatrick v Harrigan [1985] RTR 12; Wilson v Dagnall [1972] 1 QB 509 CA; NZ Maori Council v Attorney-General [1996] 3 NZLR 140; R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513 H.L; Electoral Commission v Tate [1999] 3 NZLR 174 CA

Legislations

Employment Relations Act 2000, s.13, s.14, s.15

Interpretation Act 1999, s.11

Judicature Amendment Act 1972, s.5

International Labour Organisation Convention 87 on Freedom of Association, Art. 2

Authors and other references

Pearce, Statutory Interpretation in Australia (2nd ed)

Côté, The Interpretation of Legislation in Canada

Burrows, Statute Law in New Zealand (2ed 1999)

Freedom of Association: Digest of Decisions and Principles of Freedom of Association Committee of the Governing Body of the ILO (4th ed (1996) ILO

Taylor, Judicial Review, A New Zealand Perspective 57

de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed, 1995)

Representations

G P Barton QC and J Gibbs for Appellant (instructed by Solicitor, Employers' and Manufacturers' Association, Wellington)

A J McKenzie for First to Fifth Respondents (instructed by Loughnan Jarman & Co, Christchurch)

J L Marshall and D S Gooneratne for Sixth Respondent (instructed by Crown Law Office, Wellington)

C K Treadwell for Seventh Respondent abiding decision of the Court (instructed by Crown Law Office, Wellington)

B W F Brown QC and J Watson for Eighth Respondent (instructed by Solicitor, New Zealand Public Service Association (Inc), Wellington)


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