Valentine v Emergency Services Superannuation Board (General) [2010] VCAT 2130 (29 July 2010)

Last Updated: 24 June 2011

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

ORDER

1. Within 14 days of this day the parties must bring in short minutes to give effect to these reasons.
2. Costs reserved.
   
   

REASONS

BACKGROUND

1. Mrs Valentine married Mr Graeme Wilmot in 1973. At that time Mr Wilmot was a teacher in Victoria’s State education system. As a result he was an officer in the teaching service and a member of what was described as the ‘Revised Scheme’, a scheme of superannuation administered under the State Superannuation Act 1958.
2. Mr Wilmot retired on ill health grounds in 1981 and died in 1983. In accordance with the rules of the scheme, Mrs Wilmot applied for spouse and children’s pensions for herself and the three children which she had with the late Mr Wilmot, namely two daughters and a son. The application in the form of a statutory declaration printed on the State Superannuation Board’s stationery included in the heading the words ‘spouse pension will cease on re-marriage’. The pensions were granted as requested.
3. Mrs Wilmot wrote to the then Treasurer of the State of Victoria, Mr R.A. Jolly by letter dated 19 June 1989. She said she planned to re-marry ‘in September next’ viz. September 1990. She complained that under the then existing statute, namely the State Superannuation Act 1988 Section 37(2), her re-marriage would cause her spousal pension to cease. The letter stated inter alia:

If I were to live with my fiancé in a defacto marriage, I would continue to enjoy this pension.

This letter is to ask the Government in the next sittings of Parliament to move an amendment to the State Superannuation Act to provide that a widow or widower does not cease to be entitled to a pension on re-marriage. The present legislation discriminates against those men and women on the ground of their marital status and infringes the spirit if not the letter of the Equal Opportunity Act.

It seems widely accepted in superannuation circles that the present legislation is outdated and discriminatory. Far from promoting the family unit, it discriminates positively against it.

4. She wrote in similar terms to the State Superannuation Board later the same year. These entreaties seem to have fallen on deaf ears. Mrs Wilmot married Mr Valentine on 23 September 1989. The Department of Management and Budget (Mr R.W. Champion, Director of Superannuation Policy and Management) wrote to Mrs Valentine by letter dated 9 January 1990 and confirmed the suspension of her spousal pension.
5. In 1993 Parliament enacted the Public Superannuation (Administration) Act 1993 making fundamental changes in Government superannuation in Victoria. The Revised Scheme which provides defined pension benefits to its members had been closed in 1988. New employees or officers in the public sector would become members of a defined contribution scheme or schemes whereby their ultimate benefits depended not upon a defined and indexed pension linked to former salary but simply to the investment performance of the contributions which have been made during employment. Existing officers were to be encouraged to leave the Revised Scheme and become members of the New Scheme or Schemes. Another element of the 1993 Act was the removal of the provision in the State Superannuation Act ceasing spousal pensions on re-marriage. This element of the amendment was said in the Minister’s Second Reading Speech to be a ‘technical amendment’ to bring Victoria’s law into conformity with the terms of the Commonwealth Sex Discrimination Act 1984 as amended. Mrs Valentine wrote to the Superannuation Board by letter dated 5 July 1994. She referred to the amendments made by the 1993 Act which took affect on 30 November of that year. She continued:

The plain purpose of the November 1993 amendment to S.37 [of the State Superannuation Act 1988] was to correct the discriminatory effect of the legislation which had previously operated to disqualify a person from receiving a pension on the ground of their marital status. Parliament could hardly have intended discrimination of that kind to continue for those who had become entitled to a pension prior to November 1993 but was to cease for anyone who became entitled after that date when those in the former class vastly outnumbered those in the latter class.

6. The Board responded in a letter dated 27 July 1994 in which it said that the Board’s legal advice was that the amendment to the law in 1993 did not reinstate pensions previously suspended. The Board referred to Section 14 of the Interpretation of Legislation Act 1984.
7. Mrs Valentine returned to the same theme when she wrote to the Superannuation Board again by letter dated 28 February 1996. She said:

I therefore feel it is only fair that it [that is her spouse’s pension] should be reinstated back to its original form now that the legislation has changed.

8. The Board responded by letter dated 19 March advising inter alia:

That the Board is not in a position to reinstate spouse pensions which were cancelled prior to 30 November 1993 ...

9. By virtue of the Superannuation Legislation (Governance Reform) Act 2005 the State Superannuation Board was merged with the Emergency Services Superannuation Board with Emergency Services and State Superannuation Board as the administering authority. Mrs Valentine wrote to the Board by letter dated 8 November 2007 noting that the superannuation authority of the Commonwealth of Australia ‘ComSuper’ had advertised that with effect from 1 January 2008 Commonwealth superannuation pensioners:

Who received a spousal pension that ceased when they re-married, are entitled to have their pension fully restored.

10. The advertisement stated:

Pension payments to approved applications will commence 1 January 2008 or from the date the application was received at ComSuper, whichever is later.

11. Referring to this advertisement Mrs Valentine said that she was ‘hoping my pension may be reinstated’. The Board responded in a letter dated 21 November 2007 stating:

There has been no change to legislation governing the State Superannuation Fund, and therefore your Partner Pension could only be reinstated if you were to divorce your second husband, or upon his death.

12. A further letter of 7 December 2007 advised that should Mr Valentine be divorced or pre-decease Mrs Valentine ‘you will currently be entitled to a pension of approximately $950 gross per fortnight’.
13. Mrs Valentine then wrote to the Board by letter dated 20 March 2008 stating inter alia, she asked:

That the full Board of ESS Super consider my application for reinstatement of my pension with effect from 30 November 1993 (adjusted to take account of the increased pensions paid to the children), together with interest.

14. The letter included a statement of some 18 paragraphs setting out the history of her claim and attaching relevant documents. It also included formal legal submissions to the Board occupying some nine pages and 35 paragraphs with detailed submissions as to the relevant provisions of the State Superannuation Act 1998, the Interpretation of Legislation Act and the Charter of Human Rights and Responsibilities Act 2006. This request was referred to the ‘SSF Benefits Committee’. At the Committee’s meeting on 26 June 2008 it ‘declined Mrs Valentine’s application for reinstatement of her partner pension ...’. Mrs Valentine filed an application seeking review of the Board’s decision dated 18 July 2008. The cash register imprint is 1 August 2008. The matter came on for hearing before the then President of the Tribunal, Bell J on 18 February 2009 but was adjourned on the application of the respondent. His Honour made a costs thrown away order against the respondent. The matter has now come on for hearing before me on 13 July 2010. Since the date of the originally scheduled hearing Parliament enacted the Superannuation Legislation Amendment Act 2009 which also bears upon these matters. It includes a new Section 38 in the State Superannuation Act 1988 along the same lines as the Commonwealth legislation referred to in Mrs Valentine’s correspondence. It provides for the restoration of the spousal pension to a person in Mrs Valentine’s situation subject to that person’s making an application to the Board. The pension is restored ‘as from the date on which the application was made’. Mrs Valentine’s pension has been restored in accordance with this provision.
15. The result then is that what is at stake in this review application is the amount of what Mrs Valentine contends are arrears of the spousal pension from 30 November 1993 to the date of the restoration of her pension in 2009. Her Counsel, Mr Wilson said that insofar as the pensions paid to the three children were increased under Section 48 of the State Superannuation Act, Mrs Valentine does not seek payment to her of the amounts which were in effect redirected to the children. She seeks payment of interest on the unpaid amounts which she says were wrongly withheld from her. At the request of Mrs Valentine an officer of the Board has calculated the amount which would be payable in accordance with the interest rates used by the Board yielding a figure slightly under $350,000. The same officer calculates that if this matter were determined in favour of Mrs Valentine, provision of the same benefits to other persons in her situation would entail an outlay in an amount exceeding $9M.
16. Aside from the issues as to the true operation of the State Superannuation Act 1998 in these circumstances both prior to and subsequent to the enactment of the Charter of Human Rights and Responsibilities Act 2006 there remain some very significant questions as to the relief that this Tribunal can give in the circumstances and the extent to which it may review the actions of the Board and its predecessors.
17. For instance the source of any power to award interest in an application for administrative review under Section 50 of the Victorian Civil and Administrative Tribunal Act 1998 is not immediately evident. Further, given that Mrs Valentine has repeatedly raised the same grievance with the authorities there is a question as to whether, absent an enlargement of time within which to bring a review application, this application is within time for the Tribunal to consider the whole or even part of her grievance. Ms Davidson on behalf of the Board also raised the issue of the Limitation of Actions Act 1958. I expressed scepticism as to whether this legislation had any operation at all in the present proceeding given that it was an application for administrative review and not an ‘action’ at all.
18. None of these important matters was canvassed in the argument before me. Rather I was invited to provide my determination of the substantive issues which had been argued, standing over the other matters just referred to for further argument and determination later. Given that these matters arguably went to the Tribunal’s jurisdiction I could not regard this as a satisfactory course, however as a matter of practicality I necessarily had to agree to it given that these other matters were not canvassed at all.

LEGISLATIVE HISTORY

19. The Superannuation Act 1958 made provision in Section 32 for the payment of a widow’s pension for the widow’s life at the rate of 5-8ths of the pension payable to her husband at the time of his death. The section included the following proviso:

Provided that if she re-marries her pension under this paragraph shall thereupon cease.

20. It will be seen that this provision applies only to the widows and not the widowers of deceased pensioners. Further, in contrast to the provisions which we will examine later there is no provision for the widow’s pension to revive should her re-marriage be dissolved or should she be widowed a second time.
21. By 1984 Section 32 had been the subject of repeated amendment. The pension was now payable to widowers as well as widows. The section included a proviso that the person should not be entitled ‘to receive any such pension in respect of any period during which he is married’. It would seem therefore that a person receiving a spousal pension would lose the pension upon re-marriage but should the second marriage end either by death or dissolution, the right to the pension would appear to revive.
22. In 1988 a new State superannuation statute was passed by Parliament. It is this statute which. albeit subject to further amendment, is in force now and which provides the basis for Mrs Valentine’s claim. Section 37 of the 1988 Act as originally enacted provided:

(1) On the death of a Revised Scheme member who is a pensioner there is to be paid

(a) Unless sub-section (2) applies to the spouse during his or her life – [and the details of the spousal pension are set out]

23. Sub-section (2) provided inter alia:

(2) A spouse is not entitled to receive

(a) A pension under this section in respect of any period during which he or she is married.

24. Following the 1993 amendment referred to above the 1988 Act, Section 37 provides inter alia:
    37. Pension to partner, children or adult children on death of revised scheme member who is a pensioner

(1) On the death of a former revised scheme member who is a pensioner there is to be paid—

(a) unless subsection (2) applies, to the partner during his or her life a pension—

...

25. Sub-section (2) provides:

(2) A partner is not entitled to receive—

* * * *

(b) at any one time more than 1 pension as the partner of a deceased pensioner but is entitled to receive whichever of those pensions is the greater.

26. It will be seen that paragraph (a) of sub-section (2) disqualifying the person now described as a ‘partner’ from receiving the pension during a time when he or she is married. In 2001 the following definition of ‘partner’ was inserted in the Act:

partner of a person means the person's spouse or domestic partner

27. This latter amendment was part of a legislative scheme enacted in 2001 to remove discrimination between various forms of relationships in State legislation.

APPLICANT’S CONTENTIONS

28. Mrs Valentine was represented by Mr Richard Wilson of Counsel. He submitted that as a matter of general statutory construction, the Board’s predecessor was wrong in not accepting the 1993 amendments to the State Superannuation Act as reviving from 1993 Mrs Valentine’s spousal pension.
29. That conclusion he submitted was fortified by reference to the terms of the Charter of Human Rights and Responsibilities Act 2006.
30. Mr Wilson referred to Section 74 of the State Superannuation Act which is as follows:
    74. Pensions payable fortnightly

(1) A pension payable to—

(a) a student child may be paid quarterly in arrears; and

(b) any other person, is payable in fortnightly instalments.

(2) The amount of an instalment of a pension covering a period of a fortnight is to be determined by dividing the annual pension by 26.

31. The effect he said was that the superannuation pensions provided for were payable fortnightly and the entitlement to such pension arose on a fortnightly basis. He submitted Mrs Valentine had an immediate entitlement to a spousal pension once the 1993 amendment had taken effect, that is, on and after 30 November 1993.
32. Similarly, he said that the provision in Section 37(2)(a) (now repealed) of the State Superannuation Act denying a spousal pension ‘in respect of any period during which the spouse or partner is married’ was ambulatory. There was no once and for all cancellation or forfeiture which could be regarded as a vested immunity for the Board which would stand undisturbed by the 1993 amendment, rather he said it was a matter of assessing for each fortnightly pension cycle whether the relevant person was entitled to receive the pension.
33. He submitted that drawing the distinction which the Board and its predecessors had between pensioners whose pensions had ceased prior to 30 November 1993 on the one hand and those who remarried thereafter, was unjustifiable under the provision of the Commonwealth Sexual Discrimination Act 1984 which prohibited discrimination based on marital status. The decision of the Commonwealth Human Rights and Equal Opportunity Commission No. H96/140 in Southwell v Victorian Superannuation Board was wrong insofar as it held to the contrary. Section 37 had given Mrs Valentine a vested right to the spousal pension ‘during her life’.
34. He submitted that this construction of the legislation accorded with its natural and ordinary meaning. Further, he submitted that such a construction was consistent with the beneficial purport of the 1993 amendment advancing the purposes of the amendment rather than frustrating or diminishing them. He referred to the judgment of Kirby J in Minister Administering the Crown Land Act v New South Wales Aboriginal Land Council [2008] HCO 48 [3] and [4] and [13] – [50]. The legislation should be read in proper context. He referred to CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 per Brennan CJ, Dawson, Toohey and Gummow JJ. This construction was, he said, consistent with international law, namely the international convention on civil and political rights. He referred to Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 71 per Dawson J and 159 per Gummow J and other authorities. He referred to Section 35 of the Interpretation of Legislation Act 1984 which required a construction of a statute to be adopted which would ‘promote the purpose or object underlying the Act’ in preference to one which ‘would not promote that purpose or object’. He referred to Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22, 38-9 [71] – [80] per Maxwell P and other authorities.
35. He submitted that the entitlements of Mrs Valentine were dependent upon the legislation not dependent upon determinations of the Board or its predecessors hence a concentration on leaving decisions of the previous Board undisturbed was a misconception of the proper function of the Board.
36. He said it was unnecessary to sustain this argument to find anything in the explanatory memorandum or the Second Reading Speech supportive of it. It is the will of Parliament which must be given effect to. He referred to Re Bolton [ex parte] Douglas Beane [1987] HCA 12; (1987) 162 CLR 514.
37. Mr Wilson said the relevant provisions must be construed in accordance with Section 32 of the Charter of Human Rights and Responsibilities Act 2006. According to Mr Wilson the following rights under the Charter were engaged: Section 8(2) the enjoyment of human rights without discrimination; Section 8(3) the right of equality before the law and the right to equal protection without discrimination; Section 14(1) the right to enjoy freedom of thought, conscience and religion and Section 14(2) the right not to be coerced or restrained in one’s freedom to have or adopt a religion. He noted that by virtue of Section 49(1) the Charter extended to and applied to all Acts of the Victorian Parliament ‘whether passed before or after the commencement of Part 2’.
38. In written submissions Mr Wilson referred to the obligations of the respondent Board as a public authority under Section 38 of the Charter. In his oral presentation however he said that these considerations under Section 38 of the Charter could be put to one side pending the determination of the principal issues as to pension entitlement.
39. He submitted it would be inappropriate to consider any restriction in the present circumstances of the rights given by the Charter because he said there had been simply no evidence put on by the respondent as to what might be regarded as any ‘reasonable limits’ which might be imposed in accordance with Section 7(2) of the Charter.
40. As to the right guaranteed by Section 14, sub-sections (1) and (2) of the Charter, namely freedom of thought, conscience, religion and belief, Mr Wilson submitted that the Board’s position imposed a financial penalty upon a person such as the applicant who for religious reasons was resistant to either cohabitation without marriage (‘living in sin’) or some sort of divorce of convenience.
41. Mr Wilson further submitted that:

If (before the coming into force of s.32 of the Charter) s.37 of the State Superannuation Act 1988 (the 1988 Act) on its ‘conventional’ interpretation following its amendment on 30/11/93 meant that the applicant was not entitled to resume receiving a pension (contrary to the applicant’s submission), then the effect of s.32 of the Charter’s that interpretation of s.37 must now be replaced with a human rights compatible interpretation according to the tenants of the interpretative obligation in s.32.

42. He said the task was, in accordance with Section 32 of the Charter, to construe Section 37 of the 1988 Act after its amendment in 1993 in accordance with the provisions of the Charter. He said that the Board’s interpretation of Section 37 discriminated against Mrs Valentine:

On the basis that she is currently married and thereby infringe[s] her human rights protected by the Charter.

43. The discrimination was, he submitted, direct discrimination in that it treated her less favourably than a recipient of a spousal pension who re-married after 30 November 1993. He submitted further that the Board’s position entailed indirect discrimination. The requirement which was being unreasonably imposed on Mrs Valentine was a requirement in some way to dispose of the re-marriage which she contracted before 30 November 1993. According to Mr Wilson:

Whether [Mrs Valentine] re-married on one date or another does not change the fact that [the Board’s interpretation] discriminates against her because of her current marital status. The fact that she has re-married and remains married is the very discriminating factor (prohibited attribute) by which the respondent’s construction denies her a pension entitlement.

44. He referred to the judgment of the High Court of Australia in Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, 544 per Toohey J, 504 per Brennan J (as he then was) and 528 per Deane J. Mr Wilson said there was also a discrimination against his client ‘on the grounds of gender and religious belief and activity (namely the act of having married and remaining married)’. He referred to the judgments of Mason CJ and Brennan J in Street’s case to the effect that discrimination is to be judged by the impact which a law has rather than its general application. He said in the present case the Board’s construction:

Operates unfavourably against people of particular religious beliefs which hold that living together in a relationship outside marriage is inappropriate or forbidden. It also operates in a discriminatory manner against women. It disadvantages women, particularly older women, financially if they have chosen to re-marry when their former husband dies. It reduces a woman’s independent financial means and an independent capacity to contribute financially to the relationship.

45. He referred to the decision of the House of Lords in Mandlo v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548. He submitted that to judge whether discrimination has occurred or not, a comparison must be made of the treatment that would have been to a person without the disability in circumstances that were the same or were not materially different. He referred to Purvis v NSW Department of Education [2003] HCA 62; (2003) 217 CLR 92 [224].
46. He submitted that a non-married woman who decided to live in a permanent relationship with a man but not marry was more favourably treated than the applicant who for religious reasons felt obliged to marry her second husband and alter their marital status to ‘married’.
47. He said the construction urged based on Section 32 of the Charter ‘does not come within the purview of s.14(2) of the Interpretation of Legislation Act 1984’. In any event he said if Section 32 of the Charter changes the meaning of the State Superannuation Act Section 37 as amended in 1993 then this can be regarded as the manifestation of a contrary intention excluding the Section 14 presumption. He submitted that Section 32 can be regarded as changing the past meaning of legislation.
48. He submitted that the construction urged by the applicant was consistent with the explanatory memorandum for the Charter which with respect to Section 32 said:

The object of the sub-clause is to ensure that Courts and Tribunals interpret legislation to give effect to human rights.

49. That the applicant’s interpretation of the State Superannuation Act strains its meaning. He said the applicant’s interpretation is wholly consistent with the purpose of the repeal of paragraph (a) of Section 37(2) of the State Superannuation Act whose repeal was affected to conform Victorian law to the Commonwealth Sex Discrimination Act.
50. Mr Wilson noted that the Board sought to derive support for its position from the 1980 report of the Equal Opportunity Board. He submitted this report should be put aside because it was some 13 years prior to the relevant amending legislation under the State Superannuation Act and also prior to the Commonwealth Sex Discrimination Act 1984 and its amendment in 1991.
51. He traced the legislative history referred to above. He noted that the superannuation legislation in force in 1980 was materially different from the legislation with which we are now concerned. In any event he said the passage from the report relied on by the Board:

Was seeking to justify ... not why a woman should cease to receive her pension on re-marriage but, to the contrary, why it was appropriate on a needs basis that there should be positive discrimination in favour of married members over non-married members entitling them to receive a greater benefit for non-married members.

52. Mr Wilson submitted that the State Superannuation Act should be construed conformably with Section 32 of the Charter as from 30 November 1993 which was proper because the Charter at Section 32 applied as an interpretive device to statutes whether passed before or after the commencement of the Charter. He referred to the transitional provision in the Charter, namely Section 49. According to Mr Wilson it was significant that Section 49 provided that the Charter extended to all Acts whether passed before or after 1 January 2007, namely the date when Part 2 of the Charter came into effect rather than 1 January 2008 when Section 32 itself came into force. He said an interpretation of Section 32 that gave it the broader scope of applications would tend best to ensure that legislation on the Victorian statute was compatible with human rights.
53. Mr Wilson said that cases about the Canadian Charter were of only marginal relevance to the interpretation of the Victorian Charter.
54. Mr Wilson denied that the decision of Kyrou J in State of Victoria v Turner [2009] VSC 66 [2654] – [269] was relevant to the present dispute. He said it was simply a straightforward application of the transitional provision of Section 49 to a proceeding which had gone to determination before commencement of the relevant parts of the Charter. In contrast this proceeding was filed after the commencement of the Charter.
55. Mr Wilson said there was no binding precedent as to the true construction of Section 37 of the State Superannuation Act. This stood in contrast to the situation confronting the Court of Appeal in RJE v Secretary to the Department of Justice [2008] VSCA 265. He noted that Nettle JA in that case determined that Section 32 of the Charter permitted modification of the meaning which legislation once had, relying on the decision of Lord Woolf CJ in Poplar Housing and Regeneration Community Association Limited v Donoghue [2001] EWCA Civ 595; [2002] QB 48 and the approach of Mason NHJ in HKSAR v Wai and Man (unreported Final Court of Appeal of the Hong Kong Special Administrative Region 31 August 2006) [2006] HKCFA 84.
56. Mr Wilson said it was simply a matter of giving Section 37 of the 1988 Act ‘an ordinary meaning compatible with human rights’. There is no need for any process of re-interpretation.
57. Mr Wilson’s written submissions proceeded to advocate what I understand to be a process of re-interpretation involving ‘the well-known techniques of severance, reading in, reading down and striking out’. As I understood Mr Wilson’s oral presentation at the hearing, these contentions were not pursued in light of the decision of the Court of Appeal in R v Moncilovic [2010] VSCA 50; (2010) 265 ALR 751.
58. In further supplementary submissions, Mr Wilson conceded that Section 32 of the Charter would probably not have retrospective operation. He referred to the decision of Bell J in Kracke v Mental Health Review Board [2009] VCAT 646 [340] that it would not apply to the operation of past legislation on past events so as to alter settled legal relations arising from them. He submitted however that Section 32 could be relied upon as being relevant to the interpretation of the Charter after 1 January 2008.
59. Finally, Mr Wilson submitted that the 2009 amendments could not be controlling of the outcome of the present proceeding. He said ‘an Act of Parliament does not alter the law by merely betraying an erroneous opinion of it.’ He referred to Deputy Federal Commissioner of Taxation v Elder’s Trustee and Executor Co Limited [1936] HCA 64; (1936) 57 CLR 610, 625-6 per Dixon, Evatt and McTiernan JJ. He submitted Parliament has no power authoritatively to interpret the law, that function belongs to the judiciary. Bennion Statutory Interpretation A Code (3rd Ed 1997) 542. The 2009 provisions he submitted were purely enabling and did not restrict any rights which Mrs Valentine would otherwise have to a spousal pension for the period 30 November 1993 to 2009.

RESPONDENT’S CONTENTIONS

60. Ms Davidson appeared on behalf of the respondent. She submitted that the repeal of Section 37(2)(a) of the State Superannuation Act 1988 with effect from 30 November 1993 ‘should be construed in accordance with s.14(2) of the Interpretation of Legislation Act 1984’ so as not to affect the previous termination of Mrs Valentine’s pension. She said:

The cancellation of her pension and the corresponding increase in the pension entitlements of her children, took effect in accordance with the section as a permanent state of affairs until such time as a new intervening event (death or divorce from the new partner) occurred.

61. She referred to Section 48 of the State Superannuation Act which she said had the effect of increasing the pension payable to Mr Valentine’s children upon the ceasing of the spousal pension. This increase also constituted a vested right which it was presumed by virtue of Section 14 of the Interpretation of Legislation Act 1994 was not to be disturbed.
62. Ms Davidson submitted that Section 32 of the Charter:

Applies to the Interpretation of statutory provisions from 1 January 2008. This is because s.32 of the Charter only commenced on 1 January 2008. There is nothing in the Charter to indicate s.32 was intended to have retrospective operation.

63. She submitted these matters should be analysed by reference to their history.
64. She noted first, that both State and Federal discrimination legislation at the time of Mrs Valentine’s marriage to Mr Valentine permitted discrimination relative to superannuation and pension schemes. Equal Opportunity Act 1977 Section 30, Sex Discrimination Act 1984 Section 41. She said this situation as far as Victoria was concerned was justified on a needs basis having regard to a report of the Equal Opportunity Board into discrimination and superannuation and pension schemes published in 1980, paragraph [4.4] and [4.6]. The 1993 amendments of the State legislation were required by virtue of 1991 amendments to the Commonwealth Sex Discrimination Act 1984 which removed the broad exemptions for superannuation schemes replacing them with exemptions which depended for their operation on the provision of actuarial evidence.
65. She submitted it would be wrong to use Section 32 of the Charter to give a meaning to the 1993 amendment:

That differed from the interpretation that applied to the applicant in November 1993. Such an approach to the interpretive obligations were recently rejected on the basis that it would give the Charter an impermissible retrospective operation.

66. She referred to State of Victoria v Rebekah Turner [2009] VSC 66 [264] – [269]. She said this accorded with the Human Rights and Equal Opportunity Commission’s determination in Southwell. As to the position from and after 1 January 2008 she said:

The respondent submits [that acceptance of the applicant’s argument] would still mean attaching new consequences to a discrete event which took place before s.32 of the Charter was enacted, namely the applicant’s re-marriage.

67. She referred to Benner v Canada [1997] 1 SCR 358 [40], [44], [54]; Boudieou v New Brunswick (2000) 186 CLR (4th) 570, 576; Bouman v Nova Scotia (Attorney-General) (2001) NSCA 51 [28] and [52].
68. She submitted in any event that even if Section 32 were regarded as governing this situation there was no infringement of human rights based upon the relevant provisions of the State Superannuation Act as construed in accordance with Section 32.
69. She submitted that the word ‘discrimination’ where used in the Charter is defined by reference to what constitutes discrimination under the Equal Opportunity Act, the meaning is not at large, hence she submitted reliance on Street’s case which construed the word discrimination as used in the Commonwealth Constitution at large, was not relevant. She referred to the prohibitions on discrimination in the Equal Opportunity Act and the definition of marital status.
70. She submitted that in choosing a comparator to judge whether there had been discrimination it was necessary to ensure that the comparator mirrored the characteristics of the applicant with the exception of the prohibited attribute. She referred to Hodge v Canada [2004] 3 SCR 357 [23] – [24]; Auton v British Columbia [2004] 3 SCR 657 [53]; Howell v Canada (Attorney-General) [2007] BCCA 314 [47] – [50]. Accordingly she said the Board:

Submits that the appropriate comparator in this matter is a member’s spouse who re-married after the repeal of s.37(2)(a) [that is after 30 November 1993] of the SSA and continued to receive a pension. The respondent further submits that on this analysis, what differentiates the applicant from the comparator is not her marital status or religious belief but the date on which she re-married, which is not a prohibited attribute under the Charter. The date of re-marriage is the point of discrimination which is not a prohibited attribute.

71. She continued:

The other possible comparator is a spouse who did not re-marry and thus did not have his or her pension terminated. However the respondent submits that this comparison invites a retrospective application of the Charter. Such a comparison can only be relevant if applied before the repeal of s.37(2)(a) because after the repeal, there was no distinction in pension entitlements between spouses who re-married and spouses who did not re-marry.

72. In any event she submitted the discrimination was justified under Section 7(2) of the Charter. She said:

The approach to pensions was based on ‘needs’, that is, a deceased member leaves behind dependents. The justification for automatically deeming a spouse to be dependent on a deceased member (and, correspondingly, no longer dependent upon their re-marriage) was the simplicity of the scheme and the practical difficulties of applying one-discriminatory criteria. This approach also needs to be considered in the social context in which the provisions were developed. While such sanctions may no longer be valid in today’s society they were regarded as appropriate by the Equal Opportunity Board in the 1980s. Further discrimination in superannuation schemes placed on marital status remained the subject of exemption under the [Sex Discrimination Act 1984] until 1994.

73. Ms Davidson said that the Victorian Equal Opportunity Board in its 1980 Report at paragraph [4.5] recommended the continuance of discrimination based on marital status in the provision of spousal pensions ‘and the cessation of pensions on re-marriage’.
74. She said the failure in 1993 to reinstate previously ceased pensions:

Should ... be understood in the context of amendments to the SSA in 1988 which closed the pension scheme. The 1988 Act established a lump sum scheme for new members, which applies upon retirement or death before retirement.

75. She said Parliament’s failure to reinstate previously ceased pensions in its 1993 amendments was explicable by reference to the concerns about the gap between liabilities of public sector superannuation schemes and available assets. She referred to the Second Reading Speech of the then Finance Minister, Mr Ian Smith who made the need to close this gap the principal theme of his Second Reading Speech.
76. She said deference should be given to Parliament ‘in addressing discrimination which has been historically justified, but with changes to society has lost its justification’. She referred to M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 WLR 637 and R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681. She submitted that the Tribunal should not read into the legislation a duty to grant benefits where Parliament had chosen not to provide them. She said this would involve going beyond what was permissible under Section 32 of the Charter. She referred to RJE v Secretary to the Department of Justice [2008] VSCA 265 [117].

CONCLUSION

77. Bell J as President of the Tribunal in Kracke v Mental Health Review Board [2009] VCAT 646 considered the question whether Section 32 of the Charter has retrospective effect. After an exhaustive consideration of the text of the Charter and its transitional provision he concluded at [363] that the transitional provision, Section 49:

Makes the special interpretative obligation in s.32(1) retrospective in the sense in that it applies to past legislation. It is one thing to make such an obligation apply to past legislation. It is quite another to make it apply to the operation of past legislation on past events the settled legal relations arising from them.

78. His Honour’s conclusions on these points were undisturbed by the Court of Appeal’s disapproval of part of his reasoning in Momcilovic. I respectfully adopt His Honour’s approach in Kracke for my consideration of this proceeding.
79. As previously explained this proceeding constituted an attempt by Mrs Valentine to recover pension moneys which she says accrued due to her from 30 November to the date of the restoration of her pension under the 2009 superannuation amendment. Section 32 of the Charter came into effect on 1 January 2008. On the basis of the reasoning of Bell J in Kracke Section 32 therefore cannot affect the true construction of the superannuation legislation insofar as it governs Mrs Valentine’s pension entitlements for any period prior to 1 January 2008. The outcome therefore as to the largest part of this proceeding depends crucially upon the proper construction of the relevant legislation in accordance with orthodox principles of statutory construction without any refractive effect which the prism of Section 32 of the Charter might bring about.
80. Precisely how the traditional constructional principles apply to this dispute depends crucially upon characterising Mrs Valentine’s original lifetime entitlement to a spousal pension and characterising the event which deprived her of it upon her re-marriage.
81. Mr Wilson it will be recalled contended that these matters should be viewed in an ambulatory fashion. That is, that Mrs Valentine’s pension entitlements arose for consideration anew in each of the fortnightly cycles which Section 74 of the State Superannuation Act establishes for the purpose of payment of a pension. Mr Wilson offered no analogy; but the one which occurred to me was of a periodic tenancy with Mrs Valentine’s pension entitlements being viewed, if you will, as a fortnightly tenancy liable to be terminated at least under the original form of Section 37(2)(a) of the State Superannuation Act by re-marriage on her part. The learned authors of Commercial Tenancy Law (3rd edition) Bradbrook, Croft and Hay state at [2.7]: 58

A tenancy from year to year, also known as a yearly tenancy, is merely an example of a periodic tenancy. In the case of a periodic tenancy, there is not a new tenancy at the beginning of each recurring period but a tenancy which continues indefinitely until termination:

82. The learned authors then refer to a long list of authorities in support of this characterisation; but a tenancy is not a periodic tenancy merely because the lease stipulates for the payment of the rental in periodical instalments. Indeed, tenancies for fixed terms of years invariably do make such a stipulation. Nor is a tenancy for a term of years converted to a periodic tenancy by the fact that there may be a requirement for the rental to be reviewed to market every 12 months. A five year lease with a provision for a yearly review to market is a lease for a term of five years not a tenancy from year to year or even five yearly tenancies. Similarly, even where a period tenancy in the true sense exists, the authorities referred to by Bradbrook, Croft and Hay, demonstrate that there is but a single tenancy not a multiplicity of tenancies for each relevant period.
83. The true tenancy analogy for Mrs Valentine’s pension rights is a tenancy for life. This is an estate of freehold and therefore not a tenancy which would be considered or dealt with in the standard works on landlord and tenant. Such a tenancy or estate could according to orthodox property law principles be made conditional so as to be rendered void by a condition precedent or determinable, that is, limited to last until some determining event such as re-marriage. It is possible to create a life estate in land which is determinable upon the life tenant’s marriage or re-marriage.
84. Does this analogy break down in the present case by reason of the clear possibility left by the former Section 37(2)(a) that the pension would be restored upon the former spouse being again widowed or having the re-marriage resolved? Obviously a pension entitlement being the right to receive a sum of money is a more flexible entitlement than is a freehold interest in land. In my view however the possibility of restoration described does not change the fundamental character of the spousal pension to which Mrs Valentine (as she later became), became entitled to on the death of the late of Mr Wilmot, namely a lifetime pension subject to suspension during any period of re-marriage. It is a single entitlement not a set of fortnightly rights coming into existence over and over again over a period of years in a regular cycle. That being the case its cessation or suspension by Mrs Valentine’s marriage to Mr Valentine is a single event which occurred on an ascertainable day prior to 30 November 1993.
85. I turn then to the application of section 14(2) of the Interpretation of Legislation Act 1984 which provides, inter alia:

(2) Where an Act or a provision of an Act—

(a) is repealed or amended; or

...

the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears—

(c) revive anything not in force or existing at the time at which the repeal, amendment, expiry, lapsing or ceasing to have effect becomes operative;

(d) affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;

(e) effect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;

(f) affect any penalty, forfeiture or punishment incurred in respect of an offence committed against that Act or provision; or

(g) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as is mentioned in paragraphs (e) and (f)—

...

[emphasis added]

86. Section 37(2)(a) is a provision of the State Superannuation Act which in terms of Section 14(2)(a) has been ‘repealed’. That repeal in accordance with the sub-section would not affect ‘the previous operation [of Section 37(2)(a)] or anything duly done or suffered under that Act or provision’. The provision operated upon Mrs Valentine’s re-marriage to cease her pension during the period of that re-marriage. That cessation is amongst the things that may be described as the previous operation of the provision or things duly done or suffered under it which accordingly remain unaffected, that is, with the pension ceased or suspended. Section 14(2) is not conclusive however, it merely creates a presumption. What if anything could be regarded as a manifestation of a contrary intention in the present legislative history? The only contrary intention urged by Mr Wilson is excluded in the possible operation of Section 14(2) of the Interpretation of Legislation Act was the interpretative provisions of Section 32 of the Charter. As explained previously this can have no effect for any period prior to 1 January 2008 and for the moment I put it to one side. There is independently of Section 14(2) a common law presumption against giving substantive changes to the law retrospective operation. The best known Australian formulation of this rule is to be found in the judgment of Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267. The effect of the common law presumption is considered at some length by Bell J in Kracke’s case at [345] to [357]. It is unnecessary for me to traverse any of the well known authorities and many less well known which are referred to by His Honour. The conclusion that the repeal of Section 37(2)(a) of the State Superannuation Act 1988 was not retrospective might easily have been reached by reliance upon this common law presumption. Section 14(2) however makes the matter quite plain in my view.
87. Mr Wilson complained during his oral presentation that it would be unjust for his client or someone in her situation not to be able to ascertain her legal entitlement to a pension simply by consulting the current text of the statute without undertaking some analysis of the legislative history of the current provision. Ms Davidson correctly observed that this phenomenon and the complication which it imposes on those seeking to ascertain their rights and obligations is quite common. For instance when a new consumer credit code is introduced it governs consumer credit contracts entered into after the new law came into force. Previous contracts which were formed under a different set of rules customarily remain regulated by those rules. These are matters of substantive law. Procedural matters such as the Court or Tribunal in which matters are to be adjudicated are frequently dealt with retrospectively so that a dispute which might under the old law have been dealt with in a Court now under the new law is dealt with in a Tribunal or vice versa. Similarly, when the Retail Leases Act 2003 was enacted in Victoria to replace the Retail Tenancies (Reform) Act 1998 as the statute governing leases of retail premises and disputes between landlords and tenants of those premises, the old Act continued to apply to leases entered into under its terms and the new Act governed leases entered into after its commencement. This is the customary pattern of law reform. It is sometimes colloquially referred to as ‘grandfathering’; but grandfathering does have its limits. So the Retail Leases Act applies to retail premises leases entered into after its commencement but also to those renewed after the commencement of the new Act even although the lease providing the option was entered into before the 2003 Act took affect. Ultimately this type of regime means no more than that once the game has commenced the goal posts must remain in place where they have been erected until the end of the game.
88. It follows that the Charter apart, I accept the respondent Board’s position and reject the position urged by the applicant.
89. Consistently with what Bell J said in Kracke’s case I turn now to consider the situation from 1 January 2008 onwards when Section 32 of the Charter came into force. Section 49(1) of the Charter provides as follows:

(1) This Charter extends and applies to all Acts, whether passed before or after the commencement of Part 2, and to all subordinate instruments, whether made before or after that commencement.

90. Parliament has made clear therefore that the relevant provisions of the Charter do operate with respect to pre-2006 statutes such as the State Superannuation Act 1988. Section 32 provides:
    32. Interpretation

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(3) This section does not affect the validity of—

(a) an Act or provision of an Act that is incompatible with a human right; or

(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

91. Where the Charter applies in accordance with Momcilovic’s case the proper approach is as follows:

Step 1: ascertain the meaning of the relevant provision by applying s.32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984.

Step 2: consider whether, so interpreted, the relevant provision breaches its human rights protected by the Charter.

Step 3: if so, apply s.7(2) of the Charter to determine whether the limit imposed on the right is justified.

92. Does this mean that the 1993 amending legislation which omitted Section 37(2)(a) of the State Superannuation Act 1988 can be regarded as bearing a different meaning as from 1 January 2008 from the meaning which it bore on 31 December 2007? Mr Wilson on behalf of the applicant submitted that it could. He said ‘if you wear a different set of glasses you will necessarily perceive a slightly different scene’. He reminded me of what I had said in Dawson v Transport Accident Commission [2010] VCAT 644. In Dawson’s case counsel for the Transport Accident Commission had submitted that if a statutory provision had acquired a fixed meaning by authoritative judicial decision before the Charter that meaning would persist despite Section 32. In the absence of such an authoritative determination the provision might be given from 2008 onwards a meaning different from the one which it could have had prior to 2008. At [73] I rejected that submission. I said:

I find no support in the Charter or elsewhere for this type of distinction. By enacting Section 32 Parliament has necessarily added a new factor to the equation in interpreting Victorian legislation. There must be a substantial possibility, perhaps even a likelihood, that the introduction of a new factor into the interpretational equation will necessarily modify the ultimate result. I see no reason why the existing authoritative determination by a court pre-Charter can have the effect of ‘freezing’ the operation that Section 32 would otherwise have with respect to the relevant provisions.

93. It would follow therefore that the repeal of Section 37(2)(a) of the State Superannuation Act could after 2008 have a different meaning and consequence than it would have had before. Ms Davidson on behalf of the Board submitted however that in Mrs Valentine’s case the only relevant event bearing upon the operation of these provisions was her re-marriage in September 1990. No relevant event apart from the further statutory amendment in 2009 had occurred after 2008 which would justify any differential treatment from and after 2008 from the one which existed under the ordinary rules of statutory construction from 1993 to 2008. I accept that submission. The cessation of Mrs Valentine’s pension in 1990 is one of the ‘settled relations’ which remain undisturbed by the operation of Section 32 whether one considers that situation by reference to pension payments that she might otherwise have received in 2006 for instance or those which she might have received in 2008.
94. This conclusion would appear to determine the present proceeding entirely in favour of the respondent. Lest the matter go further however, I should say something about what effect Section 32 of the Charter would have had if contrary to what I have said above it could properly be prayed in aid by after 1993 and whether before or after 1 January 2008.
95. The rights upon which principle reliance was placed were those of equality before the law: Section 8 and freedom of thought, conscience, religion and belief: Section 14. Those rights are as follows:
    8. Recognition and equality before the law

(1) Every person has the right to recognition as a person before the law.

(2) Every person has the right to enjoy his or her human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

14. Freedom of thought, conscience, religion and belief

(1) Every person has the right to freedom of thought, conscience, religion and belief, including—

(a) the freedom to have or to adopt a religion or belief of his or her choice; and

(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

96. It will be seen that in a general sense Section 8 prohibits discrimination but specifically authorises what has been described as positive discrimination in favour for instance of groups in society who have been seen to have been the victims of historic discrimination such as the nation’s indigenous people. What constitutes discrimination however is not left at large. Discrimination is defined in Section 3 as follows:

discrimination, in relation to a person, means discrimination (within the meaning of the Equal Opportunity Act 1995) on the basis

of an attribute set out in section 6 of that Act;

Note

Section 6 of the Equal Opportunity Act 1995 lists a number of attributes in respect of which discrimination is prohibited, including age; impairment; political belief or activity; race; religious belief or activity; sex; and sexual orientation

97. The effect then is to call up the prohibitions on discrimination to be found in the Equal Opportunity Act 1995 rather than leave the concept of discrimination to be judged as a matter of general principle. It follows that I generally accept the submission made by Ms Davidson that in considering whether what has occurred here constitutes discrimination as prohibited by Section 14 of the Charter one should be guided at least primarily by what amounts to discrimination under the Equal Opportunity Act rather than by approaching the concept ‘at large’ by reference to authorities such as Street’s case as relied upon by Mr Wilson.
98. The Equal Opportunity Act prohibits two forms of discrimination, namely direct discrimination which is defined in Section 8 and indirect discrimination which is defined in Section 9. Those sections provide as follows:
    8. Direct discrimination

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2) In determining whether a person directly discriminates it is irrelevant—

(a) whether or not that person is aware of the discrimination or considers the treatment less favourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

9. Indirect discrimination

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice—

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(c) that is not reasonable.

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including—

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

99. It will be seen that these concepts of discrimination depend crucially for their meaning and operation upon what matters are to be regarded as ‘attributes’ for the purposes of the Equal Opportunity Act. These are set out in Section 6 of the Act and include as paragraph (e) ‘marital status’. That phrase itself is defined in Section 4 as follows:

marital status means a person's status of being—

(a) single;

(b) married;

(c) a domestic partner;

(d) married but living separately and apart from his or her spouse;

(e) divorced;

(f) widowed;

* * * * *

100. Mr Wilson’s submission is that if the repeal of Section 37(2)(a) has the meaning and effect contended for by the Board then his client would be the victim of direct discrimination. Accordingly Section 32 of the Charter requires the Tribunal to interpret the repeal provisions in a manner which by virtue of Section 32 of the Charter avoids the discrimination prohibited by Section 8 of the Charter. The Board’s view entails prohibited discrimination according to Mr Wilson because his client is deprived of her spousal pension because she is married. Ms Davidson however submits that the point of discrimination is not whether the claimant for a spousal pension is married or not but rather the date upon which that marriage took place, whether before or after 30 November 1993. The date of marriage is not she submits in accordance with the definition of marital status in the Equal Opportunity Act an attribute which it is prohibited to use as the basis for discrimination. I accept Ms Davidson’s submission on that point.
101. Mr Wilson contended also that the Board’s interpretation could be regarded as offensive to the Section 8 entitlement to equality because it entails indirect discrimination. The unreasonable requirement imposed by the Board’s position is the requirement to terminate the applicant’s marriage to Mr Valentine in some way. This cannot be right. Marital status is said to be the attribute based upon which the discrimination has taken place. For indirect discrimination to occur it must be shown that what is being required of the subject is something that the possessor of the relevant attribute cannot do and that the requirement is not reasonable. It may be that there is an argument to be made along these lines for indirect discrimination based on attribute (j) set out in Section 6 of the Equal Opportunity Act namely ‘religious belief or activity’ on the basis that a person of tradition or religious beliefs would be precluded by his or her beliefs from ‘living in sin’ whilst an atheist would not be. This matter was not pursued at the hearing before me and given that the arguments based upon the Charter fail for a different reason it is unnecessary for me to pursue this matter further.
102. An argument to similar effect may be made, namely the provision of a penalty for Mrs Valentine for living in lawful matrimony with Mr Valentine rather than ‘in sin’ is in violation of her religious beliefs based on the right protected by Section 14 of the Charter. The oral argument in this proceeding did not take me to authorities on the scope which this protected right has been accorded in international human rights jurisprudence. In light of the conclusions which I have reached as to the non-operation of Section 32 of the Charter for the purposes of this dispute it is inappropriate therefore for me to say too much beyond noting that there does seem to be some plausibility to the contention that a legal interpretation which would impose a significant financial penalty upon a citizen who adhered to her religious beliefs relative to matrimony could be regarded as a coercion or a restraint in her freedom to have or adopt a religion or belief in practice.

RELIEF

103. For the reasons given I conclude that the respondent’s determination should be affirmed. In light of that conclusion it would seem that the complications as to the form of relief to be granted which I referred to above do not arise. Nevertheless, in deference to the indication that I gave to the parties and to the concern that there may be something which I have missed, I will simply publish these reasons leaving it to the parties to bring in short minutes to give effect to them.

COSTS

104. I have heard no submissions as to costs and so I will reserve them.
     
     

MFM:RB