Griffiths v The Trustee of the Parliamentary Contributory Superannuation Fund [2012] HCATrans 363 (14 December 2012)

Last Updated: 21 January 2013

[2012] HCATrans 363

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S234 of 2012

B e t w e e n -

DIANE MAREE GRIFFITHS

Applicant

and

THE TRUSTEE OF THE PARLIAMENTARY CONTRIBUTORY SUPERANNUATION FUND

Respondent

Application for special leave to appeal

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2012, AT 2.02 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: If your Honours please, I appear with my learned friend, MR A.L. TOKLEY, SC, for the applicant. (instructed by Indemnity Legal Pty Ltd)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR M.A. IZZO, for the respondent. (instructed by Crown Solicitor (NSW))

KIEFEL J: Yes, Mr Bennett.

MR BENNETT: If the Court pleases. Your Honours, prior to this week there were two lines of authority in relation to statutory interpretation. One stressed the importance of purpose of construction and the need where necessary to depart from strict literal construction to achieve it. That line included statements in Project Blue Sky and a number of statements by Justice McHugh, particularly in Newcastle Council v GIO. The other line stressed the need for the courts to apply the literal words and not make the law for Parliament, and that included particularly a statement by Chief Justice Spigelman in R v Young.

In the present case, both the trial judge and the Court of Appeal applied the latter approach. This Court handed down three decisions on the topic this week: Lloyds Underwriters v Cross, New South Wales v Willliamson and Newcrest v Thornton. The first of those cases makes it clear that in particular cases one or other of the approaches might be correct. I will just hand your Honours copies of that case. I am sure your Honours are familiar with it. I will not spend a lot of time on this, but just by way of illustration, the Chief Justice and Justice Hayne at paragraph 25 cited the familiar passage from Project Blue Sky that:

Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

There are other statements which are referred to. Justices Crennan and Bell in paragraph 68 cited the same passage and then referred to the statement in Bennion on statute law, pointing out that:

there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways -

et cetera. Now, your Honour Justice Kiefel in paragraph 88 referred to the “fundamental object” being:

to ascertain legislative intention, understood as the intention that the courts will impute to the legislature by a process of construction, by reference to the language of the statute viewed as a whole. The starting point for this process of construction is the words of the provision in question read in the context of the statute. Context is also spoken of in a broader sense as including the general purpose –

and so on.

KIEFEL J: Are you able to point to anything contextually for the purposes of the construction of section 23(1)?

MR BENNETT: Not specifically, no, your Honour, but the - - -

KIEFEL J: Your argument is really dependent upon a perceived purpose, is it not?

MR BENNETT: Yes, your Honour, a little more than that. We have second reading speeches and we have the legislative history and we have the mistake made by the parliamentary draftsmen which can be demonstrated as clearly as it could in Cooper Brookes (Wollongong), and I will come to that in a moment. The point we make more generally is this, that in none of the three cases this week did the Court find that the circumstances justified a departure from literalism and in none did it identify the precise circumstances in which such a departure is appropriate, and this case is a convenient vehicle to take that step.

It involves a simple error by a draftsman which has led to total absurdity, as I will demonstrate in a moment – and I do not mean on the facts of this case - in a case where all the extrinsic materials point to the correctness of the construction for which I contend. Now, your Honour, the section appears on page 32 of the application book and that is a convenient starting point, at the top of the page. Your Honours see it provides that:

On the death of a former member who immediately before his or her death was receiving, or was entitled to receive, a pension under this Part, the spouse or de facto partner (not being a person who became the spouse or de facto partner of the former member after the former member became entitled to that pension) –

i.e., after the member left Parliament –

of the former member shall be entitled to an annual pension –

So those are the words we have to construe. My submission is that the words “who became the spouse or de facto partner of the former member after the former member became entitled” mean being a person who was the spouse or de facto partner while the person was a member. What is interesting is that every time a speaker in Parliament has referred to the provision he has construed it that way. The Goodsell report in a number of places construed it that way. The former provision which contained similar words was referred to in the second reading speech as having the meaning for which I contend. So everyone says that is the meaning.

The contrary view, which has been adopted below, is capable of producing total absurdity, and may I just illustrate that? Your Honours will see that the trial judge at page 21, paragraph 42, made this surprising statement:

I do not think that one of the purposes of the Act as originally enacted was to provide a parliamentary pension for widows of retired members. Rather, it was one of its purposes to provide a pension to widows who had not married the member of parliament after he had retired.

Now, when one looks at that as a statement of intention it leads, as I have just submitted, to absurdity. Let me give this example? Suppose one has a member who throughout his or her parliamentary career has a de facto partner. The member retires and the de facto partner survives that member. There is no doubt that de facto partner is then entitled to the pension, having been the de facto partner during the career and being the de facto partner at the time of death. Now suppose that after the member leaves Parliament they decide to cement the relationship by marriage and they marry each other. On the construction adopted below, and contended for by our learned friends, that marriage results in a forfeiture of the pension.

KIEFEL J: There might be a stronger argument there contextually by the reference to the de facto partner. It is already there, there having been a de facto relationship before the retirement. It is available from the words of the section itself.

MR BENNETT: Well, in the light of the way it was interpreted below, that is not really open, your Honour, because the courts have construed the words “not being a person who became the spouse” – and in this case it is “spouse” that is relevant because at death the person is the spouse – “after the former member became entitled”. If you apply the test referred to by the trial judge at page 21, it is to provide for widows who had not married him after he retired.

KIEFEL J: It is probably more correct to say that the purpose of the section is to provide for persons who have been a spouse or de facto during the time that the Member of Parliament was a Member of Parliament.

MR BENNETT: Your Honour, that is my case and that is all my case is. It is as simple as that. The example I have just given of the de facto relationship where there is a marriage after the member leaves Parliament is so absurd that no rational legislator could for a moment have contemplated that result.

KIEFEL J: Well, the problem is they may not have contemplated that situation at all, so when you are attributing intention – I suppose subjective intention which is not appropriate in any event – the difficulty is there is nothing from the language or contextually to assist you. You place greater reliance on the extrinsic materials, do you not?

MR BENNETT: Yes, I do, your Honour, but the extrinsic material makes it clear what everyone has always thought the words meant, and what they were obviously intended to mean. They were a negative way of expressing something that could better have been expressed positively. If they had simply said “being a person who was a spouse or de facto partner while the person was a member” it would have clearly set out what they intended, but some draftsmen decided that it was neater to put it in the negative, and that negative created a meaning quite different to that which Parliament obviously intended.

One can give other examples of the problem. Suppose one has a de facto partnership where after the member leaves Parliament there is a short gap in the de facto relationship, something which is reasonably common in de facto relationships. Does that mean that when they get back together the partner becomes a person who became the partner after? Of course, that provision is parallel with the provision about marriage and again, in my respectful submission, one just could not rationally construe it that way.

I will just show your Honours the passages where Parliament makes clear what it means. On page 18 of the application book your Honours will see the 1946 Act, the predecessor to this Act, and the proviso follows subsection (4) – it was only males then:

Provided that where a male person who is in receipt of a pension . . . marries whilst he is in receipt of that pension his widow shall not be entitled –

So that is basically the same provision. In the second reading speech Mr Baddeley, the then Deputy Premier, at the top of that page explains what that means. He says:

A pension of £3 a week will be payable to the widow of a pensioner, provided she was married to him before he became a pensioner –

It is very clear. Now, if one goes to the Goodsell report - your Honours are probably familiar with the Goodsell report argument, but the argument is clearly set out at pages 36 to 37 in paragraph 18. Your Honours see that:

As appears from the Second Reading Speech for the Parliamentary Contributory Superannuation Bill, its purpose was to implement the recommendations relating to superannuation contained in the Report by the Committee of Inquiry . . . chaired by Sir John Goodsell . . . That report recommended that a contributory superannuation scheme be established . . . “similar to that now operating in Victoria”. A summary of the main provisions of the various State parliamentary superannuation schemes as then current was attached to the Report . . . under the heading “Benefits – Widows and Children”, a statement that the conditions applicable to a widow’s pension in the schemes then current in New South Wales –

That is the 1946 Act –

and Victoria included that: “The widow must have been married to the deceased at the time he ceased to be a member”.

Well, exactly, except that what the Victorian Act said was in the following paragraph, like the New South Wales Act, the Victorian Act:

defined a “widow” . . . as not including “a woman who married a former member after he had finally ceased to be a member”.

So again the Goodsell report said what gave my interpretation to the Victorian Act and then said you should adopt the Victorian Act. The mistake made by the parliamentary draftsman was to go to the Victorian Act itself instead of to what Sir John Goodsell said it said, which was what was before Parliament, and so they put in the version which gave rise to the current ambiguity.

So, on the basis of that we say that, as in Cooper Brookes, this is a case where one can identify exactly how Parliament made the mistake; one can see exactly what happened. If one looks at the second reading speech for a subsequent amendment in 2002 at pages 18 to 19, your Honours will see at the bottom of the page – this is in fairness, of course, a second reading speech talking about the Act as it existed prior to the amendment – but nevertheless in relation to the current provision the second reading speech said, leaving out the first sentence:

Currently, spouse pensions can only be paid if the relationship commenced before the member’s retirement.

What we say it means. Everyone says that is what it means, except the trial judge in the Court of Appeal.

Now, finally, the matter is important for a number of reasons. There are a number of cases which talk about the importance of parliamentary pensions as a matter of inducing desirable people to enter Parliament and so on. The importance of pensions and so on for public office has been considered in cases like Austin and your Honours are no doubt familiar with that. The Victorian and Queensland legislation both contain the offending provision here, so it is going to apply to at least three States – the three most populous States.

Your Honours, in my submission, this is one of those rare cases where it is absolutely clear what Parliament intended. They have said it and it is obvious from the context. There are remarks in various of the second reading speeches referred to in the judgments about the importance of the work member’s wives do for them – in those days it was all wives, not de factos or husbands. Clearly, what was in mind was that people who are spouses or partners of Members of Parliament necessarily do certain things for them and for the community while they are there, and it is desirable that they be rewarded in some way.

The reason for the exclusion is to prevent what one might call the Johnny-come-lately, the person who arrives on the scene after the member leaves Parliament and that person is regarded as less worthy of a pension. But that purpose, the purpose of the exclusion, is not achieved, indeed, it is subverted by saying, as long as there is a marriage or a coming together after the member leaves Parliament, it does not matter what the situation was while the person was a member. So as I say, the example - - -

KIEFEL J: Mr Bennett, you speak of the principles of statutory construction in relation to purpose and textual approaches if they run in parallel, but a found purpose must nevertheless be able to be represented by the words, the text of the section; that is the difficulty, is it not?

MR BENNETT: Yes, your Honour, except that - - -

KIEFEL J: The sad situation here is it would appear that this particular situation is just not dealt with and provided for by the terms of the section.

MR BENNETT: Well, only if read very literally, your Honour. If one looks at things like the statement of Justice McHugh in the famous passage in Newcastle Council v Government Insurance Office, he says:

If the target of a legislative provision is clear, the court’s duty is to ensure that it is hit rather than to record that it has been missed. As a result, on rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose -

and so on. In my respectful submission, it is not a very strained purpose to read the words “not being a person who married or commenced a relationship after the member left Parliament” as meaning that the relationship or marriage must have existed while the member was a Member of Parliament.

I draw in aid of that all those second reading and other speeches where people have thought that is what these words mean. Sir John Goodsell thought that was what these words meant and common sense would dictate that because while one can accept that the present case is an unusual one of a couple who divorce and then remarry each other, there is nothing unusual about the example I have given – the two examples I have given: the example of the de facto couple who are de facto partners throughout the parliamentary term and then decide after the parliamentary term to cement the relationship by marriage, yet that marriage becomes a disqualification.

KIEFEL J: I see the light is on, Mr Bennett.

MR BENNETT: Yes. Well, your Honour, I repeat my submission that that is so absurd that it cannot be right. May it please the Court.

KIEFEL J: Thank you, Mr Bennett. We need not trouble you, Mr Solicitor.

This application raises no question of principle concerning statutory construction. There is no reason to doubt the construction of section 23(1) of the Parliamentary Contributory Superannuation Act 1971 (NSW) adopted by the Court of Appeal. The application for special leave is refused with costs.

MR BENNETT: Your Honour, in relation to costs, may I just say this. This is a case where there is, on any view of it, an ambiguously drafted provision which is inconsistent with the second reading speeches and so on. The respondent is an instrumentality of the State and the State – indeed of the Parliament and it is the Parliament which drafted it. Your Honours might well, in those circumstances, consider it appropriate to make no order as to costs.

KIEFEL J: Mr Solicitor, do you press for an order for costs?

MR SEXTON: We do. Six judges now have looked at this provision and held that there is no ambiguity about it. We think that there should be – the costs follow the normal course.

KIEFEL J: Yes, in that circumstance there will be an order for costs.

MR BENNETT: If the Court pleases.

AT 2.24 PM THE MATTER WAS CONCLUDED