SAS Trustee Corporation v Miles

[2018] HCATrans 147

[2018] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S260 of 2017

B e t w e e n -

SAS TRUSTEE CORPORATION

Appellant

and

PETER MILES

Respondent

KIEFEL CJ
BELL J
GAGELER J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 AUGUST 2018, AT 9.45 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC:   May it please the Court, in that matter I appear with MR T.M. OWER and MS S. PALANIAPPAN, for the appellant.  (instructed by SAS Trustee Corporation)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR J.M. MORRIS, SC and MR M.J. WEIGHTMAN, for the respondent.  (instructed by Cardillo Gray Partners)

KIEFEL CJ:   The parties have probably heard about the new arrangements for a break during the morning but given what we expect to be rather succinct arguments, the Court will not be taking a break this morning.

MR WILLIAMS:   May it please the Court.  The scheme of the Police Regulation (Superannuation) Act can be seen from a brief survey of the table of contents of that Act.  In Part 3 section 3 a fund is created – subsection 3(3) confers an obligation on STC, the present appellant, to pay benefits provided in the Act.  So, while it is a contributory fund, as will be seen from section 5, six per cent of salary, it is one which provides defined benefits for those who contribute.

Section 4 provides for fund deficiencies to be charged against the consolidated revenue so the payments out of the defined benefits are underwritten or partly funded by the consolidated revenue.  The benefits are provided in Part 4 and there are two main streams of entitlement, one relating to police officers who are hurt on duty, the second stream, and the other for police officers who are not.

Section 6 provides an equivalent service ratio which is referred to in some of the provisions and that is no more than a formula for converting part‑time service to its full time equivalent. 

Section 7 is the first, perhaps, normal stream of entitlement, “Superannuation allowance except where member hurt on duty”.  I will go to that in more detail in a moment, but it provides a maximum of 72.75 per cent of final salary after 30 years of service upon retirement, or for a member who is hurt otherwise than on duty, an amount that is stepped according to the years of service.  But in either case, it is stepped according to the years of service. 

Section 8 is the second element of that that I will go to.  The second stream is found in section 10 and section 10B dealing with the case where the member is hurt on duty and it provides a minimum of 72.75 per cent without any minimum number of years of service.  In other words, the pension that is provided for a member who is hurt on duty is the maximum that would otherwise be payable to a police officer upon retirement or on being invalided out for a non‑service‑related injury.

Section 10B is a critical provision that I will come back to, but each of these two streams has subsidiary elements for the hurt on duty case.  Sections 12 and then 12A through to 12D provide benefits for dependants and others where a member is hurt on duty.  Section 12D, et cetera, that is referred to there includes lump sum payments in the nature of workers compensation for injury, including psychiatric impairment, applications for which are not limited by any kind of six months’ notification period.

Section 13A is a gratuity where a deceased member is hurt on duty but left no dependents.  Then, going to the first stream, the normal stream, sections 13 and 14 provide gratuities for deceased members ‑ for the dependants of deceased members where the person is not hurt on duty.  That is section 13.  Section 14 provides that where a discharged member is not hurt on duty but has served less than 20 years, an amount of equivalent to two years’ salary will be payable.

The scheme of the Act that we see from this – and I will develop it in reference to sections 7 and 8, and 10 and 10B – and this is paragraph 4 of our outline.  The manifest purpose of this second “hurt on duty” stream is to provide additional recompense, at least partly funded by the public revenue, to former police officers who are incapacitated by an infirmity caused by the officer having been hurt on duty.  In our submission, it is no part of that purpose to recompense such persons for infirmities arising from other causes.

Put another way, within the framework of the term “streams of entitlement” under the Act – one under 7 and 8 for those who suffer disability not being caused by being hurt on duty and a separate higher stream for those who are hurt on duty – a construction which permits non‑work‑related injuries to attract the higher benefits, stands outside the scheme of the Act.

Turning then to the provisions themselves, section 7 – the annual superannuation allowance – perhaps, the primary case is retirement, a police officer who has served 20 years or more retires after attaining the age of 60 years or, the alternative, discharged after being certified to be incapable from infirmity.  We emphasise the general there.  It is not service‑related.  The columns at the foot of the page give the per cent of final salary that will be applicable according to the number of years of service.  And, at the top of the following page, 30 years’ service or more, 72.75 is the maximum.  Subsection (2):

An annual superannuation allowance . . . shall not be payable –

where one:

is payable under section 10.

Turning, then, to section 8, determination of unfitness.  In subsection (1) there is a prohibition on a grant or payment of pension for discharge:

unless STC . . . has certified the member to be incapable, from infirmity of body or mind.

Again, the general:

of personally exercising the functions of a police officer referred to in section 14(1) –

Section 14(1) is quite general in its terms.  Section 14(1) of the Police Act refers to the duties conferred by police officers under any Act or under the common law.  And one assumes that they include the normal kinds of incidents, being able to run when required, chase persons when required.

Then, going to section 10, we do refer to the heading, although the heading is of course part of context rather than part of the Act but we do not say it is determinative.  Subsection (1) is purely definitional; it is not an operative provision.  The operative effect comes from subsection (1A).

The key definition “disabled member of the police force”, in paragraph (a) deals with the case of a member who is serving at the time of discharge.  Paragraph (b) deals with the person who has resigned or retired and has a certificate referring to their infirmity.  But perhaps there is no significant difference in the operative force of the provisions.

It applies to a person who is incapable from a specified infirmity ‑ the focus is now specific – “of personally exercising the functions”.  In (b) a certificate is required and although it refers to “incapable, from an infirmity” it is clear from context that the infirmity is the one specified in the certificate.  So, again, it is specific.

The foot of the provision, the “sump” as I am told it is called, brings in section 10B(3):

that infirmity being determined, pursuant to 10B(3) or on appeal, to have been caused by the member being hurt on duty or the former member having being hurt on duty –

Now, I will go to section 10B before coming back to the key provision because the definition has, in effect, incorporated the operative parts of 10B.  Section 10B(1), like 8(1), contains a prohibition on grant of a pension:

unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity –

Again, we emphasise the specific.  Subsection (2) deals with the case of the former member but it has similar limitations when read in context.  Subsection (2)(c):

certified that the former member was incapable, from that infirmity –

That is the one caused by the injury that is referred to in (2)(a) that has caused the infirmity.  Subsection (2A) deals with the kind of incapacity that is required and in paragraph (b):

the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function.

So, a senior officer who can delegate virtually all of the functions will qualify despite being able to delegate the functions.  Subsection (3) is critical:

Where a member or former member of the police force is duly certified . . . the Commissioner of Police shall:

(a)decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty . . . and the day or dates –

and give the member a notification.  Now, the manifest purpose of this subsection is to give the Commissioner the opportunity within reasonable time to investigate the injury of which notice has been given under 10B(2).

Going back then to the key provision in 10(1A), this subsection both creates the entitlement and quantifies it.  It is not simply a quantification provision.  The chapeau of the section:

Subject to the section, the annual superannuation allowance for a disabled member of the police force –

Now, it is axiomatic that it is necessary to read in the definition of that phrase “disabled member of the police force” into the operative provision and so read the chapeau reads, the superannuation allowance for a member certified to be incapable from a specified infirmity, one determined to have been caused by the police officer being hurt on duty of exercising the functions of a police officer.  So, that “incapable” is read into the chapeau.

EDELMAN J:   The heart of your submission really is the word “for” rather than “incapable”, is it not?  That the “for” picks up the requirement that the definition includes both the person and the purpose of discharge.  So the superannuation allowance is given for the disabled person and for that purpose of their discharge.

MR WILLIAMS:   Indeed.  Indeed.  Then in paragraph (a), the 72.75 per cent that I referred to earlier is provided.  This is without any incapacity for work outside the police force.  So a police officer who is injured on his or her first day of work, injured in such a way that he or she can no longer run and therefore cannot discharge the functions of a police officer, will receive the 72.75 per cent even if the person is capable of doing other work, even manual work.  The inability to perform the functions of a police officer is the key point for discharge from the service and that attracts the 72.75 per cent.

What (b) then refers to is the additional amount that comes from incapacity for work outside the police force and, of course, it is at the heart of our submission that that incapacity is the same incapacity that is certified as the specified infirmity, in the one case considered as against the police force and, in the paragraph (b) case, incapacity for work outside the police force.  Paragraph (c):

totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty ‑

In our submission, both text and context point to that being a reference to an incapacity flowing from the hurt on duty injury and not more generally.  And we say that too is part of the context within which the provision is to be read.  If (1A)(c) is a reference to the hurt or incapacity for work flowing from a hurt on duty injury, that is part of the context within which paragraph (b) is to be read.

And the paragraph (c) case has the additional element that the injury comes from being “exposed to risks to which members of the general workforce” would not have been exposed to, and where triggered, it can lead to 100 per cent of salary being paid.

So those provisions read together, in our submission, do establish the scheme within which the hurt on duty provision is additional recompense.  It is paid at a higher rate and it stands outside such a scheme that a higher

amount should be paid where the injury in question does not relate to police service.

We call in aid also, context – we call in aid also extrinsic material.  Some of it is referred to in our written submissions.  I do not need to go back to that but if I could take the Court to the appeal book at page 63, in paragraph 80, this is perhaps the most powerful extrinsic material.  This is from the judgment of the primary judge.  In particular, the first and last sentences:

In cases where the disability also causes incapacity for work outside the police force, there will be paid an amount in addition to the disablement allowance. 

Plainly a reference to the hurt on duty disability, and then in the final sentence:

By these means, hurt‑on‑duty pensions could reflect the degree of incapacity suffered and also any exceptional risk to which a totally incapacitated member of the police force was exposed.

We then in our outline refer from paragraph 12 to the factual matters that we take not to be in contention.  From paragraph 15 we identify the points in the reasoning of the majority of the Court of Appeal in which error can be found.  However, this is a statutory construction case.  It is sufficient for the appeal to succeed for us to establish that the construction reached was not the correct construction, and so I do not need to spend too much time on the reasons of the court below.  Unless there are matters the Court wishes to raise, those are our submissions.

KIEFEL CJ:   Thank you.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, the appeal turns, it is submitted, on the application of the ordinary principles of statutory construction, including what we would submit is the rather orthodox one of asking what the words of the relevant statutory provisions actually say.  Of course, as our learned friends have submitted, that involves looking at the context in which the provisions are found.

But here, if I could deal with one aspect of the context very briefly initially, the headings to the potentially relevant provisions tell you nothing.  They are simply the briefest summary of the subject with which the relevant provision deals.  The remaining matters relied on as context simply go the meaning of the words actually used, and one does then have to look at those words.

Your Honours, could I go to the terms of the applicable statutory provisions?  Needless to say, I will have to go to many of the same provisions as my learned friend referred to, and I hope your Honours will forgive such repetition that is involved.  But your Honours will see that the fund is established by section 3(1) of the Act and it is a fund which your Honours will see from section 1A is now closed to membership.  It has been closed to new members for the last 30 years, since 1988, and I understand there are no regulations which might extend that under the regulation‑making power referred to in that provision.

It is controlled, as your Honours will see, from section 3(1) by the appellant and, as your Honours have seen from section 3(2), it consists of money from five possible sources.  Those sources include the amounts deducted under section 5(1) from the salaries of police officers, and your Honours will see that referred to in section 3(2)(b).

Could I just pause to say, your Honours, that the word “recompense” is referred to in our learned friend’s outline of submissions that was given this morning.  It is referred to, also, in our learned friend’s oral argument.  But, it does have an element of, with respect, inappropriateness in terms of what one is talking about because one is talking about something that has great similarities to, for example, an insurance policy.  You might pay for one year, you might pay for 20 years.  The amount you get, relevantly, might well be the same whether you have paid up, or however much you have paid up, in that time and to regard it as recompense for injury in a particular case is, in our submission, to take away from its nature as a superannuation pension – the term used by the statute – and to give it a name which more fully accords with the assumed purpose that our learned friends would put to the Act than the one we would urge on the Court.

Your Honours, as your Honours have seen, section 3(3((a) deals with the monies; in dealing with the monies, we have paid out of the fund, includes the benefits payable under the Act.  If one pauses at that point and looks to identify the context on which a degree of reliance is placed by our learned friends, both in their written submissions and orally, there are several features one might notice.

The first is that the Act has no objects or purpose provision.  One has to go to its text to see what the objects are.  The second thing is that the heading – whether of section 3 or the part in which section 3 is found – tells you no more than that the fund is to be a superannuation fund and is likely to be for the benefit of police officers, that is, members of the police force within the terms of that definition in section 1(4A).

Your Honours, if one goes to surrounding circumstances, it is apparent enough, of course, that the fund is to provide monies to persons who have been servants of the State.  And, it seems very likely to be one of those cases where the provisions of a statute, particularly one dealing with employees – and, your Honours, I use the term in relation to police officers, bearing in mind the history of their relationship to the Crown, to put it shortly.  If one is speaking of the relationship between employers and employees where there are industrial considerations, provisions of this kind are very likely to be ones where they have been the subject of an industrial or a political compromise.  And, your Honours, a degree of naivety would need to exist if one did not think that was likely to be the case in the present case.

Could I say that one sees, for example, in section 2H(3), the membership of the advisory committee and your Honours will see that it has, in subsection (2) “8 members appointed by the Minister”, one of whom is to chair it.  Then, in subsection (3), three of its members are to be “persons nominated by the Police Association” and one is to be a member nominated by police officers – to put it shortly.  So, it is a body that has, in its advisory group, a group of people who have industrial connections.

Your Honours, what we would say is that, in order to see what the benefits provided by this Act are, the terms of section 3(3)(a) and what are the circumstances in which they are payable, one has to go to the provisions of the Act dealing with that topic.  The context really tells you nothing more.  So, your Honours, it is Part 4, which deals with the benefits payable under the Act.  Could I go to the central provisions and, your Honours, I will do so as briefly as I am able.

If one goes first to section 7, as the opening words of section 7(1) indicate it deals with two classes of case:  retirement on or after 60, having “served 20 years or more”, on the one hand, and discharge under 60 but because of incapacity:

from infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) ‑

Now, your Honours, the first thing one notices is that that phrase “functions of a police officer referred to in section 14(1)” is one which one sees also in the “hurt on duty” provisions later.  It is deliberately selected by the Act.  It is only in that latter case, retirement under 60, that any question of infirmity is involved.  Could I say, your Honours, dealing again with context, if one goes for just a moment to the heading of section 7, it simply says: 

Superannuation allowance except where member hurt on duty

The first part of the statement in the heading is found in the formula and figures in section 7(1).  The second part is found in section 7(2).  It is found there because that excludes those to whom a superannuation allowance is payable under section 10.  So that, your Honours, the words of the heading really say no more than what the subject matter being dealt with is.

Your Honours, if one goes then to the provision to which one is directed by section 7(2) that is section 10 and when one goes to section 10 your Honours will see that it simply says ‑ this is the heading:

Superannuation allowance where member hurt on duty

It is in the very broadest terms recognising that the term “hurt on duty” is defined in the earlier parts of the Act.  Your Honours, the claimed entitlement in this case was pursuant to section 10(1A) and your Honours will see that that provides for the annual superannuation allowance for a disabled member of the police force.

Your Honours, I come back to what is meant by the term “for” that your Honour Justice Edelman raised earlier.  Before doing that, could I just say this, your Honours.  The term “disabled member of the police force” is a defined term.  Your Honours see the definition in paragraphs (a) and (b) under that heading:

disabled member of the police force means ‑

in section 10(1).  If I could take first paragraph (a) of the definition; to be a disabled member of the police force the following criteria have to be satisfied.  The person must be a “former member of the police force”.  The discharge must have satisfied several criteria.  One, there must be a certificate given pursuant to section 10B(1).  Secondly, the certificate must certify that the person is incapable of:

personally exercising the functions of a police officer referred to in section 14(1) of the Police Act –

words which I referred to earlier.  The certificate must specify that such incapacity derives from a specified “infirmity of body or mind”.  Finally, the infirmity so specified must have been determined “to have been caused by the member being hurt on duty” ‑ I put the words in inverted commas for the moment ‑ while “a member of the police force”.

I put the words in inverted commas because “hurt on duty” is a term itself defined by subsection (1), and your Honours will see at page 7 of the issue, I think, the issue of the statute that your Honours have, I think, it means:

injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act –

give an entitlement to compensation.  Your Honours, I have referred so far to paragraph (a) of the definition of “disabled member of the police force” in section 10(1).  It deals with members who had been discharged.  Paragraph (b) deals with a rather different class, namely, those who have “resigned or retired” and at the time of the resignation or retirement were incapable of “personally exercising the functions of a police officer” under section 14 of the Police Act, had been so certified under section 10B(2) and the infirmity was determined “to have been caused by the member being hurt on duty” while a member of the police force.

Your Honours, it will also be seen from those provisions that, in order to fall within the definition of “disabled member of the police force”, it is not sufficient to have been hurt on duty.  Rather, the infirmity resulting from having been so hurt must make the former member incapable of personally exercising the functions of a police officer.

Your Honours, that choice of language is important because it is something which goes to determine who are the people who are disabled members of the police force.  It goes to determine the time at which the disablement takes place and it goes, of course, to determine, in relation to those persons, whether they will be, ultimately, able to achieve the 72.75 – sorry, I am putting that badly – whether they achieve the 72.75 per cent referred to in 10(1A)(a).

Your Honours, could I say this?  There are three further relevant features at this point.  One is that the test in section 10B(2)(a) – and your Honours section 10B is the one that deals with:

Medical examination of disabled member and determination of whether hurt on duty

The test in section 10B(2A), turns on determining – I am sorry, your Honours, I am putting it badly – what I am seeking to say is that the test that is being referred to in the provision is concentrating on incapacity to perform the functions of a police officer.  That is the criterion there adopted.

One sees, also, in relation to section 10B(3), that the Commissioner of Police is given the power – as your Honours have seen – to determine whether the circumstances were such that the member was hurt on duty, but also to work out the date as from which the member was so hurt on duty.

Your Honours, if one pauses at that point, it seems apparent that section 10B is setting out the steps that need to be satisfied to crystallise an entitlement to the benefit under section 10.  The provisions establish, in a sense, the mandatory preconditions to an entitlement – to a “hurt on duty” pension benefit.  But, in our submission, once the matters have been relevantly certified by the Commissioner or the Trustee, the provisions are, in relevant respects, spent and one goes elsewhere to look to see what is to be the quantum of the benefit.  In that regard, your Honours, to determine the quantum of the benefit payable to a person who falls within the definition of disabled member of the police force, you go back then to section 10(1A).

Your Honours, if I could go back then section 10(1A), its terms have the effect that the minimum figure is the 72.75 per cent provided for by section 10(1A)(a) and it is the same as the maximum amount which would which would be payable pursuant to section 7.  Under section 10(1A)(b), there can be an additional amount of up to 12.25 per cent, giving a possible total of 85 per cent.  There is a band that can be up to 85 per cent, but the point within the 12.25 per cent band which is to be selected, is to be something which is commensurate with the member’s incapacity for work outside the police force.

Now, your Honours, the deliberate change of language - if one goes to the word “for” that your Honour Justice Edelman mentioned in the opening words of section 10(1A), your Honours will see that expression – your Honours will see that the terms of section 10(1A) speak of a superannuation allowance being one which is, if one goes to (b)(ii), commensurate with incapacity for work outside the police force.  And if one goes to (c), to which I will come to in a moment, it also speaks of incapacity for work outside the police force.  Now, if one goes back then to section 10(1A)(b) the additional amount, your Honours, is to be, as I said:

commensurate . . . with the member’s incapacity for work outside the police force –

But it is the appellant which is given the power to make the determination of the additional amount, with the possibility of appeal of course, but it is the appellant that is given the ability to make that determination.  Your Honours will see that in section 10(1D).

EDELMAN J:   Mr Jackson, what I cannot at the moment understand is why the provision in 10(1A)(b)(ii) - it is concerned with incapacity for work outside the police force - is not also governed by the words “for a disabled member of the police force”, and if it is governed by that chapeau, why the word “for” does not pick up the three requirements that you have neatly delineated from the definition of “disabled member of the police force”.

MR JACKSON:   Your Honour, could I say this?  The first is that there is an apparently deliberate change of language - if you are looking to see what is the condition of the person, a deliberate change of language from looking on the one hand to see, as has been decided already because that person is a disabled member of the police force - decided that they are unable to carry on, to put it shortly, the work of a police officer.  One is looking then at a time which is likely to be later, but may be the same time, but you are looking to see what are the possibilities of that person being able to work outside the police force.

Now, of course, the disability from which the person suffers may be a disability that affects their ability to find work outside the police force.  It may be to a degree in that, but maybe not at all, as can sometimes be the case.  So, the Act is, in the case of people who are disabled members of the police force, taking them as they are, and as they are from time to time. 

I will come back to the policy we have suggested in our written submissions in relation to that in a moment but, in our submission, it takes them as they are and says, “You came to the police force, you suffered, you were hurt on duty, you get a pension.  We take into account also the extent to which for the remainder of your working years, to put it shortly, you won’t be able to get to work as well in the general sector as other people, not just because of this but because of other things that might happen to you”.  Your Honours, it is a deliberate choice, and the change in the language, in our submission, is significant in that regard.  I will come back to the policy question in just a moment, if I may.

I was just going to say that one sees if one goes to section 10(1D), your Honours will see that it is the appellant which is given by that provision the power to make a determination of the additional amount and to determine the date from which it is payable.  Your Honours will see in particular that section 10(1D)(a) says that it may:

make a determination at any time of an additional amount –

payable under the section, and can vary it and, your Honours, may direct that the determination or variation take effect from such a date as it considers appropriate.  So, it is recognising, your Honours, that there may well be a situation where a person’s circumstances, whether from that injury or something else or a combination of things, brings about a situation where the criterion of the ability to find work outside the police force is satisfied, and things can change from time to time.  Your Honours, in our submission, Justice Payne in the Court of Appeal, if I could just go to it for a moment, at page 97 in paragraph 3 was correct in saying that there is:

one question only:  “what is the applicant’s incapacity for work outside the police force?”.

At the end of paragraph 4:

The language of 10(1A)(b) does not require demonstration each time a member applies for an increase in allowance based on a greater incapacity for work outside the police force that the infirmities which originally rendered the member a “disabled member of the police force” have deteriorated.

In our submission, that is giving effect to the actual language of the section and Justice Sackville was to the same effect at page 117, paragraph 67.

GAGELER J:   Mr Jackson, if we move from paragraph B(2) to paragraph (c), does your submission go so far as to say that the total incapacity for work outside the police force can arise at any time and from any source?

MR JACKSON:   Yes, indeed.  Your Honour, that is the point we seek to make really.

GAGELER J:   You are going to come to the policy of paragraph (b), but what then is the policy of paragraph (c)?

MR JACKSON:   Well, paragraph (c), in our submission, is one recognising that many activities that police engage in can be dangerous to both physical and mental health and that if there has been brought about a total incapacity and has been brought about, to put it shortly, by reason of being involved in particular police activity, it is something to put persons so injured in a better situation.

GAGELER J:   I understand where there is a causal – the policy where there is the causal connection, but your case is that ‑ ‑ ‑

MR JACKSON:   Yes, of course, your Honour, but it recognises that persons who have been injured and had to leave the police force are persons who will have to carry on with a different career than the one they had earlier planned on ‑ different career or careers.  They may or may not have lives that are good.  They might have a heart attack, nothing to do with anything that happened in the police force, and it is something that is given by, in part by government, in part by agreement between the various industrial bodies, to ensure that they are persons whose lives for whatever reason are satisfactorily looked after.  Your Honours, I was just going to say, if I could take your Honours to our written submissions for a moment ‑ ‑ ‑

NETTLE J:   What would be the point of that?  If the police officer had been exposed to extraordinary risks but they in no way bore upon the incapacity for work outside the police force caused by something other than injury in the course of duty, why would one make exposure to those risks a criterion for an additional benefit?  That is nonsensical, is it not?  There is just no rational connection between the two.

MR JACKSON:   Well, your Honour, the position would be that it is perfectly possible – one is dealing with a number of classes of case.  One class of case, the worst in a sense that your Honour is putting to me, is one where a person has been exposed to a risk of the kind referred to in (c) and, in those circumstances, the fact of that previous exposure to risk is regarded as a matter which should give a potential entitlement to a larger payment of superannuation.

Now, your Honours, it is a kind of value judgment of saying that is what should happen.  It does not follow that it has to be - the exposure to risk is one that itself brought about all the conditions that the person ultimately suffers from.  One is talking about the ability to increase a pension by, in effect, relevantly, 85 per cent I think up to 100 per cent, to put it shortly.  So we are not talking about huge sums of money in that regard.

Your Honours, I was going to say, if I could go to our written submissions for just a moment to paragraphs 29 to 32 - could we invite your Honours to read them.  We would say that is the way in which the provisions of the Act should be interpreted.  In relation to the matter your Honour Justice Nettle was putting to me a moment ago, your Honour will see the last few lines of paragraph 32.  We would say it is not a necessary feature that the being hurt on duty play a part.  Your Honours, section 10(1A)(c) does involve two separate and distinct inquiries.  As is apparent from 10(1A)(c), one is that:

the disabled member is totally incapacitated for work outside the police force –

The other is that:

the member was hurt on duty –

as defined of course, because of exposure to risks of the kind there set out.  If one or other of those criteria is not met, is not satisfied, you go back to 10(1D) and your Honours will see that under section 10(1D) the additional amount may relate to events taking place at any time after the member was hurt on duty.

Your Honours, it also does not follow, if one is talking about, for example, section – if one is talking about exposure to risks, it does not follow that the criterion of having an incapacity for work outside the police force is satisfied.  We have given an example, your Honours, in paragraph 38 of our written submissions.  A police officer shot in the leg, for example, may well be able to run a business or do many things and they would not qualify under 10(1A)(c), even though they were hurt in circumstances in which that provision would otherwise apply.

Your Honours, my learned friends have relied on extrinsic materials and, in that regard, if I could just go to page 61 of the book.  You will see in paragraph 79 where the Minister – it is the third paragraph commencing, “The Police Superannuation Board”, et cetera, and the sentence commencing about line 35:

The 85% of salary will be paid where the injured officer is totally incapacitated for all work as distinct from Police duties.

That is an indication that the terms of the statute were ones which allowed for the relevant criterion to be the ability to carry out police functions.  I referred earlier to the policy underlying the Act.  We have endeavoured to put that in two passages in our written submissions.  The shorter version is in paragraph 33.  Could I take your Honours to that.  We say that the disabled members and their comrades have paid into a contributory superannuation fund to ensure that if hurt on duty and in consequence becoming disabled members of the police force, having thus lost their future careers and prospects as serving members of the police force, they are provided for by reference to superannuation benefits at a level thereafter commensurate with their ability to work in the circumstances in which they now have to work, that is, outside the police force.

And, your Honours, perhaps a little more fully we put it also in paragraph 18 of those submissions, and perhaps if I could start from the second sentence of that.  Members of the police force perform public duties for the public benefit.  They cannot refuse orders.  They have the risk of injury, for various reasons that we have set out there.  And where the police has been hurt on duty and is unable to continue in the police force, it is hardly surprising that the scheme of the Act is to provide them with entitlements which will increase as their ability to work for whatever reason outside the police force declines.  Their chosen career has been brought to a premature end and they have to survive in a different employment milieu.

Your Honours, if I could just go back to the definition of “disabled member of the police force” in section 10(1).  Your Honours will see that the central feature of the definition in each of its parts is that there has to be a certification pursuant to 10B and, absent such a certification, the certification is that there be an inability to personally perform the functions of a police officer but the certification is, not as to the nature of the injuries themselves, but as to the:

specified infirmity of body or mind –

A disabled member gets the benefit because they establish certification under 10B(1) or (2) and by the Commissioner under 10B(3).  But, your Honours, the use of the term “for” in 10(1A) is, in our submission, read – if I could use the word read in context ‑ is one where it is saying, subject to this section:

the annual superannuation allowance [payable to] a disabled member of the police force is –

and then one looks to see the various tests that are set out in the various subsections.

EDELMAN J:   If that is right, then, how would section 10B(2)(c) operate?

MR JACKSON:   I am sorry – 10?

EDELMAN J:   Section 10B(2)(c) which is the prohibition against recovery of a superannuation allowance where the – sorry, (2)(a) – where the former member has not:

notified the Commissioner of Police before the member’s resignation or retirement and within 6 months of receiving the injury which has caused the member’s infirmity –

Would that subsection not preclude recovery for both the superannuation primary amount as well as any additional amount for injuries outside the ‑ injuries causing incapacity outside the police force?

MR JACKSON:   Your Honour, the words of 10B(2) speak of not granting an allowance.  But, your Honour will see that if one goes to section 10(1D) on the preceding page, that it is provided that:

STC may:

(a)make a determination at any time of an additional amount of a superannuation allowance under this section –

Section 10(1D) is dealing with additional amounts and, your Honour, it may vary the determination.  It may “direct that the determination or variation take effect from such date” as it considers.  Your Honours, it just recognises that there may be changes and the changes are ones that are dealt with as they occur.  It does not, in our submission, mean that one is barred from applying under 10(1D).

EDELMAN J:   So, in effect, the failure to notify means the former member cannot get the primary 72.75 per cent, but can get an additional amount?

MR JACKSON:   The problem with that, your Honour, would be that 10(1D) does speak of “additional amount”.  If nothing is being paid in the first place, there is nothing to add on to.  Also, section 10(1A)(b) speaks of “an additional amount”, that is, in addition to something already payable.

NETTLE J:   Mr Jackson, just one thing, if I may.  It arose out of that extrinsic material you took us to at page 61 of the appeal book in that paragraph in the middle of the quoted section where it is said that the Police Superannuation Board would:

take into consideration the nature of the wound or injury and the ability of the officer to earn on the open labour market –

and the 85 per cent would be payable where he is totally incapacitated.  I assume that is a reference, in effect, to section 10B(2)(c) which refers to the STC having regard to the medical advice on the condition and the fitness of the officer.  Is that a correct assumption?

MR JACKSON:   It does appear to refer to that, your Honour.  Whether that is the only thing to which the Minister is referring is perhaps a little elusive.

NETTLE J:   The reason I ask is because where that leads me is that, at least in relation to injuries which are caused by an event which occurs in the course of service, there is an obvious medical examination regime laid down in section 10B which informs the determination in section 10(1D), but there is no such medical examination regime provided for in the Act to inform any determination of the extent of incapacity that might be caused by injury other than in the course of duty.

MR JACKSON:   Would your Honour excuse me just one moment?

NETTLE J:   Certainly.

MR JACKSON:   I am not certain that that is so, with respect, and I am not certain I give your Honour an answer at this moment.  I thought there was a

provision that dealt with it.  Your Honour, may we within, say, seven days ‑ ‑ ‑

KIEFEL CJ:   Would you like to put a note in?

MR JACKSON:   ‑ ‑ ‑ give the Court note dealing with that question?

KIEFEL CJ:   Within seven days and then, if the appellant wishes to respond, a further seven days.

MR JACKSON:   Your Honour, those are out submissions.

KIEFEL CJ:   Thank you.  Is there any reply, Mr Williams?

MR WILLIAMS:   Just three short points, your Honour.  Firstly, in relation to the appropriateness of the term “recompense”, unlike an insurance policy or an ordinary superannuation payment, the benefits here are differentiated by the source of incapacity for work and, in some cases, by the degree of risk that source entailed and, as such, they are appropriately to be described as recompense.

Secondly, in relation to political compromise, the legislative purpose for which we contend is one to be inferred from the terms of the Act itself rather than from any course of negotiation through the Parliament.

Thirdly, the provisions of section 10(1BA) and (1D) simply recognise that incapacity from a hurt on duty injury may increase, and they lend no support to a contention that new and unrelated injuries are to be taken into account.  Those are our submissions.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow in Sydney and in Melbourne.

AT 10.51 AM THE MATTER WAS ADJOURNED