Austin & Another v The Commonwealth of Australia M10/2001 [2002] HCATrans 411 (22 August 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M10 of 2001

B e t w e e n -

ROBERT PETER AUSTIN

First Plaintiff

KATHRYN ELIZABETH KINGS

Second Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

For directions

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 22 AUGUST 2002, AT 10.33 AM

Copyright in the High Court of Australia

MR M.K. MOSHINSKY: If your Honour pleases, I appear for the plaintiffs. (instructed by Allens Arthur Robinson)

MS M. SLOSS: If your Honour pleases, I appear on behalf of the defendant. (instructed by the Australian Government Solicitor)

HIS HONOUR: Now, there are, I think, four matters I wanted to deal with this morning. Firstly, the question about the masters: as I understand it, the plaintiffs have filed their submissions. Victoria have filed submissions. Is there anything else that needs to be done in that regard at the moment?

MS SLOSS: Your Honour, we do propose to file a response. The plaintiffs have given us a copy of theirs in draft and we will be filing these today as well.

HIS HONOUR: Yes. There is then, I think, nothing further we need to do about that aspect of the matter. Secondly, amendments to the stated case: I have seen - says he, speaking in the past tense - the draft of the amendments that were submitted.

MR MOSHINSKY: Could I hand up another copy, your Honour?

HIS HONOUR: I am turning into one of those Judges that eats paper, Mr Moshinksy, obviously. A great cry, "I don't have one of those" will come from the Bench presently. Yes. Now, is there any reason not to make an order that the case stated be amended in accordance with the proposed amendments, inserting paragraphs 108A and 108B?

MR MOSHINSKY: Not from our part and we would seek an order that the case stated be amended in that form.

HIS HONOUR: Yes. You are content, are you, Ms Sloss?

MS SLOSS: We consent - - -

HIS HONOUR: There will be an order then that the case stated be amended by inserting paragraphs 108A and 108B in the form which I will initial and which may remain on the file. Can we then make provision first for service of those amendments on the interveners? Is there any reason not to direct service of the amendments by, say, close of business next Monday? Is that capable of being done, Mr Moshinsky?

MR MOSHINSKY: That is satisfactory, your Honour.

HIS HONOUR: Yes. Then there will be a direction that copies of the amendments be served on the interveners on or before 4.00 pm Monday next. We will need, I think, then to have an amended form of the case stated filed in sufficient numbers of copies for the Court to have. Again, could that be done by close of business Monday next? Mr Moshinsky, is that capable of being done?

MR MOSHINSKY: Yes, it is, your Honour. Could I just ask whether your Honour had in mind the whole three volumes - - -

HIS HONOUR: Certainly not.

MR MOSHINSKY: Or just the case stated itself?

HIS HONOUR: Look, I think that in order to accommodate the fact that members of the Court may well want to treat them differently, can I trouble you to do it in two forms: one, just the case stated but not the annexures. Can you provide new copies of that in sufficient numbers but, also, can you provide separately a sheet that can be interleaved into the case stated book, given a sequential number in the case stated book, letter A, so that it can be interleaved. That, I think, will be the most likely and best means of dealing with it so that those members of the Court who have annotated the book can preserve those annotations.

MR MOSHINSKY: Yes, certainly, we will do that.

HIS HONOUR: Then do we need - I rather think we do - to provide an opportunity for particularly the interveners to make any further submissions that they would wish to make on matters raised in the amendments to the case stated? What I would propose, subject to anything that counsel may say to the contrary, is that the interveners should have leave to make any further submission in writing that they desire to make in relation to the matters raised by the amendments made to the case stated today by no later than Wednesday, 28 August. Do counsel seek to be heard against that direction?

MR MOSHINSKY: No, your Honour.

HIS HONOUR: The last matter that I wanted to raise before asking you both whether there were other matters that you thought we needed to deal with is this, and the question is necessarily rather diffuse and not one to which I expect an answer today. Of the funds that are said to be constitutionally protected funds, and acknowledging that there are the various construction arguments that have been advanced - I am not seeking to pre-empt those - but, of the funds that are said to be within the ambit of the constitutionally protected funds legislation, do any of those schemes, Acts, arrangements, whatever is the most neutral term, other than those which provide for judicial pensions, provide for non-contributory pensions of the kind payable to judges?

Now, I suspect but do not know that the answer to that is, "Yes, governors' pensions or Governor-General pensions will likely be of that class." That is something that we will want to know on resumption but no less significantly, perhaps more significantly, when you go to the list of Acts you find Acts, the titles of which suggest that they could possibly deal with a wide range not only of officeholders but of persons employed by State governments. Under those arrangements, is there any provision made for non-contributory pensions of the kind payable to judges? Or is there any other form of unfunded, as distinct from under funded - is there any other form of unfunded retirement benefit? Now, if there are, then what are the relevant provisions of the relevant Acts and to whom are these benefits to be provided?

Can I just stay a moment to amplify what I have said a little? On one view, judges are officeholders, having a particular place in the constitutional arrangements of a State, governors, the Governor-General would also be an officeholder having a particular place in the constitutional arrangements of a State, in the case of governors. It may be, I simply do not know, that if there were broadly similar pension arrangements, that is pensions provided for on retirement either by effluxion of time or ill heath or death charged on the consolidated fund of the State, that such arrangements, if they exist, would likely be confined in their operation to persons holding a particular office or level of office within the governmental structures of the State.

But there are all sorts of assumptions that are made in that kind of statement. It seems to me, at least - and I speak only for myself in this regard - that it would therefore be of value if we knew whether under the identified legislation there were similar provisions made for some and what persons. That involves us knowing what the Acts are, what the provisions are and who they are made for.

So that is a question which it would be useful if you would take on notice. It may be - and I give you no direction about this - that you would find it useful to commit the results to writing. It may well be also that it would be useful if these are not matters which are capable of controversy - and what I am inviting is close reading of a set of Acts of Parliament - that the parties exchange the results of their inquiries and come to, if not a common view, at least an uncontested view about what this reveals.

It is obviously going to be inconvenient for us all if some side war breaks out about this in the course of the hearing on 1 September. So I give you no direction about it, but counsel have, I am sure, at last discovered the telephone and the capacity to speak one to another.

Now, allied with that and perhaps even more amorphous than the set of questions earlier identified is this: recent research has thrown up the fact, no doubt known to everybody in the world save some, that the Productivity Commission inquired into the Superannuation (Industry) Supervision Act and other superannuation legislation and it made a report in December 2001. It is a report which, amongst other things, considers exemption of public sector superannuation schemes from the operation of the SIS Act and matters of that kind.

I am aware of the fact that it is an inquiry report. I am aware of the fact that soon after its release the Minister for Finance issued a press release which, at the risk of undue abbreviation, might be understood as saying, "The government has received the report. It does not endorse everything that appears in it and in some respects it positively disagrees with what appears in it." So these are matters in the moils and toils of government and likely to remain so, I suspect, for some time. But in that Productivity Commission report there are such things as a table about public sector superannuation schemes - I refer to table 6.1 appearing at page 132 of the report - setting out schemes that are subject to the SIS legislation, schemes for judges, governors and parliamentarians, other schemes which are exempt schemes and matters of that kind.

Now, I am not conscious at the moment of any need for us to have resort to that kind of data, but it is out there, someone else will find it; the parties should, I think, at least have turned their minds to whether that is something which the Court should be told, "Look, there it is but you must ignore it", or, "There it is; it is all irrelevant", or, "There it is; it is a goldmine of factual information which the parties are in heated agreement about and which you should clutch firmly to the heart, read, learn and inwardly digest". I do not quite expect to hear the last, but you never know.

So if the parties would at least give some thought to what is to be done about it, it may be that the answer is: it is not in the case stated; ignore it. If that is it, so be it. Now, the reason that I mention that review of the SIS Act is that on one view the issues in this case, particularly the Melbourne Corporation issues, require consideration of the way in which the integers of the Federation relate one to another.

In this area it may be said that questions of overall economic policy affect what has been done, what can be done. In particular, does the constitutionally protected funds legislation in some way impinge upon the way in which the States make their constitutional arrangements in respect of officeholders like judges, perhaps like governors, perhaps - I do not know - like other senior echelons of the public service? If it does, does that matter? Does that say anything to any question about Melbourne Corporation?

Now, those issues all swirl around. It would be useful if the parties had examined them, thought about them and offered whatever views or submissions were thought appropriate, even at the level of saying, "This is all utterly irrelevant to any issue that falls for determination in the case." That is as important as some less wide-ranging submission. There we are. Now, I have spoken a lot. What do counsel want to raise? Mr Moshinsky?

MR MOSHINSKY: Your Honour, in relation to the fourth point, which was the additional material regarding the other funds that are covered by the list of constitutionally protected funds, we will endeavour to collate that information and provide it to the defendant before we return.

HIS HONOUR: Yes. Now, time is pressing on us, is it not?

MR MOSHINSKY: Yes, certainly.

HIS HONOUR: As I say, I give you no directions about it, but I do not want this born in the vestry. If it is born in the vestry, it will be wrong and I do want both sides to have had a time to think about it and digest it. As I say, in the end it may not matter a jot, but if it is born in the vestry, Murphy's Law dictates it becomes a point of great significance.

MR MOSHINSKY: Yes. There is no other matter that I wish to raise.

HIS HONOUR: Yes, thank you, Mr Moshinsky. Yes, Ms Sloss?

MS SLOSS: Your Honour, if I might raise just a couple of matters picking up on the point Mr Moshinsky's just been dealing with. Your Honour raises a question whether under those arrangements there were any non-contributory pensions and I would just wish to clarify whether you mean non-contributory in the sense of no employee contribution or no - - -

HIS HONOUR: What I am trying to understand, Ms Sloss, and therefore my answer to you is regrettably diffuse. The question is valid. The answer is not, but forgive the answer. What I want to know, I think, is this: is it only the judges - query, and the governors - who, under the legislation that is listed, have the benefit of a pension charged on the consolidated fund to which they do not contribute and in respect of which government does not set aside an amount as holding of the office progresses, save for any recognition that occurs in accounts. I understand the recognition in the accounts point. We will not go down that path. But the question can be stated very simply: is there anyone else other than the judges who have that kind of pension arrangement?

MS SLOSS: So your Honour is looking to pensions that are charged entirely on consolidated revenue?

HIS HONOUR: Without contribution by the officeholder, or employee in case of employees, and charged on the consolidated fund without there having been set aside a bag of gold by employer in the course of holding the office. That is the comparison I am looking for.

MS SLOSS: Yes, that is right because - - -

HIS HONOUR: Now, if in the course of doing the work either side concludes, "Look, yes, I can answer that question but really the question is misfiring. What you ought to be looking at is that there is a relevant class or group to which comparison can be made, namely class or group having these characteristics", point it out by all means. Do not feel constrained by the question. Feel free to challenge the validity of the question.

MS SLOSS: My recollection is that solicitors-general, DPPs, deputy DPPs, governors and judges and masters fit into that category, but we will obviously liaise with my learned friends in their document. My recollection also is that Mr Selway for South Australia, Solicitor-General, prepared a document which I think went through the funds that were constitutionally protected and gave some indication of the nature of that fund, because in that context he referred to the Tasmanian fund for the judges which was contributory.

HIS HONOUR: The Contributory Pensions Act under Tasmania.

MS SLOSS: And I recollect there was a table.

HIS HONOUR: Yes.

MS SLOSS: Yes, and I reminded that one of the annexures to our submission also had something about the nature of those funds, but we can liaise with our friends and the document can be prepared.

HIS HONOUR: Yes. Look, if in the end you say, "If you had read the papers, you would have seen from paragraph X", so be it. It is the information that is critical.

MS SLOSS: The second comment is perhaps really for the assistance of the interveners and I wonder if, when my learned friend sends off material to them, they might indicate that they should look at the transcript of today's hearing because the comments your Honour has made might necessitate their attendance, if they were not intending to appear on the next occasion for some reason, because the points your Honour has raised now in the context of the Productivity Commission report would be an area where the States might well want to make some comment and it could be drawn to their attention.

HIS HONOUR: By all means let that be done.

MS SLOSS: Your Honour, the third thing is that you will recall when we interrupted the hearing on the last occasion Chief Justice Gleeson asked the Commonwealth to file submissions on the effect of the cap, section 15(6) and your Honour was also amenable to that. Those will be filed today along with out submissions on section 7 and judge of the court. There has been some correspondence from Mr Selway about the status of objections to section 12 superannuation providers statements which my learned friends will have seen and we will respond to the questions he has raised to us in that submission also.

HIS HONOUR: Yes. That is a set of issues of which I am not presently conscious. Do I need to be for the moment?

MS SLOSS: No, you do not need to be, your Honour. I am just foreshadowing that the documents filed today will cover more than the Chief Justice alluded to on the last occasion. The document we file will also deal with the amendments to the case stated that have been made today to clarify our position in respect of the two paragraphs that have gone in and there will be, I hope, a short statement clarifying the tax treatment of the various funds which Mr Bennett handed up a document on the last occasion which was a simple summary and there was what I might say a battery of questions about the taxation treatment of certain of those funds and I think we would want to clarify the correct position in case some of those answers might be misconstrued.

HIS HONOUR: Yes.

MS SLOSS: So hopefully that document will be filed today. If, by chance, it is not possible to have the tax treatment corrected by today, we might have to follow that with a supplementary document, but we are really doing it for the convenience of the parties - - -

HIS HONOUR: So long as these things can be in, I think, by tomorrow.

MS SLOSS: Yes, that would be - - -

HIS HONOUR: It is simply that the September sittings are extraordinarily heavy.

MS SLOSS: Yes, your Honour, and we are filing it so that parties have had an opportunity to consider everything before we turn up on the next occasion.

HIS HONOUR: Yes, thank you.

MS SLOSS: So it is possible that one part of the document will not be ready today, in which case it will be filed tomorrow.

HIS HONOUR: By all means, yes.

MS SLOSS: If your Honour pleases.

HIS HONOUR: Well, if the costs of today are made costs in the cause and if I certify for counsel, is there anything further I need to do?

MR MOSHINSKY: No, your Honour.

HIS HONOUR: Thank you for your attendance today.

AT 11.01 AM THE MATTER WAS CONCLUDED