Ward, Belford, Sinclair and Woodforth v Repatriation Commission [1997] HREOCA 19 (22 April 1997)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Sex Discrimination Act 1984 (Cth)

No H96/68, 69, 70 & 71

BETWEEN:

MERVYN WARD

First Complainant

AND

ANGUS BELFORD

Second Complainant

AND

DOROTHY SINCLAIR

Third Complainant

AND

LESTER WOODFORTH

Fourth Complainant

AND

REPATRIATION COMMISSION

Respondent

Reasons for Decision of the Inquiry Commissioner

The Hon John Nader QC

Hearing: Sydney, New South Wales

Date of hearing: 13 January 1997

Date of Decision: 22 April 1997

Appearances: First complainant: in person

Second complainant: not present

Third complainant: not present

Fourth complainant: Mr D. Sinclair

Respondent: Ms R. Henderson of counsel, instructed by Australian Government Solicitor

Counsel Assisting the

Commission: Mr N. Poynder

1. PRELIMINARY COMMENT

It will be seen in the following judgement that I have come to a decision adverse to the complainants by applying, as I must, well recognised principles of statutory interpretation. The complainants should understand that, notwithstanding what I may think to be the justice of their complaints, I perform my function subject to a hierarchy of administrative courts that must operate in a totally disciplined manner. The law must be applied as it is, not as I think it ought to be.

To many right thinking people the outcome of these proceedings will seem unjust, especially in the light of the fact that the complainants are all people who, in company with many others, made sacrifices, so that those of us who continue as the citizens of this country might enjoy the great rights and privileges that are ours and upon which we insist so stridently. That we, as a society, through our governments, should be close fisted and mean with such persons, at the same time as we pour millions of dollars into such things a sport and other amusements, may be thought to reflect badly on our values. One can only hope that the legislature may think again about the question whether we can afford to give justice to that unique and special body of people of whom the complainants are representative. Should we not be as diligent to avoid discrimination with respect to veterans and their spouses as we are to avoid it in respect of others in our society? Justice is even-handed and should be of universal application.

2. INTRODUCTION

This is an inquiry by Human Rights and Equal Opportunity Commission ("the Commission") pursuant to section 59 of the Sex Discrimination Act 1984 (Cth) ("the SDA").

The inquiry arises out of four separate complaints made against a common respondent, the Repatriation Commission, relating to the administration by the respondent of the Veterans' Entitlements Act 1986 (Cth) ("the VEA"). As will be seen, two of the complaints - those of Mr Ward and Mr Belford - are factually similar, while the other two complaints - those of Mr Woodforth and Mrs Sinclair - are factually different. However, as each of the four complaints raise similar legal issues, I have found it expedient to deal with them in a single inquiry, pursuant to s.61 of the SDA.

Each of the complaints was made in writing to the Commission under s.50 of the SDA. Mr Ward's complaint was dated 22 July 1992, Mr Belford's was dated 20 February 1994, Mrs Sinclair's was dated 5 August 1994, and Mr Woodforth's was dated 18 October 1994. Each of the complainants alleged that the respondent had done acts which were unlawful by reason of Part II of the SDA, which prohibits discrimination in certain circumstances, including the administration of Commonwealth laws and programs, inter alia, on the grounds of a person's sex or marital status.

Upon receipt of each complaint, the Sex Discrimination Commissioner commenced an inquiry pursuant to s.52 of the SDA and on 20 February 1996, having formed the view that the complaints could not be settled by conciliation, she referred them to the Commission pursuant to s.57(1)(a) of the SDA, together with reports which summarised her inquiries.

A public inquiry into the complaints was held before me in Sydney on 13 January 1997. Mr Ward appeared in person. Mrs Sinclair was represented by her husband, Mr Donald Sinclair. Unfortunately, neither Mr Belford nor Mr Woodforth could attend the hearing, as both reside interstate (Mr Belford in Western Australia and Mr Woodforth in Queensland). I am aware that the Commission's usual practice is to hold its hearings in the town or city where the discrimination is said to have occurred. In the present case, however, the discrimination could be said to have occurred in any number of places. It may have occurred in Canberra, Sydney, Perth or Brisbane, depending where the decisions the subject of these complaints were actually made. In the event, I decided that the hearing could more expediently be held in Sydney, and I requested written submissions be delivered by each of the parties prior to the hearing. I also appointed a senior legal officer of the Commission, Mr Nick Poynder, as counsel assisting the Commission under s.68 of the SDA to ensure, in the absence of any legal representation on behalf of the complainants, that the relevant legal issues would properly be canvassed. A detailed written submission was delivered by Mr Poynder. I am immeasurably indebted to him for his assistance. The respondent was represented by Ms Rhonda Henderson of counsel.

3. THE GROUNDS OF EACH COMPLAINT

3.1 The Ward/Belford complaint

Mr Ward and Mr Belford are both veterans within the meaning of s.5C(1) of the VEA. Mr Ward served with the Australian Imperial Forces in Port Moresby, New Guinea, from June 1943 until November 1944 and in Madang, New Guinea, from November 1944 until April 1946. Mr Belford served as a member of the Royal Australian Air Force 463 Lancaster Squadron based at Waddington, Lincolnshire, England, in 5 Group, Bomber Command, RAF, completing 27 bombing raids over Germany or German Occupied Europe in 1944/45, and participating in 4 raids which were subject to recall before reaching the target.

The substance of the complaints by Mr Ward and Mr Belford was identical and I will therefore refer to these complaints together as the "Ward/Belford complaint".

The Ward/Belford complaint relates to an amendment of the VEA in 1987 which, from 1 January 1988, extended health benefits to ex-service women who had served in specified circumstances in the Second World War, but not to ex-service men who had served in the same circumstances.

The provision which extended health benefits to females is now contained in s.85(4)(aa) of the VEA, as inserted by the Social Security and Veterans' Entitlements Amendment (No.2) 1987 (Cth). The section now reads:

Veterans eligible to be provided with treatment

...(4) Where -

(aa) a female veteran rendered, while a member of the Defence Force, service of the kind referred to in subparagraph 7A(1)(a)(i) during the period referred to in paragraph (b) of the definition of `period of hostilities' in subsection 5B(1)...

the veteran is eligible to be provided, from and including the date on which the veteran's application to be provided with treatment is received at an office of the Department in Australia, with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act.

The service referred to in the subsection is, broadly, service in the Second World War at a time when the person incurred danger from hostile forces of the enemy: s.5B(1), s.7A(1)(a)(i). The treatment which is made available to females qualifying under the subsection is not insubstantial, and includes the provision of accommodation, medical procedures, nursing care, social and domestic assistance or transport, the supply and renewal, maintenance and repair of artificial replacements and surgical and other aids and appliances, and the provision of diagnostic and counselling services: s.80(1). I was advised by the respondent's counsel that females who qualify for these benefits hold what is known as a "gold card", which can be accepted by the health provider to enable it to bill the Repatriation Commission.

The respondent did not contest that Mr Ward and Mr Belford would have qualified for the health benefits, had they been female.

It is therefore apparent that the substance of the Ward/Belford complaint is that, by providing the health benefits to females who qualify under s.85(4)(aa) and not to males who would otherwise qualify under the subsection, the respondent is treating Mr Ward and Mr Belford less favourably by reason of their sex.

3.2 The Woodforth complaint

Mr Woodforth is also a veteran within the meaning of s.5C(1) of the VEA. He was born on 27 June 1939, and is now 57 years old. He served with No.3 Squadron of the Royal Australian Air Force in Malaya January 1961 to March 1963, and this included a period of nine weeks in Thailand from 7 October 1962.

The substance of the Woodforth complaint relates to provisions in the VEA which specify different ages, depending on the sex of the veteran, at which they are entitled to receive an age service pension. The VEA, as originally enacted in 1986, provided that female veterans were eligible to receive an age service pension at 55 years of age, while male veterans did not receive it until 60 years: s.38(1). The relevant provision now is s.5QA, inserted by the Veterans' Affairs Legislation Amendment Act (No. 2) 1994 (Cth). This softens the age/gender differential somewhat by stipulating that, as from 1 July 1995, the qualifying age for women to receive an age service pension would be 55 and a half years, and that this would progressively be increased by six months every two years until the year 2014, when the age service pension for women will be available at 60 years, which is the same as that for men.

S.5QA is as follows:

5QA. (1) This section deals with the pension age for veterans.

Men

(2) A man reaches pension age when he turns 60 years.

Women

(3) A woman born before 1 July 1940 reaches pension age when she turns 55.

(4) A woman born within the period specified in column 2 of an item in the following Table reaches pension age when she turns the age specified in column 3 of that item.

TABLE
column 1 item no.	column 2 period within which woman was born (both dates inclusive)	column 3 pension age
1. 2. 3. 4. 5. 6. 7. 8. 9.	From 1 July 1940 to 31 December 1941 From 1 January 1942 to 30 June 1943 From 1 July 1943 to 31 December 1944 From 1 January 1945 to 30 June 1946 From 1 July 1946 to 31 December 1947 From 1 January 1948 to 30 June 1949 From 1 July 1949 to 31 December 1950 From 1 January 1951 to 30 June 1952 From 1 July 1952 to 31 December 1953	55 years and 6 months 56 years 56 years and 6 months 57 years 57 years and 6 months 58 years 58 years and 6 months 59 years 59 years and 6 months

(5) A woman born on or after 1 January 1954 reaches pension age when she turns 60.

The differential between the pension age of males and females remains, however, and it is therefore apparent that the substance of Mr Woodforth's complaint is that, by providing health benefits to females who qualify under s.85(4)(aa) and not to males who would otherwise qualify under the subsection, the respondent is treating him less favourably by reason of his sex.

3.3 The Sinclair complaint

The complaint of Mrs Sinclair is slightly different, in that she is not a veteran. Mrs Sinclair was married to a veteran, Henry Thomas James, who served in New Guinea with the Royal Australian Air Force from 30 January 1941 to 21 January 1946.

When Mr James died, on 22 April 1964, Mrs Sinclair commenced receipt of a pension under the Repatriation Act 1920 (Cth), which preceded the VEA. However, when Mrs Sinclair remarried Donald Sinclair on 27 June 1981, her entitlement to receive the pension was extinguished by reason of s.40 of the Repatriation Act, which provided:

A pension payable under this Act to any female dependant of a member of the Forces shall not be continued after her marriage or re-marriage.

The different treatment of war widows who had remarried was corrected by the VEA when it commenced in 1986. However, while the Government provided some limited retrospectivity to the new provision so that war widows who remarried after 29 May 1984 did not lose their entitlement to the pension, the situation of war widows who remarried before 29 May 1984 was not corrected, so that the extinguishment of Mrs Sinclair's pension remains in effect.

The substance of Mrs Sinclair's complaint is therefore that, as a war widow who was remarried before 29 May 1984, she is being treated less favourably than war widows who did not remarry before that date. In other words, Mrs Sinclair claims that she is being treated less favourably by reason of her marital status.

4. THE RELEVANT PROVISIONS IN THE SEX DISCRIMINATION ACT 1984

As has been seen, each of the complaints relates to provisions in the VEA which draw explicit distinctions between males and females and, in the case of Mrs Sinclair, between widows who have re-married and widows who have not re-married.

It is in this context that the SDA becomes relevant.

The SDA generally prohibits discrimination on the grounds of sex, marital status, pregnancy or potential pregnancy in a number of respects set out in Part II of the SDA.

For present purposes, the definition of direct discrimination on the basis of sex and marital status are set out in s.5(1) and s.6(1) of the SDA as follows:

Sex discrimination

5. (1) For the purposes of this Act, a person (in this sub-section referred to as the "discriminator") discriminates against another person (in this sub-section referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if, by reason of -

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

Discrimination on the ground of marital status

6. (1) For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the marital status of the aggrieved person if, by reason of:

(a) the marital status of the aggrieved person; or

(b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the marital status of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status.

In the present case I accept the submission of counsel for the respondent that the proper respondent to each of the complaints is the Repatriation Commission which, pursuant to s.179, is a body corporate which may sue and be sued and, pursuant to s.180 of the VEA, has a function to grant pensions, allowances and other benefits to veterans, dependents of veterans and certain other persons under and in accordance with the provisions of that Act.

5. THE THRESHOLD ISSUE

At the core of this inquiry is an inconsistency between the provisions of the SDA and the VEA. On the one hand, the SDA explicitly prohibits discrimination in the administration of Commonwealth laws and programs on the basis of sex or marital status. On the other hand, the VEA appears to provide more limited access to health benefits and the age service pension for men than for women, and it does not provide access to the war widows' pension to women who remarried prior to 29 May 1984, allegedly on the grounds of their marital status.

This inconsistency will have to be resolved before I am able to consider the merits of each complaint. Effectively, I am faced with a threshold issue: Do the apparently discriminatory provisions contained in the VEA operate unconstrained by the SDA, or is the VEA subject to the SDA? If I were satisfied that the VEA is not constrained by the SDA, then the matter is really at an end, and each complaint must be dismissed. If, however, I were to be satisfied that the VEA is subject to the SDA, then I would be able to pass on to a consideration of the merits of each complaint to determine whether, in each case, there is unlawful discrimination under the SDA.

6. THE RESPONDENT'S CASE

The respondent's case, presented by Ms Henderson, is fairly straightforward, and relies primarily upon the principle that, in the event of an inconsistency between two pieces of legislation, the later legislation will override the earlier legislation, particularly where Parliament was aware of the discriminatory effect of the later legislation. A detailed consideration of these principles is set out below.

I was initially requested by the respondent to consider the threshold issue as an application under s.79 of the SDA which empowers me, at any stage of an inquiry, to dismiss a complaint on the ground that it relates to an act that is not unlawful by reason of a provision of Part II. While I agreed that should I find in favour of the respondent on this point it would be appropriate to dismiss each complaint on the ground that they relate to acts which are not unlawful, I preferred to consider the matter at the commencement of the hearing of the inquiry rather than in isolation as an application to dismiss the complaints under s.79.

In order to properly resolve this inconsistency, I will need firstly to consider some of the relevant principles of statutory interpretation.

7. PRINCIPLES OF STATUTORY INTERPRETATION

There are several principles of statutory interpretation which will assist in determining the relationship between the VEA and SDA.

7.1 The Acts Interpretation Act 1901 (Cth)

Section 15AB of the Acts Interpretation Act 1901 (Cth) provides guidance in the use of extrinsic material to assist in the interpretation of a provision of an Act. It provides:

15AB. (1)...in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material -

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when -

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

The relevant extrinsic material which may be referred to in interpreting the provisions of an Act include: explanatory memoranda (ss.(2)(e)), Second Reading speeches (ss.(2)(f)), and Parliamentary debates (ss.(2)(h)).

7.2 The principle of implied repeal

A general presumption of statutory interpretation is that, in the event of inconsistency, a later Act will override an earlier Act (leges posteriores priores contrarias abrogant). In Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7, Griffith CJ described the principle as follows:

..where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication.

This general presumption is not, however, absolute. It may be assumed that Parliament did not intend to contradict itself, and so-called "implied repeal" will therefore be a comparatively rare event: Austereo v TPC [1993] FCA 301; (1993) 115 ALR 14 at 24. See also: Pearce and Geddes, Statutory Interpretation in Australia (4th ed, 1996) at paras 7.9-7.11.

A mechanism by which the assumption against implied repeal operates may be found in the maxim generalia specialibus non derogant. This provides that a later, general, Act will not be interpreted as impliedly repealing an earlier, specific Act, notwithstanding that the earlier specific Act is directly contradicted by the later general Act: Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 14 per O'Connor J; see also Pearce and Geddes at paras 7.18-7.19.

The reasons for this approach were stated by Barton ACJ in the decision of Maybury v Plowman [1913] HCA 43; (1913) 16 CLR 468 at 473-4:

In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated.

The maxim generalia specialibus non derogant does not apply in reverse, i.e. where a general Act is followed by a later, specific Act. In this case, the proper course is to apply the usual and overriding presumption that, in the event of inconsistency, the later Act will override the earlier Act: Enman v Enman [1942] SASR 131.

The application of the above principles to the interpretation of a particular statute must be dealt with on a case-by-case basis. The relationship between the two Acts "must depend upon a comparison of the actual language of each, to see whether they do stand together or whether the latter has, pro tanto, abrogated the former": Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 268 per Windeyer J. The court must first determine whether there is an irreconcilable conflict between the provisions: Fonteio v Morando Bros Pty Ltd [1971] VR 658; Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353. If the maintenance of the earlier Act would defeat the purpose of the later, the earlier must give way. If inconvenience or incongruity would result from both Acts continuing in force, the later must prevail: Pearce and Geddes at para 7.12.

8. LEGISLATIVE HISTORY OF THE SEX DISCRIMINATION ACT 1984 IN RELATION TO THE VETERANS' ENTITLEMENTS ACT 1986

It is apparent from the principles of statutory interpretation referred to above that a proper consideration of the operation of the SDA in relation to the VEA will require a consideration of the concurrent development of the two pieces of legislation in order to determine the respective operation of the various provisions.

In my view the provisions in the two Acts are, when read together, sufficiently ambiguous and obscure to enable me, pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth), to have recourse to the relevant extrinsic material referred to in that section, in particular the Second Reading speeches and the Parliamentary debates.

A consideration of the relevant legislation cannot hope to cover all of the amendments which have been made to the respective Acts. This would not only be futile, since most of the amendments are not relevant to this inquiry; it would also be an endless task, particularly in relation to the VEA, which has been the subject of a bewildering number of changes since its commencement in 1986. This consideration will therefore be restricted to those changes which are relevant to the present inquiry.

8.1 Enactment of the Sex Discrimination Act 1984 (Cth)

The provisions relating to direct discrimination on the grounds of sex and marital status in the SDA - s.5(1) and s.6(1) - remain unchanged from their original form from 1984. Similarly, the provision relating to discrimination in the administration of Commonwealth laws and programs - s.26(1) - is also unchanged.

When the SDA was enacted in 1984 it contained, in s.40(1), a general exemption for acts done in compliance with Commonwealth, State and Territory legislation and regulations and determinations of some courts and tribunals. The reason for the exemption was to allow time for the respective governments to amend their various instruments so as to comply with the SDA. The provision read as follows:

40. (1) Nothing in Division 1 or 2 affects anything done by a person in direct compliance with -

(a) any other Act, any State Act, or any law of a Territory, in force at the commencement of this Act;

(b) a regulation, rule, by-law, determination or direction in force at the commencement of this Act made under an Act, State Act or law of a Territory;

(c) a determination or decision of the Commission;

(d) an order of a court; or

(e) an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment.

The general exemption was limited by s.40(2) to a period of two years but, importantly, this 2 year limitation excluded, inter alia, the Repatriation Act 1920 (Cth):

40. (2) Except in relation to the operation of -

...

(c) the Repatriation Act 1920;

...

paragraphs (1) (a) and (b) shall, except to the extent that regulations made for the purposes of this sub-section otherwise provide, cease to be in force at the expiration of 2 years after the commencement of this Act.

Effectively therefore, at the commencement of the SDA in 1984, any discriminatory provisions contained in the legislation which then dealt with veterans were protected by an unlimited exemption from the operation of the SDA.

8.2 Enactment of the Veterans' Entitlements Act 1986 (Cth)

On 22 May 1986 the Repatriation Act 1920 (Cth) was repealed and replaced by the VEA. At this stage, the reference to the Repatriation Act in s.40(2) of the SDA would have ceased to have any effect, since the Repatriation Act no longer existed.

As is apparent from the debates on the legislation, Parliament was aware that some of the provisions in the VEA were discriminatory on the basis of sex. The issue was raised in the House of Representatives on 12 November 1985 by Mr Fischer, who commented that:

...there are in the Bill areas of discrimination on the grounds of sex. These are too numerous to detail at this time. In the main they relate to reverse situations regarding the husbands of ex-service women. Apparently this is covered by an exemption from other overriding legislation on the matter of discrimination on the grounds of sex. It is a most desirable objective, when the opportunity and priority exists, to see this eliminated from the repatriation legislation. (Hansard, p.2503)

The matter was also taken up in the Senate where, on 28 November 1985, the Minister for Veterans' Affairs, Senator Gietzelt, made the following comments:

The Government accepts the goal of the elimination of discrimination on the basis of sex, but clearly I can only do that on the basis of its being an objective to be realised over time. We cannot eliminate this problem overnight. The Veterans' Entitlements Bill has been drafted to minimise the differential treatment of male and female veterans on the ground of sex...The Government believes that this is central to eliminating many of the discriminatory provisions that have existed for more than 65 years in the various repatriation Acts. This particular legislation is designed to overcome this discrimination. However the Government admits that there are still a number of provisions in the Bill which maintain elements of sex discrimination, but of course not all of the provisions discriminate against women.

The existing repatriation legislation is exempt from the Sex Discrimination Act. The Attorney-General's Department accepts that differentiation on the grounds of sex should be retained in the Veterans' Entitlements Bill for the time being. Clearly cost is the most prohibitive factor...Having said that, the Government believes that this is a matter that will be rectified in time. (Hansard, at 2448-2449)

There were two provisions in the VEA, as enacted in 1986, which are relevant to the complaints made in this inquiry.

The first was the provision dealing with re-marrying war widows, which relates to Mrs Sinclair's complaint. The VEA as originally enacted had sought to deal with the differential treatment of re-marrying war widows by providing that all war widows who remarried after the commencement of the new Act (i.e. 22 May 1986) could retain their pension. However, as a result of representations to Senator Gietzelt, particularly from the Returned Services League, the simultaneously enacted Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 (Cth) backdated the operation of the provision to 29 May 1984, which was the date of a statement to the Senate by Senator Gietzelt in which he had undertaken to introduce the reform.

Parliament also considered at that time whether the reform should be extended to all war widows who had remarried, so as to include those who remarried prior to 29 May 1984. However a suggested amendment to this effect was rejected by Senator Gietzelt on 28 November 1985 in the following terms:

The Government cannot accept the amendment for what I believe are valid reasons. The effect of the amendment would bring back into the system all the former war widows - I stress 'all' - who have subsequently remarried. We would be dealing with war widows who, perhaps, remarried in 1929. The complexities of that retrospective aspect must surely be daunting for any authority or government. The Advisory Committee on Repatriation Legislation Review recommended that war widows' compensation should not cease where the remarriage occurred after the commencement date of the new legislation. As a result of further representations that were made to me by the Returned Services League and the veteran community, I was able to get the Government to agree to make the date of effect the date on which the legislation was announced - 29 May 1984. So we went back to that period, giving the legislation at least 18 months retrospective application. It has to be recognised that the Government made a very significant contribution to the acceptance and recognition of the compensatory nature of the war widows pension in taking that step...

In all legislation and in all matters of life there is a starting point and a finishing point. The Government has been pretty generous in taking the position it has taken of restoring that provision, having regard to the fact that the issue had been around for a long time in the veteran community, particularly among war widows. We believe that applying the legislation retrospectively over so many years would be going too far down the track and administratively would make the job of the Department that has to deal with these matters very difficult...I ask the Senate to give consideration to the fact that we have rectified a wrong but we cannot really apply the legislation retrospectively to the maximum extent. (Hansard at 2451-52)

As has been shown above, the differential treatment of war widows who have re-married prior to 29 May 1984 has been carried over in to the VEA as currently exists in the application of s.11 and s.13.

The second relevant provision in the VEA as enacted in 1986 dealt with the age at which a veteran was eligible to receive a war service pension, which relates to Mr Woodforth's complaint.

I have already referred to s.38(1) of the VEA as enacted, which provided that female veterans were eligible to receive the age service pension at 55 years of age, while male veterans did not receive it until 60 years. While this has been softened somewhat in the current s.5QA, a significant gender differential still exists in relation to the eligibility to receive the pension.

Once again, it is apparent from the debates that Parliament was aware of the discriminatory nature of the provision in s.38(1). The point was acknowledged by Senator Giezelt on 28 November 1985:

...I should point out that the provision in the Bill which discriminates in favour of women is that female veterans are eligible for service pensions at the age of 55, whereas male veterans become eligible at 60. (Hansard at 2448-2449)

8.3 Amendment to the Veterans' Entitlements Act in 1987

The provisions which form the basis of the Ward/Belford complaint were introduced into the VEA by the Social Security and Veterans' Entitlements Amendment (No.2) 1987 (Cth) which, from 1 January 1988, extended eligibility for health benefits to certain ex-service women, but not ex-service men: s.85(4)(aa).

The extension of health benefits to ex-service women was the result of an election promise by the Government, which was founded on a study of returned service women by the Repatriation Commission in 1985 entitled Study of Returned Servicewomen of the Second World War.

In his submission at the hearing, Mr Ward made reference to this study, and in particular its apparent finding that returned service women had suffered disadvantage because of their lower rates of pay than their male counterparts and that they had suffered discrimination and disadvantage both during and after service. Mr Ward gave evidence that he had taken his concerns up with the Attorney-General's Department, and that he had been advised in a letter dated 6 October 1994 from the Senior Government Counsel in that department that the introduction of s.85(4)(aa) into the VEA "reflected deliberate Government policy to redress this longstanding inequity and discrimination."

I did not require the respondent to address the issue raised by Mr Ward in relation to the Study of Returned Servicewomen of the Second World War. This is not to say that the issue is not important. However, it goes beyond the threshold issue which, as I have indicated, must be traversed before I am able to pass on to the merits of each complaint. If, as a result of determining the threshold issue, I am able to consider whether the operation of the VEA is discriminatory on the basis of sex, it is likely in the Ward/Belford complaint that I would be faced with a further issue, whether any such discrimination is justified as a "special measure" under s.7D of the SDA, which precludes a finding of discrimination where the conduct can be characterised as a special measure for the purpose of achieving "substantive equality" between men and women. While I therefore appreciate the basis of Mr Ward's argument, it is premature at this stage to pass on to a detailed consideration of this issue.

In order to interpret the VEA it is, however, relevant to point out that Parliament was clearly aware of the effect of the provision contained in s.85(4)(aa). In answer to a comment in the Senate on 9 December 1987, Senator Richardson made the following remarks:

...let us remember that what we have done here, if anything, is discriminate against men, not against women...World War II service women will have treatment rights without - I repeat, without - a specific repatriation entitlement. Servicemen do not have that. They do not have access to treatment without a specific repatriation entitlement, as Senator McLean would know. So if anything this legislation discriminates against men. (Hansard at 2808)

8.4 Amendments to the Sex Discrimination Act in 1988, 1991 and 1995

The SDA was again amended in 1988, by the Statute Law (Miscellaneous Provisions) Act 1988 (Cth), which commenced operation on 3 June 1988.

One of the amendments introduced by the Statute Law (Miscellaneous Provisions) Act 1988 (Cth) was the omission of s.40(2)(c) which, as has been seen, had effectively provided an exemption for the Repatriation Act 1920. Of course, the Repatriation Act had been repealed in 1986; however, no provision had been made in 1986 for a fresh exemption for the VEA, and no such exemption was now inserted into the SDA.

It is apparent from the Parliamentary debates that the removal of s.40(2)(c) was not regarded as a contentious issue. The legislation was an "omnibus" bill which provided amendments to a number of Acts, which the Minister introducing the Bill in the House of Representatives on 25 May 1988, Mr Staples, described as:

"...an expeditious way of making a large number of non-contentious amendments to legislation. Some of the amendments made by this Bill tidy up, correct and update existing legislation. Other amendments are of minor policy significance or are matters of routine administration." (Hansard at 2941)

It is also apparent, from the Explanatory Memorandum to the Bill, that the drafters did not consider that it was necessary, at this stage, to include a specific exemption for the VEA, since it would, as a later specific Act, take precedence over the SDA:

The proposed amendments of s.40 delete s.40(2)(c) and s.40(5), which exempt from the operation of the Act, acts done in direct compliance with the Repatriation Act 1920 and related legislation. These exemptions are no longer necessary following the repeal of the Repatriation Act 1920 and certain other related legislation by the Veterans' Entitlement Act 1986. Whilst the Veterans' Entitlements Act and the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 maintain the previous differential on the ground of sex in payment of benefits contained in the repealed legislation (i.e. the payment of widows' but not widowers' pensions and entitlements to service pensions for female veterans at age 55 and for male veterans at age 60), an exemption for discriminatory provisions in those Acts is not required since, as later enacted Acts, any of their provisions that are inconsistent with the Sex Discrimination Act would override that Act.

Mr Ward correctly pointed out to me that the Explanatory Memorandum did not make any express reference to the provision which formed the basis of his complaint, that is, relating to differential access to health benefits. However, I do not take the references in the Explanatory Memorandum as being in any way exhaustive or indeed binding upon the drafters of the provision. They are more in the way of an explanation as to why an exemption for the VEA was not considered necessary, and the operation of the usual principles of statutory interpretation are not affected.

It is appropriate to note briefly that the SDA was again amended in 1991, by the Sex Discrimination Amendment Act 1991 (Cth), which replaced s.40(2) with a new list of Acts to be exempted from the SDA. This list of Acts did not include the VEA, presumably because of the view that the VEA, as a later inconsistent Act, would override the SDA.

The final relevant amendment occurred with the enactment of the Sex Discrimination Amendment Act 1995 (Cth). While this did not materially affect any of the provisions which are the subject of this inquiry, it was relevant because of the insertion of a preamble to the SDA which re-asserted the principles of equality:

Recognising the need to prohibit, so far as possible, discrimination against people on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs:

Affirming that every individual is equal before and under the law, and has the right to the equal protection and equal benefit of the law, without discrimination on the ground of sex, marital status, pregnancy or potential pregnancy

9. CONCLUSION AND FINDINGS

I am satisfied that, when placed together, the relevant provisions of SDA and the VEA are in irreconcilable conflict. The maintenance of the earlier provisions of the SDA would, in my view, defeat the purpose of the later provisions of the VEA and, by reason of the principle that a later Act should override an earlier Act, the provisions in the VEA should take precedence.

The key to this finding is that Parliament clearly intended that the provisions in the VEA be given precedence. It is apparent in the various extracts from the debates that Parliament was conscious that the provisions in the VEA were inconsistent with the SDA, and decided to enact the legislation in full knowledge of the inconsistency.

In summary I have come to the following specific conclusions:

1. The commencement of the SDA on 1 August 1984 established a legislative framework for the prohibition, so far as was possible, of discrimination on the grounds of, inter alia, sex and marital status: SDA s.5(1) and s.6(1). This prohibition included discriminatory acts carried out in the administration of Commonwealth laws and programs: SDA s.26(1). However, Parliament at that time intended that the Repatriation Act 1920 (Cth) be exempt from such prohibition: SDA s.40(2)(c)

2. When the Repatriation Act 1920 (Cth) was repealed on 22 May 1986, the exemption in the SDA under s.40(2)(c) ceased to have any effect, since the subject matter of the exemption - the Repatriation Act - no longer existed. The commencement of the VEA on the same day did not bring it under the s.40(2)(c) exemption, since the VEA was altogether a new piece of legislation.

3. When the VEA was enacted on 22 May 1986, the provisions in that Act which allowed for the differential treatment of people on the basis of their sex or marital status - including the provisions referred to in the Sinclair and Woodforth complaints - took effect unconstrained by the provisions in the SDA which prohibited discrimination. This is by reason of the presumption that in the event of inconsistency a later Act will override an earlier Act (leges posteriores priores contrarias abrogant). While I accept that there is a strong presumption that Parliament did not intend to contradict itself, in my view that presumption is discharged when one considers the clear intention expressed by Parliament as evidenced by the various references which have been made to the Parliamentary debates.

4. The enactment of the Social Security and Veterans' Entitlements Amendment (No.2) 1987 (Cth), which extended health benefits to certain females but not to males in the same situation, similarly took effect unconstrained by the SDA by reason of the presumption that in the event of inconsistency a later Act will override an earlier Act. Once again, there was a clear Parliamentary intent for the provisions to take effect regardless of their potentially discriminatory effect, as evidenced by the contemporary debates.

5. The removal of the exemption for the Repatriation Act 1920 from the SDA, by reason of the Statute Law (Miscellaneous Provisions) Act 1988 (Cth), had no effect upon the operation of the VEA vis-a-vis the SDA. In my view, the drafters of the Statute Law (Miscellaneous Provisions) Act 1988 (Cth) were correct in their assumption that there was no need to provide a further exemption for the VEA in the SDA, since the VEA was already exempted, by reason of the maters referred to above in paragraphs 3-4.

6. The introduction into the SDA of a preamble which, in general terms, re-affirmed the principles of equality, did not override the specific provisions which had previously been enacted under the VEA. This is by reason of the presumption that a later general Act will not be interpreted as impliedly repealing an earlier specific Act (generalia specialibus non-derogant).

Mention should also be made to an issue which was raised by Mr Ward at the hearing, and this is the operation which international instruments have in Australian domestic law. Mr Ward referred to the international obligations which Australia has undertaken by its ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR), in which the right to social security in article 9 is, by reason of article 2, to be applied without discrimination, inter alia, on the grounds of sex.

Mr Ward's submission would no doubt merit greater exploration on a reading of the ICESCR alone; however it is now accepted that obligations which Australia has undertaken by reason of its ratification of international treaties are not thereby imported into Australian domestic law, but rather operate as a legitimate influence on the common law of this country: Mabo -v- Queensland [1992] HCA 23; (1992) 175 CLR 1 at 42 per Brennan J, particularly where there is uncertainty or ambiguity in the domestic law which the treaty can assist to resolve: Minister of State for Immigration and Ethnic Affairs -v- Ah Hin Teoh [1995] HCA 20; (1995) 128 ALR 353 per Mason and Deane JJ at 361-362. However, in the absence of any such uncertainty or ambiguity, the domestic law will take precedence over the treaty provisions: Chu Cheng Lim -v- Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ at 38. In my view, the operation of the various principles of statutory interpretation and the clear intention of Parliament as evidenced by the debates removes any ambiguity in the operation of the provisions in the VEA, and there is therefore no need to resort to the international treaties as an aid to interpretation.

It follows from the above that the differential treatment of veterans under the provisions in the VEA referred to in this inquiry "survives" the SDA, and is unconstrained by the SDA. As such, there is no need for me to pass on to consider whether the conduct of the respondent is unlawful by reason of the SDA. I am bound to apply the VEA as intended by Parliament, regardless of the protection which would otherwise have been provided by the SDA.

Each of the complaints is, therefore, dismissed.

Dated this day of April 1997

Hon John Nader QC

Hearing Commissioner