Richardson and Commissioner for Superannuation and Defence Force Retirement and Death Benefits Authority

[2003] AATA 591

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 591

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V02/765

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PETER SHANE RICHARDSON

Applicant

And

And

And

COMMISSIONER FOR SUPERANNUATION 

  Respondent

No V02/1046

PETER SHANE RICHARDSON

  Applicant

DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

  Respondent

DECISION

Tribunal	Mrs Joan Dwyer,     Senior Member Dr P. Fricker,            Member
Mr W.G. McLean,    Member

Date25 June 2003

PlaceMelbourne

Decision The Tribunal affirms the decisions under review.

(Sgd)  Joan Dwyer

Senior Member

SUPERANNUATION – Defence Force Retirement and Death Benefits – whether special circumstances that justify extending period for making an election to preserve benefits – Superannuation ‑ employment by Post-Master General’s Department in a temporary capacity from August 1974 and then as a permanent employee of the Post-Master General’s Department and later of Telecom – member of superannuation scheme established under Superannuation Act 1976 ‑ whether entitled to be a contributor to fund or provident account under Superannuation Act 1922 – whether an eligible employee under 1976 Act by reason of being an employee under the superseded Act – decisions affirmed

Defence Force Retirement and Death Benefits Act 1973 s 76(1), (2) and (4), 77(1) and (2), 78(1),
Superannuation Act 1922 s 4, 5(1), 19(1), 72
Superannuation Act 1976 s 3, 3(1)(a), 182,
Telecommunications Act 1975
Postal and Telecommunication Commissions (Transitional Provisions) Act 1975 s 16

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Beadle v Director-General of Social Security (1985) 60 ALR 225

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Re Wolstencroft and Commissioner for Superannuation (No 2) (2001) 67 ALD 387; 34 AAR 71; AATA 1011

REASONS FOR DECISION

25 June 2003	Mrs Joan Dwyer,     Senior Member Dr P. Fricker,            Member
Mr W.G. McLean,     Member

1. These matters were heard together. Mr Richardson appeared and gave evidence. Mr Whithear, a Principal Solicitor with the Australian Government Solicitor, appeared on behalf of the Defence Force Retirement and Death Benefits Authority (“the DFRDBA”) and on behalf of the Commissioner for Superannuation (“the Commissioner”). The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) in each matter, and also took in as evidence the attachments to the Statement of Facts and Contentions lodged by Mr Whithear in each matter. The Tribunal also took into evidence exhibits tendered during the hearing.

2.       It is appropriate to deal first with the DFRDBA matter (No. V02/1046), even though the AAT application in that matter was lodged at a later date than the application concerning the Commissioner.  The DFRDBA matter involves events which occurred at an earlier time, and the decision made in respect of that application affects the decision in the matter concerning the Commissioner.

MATTER V2002/1046

3.       This is an application under s99(6) of the Defence Forces Retirement Death Benefits Act 1973 (“the DFRDB Act”).  The decision under review is an undated decision (T3 pp7-10) that there were no special circumstances that justified allowing Mr Richardson an extension of time under s 76(2) of the DFRDB Act, to elect to preserve his retirement benefits, after ceasing to be an eligible member of the Defence Force.  Such an election may be made under s 76(1) of the DFRDB Act.  That primary decision was confirmed by the DFRDBA under s 99(4) of the DFRDB Act on 20 September 2002 (T4 pp11-16).

4.       Part IX of the DFRDB Act deals with “Preservation of Rights of Certain Members of the Scheme”, set up under the Act.  Division 3 refers specifically to “Preservation of Rights of Contributing Members Ceasing to be Eligible Members of the Defence Force”..  Section 76 is found in Division 3.  Section 76(1), (2) and (4) of the DFRDB Act provide:

(1)Subject to this section, where, a person, being a contributing member, ceases to be an eligible member of the Defence Force and is not entitled to a pension benefit, or is not a person to whom section 36 applies, he may by notice in writing given to the Authority within a period of 21 days after the date on which he ceases to be such a member, elect that this Division shall apply in relation to him.

(2)The Authority may, if it is satisfied that there are special circumstances that justify it in so doing, extend the period for the making of an election under subsection (1).

(3). . .

(4)Subject to subsection (5), an election under this section (except where the election is made by virtue of subsection 128(2)) is of no effect unless the person who made the election gives notice in writing to the Authority within a period of 21 days, or within such further period as the Authority, in special circumstances, allows, after the expiration of the period that is the prescribed period in relation to him:

(a)     stating whether he was employed at the expiration of that prescribed period and, if so, the name and address of his employer; and

(b)     stating whether he was at the expiration of that prescribed period a member of a superannuation scheme applicable in relation to that employment and, if so, specifying the scheme concerned.

5.       The relevant facts in the DFRDB Act matter were set out by Mr Whithear in the Statement of Facts and Contentions as follows:

1.        The Applicant was born on 6 April 1947 and entered the Australian Defence Force (ADF) as a member of the Royal Australian Navy (RAN) on 30 July 1966.

2.        On 31 July 1974, the Applicant was discharged from the RAN, thereby ceasing to be a member of the ADF. (T7/24)  During the period of his service in the ADF, the Applicant was a member of the superannuation schemes established under the Defence Force Retirement and Benefits Act 1948 (DFRB Act) and the Defence Force Retirement and Death Benefits Act 1973 (DFRDB Act).

3.        On 23 May 2001 the Applicant made a late election to preserve his benefits pursuant to s.76(2) of the DFRDB Act (T5/17). 

4.        A delegate of the Respondent was unable to find that special circumstances existed which would justify the granting of an extension of time until 23 May 2001 in which to elect for preservation of his benefits. (T3/7-10)

5.        On 20 September 2002 the DFRDB Authority confirmed the decision of its delegate (T4/11-16).

6.        On 30 September 2002 the Applicant appealed to the Administrative Appeals Tribunal (the Tribunal) for review of the decisions not to grant him an extension of time under s.76(2) of the DFRDB Act. 

6.       The issue which arises in this application under s 76(2) of the DFRDB Act, is whether there are special circumstances that justify the Tribunal extending the period for Mr Richardson to make an election to preserve his benefits under Division 3 of Part IX of the DFRDB Act, from the 21 days specified in s 76(1) to a period of almost 27 years.  The extension is sought  from 31 July 1974, when Mr Richardson was discharged from the Royal Australian Navy (“Navy”) until 23 May 2001, when he wrote to the Commissioner as follows (T5, p17):

I recently became aware of the ability to make a late election to preserve benefits in the Commonwealth Superannuation Funds.

I served in the R.A.N. from the 30/7/1966 to 31/7/1974, and

I joined the P.M.G. on the 1/8/1974 (still employed by Telstra).

After reading the two Superannuation Acts, namely, the Superannuation Act 1922 and the DFRDB Act 1973, it became clear that when I was employed by the PMG without a break in employment, my prior service with the Navy should have been recognized for superannuation purposes and therefore I should have begun contributing to the CSS from the date of commencement (1/8/1974).

Therefore, I am applying for:

1.recognition and reinstatement of my prior membership in the DFRDB (8 years).

2.the backdating of my membership in the CSS fund to incorporate the 2 years between the date I joined the PMG and the date when I became a member of the CSS fund (1/8/1976).

3.a late election to preserve my benefits in the DFRDB fund and have a transfer value applied.

7.       Even if the period for making an election under s 76(1) were to be extended on the ground that there were special circumstances justifying such an extension, the preservation of benefits is not automatic.  Mr Whithear explained the operation of such an election in paragraphs 11-14 of his Statement of Facts and Contentions as follows:

11.      An election made under s.76(1) is of no effect unless the person who made the election gives notice in writing within 21 days or within such further period as the DFRDB Authority in special circumstances allows:

(a) stating whether he was employed at the expiration of the ninety days after the date he ceased to be a member; and

(b) stating whether at the end of ninety days he was a member of a superannuation scheme applicable to his employment and specifying the scheme concerned.

12. If the contributing member becomes employed in public employment (employment with the Commonwealth is such employment) and he becomes a member of a superannuation scheme applicable to his employment (the scheme constituted under the Superannuation Act 1922 (the 1922 Act) is such a scheme) a transfer value is payable - s.77.

13.      If a contributing member becomes employed in public employment within ninety days, but a transfer value is not payable, deferred benefits are applicable to that person - s.78(1).

14.      If a person who had not completed 20 years eligible employment is not employed in public employment at the end of ninety days the election ceases to have effect - s.80(1).

8.       The evidence establishes that Mr Richardson was employed at the expiration of 90 days from 31 July 1974 by the Post-Master General’s Department (“the PMG”).  That employment was “public employment”.  However, as will be seen, he was not “a member of a superannuation scheme applicable to his employment” “at the end of ninety days”.  Nor, did Mr Richardson give notice as required by s 76(4) of the Act, but that is not material, as the time for giving such notice can be extended in special circumstances.

9.       The meaning of the term “special circumstances” was explained in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 where the Tribunal said at p3:

An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

10.     An appeal from that decision was dismissed (see Beadle v Director-General of Social Security (1985) 60 ALR 225). The Full Court added in further explanation of the concept of “special circumstances”, at p228: 

Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate. For example, where the delay beyond six months was due to the claimant’s being mislead by a departmental officer or was due to the negligence of a third party it might be thought the normal six months would be inappropriate; that special circumstances had been shown which warranted a longer period. More difficult would be questions of ignorance, illiteracy, isolation illness and the like. It would depend upon the circumstances of the particular case whether these constituted special circumstances.

At p229 the Full Court continued:

In our opinion, the Director-General would be entitled in an appropriate case to take such matters into account in deciding whether there were special circumstances which would warrant his fixing a longer period than six months. However, the manner of taking them into account and the weight to be given to them involve questions of some difficulty. For example, the fact that the extension of the period would be substantial and would lead to a substantial capital sum becoming payable, is not of itself a ground for holding special circumstances do not exist. Rather in the case of lengthy delay weighty facts would be required to establish special circumstances. As we have noted the legislature has indicated six months latitude is the norm.

11.     As already set out, Mr Richardson became employed in public employment by the PMG within 90 days of ceasing to be a member of the DFRDB Scheme, but he did not become a member of the scheme constituted under the Superannuation Act 1922 (“the 1922 Act”), which was the scheme applicable to that employment, within 90 days immediately after ceasing to be an eligible member of the Defence Force.  Mr Whithear submitted that there was no provision under the DFRDB Act allowing an extension of the period for becoming a member of a scheme beyond 90 days.  He further submitted that therefore, even if the Tribunal found there were “special circumstances” to extend the period allowed in s 76(1) of the DFRDB Act, there would still not be a transfer value payable under s 77 of the DFRDB Act, although deferred benefit would be applicable, under s 78 of the DFRDB Act.

12.     Section 77(1) and (2), and s 78(1) of the DFRDB Act provide:

77(1)Subject to this Division, where:

(a)   a person makes an election under section 76; and

(b)   within the period that is the prescribed period in relation to him, he:

(i)becomes employed in public employment; and

(ii)becomes a member of an eligible superannuation scheme that is applicable in relation to persons employed in that employment;

a transfer value in respect of the person is payable to the person administering that scheme.

(2)       This section does not apply in relation to a person unless the person administering the superannuation scheme agrees to accept the transfer value and, under the rules of the scheme, the first-mentioned person will become entitled to retirement benefits under the scheme based upon the transfer value.

78(1)Where a person makes an election under section 76 and:

(a)he becomes employed in public employment within the period that is the prescribed period in relation to him but a transfer value is not payable in respect of him under section 77; or

(b)he does not become employed in public employment within that period but at the time when he ceased to be an eligible member of the Defence Force he had completed 20 years' eligible employment or had attained the age of 60 years;

deferred benefits are, subject to this Division, applicable in respect of the person.

13.     Comsuper wrote to Mr Richardson on 27 July 2001 (T6, p18), in response to his letter of 23 May 2001 (T5, p17, set out in paragraph 6 above).  Comsuper explained the need to address the issue of “special circumstances”..  The letter gave examples of circumstances which could be found to be special as follows (T6 p18):

In general, for special circumstances to be found to exist, it is necessary that they be unusual, uncommon or exceptional.  Examples include:

·     undue administrative delay;

·     misleading or incomplete advice from a responsible person of the Office of the DFRDB Authority;

·     whether the circumstances are something outside the control of the applicant;

·     whether the circumstances prevents a free election by the applicant; and

·     whether the effects of the circumstance cannot be avoided by the applicant.

Action taken with the wisdom of hindsight is not considered as being a special circumstance, nor is the financial incapacity to have left your contributions in the DFRDB scheme at the time of discharge.

14.     Mr Richardson replied on 31 August 2001 (T7, p22).  So far as relevant he wrote:

My decision to apply for retiring benefits was based on the fact that I had no prospect of employment, nor the opportunity to seek employment in my home port, as I was attached to HMAS Brisbane, in Sydney, until the date of my discharge.

I was not afforded the same privileges as other personnel in that, at that time it was common practice for sailors, prior to their being discharged, to be sent to their home port for a period of three months to facilitate their resettlement into civilian life (see attachment 2).

I was further hindered by a lack of information.  I was not afforded the same rights as long serving sailors in that I was not given the same information, nor allowed to attend the seminars available to these sailors prior to discharge.

With no eligible/public employment to go to, nor the opportunity of gaining such employment due to my being interstate and therefore remote from my home, it would have been pointless for me to have filled out a DB84 form because of the time frame and the fact that the form states that it is irrevocable (a statement which according to Sec. 128A appears to be incorrect).

I note that whilst a time frame is imposed on form DB84, no such time frame appears to exist on DB9 which is rather confusing as it appears it was alright to complete this form (DB9) at any time either prior to or subsequent to discharge, but not the DB84 form.

The circumstances in which I found myself were outside of my control.  The uncertainty of the situation placed me and my family, under a great deal of stress.

I made my decision based on the knowledge I had at that time, that my only option was a refund of benefits as I had not served a minimum of twenty years.

15.     Mr Richardson’s request was refused by reference to Guidelines prepared by the DFRDBA for use when considering whether special circumstances exist to warrant extending time in cases similar to Mr Richardson’s.  Those Guidelines have no statutory basis and are not binding on this Tribunal.  They were summarised in the decision under review as follows:

The Guidelines include:

·Undue Administrative delay

·Misleading or incomplete advice from a responsible person from this office

·Whether the circumstance is something outside the control of the applicant

·Whether the effects of the circumstances cannot be avoided by the applicant

·Action taken with the wisdom of hindsight is not a special circumstance

16.     In his letter of 15 July 2002 seeking reconsideration of the decision refusing to extend time, Mr Richardson added (T8 p27):

I disagree that I did not satisfy any of the guidelines that constitute special circumstances.

I had no control over the manner or timing of my discharge.  I was still attached to a ship in Sydney.  All discharge documentation had to be completed prior to my returning to my home port as I was not returning to Sydney at the completion of my thirty-nine days’ recreation leave.  I completed DB9 as I understood my only option was of a refund of contributions.

Mr Vance states “in order to qualify for the option of preservation Mr Richardson would have needed to have entered public employment or joined an eligible superannuation scheme within 90 days of discharge.”  My understanding, at that time, was that as I had not served 20 years, the option to preserve was not available to me.

Mr Vance states that I could have contacted the DFRDB for further information.

It would appear that the DFRDB, in excluding me from the resettlement seminars, felt that I had all the information necessary to make an informed decision.

Mr Young, in a telephone conversation last year, stated that I would have been given all the necessary information at the time of my discharge.

It would appear that the information provided to me at the time of my discharge was incomplete.

Mr Vance, knowing that I had completed DB9, states that I still had a right to preservation up until twenty-one days after discharge.  There is no information on DB9 to support this statement.

DB9 states “A member who intends to make an election for preservation of accumulated superannuation rights should not complete this form, an election form DB84 only should be completed in such cases.”  This seems quite specific and self-explanatory in that if you seek preservation you should ONLY complete DB84.  Further, there is no other note or reference alluding to the fact that preservation was still an option and DB84 could be completed at a later date should your circumstances change.

Therefore DB9 is an incomplete and misleading document.

This view would seem to be supported by the PMG/PSB’s position when they employed me, and recently reinforced by ComSuper’s decisions, that I was a person without an entitlement to preservation.

I disagree with Mr Vance’s ruling on “Action taken with the wisdom of Hindsight is not a special circumstance” as this presupposes that when I made my decision at the time of completing form DB9, that it was done with full knowledge of the circumstances surrounding superannuation and its benefits, rather than what I believed at the time, that a refund of contributions was my only option.

I do not see myself as trying to enhance my public service benefit as such, but merely trying to reclaim what was rightfully mine, but due to incorrect or incomplete information has been denied me.

17.     Mr Richardson, in his evidence, was vague as to how he had derived the belief that he could not preserve his accumulated superannuation rights because he had only been in the Navy for eight years.  He also could not remember the discharge procedure or how it was that he was given the Form DB 9 which he signed.  Mr Whithear explained that it was his understanding, that the form would have been given to Mr Richardson as part of his discharge documentation.  He pointed out that Form DB 9 contains a note which reads:

Note:  A member who intends to make an election for preservation of accumulated superannuation rights should not complete this form, an election form DB84 only should be completed in such cases.

Mr Whithear said that he understood that the way the DFRDB Scheme was administered in 1974, it was expected that, if a member wished to make an election for preservation of accumulated superannuation rights, the member would read that note and request a Form DB 84.  Mr Richardson could not add any further recollection of his own.

18.     Mr Richardson maintained that it was his belief in July 1974 that the only option open to him was to get his contributions back, because he had only eight years service..  He was asked whether he remembered discussing with anybody the possibility of asking for an election Form DB 84.  That was the form for use if a member intended to make an election for preservation of accumulated superannuation rights.  Mr Richardson replied at transcript page 19:

Well, I would think that the other form was even more of a problem to you if you had actually sighted it.  At the time I don't know that people would have gone for preservation, because of the note at the top of the DB84 form which says by making this preservation it is irrevocable, which would certainly sway you away when you are a person like me that had a wife and a mortgage to upkeep and no job prospect at the time, to sign a document whereby you couldn't access the lump sum if you needed it.

And bearing in mind when I was making this decision well outside the time of when I was actually being discharged, it was - probably it would have been a very difficult task to actually sign it, but I am not saying that I actually saw the document, I am just looking at it in today's light, that if that is a perception that people had and certainly DB84 leaves you with that perception, in my opinion, but it is a document once you have signed it that excludes you from doing anything else.  In spite of what the Act might say, the form doesn't inform you as to the other options that were available even after you had preserved.

19.     The Tribunal asked Mr Richardson to look at a blank copy of Form DB 84 (T9, p28).  The following exchange occurred (trans. p20):

.. . .  Right, so what you are saying is that you don't know whether you knew about this form but even if you did, you think you would not have been inclined to sign it?

MR RICHARDSON:   Well, at that time, no. . . . I would have found it difficult to tie up a lump sum for whatever time when I may very well have needed the money.

MRS DWYER:   Right, well, that perhaps is about as much as we can ask you about the circumstances that you believe, as far as you can do by reconstructing, led to that so now go on with what you wanted to say to us.

20.     Mr Richardson explained that having looked at s 128A of the DFRDB Act and seen that an election for preservation could be cancelled in certain circumstances, he thought if he had known that, he would have elected for preservation.  He said (trans. p21):

If I had been fully informed at the time I can see no reason why a person wouldn't seek preservation because there was no down side for doing so.  If you needed the money you could get it back.

If you didn't need the money you retained your right to it, to preservation and you could carry across your super and reap the benefits which of course is in super is a long term thing.  It is difficult to make a decision or it is difficult to look back to those days knowing what I know now after nearly two years of working through this issue but back then in '74 my knowledge of super was nothing really and you didn't look at the fact that in 20 or 30 years time what you were doing was going to affect you in some significant way and it certainly would have if I had been able to make that decision back then.

21.     In considering that evidence we bear in mind that Mr Richardson was mistaken in believing that s 128A would have applied to him.  Mr Whithear explained that s 128A of the DFRDB Act did not commence until December 1988.  That is confirmed by the Table of Amendments in the Notes at the back of the reprint of the DFRDB Act which shows that s 128A was added by Act No. 104 of 1988. 

22.     Mr Richardson repeated at transcript page 23:

With no eligible public employment to go to nor the opportunity of gaining such employment due to my being interstate and therefore remote from my home, it would have been pointless for me to have filled out a DB84 form because of the time frame and the fact that the form states that it is irrevocable, . . .

23.     Mr Richardson explained to Mr Whithear in cross-examination that it was hard for him to answer questions as to his state of mind at the time he left the Navy because his mind had become “coloured by the nearly ten years” he had spent seeking to have his election changed.  The fact that Mr Richardson’s recollection of a discharge procedure 28 years ago is vague and unsatisfactory is not surprising.  That is in fact one of the rationales for time limits, as was explained by McHugh J, with whom Dawson J agreed, in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at p551. His Honour, McHugh J said:

The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates".  . . . Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo . . . , "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

24.     The issue for determination requires consideration of whether there are special circumstances that justify extending the time for Mr Richardson to elect whether he wanted to preserve his rights under the DFRDB Scheme.  The Tribunal decision in Beadle tells us that special circumstances are circumstances that are “unusual, uncommon or exceptional”.

25.     Mr Richardson wrote (T7, p22) and said in evidence that it was unusual for him to not have been sent to his home port for three months prior to discharge “to facilitate . . . resettlement into civilian life”.  The attachment 2 to which he referred in his letter (T7, p22) was his own record of postings and did not establish the general practice.  Further, it appears from his request for reconsideration that he did have 39 days recreation leave in Melbourne prior to his discharge.  The problem seems to have been that he filled in the discharge papers in Sydney before leaving for Melbourne.  There is no evidence as to how “unusual, uncommon or exceptional” that was.  However, as will appear later in these reasons, we have concluded that it is not necessary to seek further evidence on that issue.

26.     Similarly Mr Richardson said that he had an inadequate understanding of his entitlement.  He knew that sailors who had served less than 20 years in the Navy had no entitlement to pension on discharge.  He understood that 20 years service was also required to be entitled to preserve rights under the DFRDB Scheme.  Once again we do not know whether that misapprehension was common among sailors with less than 20 years service in the Navy or whether it was “unusual, uncommon or exceptional”.  Mr Richardson’s evidence seemed rather to imply that it was a general misapprehension among sailors with periods of service of less than 20 years.

27.     Mr Richardson submitted that it was a special circumstance that when he left the Navy and joined the PMG there was nothing in the induction process of the PMG that alerted him to the issue that he could have preserved his Navy superannuation rights, so as to become entitled to a transfer value.  There is no evidence to show that to have been “unusual, uncommon or exceptional”.

28.     Mr Richardson also asked us to treat as a special circumstance the fact that neither while in the Navy, nor when he joined the PMG in 1974, nor, on 14 November 1975, when he was advised that he had been made a permanent employee, was he told that there would be an advantage to him in the rate of pension payable on final retirement, if he applied to make a late election for preservation under the DFRDB Scheme.

29.     There is no evidence that this was “unusual, uncommon or exceptional”.  In some cases arising under the Superannuation Act 1976 (“the 1976 Act”) the Tribunal has held that a general misapprehension within an agency as to the existence of an entitlement to defer benefits on retirement, made it “desirable” to extend the time allowed under the Act to elect to preserve superannuation rights.  Those decisions have arisen particularly in matters involving Telecom employees where it has been established that even those in the personnel area knew very little about preservation rights.  In some cases there has been reference to a booklet published by Telecom in 1979 and 1983 called “Conditions of Employment” which gave misleading advice to Telecom employees, by stating that on resignation they were entitled to a refund of superannuation contributions, and making no reference at all to the preservation option.  It can be regarded as “desirable” to correct the situation of an employing organisation giving incorrect or misleading advice to its employees (see Re Wolstencroft and Commissioner for Superannuation(No 2) (2001) 67 ALD 387; 34 AAR 71; AATA 1011 and decisions cited there.

30.     However, under s 76(2) the test is whether there are special circumstances that justify granting the extension.  Mr Richardson is not alleging that he was given misleading advice, but rather that the failure by the Navy, and by the PMG and Telecom, to give him specific advice as to what would have been the most advantageous course for him to adopt at various times, bearing in mind his particular circumstances, is a special circumstance.  We do not regard that as a special circumstance.  It appears to us to expect rather more of the Navy, the PMG and Telecom than is appropriate.

31.     In any event there is another aspect of the concept of “special circumstances”, justifying an extension of time, which is significant in this matter.  As the Full Court explained in Beadle, for “special circumstances” to justify extending a time limit under an Act, there must be something “which would render the [time limit] unfair or inappropriate”.

32.     The evidence does not establish that the effect of the time limit is “unfair or inappropriate”..  We have already explained that we are satisfied that the completion of a Form DB 84 electing for preservation in July 1974, would have been an irrevocable election to preserve benefits.  We find, from Mr Richardson’s evidence, that, even if he had been fully informed as to his right to elect to preserve accumulated superannuation rights on leaving the Navy, he would not have made such an election.  That is because, having a wife to support, and a mortgage to keep up, he would not have been prepared to deprive himself permanently of access to a refund of contributions he was entitled to on his retirement from the Navy, in order to get a pension once he had completed 20 years of service in the Navy and subsequent Commonwealth employment (see trans. p73).

33.     It does not appear to us that fairness or justice require that Mr Richardson be allowed, almost 27 years later, to change the election he made in 1974, so as to preserve his benefits under the DFRDB Scheme.  In reaching that decision we bear in mind that the Full Court in Beadle said that “in cases of lengthy delay weighty facts would be required” by way of special circumstances to justify an extension of time.  In this matter the delay is very lengthy and there are no “weighty facts” that justify extending the time allowed to Mr Richardson under s 76(1) of the Act to elect that Division 3, Part IX of the DFRDB Act apply to him.

34.     The decision under review in matter V02/1046 will be affirmed.

SUPERANNUATION MATTER (V02/765)

35. This is an application under s 154(6) of the Superannuation Act 1976 (“the 1976 Act”) for review of a decision of a delegate of the Commissioner made on 16 July 2001 not to backdate the commencement of Mr Richardson’s membership of the Scheme (CSS) established under the 1976 Act to a date earlier than 1 July 1976.  That decision (T30 pp68-69) was confirmed on reconsideration under s 154 of the 1976 Act on 24 June 2002.

36.     The relevant facts in this matter are complicated due to the coming into operation of the 1976 Act on 1 July 1976, and due to the fact that prior to that date Mr Richardson had not become a member of the superannuation scheme under the Superannuation Act 1922 (“the 1922 Act).  The relevant additional facts are set out in the respondent’s Statement of Facts and Contentions as follows:

. . .

4.       On 1 August 1974, the Applicant became a temporary employee of the PMG.(T11/38)

5. On 1 July 1975, the Applicant became a temporary employee of the Australian Telecommunication Commission (Telecom) on the commencement of the Telecommunications Act 1975 pursuant to s.23 of the Postal and Telecommunications Commissions (Transitional Provisions) Act 1975.

6. On 14 November 1975, the Applicant was permanently appointed on probation by Telecom pursuant to s.39 of the Telecommunications Act 1975 with effect from 11 August 1975. (T13/39 and 41)

7. On 21 January 1976, the Applicant was examined by a Commonwealth Medical Officer (CMO) in order to determine his fitness for permanent employment with Telecom and eligibility to contribute to the scheme established under the Superannuation Act 1922 (the 1922 Act). (T15/43-6) As a result of the examination and the Applicant’s sick leave record the CMO recommended that the Applicant be deferred for nine months. (T15/46)

8.       On 29 June 1976, the Applicant was re-examined by a CMO to determine his eligibility to contribute under the 1922 Act.  The CMO recommended acceptance for the Superannuation Fund. (T19/51)

9. On 1 July 1976, the Superannuation Act 1976 ( the 1976 Act) came into effect, and by virtue of the Applicant’s permanent employment with the Commonwealth, he became an ‘eligible employee’ for the purposes of that Act and thereby a contributor to the superannuation scheme (the CSS scheme) established under that Act.

10.      In a letter dated 23 May 2001, the Applicant wrote to the Commonwealth Superannuation Administration (ComSuper) seeking to have his starting date for the purposes of his benefits under the 1976 Act backdated to 1 August 1974 (ie the day he commenced temporary employment with the PMG. (T24/58)

11.      There followed a series of correspondence between the Applicant and ComSuper regarding the application of various provisions of the 1922 Act.  Ultimately, by letter dated 16 July 2001, ComSuper informed the applicant that there were no provisions in the 1922 Act which allowed him to become a contributor under that Act at any time prior to 1 July 1976 and as such, it was not possible to backdate the commencement of his service in the CSS to 1 August 1974. (T30/68-69)

12.      On 8 August 2001, the Applicant sought reconsideration of the advice contained in ComSuper’s letter of 16 July 2001. (T31/72-74)

13.      On 1 May 2002, the CSS Board in accordance with s.153AL of the 1976 Act,  reconsidered and confirmed the advice conveyed to the Applicant regarding his eligibility to contribute under the 1922 Act.

14.      On 5 June 2002, the Applicant appealed to the Administrative Appeals Tribunal (the Tribunal) from the CSS Board’s decision (Application No V2002/592).

15.      On 24 June 2002, a delegate of the Respondent reconsidered and confirmed, in accordance with s.154 of the 1976 Act, the advice provided to the applicant on 16 July 2001. (T37/86-100)

16.      On 2 July 2002, the Respondent wrote to the Tribunal submitting that it had no jurisdiction to review decisions taken by the CSS Board.

17.      On 12 July 2002, the Applicant appealed to the Tribunal from the decision of the Respondent’s delegate (Application No V2002/765).

18. On 2 September 2002, the Tribunal dismissed the Applicant’s application (V2002/592) under s.42A(1B) of the Administrative Appeals Tribunal Act 1975.

37.     This matter seeks review of the decision that Mr Richardson’s membership of the CSS could not be backdated to a date prior to 1 July 1976.  The evidence is that although Mr Richardson was permanently appointed on probation by Telecom on 14 November 1975, with effect from 11 August 1975, he had not become liable to make contributions to the superannuation fund established under the 1922 Act in accordance with either Part III or Part V of the 1922 Act.  That Act remains in force, although the 1976 Act commenced on 1 July 1976. 

38.     There is a complicated interaction between the two Acts.  It was explained by Mr Whithear in his Statement of Facts Contentions as follows:

21.      The Applicant was unable to contribute to the Superannuation Fund under the 1922 Act by reason of his employment with the PMG and Telecom because:

(a)the Applicant was not an ‘employee’ for the purposes of the 1922 Act on the commencement of his temporary employment with the PMG on 1 August 1974 by virtue of his service with the Defence Force because of the operation of s.4AA of the 1922 Act;

(b)any medical examinations conducted in respect of the Applicant’s service in the Navy did not result in a report being furnished to the Superannuation Board for the purposes of s.5 of the 1922 Act;

(c)s.4(5) of the 1922 Act did not apply to the Applicant because he had not been employed by the Commonwealth otherwise than in a permanent capacity for a period of three years prior to 1 July 1975 and hence the Public Service Board could not certify that the Applicant’s employment was likely to continue for a period of at least seven years and the Treasurer did not direct that the Applicant be deemed to be an employee from the date of such direction;

(d)the modifications to s.4(5) of the 1922 Act effected by s.4(5B) and s.4(5C)) could have had application to the Applicant during the period 1 August 1974 and 1 July 1975 had he elected that preserved benefits be applicable to him under s.76(1) of the DFRDB Act ;

(e)a direction under s.4(5) of the 1922 Act (whether or not modified by s.4(5B) and s.4(5C) could only have been made in respect of the Applicant before 1 July 1975 and has operation only from the date of the direction. A direction cannot be made at this time with retrospective effect;

(f)there is no evidence which establishes that [the] Applicant became an ‘employee’ for the purposes of the 1922 Act by virtue of a direction under s.4(6) of the 1922 Act on or after 1 July 1975 but before 1 July 1976;

(g)unless a direction was made under s.4(6) of the 1922 Act in respect of the Applicant there was no requirement under s.119G of the 1922 Act for him to provide information to the Board about his previous employment;

(h)irrespective of whether the Applicant became an ‘employee’ for the purposes of the 1922 Act prior to 1 July 1976, the Superannuation Board had not accepted the Applicant as a contributor to the Superannuation Fund under Part III of the 1922 Act or to the Provident Account under Part V of the 1922 Act as required by s.5 of the 1922 Act at any time before the closure of 1922 scheme on 30 June 1976; 

(i)s.5 of the 1922 Act no longer has any operation as the powers vested in the Superannuation Board have not been transferred to the Commissioner in relation to decisions taken after 1 July 1976 as is the case elsewhere in the 1922 Act under s.48AD, s.79(6), s.107P, s.110D, s.119MA, s.119ZBA, s.119ZEA and s.149B;

(j)a transfer value is not payable by the Applicant to the Commissioner because s.119J of the 1922 Act has no application to the Applicant as he did not fall within the provisions of s.119H because he was never a contributor to the Fund or the Provident Account;

(k)s.119M of the 1922 Act did not exempt the Applicant from being required to be accepted as a contributor under s.5 of the 1922 Act whether or not deferred benefits were applicable to him under the DFRDB Act because he did not become an ‘employee’ within three months of the termination of his Defence service on 31 July 1974 as required by s.119M(2);

(l)Part IX of the 1922 Act has no application to the Applicant as:

(i)he was employed only in a temporary capacity by the PMG immediately after ceasing to be a member of the Defence Force;

(ii)no amount was or could have been paid into the Superannuation Fund in respect of the Applicant under the Defence Forces Retirement Benefits Act 1948-1959; and

(iii)the provisions of Part IX  do not apply to a person who is employed by the Commonwealth after 25 May 1971.

22. The contributory service of an ‘eligible employee’ for the purposes of the 1976 Act includes contributory service under the 1922 Act which is ascertained by reference to the Superannuation (CSS) Period of Contributory Service Regulations. (the Regulations) . . .. The Applicant’s employment with the PMG and Telecom prior to 1 July 1976 cannot be counted as contributory service for the purposes of the 1976 Act on his ceasing to be an ‘eligible employee’ because s.193(2) of the 1976 Act inserted by Schedule 1 of the Regulations provides that the date of commencement of a person’s contributions for the purposes of s.194(1) shall be read as [a] reference to the date on which he or she became liable to make contributions to the CSS Fund, whether under Part III of the 1922 Act or as [a] contributor to the Provident Account.

39.     Mr Richardson claimed that he should have been advised about his entitlement to join a superannuation fund, and about the possibility of obtaining a transfer value under the DFRDB Act on joining a new superannuation fund, when he started as a temporary employee on probation with the PMG on 1 August 1974.  He relied on s 72 of the 1922 Act which provides:

72.  (1)  Any employee who, under any other Act or State Act, has a vested or contingent right to a refund of contributions with or without interest, or a gratuity, or both refund and gratuity, may, at any time within twelve months after the commencement of this Act, apply to the Board to transfer his right to the Board, and upon such transfer he shall be entitled to receive, in respect of his transferred right, a grant by the Board of such rights of pension under this Act for himself, his widow, and children, as is agreed upon between himself and the Board, being new rights that are the actuarial equivalent of the transferred right.

. . .

(1B)  Where any employee, referred to in subsection (1), failed to transfer his right to the Board within the time specified in that subsection, he may, within twelve months after the commencement of this subsection, make application to the Board to transfer that right to the Board and to receive a grant of new rights of pension in accordance with subsection (1).

(1C)  A person, having such a right as is referred to in subsection (1), who became or becomes an employee after the commencement of this Act, may, within twelve months after the commencement of this subsection, or of the commencement of his employment, whichever is the later, make application to the Board to transfer that right to the Board and to receive a grant of new rights of pension in accordance with subsection (1).

(2)  Notwithstanding anything in the preceding provisions of this section, an employee is not entitled to make an application under subsection (1C) after 31 July 1976 and:

(a)   any application made under that subsection on or after 1 July 1976 and on or before 31 July 1976 shall be made to the Commissioner for Superannuation and this section shall have effect in relation to the application as if references in this section to the Board were references to the Commissioner for Superannuation; and

(b)   any application made under that subsection after the pay-day last preceding 1 July 1976 and on or before 31 July 1976 shall be deemed to have been made on that pay-day.

40.     Mr Richardson relied on s 72(1) of the 1922 Act as giving him an entitlement, if we decided to grant him  an extension of time to elect to preserve his superannuation rights in the DFRDB Scheme, to apply to the Superannuation Board to transfer his right to the Board.  He would then, he submitted, receive, in respect of the transferred right, a grant of pension as agreed between himself and the Board being the actuarial equivalent of the transferred right.  We have not granted Mr Richardson an extension of time under the DFRDB Act.  However, even if we had done so, as Mr Whithear pointed out, under s 72(2)(a) of the 1922 Act, that right, even if it did once apply to Mr Richardson, ceased to be available after 31 July 1976.

41.     Mr Richardson, in his letter of application to Comsuper of 23 May 2001 (T24, p58) as set out in paragraph 6 of these reasons asked for:

1.recognition and reinstatement of my prior membership in the DFRDB (8 years).

2.the backdating of my membership in the CSS fund to incorporate the 2 years between the date I joined the PMG and the date when I became a member of the CSS fund (1/8/1976).

3.a late election to preserve my benefits in the DFRDB fund and have a transfer value applied.

42.     We have already, in the DFRDBA matter, decided not to allow a late election for preservation of benefits in the DFRDBA scheme (point 3 above).  We have now explained that point 1 can also not apply so as to allow Mr Richardson to obtain a transfer value, because of s 72(2)(a) of the 1922 Act.  We must also consider point 2 in the letter which seeks to have an additional two years of contributory service recognised under the 1976 Act.  That request was refused in the decision of 16 July 2001 (T30, pp68-71) and the confirmation decision of 24 June 2002 (T37, pp86-100).  As explained in the reconsideration decision (T37 p100) the effect of recognising those two years as part of a period of contributory service would be that Mr Richardson’s pension on retirement would be 50% rather than 45% of final salary.  If the additional two years are not recognised he would need to work until 2006 to reach the 50% pension percentage.

43.     The reasoning in the primary decision (T30, pp68-69) simply stated that as Mr Richardson had not become a contributor to either fund established under the 1922 Act, he had not become “an employee” for the purposes of the 1922 Act before 1 July 1976, and thus there were no grounds for backdating his membership of the CSS.

44.     In the decision (T37, pp86-100) confirming that primary decision, the reconsideration delegate discussed the question whether Mr Richardson was required or could have become required, to pay superannuation contributions under the provisions of the 1922 Act.

45.     The first issue considered by the reconsideration delegate concerned the availability to Mr Richardson of a transfer value in respect of previous employment.  Our decision in the DFRDBA matter means that option is not available to Mr Richardson.

46.     The next issue concerned the date when Mr Richardson was, or could, or should have been accepted as a contributor to a fund under the 1922 Act.  The reconsideration delegate first referred to a Superannuation Board circular and the Superannuation Manual.  They do not bind this Tribunal.  However, the delegate at paragraphs 11-32 dealt with the application of the legislation.

47.     The delegate concluded, in our view correctly, that Mr Richardson did not commence temporary employment with the PMG until 1 August 1974, the date he commenced that employment, not withstanding the fact that part of the relevant paper work was completed on 16 July 1974.

48.     The next issue considered concerned s 4AA(2) of the 1922 Act.  We are satisfied that section does not assist Mr Richardson in establishing that he had any liability to contribute under the 1922 Act at any time.  All it did was provide that Mr Richardson was not “an employee” under the 1922 Act while he was liable to contribute under the DFRDB Act.

49.     The reconsideration delegate then turned to the issue with which we are now concerned, whether Mr Richardson was required to contribute, or, we would add, can now be found to have been required to contribute, under the 1922 Act, on 1 August 1974, or at any time between that date and 1 July 1976.

50.     The starting point of any consideration of the issue must be s 19(1) of the 1922 Act which so far as relevant provided, at the relevant time:

19. (1)        Every employee . . . shall (except as otherwise provided in this Act) contribute to the Fund from such date as the Governor-General notifies in the Gazette, or, in the case of an employee whose employment commences after the date so notified, as from the prescribed date.

. .. .

51.     That provision requires reference to the definition of “employee” in s 4 of the 1922 Act which is as follows:

Employee means a person employed in a permanent capacity by the Commonwealth, who is by the terms of his employment required to give his whole time to the duties of his employment, . . .

52.     Although s 4(5) of the 1922 Act, in 1974, allowed the Treasurer to direct that a temporary employee be deemed to be a permanent employee, that did not happen in respect of Mr Richardson.  Further, the Treasurer could not have so directed, because the conditions for the exercise of the discretion in paragraphs 4(5)(b) and (c) did not exist.  Mr Richardson had not been employed by the PMG or  by Telecom in a temporary capacity for not less than three years, and there was never any certification that his temporary employment with the PMG or Telecom was likely to be continued for at least seven years.

53.     Mr Richardson was advised by letter dated 13 November 1975 that he was being offered appointment as a permanent officer of Telecom.  That offer apparently dated back to 11 August 1975, although so far as the T documents reveal that information was contained in a staff appointment advice dated 14 November 1975 (T13, p41) rather than in a letter to Mr Richardson.

54.     However, although Mr Richardson’s date of appointment is stated at T13 p41 to have been 11 August 1975, under s 5 of the 1922 Act he could not contribute to the Fund or to the Provident Account under the 1922 Act as at that date.  Before he could do so he had to undergo a medical examination as specified in s 5(1)(a) of the 1922 Act.  Further there had to be a report of the result of that examination furnished to the Board (s 5(1)(b)) and a decision by the Board as to that report (s 5(1)(c)).  Section 5(1) of the 1922 Act has, at all relevant times, provided:

(1) Except as otherwise provided by this Act, and notwithstanding anything contained in any other Act, a person who becomes an employee after the commencement of the Superannuation Act 1965 shall not contribute to the Fund under Part III or to the Provident Account unless:

(a) he has, before becoming an employee, or within such period after becoming an employee as the Board allows, undergone a medical examination by a legally qualified medical practitioner approved by the Board;

(b) a report of the result of the examination has been furnished by the medical practitioner to the Board; and

(c) the Board is satisfied, after considering the report of the medical practitioner, that the health and physical fitness of the person are such as to justify his being accepted as a contributor to the Fund under Part III or to the Provident Account, as the case may be.

55.     The T documents show that Mr Richardson was medically examined as required by s 5(1)(a) on 21 January 1976 (T15, pp43-46).  The medical officer recommended deferring the decision as to permanent appointment for nine months on the basis of his history of sinusitis and recurring infections of the respiratory tract.  Before the nine months had expired, Mr Richardson was re-examined on 29 June 1976 (T19, p51).

56.     On 1 July 1976 a recommendation was made by a Commonwealth Medical Officer (“CMO”) that Mr Richardson be accepted “for Superannuation Fund”.  But on that day, because of the commencement of the 1976 Act, Mr Richardson was required to commence contributions under the 1976 Act, rather than under the 1922 Act.

57.     At the hearing Mr Richardson submitted that he was legally required to contribute to the Fund established under the 1922 Act from 11 August 1975, which he was advised was the date of his appointment to the permanent staff as a Telecom Tradesman, Unattached (T13, p41).  He submitted that accordingly he should have been an “existing contributor” as defined in s 3 of the 1976 Act as at 1 July 1976, when the 1976 Act commenced.

58.     We find that he was not an “existing contributor” on 1 July 1976.  The terms “existing contributor” and “superseded Act” are defined in s 3 of the 1976 Act as follows:

“existing contributor” means a person who is, or has at any time been, a person referred to in paragraph (a) of the definition of “eligible employee” in this subsection and who, immediately before the commencing day, was a contributor for the purposes of the superseded Act.

“superseded Act” means the Superannuation Act 1922.

59.     As Mr Whithear explained at trans. p77, although the Tribunal has no power to make decisions under the 1922 Act it does have power to decide whether, as a matter of law, Mr Richardson was an “employee” and liable to make contributions under the 1922 Act.

60.     Mr Whithear submitted that Mr Richardson was not liable to make contributions under the 1922 Act.  He started his argument on that issue by referring to s 182 of the 1976 Act which provides:

182.   A person who is, or at any time has been, a person referred to in paragraph (a) of the definition of “eligible employee” in sub-section 3 (1) shall be deemed to have become an eligible employee on the commencing day.

61.     Paragraph (a) of the definition of “eligible employee” in s 3(1) of the 1976 Act is as follows:

“eligible employee” means:

(a)   a person who, immediately before the commencement of this Act, was an employee for the purposes of the superseded Act and has continued to be, and is, such an employee; . . .

62.     The definition of the word “Employee” in s 4 of the 1922 Act, so far as relevant, is as follows:

“Employee” means a person employed in a permanent capacity by the Commonwealth, who is by the terms of his employment required to give his whole time to the duties of his employment, . . .

63.     Mr Whithear pointed out that there is a distinction made in the 1922 Act between employment by the Commonwealth, as by the PMG, and by an “approved authority” as demonstrated for example by ss 7(1)(a), 53, and 86(b).

64.     We agree that the 1922 Act made such a distinction.  The Telecommunications Act 1975 commenced on 1 July 1975.  From that date Mr Richardson was employed by Telecom pursuant to s 16 of the Postal and Telecommunication Commissions (Transitional Provisions) Act 1975.  (As to the name “Telecom” see regulation 39 of the Telecom Regulations 1975, No 131 of 1975).  Clearly Mr Richardson was not employed in a permanent capacity by the PMG before 1 July 1975.  Mr Whithear (trans. p97) conceded that he was a “permanent employee on probation at 11 August 1975”.  We are not clear exactly what Mr Whithear meant by that concession.  First, it seems to us that if Mr Richardson was a permanent employee on 11 August 1975, he was an employee of Telecom.  However so far as we can see Telecom was never specified to be an “approved authority” as defined in s 4(1) of the 1922 Act.  Does that mean that his employer remained the Commonwealth for the purposes of the 1922 Act?  Secondly, although we accept that once Mr Richardson’s probationary appointment was made permanent, his permanent employment dated back to 11 August 1975, we do not accept that during the probationary period, Mr Richardson was “employed in a permanent capacity by the Commonwealth”..

65.     During the hearing emphasis was given to the issue of employment by the Commonwealth rather than to that of employment by an approved authority.  The reason appears to be that Telecom never became an “approved authority”..  We therefore consider the issue of employment by the Commonwealth.

66.     The fact that some step or steps were required before a person employed by the Commonwealth was “employed in a permanent capacity by the Commonwealth”, is shown by s 4(5) and s 4(5A).

67.     Mr Richardson submitted that what was required was no more than the advice of 14 November 1975 (T13 p41) advising the Manager – Admin Branch, Engineering Department of the “appointment to the permanent staff of the undermentioned officer”.  However that document does state:

Kindly ensure that the abovenamed appointee attends for X-ray and medical examinations as instructed and produces his/her birth certificate.

68.     It is apparent from the letter to Mr Richardson (T12 pp39-40) that, although T13 speaks of “the appointment to the permanent staff” of Mr Richardson, it was in reality only a step along that route.  First, it was only by letter of 13 November 1975 (T12) that Mr Richardson was offered permanent employment.  He was asked in that letter to advise whether he intended to accept the appointment.  Thus the appointment could not have taken place prior to 13 November 1975.  Further, the letter advised him of the need to report for X-ray and medical examination and continued:

You should, at the conclusion of the medical examination, seek the medical officer’s opinion as to whether you satisfy the medical requirements.  If you do not, or there is any doubt, you should in your own interests await further advice from me before leaving your present employment.  You should also read the important points set out for your information on the back of this letter.  (emphasis added)

69.     The “important points” set out for Mr Richardson’s information on the back of the letter, T12, included the following:

1.  OFFER OF APPOINTMENT CONDITIONS

This offer of appointment may be withdrawn and your name removed from the Register of qualified candidates should you fail to reply within seven days.  Acceptance of this offer cancels any eligibility which you may have obtained by passing an examination for appointment to a similar position in another locality.

2.  ELIGIBILITY FOR APPOINTMENT

To be eligible for appointment to the Commonwealth Service:

(i)     you must be a British Subject;

(ii)     the Public Service Board must be satisfied as to your health and physical fitness after you have undergone a medical examination approved by the Board;

(iii)     the Public Service Board must be satisfied that you are a fit and proper person to be an officer of the Commonwealth Service; and

(iv)    you must make and subscribe, as prescribed, an oath or affirmation.

. . .

6.  PROBATIONARY PERIOD

You will be on probation for six months; however, this period may be extended.

7.  CONFIRMATION OF APPOINTMENT

At the end of the probationary period confirmation of your appointment will depend on:

(i)     your health and physical fitness being acceptable; and

(ii)     satisfactory reports on your conduct, diligence and efficiency.

70.     Bearing in mind the information in T12, we find that Mr Richardson did not become “a person employed in a permanent capacity by the Commonwealth” on 11 August 1975, or even on 13 or 14 November 1975.  We agree with Mr Richardson that T13, looked at in isolation and without reference to the note under the main body of that document, could give that impression.  However when T13 is read in full together with T12, it is clear that T13 referred only to an offer of a probationary appointment contained in T12 which would be confirmed and made permanent and backdated to 11 August 1975, depending on the matters set out in condition 7:

(i)     your health and physical fitness being acceptable; and

(ii)     satisfactory reports on your conduct, diligence and efficiency.

71.     As explained earlier in these reasons, the medical aspect of condition 7 was only resolved on the commencing day of the 1976 Act.  Thus Mr Richardson was not an “eligible employee” within the meaning of the definition in paragraph (a) in s 3 of the 1976 Act.  Nor was he an “existing contributor” as defined in s 3 of the 1976 Act immediately before the commencing day of the 1976 Act.

72.     Mr Richardson sought to rely on s 4(5), s 4(5B) and s 4(5C) of the 1922 Act as extending the definition of “employee” so that it applied to him, even though he was not “employed in a permanent capacity by the Commonwealth” prior to the commencing day of the 1976 Act.  We have already explained that s 4(5) has no application because Mr Richardson did not start with the PMG until 1 August 1974 and therefore he was not “so employed for a continuous period of less than 3 years” as required by s 4(5) paragraph (b), before the commencing day.

73.     Section 4(5B) and (5C) could have provided a way through that difficulty, but they do not do so because Mr Richardson did not elect for deferred benefits on ceasing to be a member of the Defence Force and we have rejected his application for an extension of time under s 76(2) of the DFRDB Act to make that election.

74.     The 1922 Act in s 4(6) made provision for persons “employed by an approved authority” to be “deemed” to be an employee within the meaning of that term in s 4 of the 1922 Act from the date on which his employment commenced.  There is nothing to indicate that Telecom was an “approved authority”..  However, even if it were, that sub-section requires essentially the same steps as are required by s 4(5B) and (5C).  It could not assist Mr Richardson for the reasons set out in paragraph 73 above.

75. Mr Whithear referred the Tribunal to regulations which made modifications to the 1976 Act; the Superannuation (CSS) Period of Contributory Service Regulations, Statutory Rules 1977 No 105 as amended (“the Regulations”). However regulation 4 specifies that the modifications made in Schedule 1 of the Regulations only apply to certain persons. It provides:

4Application of the Act to certain persons

In relation to a person who:

(a)was, immediately before the commencement of the Act, an employee for the purposes of the superseded Act; and

(b)was, immediately after that commencement, an eligible employee; and

(c)has ceased to be, and has not again become, an eligible employee; and

(d)is a person to whom section 183 of the Act applies;

the Act applies subject to the modifications specified in Schedule 1.

76.     At the time of the hearing before us Mr Richardson had not “ceased to be . . . an eligible employee”.  Thus we find that the Regulations do not apply to him.  We have no power to make declaratory decisions as to how they should apply to Mr Richardson in the future.

77.     We find that Mr Richardson was not “employed in a permanent capacity by the Commonwealth” before the commencing day of the 1976 Act.  Nor is he to be deemed to have been so employed prior to 1 July 1976.  Thus he was not an “eligible employee” under paragraph (a) of the definition in s 3 of the 1976 Act.  The decision under review was correct in not recognising Mr Richardson as having been an “eligible employee” or an “existing contributor” immediately before the commencement of the 1976 Act.

78.     The decisions under review will be affirmed.

I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer,      Senior Member
Dr P. Fricker,   Member
Mr W.G. McLean,     Member

Signed:          Grace Carney
  Personal Assistant

Date of Hearing  20 March 2003
Date of Decision  25 June 2003
Solicitor for the Applicant           Self Represented
Solicitor for the Respondent     Mr R Whithear, Australian Government Solicitor