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[2002] AATA 1253
respondent. The Tribunal affirms the decision under review (decision delivered 6 December 2002 by Mr B J McCabe, Member) (opening Decision and para 29).
The Tribunal held that Mr Robert Nolan, the long-term same-sex partner of deceased veteran Geoffrey Wardrop, did not qualify for a pension under the Veterans' Entitlements Act 1986 because the Act's definitions require a surviving partner to be of the opposite sex (see s 5E and s 11). Although this requirement is discriminatory under the Sex Discrimination Act 1984, the Tribunal concluded that the SDA does not displace the specific VEA provisions and that the Tribunal cannot invalidate legislation. The 1995 SDA preamble does not amount to repeal of the VEA. The Tribunal therefore affirmed the decision refusing the pension.
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1,775 words · generated 10/09/2026
Robert J Nolan applied for a pension under s 14 of the Veterans' Entitlements Act 1986 (VEA) as a dependant of the late veteran Geoffrey Wardrop, who died on 27 June 2001 (para 1). Nolan and Wardrop had lived together as a long-term, stable couple for about 25 years, sharing finances and being recognised by the community as a couple (para 4). The Repatriation Commission refused Nolan's application on the basis that the VEA, by its definitions, required a surviving partner to be of the opposite sex; the Veterans' Review Board affirmed that refusal (paras 2, 4). Nolan sought review in the Administrative Appeals Tribunal (AAT). The Tribunal (Mr B J McCabe, Member) heard Nolan in person and the Commission was represented by counsel (para 3). The Tribunal affirmed the decision under review and dismissed Nolan's claim (Decision and para 29).
3 cited instruments linked from this judgment.
Three statutory materials dominated the dispute: the VEA (particularly the definitions in s 5E and s 11 as they relate to 'dependent', 'widower', and 'member of a couple'), the Sex Discrimination Act 1984 (SDA) (particularly ss 5 and 6, and the 1995 insertion of a preamble), and the Administrative Appeals Tribunal Act 1975 as it bears on procedure (paras 3, 7-12, 13-15, 22). The Tribunal accepted the factual picture painted by the Veterans' Review Board, but the real contest was legal: whether the VEA must yield to the SDA (paras 4-6, 13-17).
The Tribunal's reasoning hinges on statutory text, legislative intention, and limits on the Tribunal's remedial power.
Textual application of the VEA: The Tribunal read the VEA's definitions literally. 'Widower' is defined in s 5E(1) as a man who was the partner of a woman immediately before she died; s 5E(2)(b)(i) defines an unmarried 'member of a couple' as a person living with a person of the opposite sex (paras 7-12). Given Nolan was the same-sex partner of Wardrop, he did not fall within those express, gendered definitions (paras 9-12).
Interaction with the SDA: The Tribunal accepted Nolan's argument that the VEA's requirement is discriminatory as defined by s 5 of the SDA (para 17). But the Tribunal held that the SDA does not automatically displace the VEA. The Tribunal relied on general rules of statutory construction: later statutes may prevail over earlier ones, but implied repeal of an earlier specific statute by a later general statute requires strong grounds and will not be presumed when both can sensibly operate (paras 18, 23). The Tribunal considered the parliamentary history and explanatory memorandum associated with the VEA amendments, which indicated an intentional, specific legislative scheme for dependants of veterans (para 20). The Human Rights and Equal Opportunity Commission had reached a similar view in Ward and Repatriation Commission (para 21).
Role of the SDA preamble: Nolan argued the 1995 insertion of an equality preamble into the SDA effectively refreshed the SDA as if it were passed after the VEA, possibly supporting implied repeal. The Tribunal rejected that position. It explained that a preamble is an interpretive aid only to help resolve ambiguity in the Act that contains it (citing Wacando), and cannot be used to imply repeal of another statute; if Parliament intended such substantive change, it would have enacted an amending statute (para 24).
Institutional limits: The Tribunal emphasised it was not a Chapter III court and cannot declare legislation invalid; it must apply the law as enacted (citing Re Adams) (para 16). Thus, even if the VEA seems discriminatory, the Tribunal lacked power to strike it down and had to apply the clear statutory terms that excluded same-sex partners (paras 16, 28).
The Tribunal therefore concluded the clear wording of the VEA precluded Nolan from qualifying as a widower or qualifying partner, and the SDA did not displace that result; it affirmed the decision refusing the pension (paras 9-12, 17, 24, 28-29).
Before this decision, the legal framework comprised:
After the AAT decision, the practical legal effect is consistent: the VEA's explicit, sexed eligibility criteria will continue to be applied by administrative decision-makers unless and until Parliament amends the VEA. The Tribunal affirmed the line of authority that specific legislative provisions for veterans can stand even when they conflict with the SDA's general anti-discrimination purpose, absent express repeal or amendment (paras 20-24).
Para 9 (quotation of s 5E(1)): The Tribunal reproduces the statutory text that defines 'widower' as necessarily involving opposite-sex partnership. Plain English: the law explicitly contemplates only opposite-sex surviving partners as 'widowers'.
Para 11 (quotation of s 5E(2)): The de facto partnership test requires living with a person 'of the opposite sex'. Plain English: the statute's test for a non-marital partner turns explicitly on sex; same-sex cohabitants are excluded by the wording.
Para 17: "I accept ... is discriminatory ... But that does not mean the provisions of the VEA give way to the SDA." Plain English: even if the VEA treats people differently because of sex (which looks like discrimination under the SDA), that does not automatically make the VEA invalid or inapplicable.
Para 23 (citing Saraswati): Strong presumption against implied repeal of an earlier specific provision by a later general provision. Plain English: you cannot assume a later, general law quietly cancels a specific earlier law unless it is absolutely necessary to read them together otherwise.
Para 24: Preamble is only an interpretive aid to the Act that contains it; it does not repeal another law. Plain English: a statement of principle in a law's preamble cannot be used to override a different law; real legislative change requires an amending act.
Para 28: Tribunal's expression of sympathy but recognition it must apply the text. Plain English: the Tribunal finds the outcome unfair but is bound to apply the law as written.
This decision is directly engaged where:
In these fact patterns, this AAT decision illustrates that an administrative decision-maker will likely apply the specific statute's text where it is clear and not implicitly repealed, and will treat preambles as limited interpretive aids.
Within the judgment the Tribunal references other decision-makers and authorities:
This AAT decision follows the established pattern of treating specific statutory schemes as prevailing until Parliament amends them, and of treating preambles and general anti-discrimination statutes as insufficient to imply repeal of a specific legislative scheme.
Parliamentary response and legislative amendment: The Tribunal repeatedly notes that a legislative change would be required to alter the outcome (para 24, para 28). The decision leaves unresolved the policy question and places the remedy squarely with Parliament. The timing and form of any amendment are outside the Tribunal's remit.
Role of judicial review: The Tribunal emphasised it cannot declare statutes invalid (para 16). Whether a Chapter III court would adopt a different course, for example through constitutional reasoning or a different application of discrimination law principles in a judicial rather than administrative forum, is not resolved by this AAT decision.
Interaction with later legislative amendments or different drafting: The Tribunal's analysis relies on the text of the VEA and the state of the SDA as at the time. If Parliament were to amend the SDA, the VEA, or both, or if different statutory language were enacted, the outcome could differ. The precise textual threshold for finding an implied repeal remains fact- and text-specific, governed by Saraswati (para 23), but the Tribunal's decision does not outline the exact contours of 'very strong grounds' needed.
International law influence: The Tribunal observed that treaties might inform interpretation but would not displace clear statutory language (paras 26-27). The extent to which unincorporated treaty obligations might affect judicial interpretation in a Chapter III court, or legislative willingness to follow international norms, remains a distinct and open avenue.
Broader discrimination doctrines: The Tribunal applied a constructional approach, not a purposive override of statutory text, and did not engage in a constitutional discrimination challenge. How the decision interacts with potential constitutional equality claims (if any were available) was not addressed.
This AAT decision is a thorough application of classic statutory interpretation rules to a sensitive area of discrimination law: it makes clear the dividing line between textual statutory application by administrative decision-makers and the role of Parliament in effecting substantive reform.
Disclaimer: This is a structured summary and analysis of the Tribunal's decision in Nolan (Butler v Attorney-General context as cited). It is legal information only, not legal advice. I can make mistakes. Before you rely on this analysis or take any action, seek a qualified Australian lawyer to check it.
DECISION AND REASONS FOR DECISION [2002] AATA 1253
Decision The Tribunal affirms the decision under review.
VETERANS' AFFAIRS - widows pension - entitlement - whether member of a same-sex couple entitled to receive widows pension - effect of Sex Discrimination Act 1984
Re Adams and the Tax Agents' Board (1976) 12 ALR 239
Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268
Ward and Repatriation Commission [1997] HREOCA 19
Saraswati v R [1991] HCA 21; (1991) 172 CLR 1
Wacando v Commonwealth [1981] HCA 60; (1981) 37 ALR 317
Minister for Immigration and Ethnic Affairs v Teoh [1973] HCA 31; (1995) 128 CLR 353
1. The applicant, Mr Robert Nolan, applied for a pension pursuant to s 14 of the Veterans' Entitlements Act 1986. Mr Nolan claimed he was the widower of Geoffrey Wardrop, a veteran who had died on 27 June 2001. Mr Nolan and Mr Wardrop had been partners in a domestic relationship for many years.
2. The Repatriation Commission rejected the application because the legislation says, in effect, that a member of a same-sex couple was not eligible to receive a pension. The Veterans' Review Board affirmed the decision, and Mr Nolan has come to the Tribunal.
3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The hearing was held in Southport. Mr Nolan appeared in person. He said he had approached a number of lawyers asking for their help in relation to this important case on a pro bono basis, but no one would help him. Mr Nolan provided the Tribunal with some written submissions. The respondent was represented by Mr Kelly.
4. The Veterans' Review Board summarised the facts in its determination of 20 February 2002. The Board noted Mr Nolan's evidence that he had lived in a stable long-term relationship with the late veteran for about 25 years. They shared their finances, were committed to each other and were recognised as a couple by the wider community. Mr Nolan's representative at the hearing before the Board submitted the relationship between Mr Nolan and the late veteran exhibited all the characteristics that s 11A says one would expect of a "marriage like relationship".
5. Mr Kelly said the respondent did not dispute that if Mr Nolan had been a female involved with a male veteran, he would certainly qualify for a pension. In those circumstances, it is unnecessary for me to dwell on the facts, and I accept for the purposes of the review that the statement set out in the Veterans' Review Board decision accurately describes the relationship between Mr Nolan and Mr Wardrop.
6. The real dispute in this case revolves around the interpretation and application of the law. In particular, it is necessary to consider the interaction between the provisions of the Veterans' Entitlements Act 1986 and the Sex Discrimination Act 1984.
7. Section 14(1) of the Veterans' Entitlements Act 1986 (the VEA) says a person may apply for a pension if he or she "is a veteran, or a dependant of a deceased veteran". Mr Nolan is not a veteran, so he must satisfy the definition of "dependent". That term is defined in s 11 to mean:
"...in relation to a veteran (including a veteran who has died), means:
(c) a widow or widower (other than a widow or a widower who marries or re-marries); or
8. Since Mr Nolan is neither a child of the veteran or separated from him, he must establish that he is either a partner or a widower.
9. Both terms are defined in s 5E. Section 5E(1) defines widower as:
"(a) a man who was a partner of a woman immediately before she died; or
(b) a man who was legally married to a woman, but living separately and apart from her on a permanent basis, immediately before she died."
(There is a similar definition for widow that requires the person claiming as a widow to be a woman partnered to a man).
10. It follows that Mr Nolan does not qualify as a widower since - according to this legislation - one cannot be a widower (or widow) of a partner of the same sex.
11. Section 5E(1) says a partner is (or was, immediately prior to the death of the veteran: s 11) a member of a couple. Section 5E(2) then provides:
"A person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not living separately and apart from the other person on a permanent basis; or
(i) the person is living with a person of the opposite sex (in this paragraph called the partner_);_
(ii) the person is not legally married to the partner;
(iii) the person and the partner are, in the Commission's opinion (formed as mentioned in section 11A), in a marriage-like relationship;
(iv) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961."
12. Mr Nolan and Mr Wardrop were not married, so the applicant must satisfy s 5E(2)(b). But he cannot. He is not a "person living with a person of the opposite sex".
13. Mr Nolan does not dispute he is ineligible for a pension if the words of the VEA are read in isolation. But he argues the requirement in the VEA that he be partnered with a person of the opposite sex is inconsistent with the Sex Discrimination Act 1984 (SDA).
14. The relevant provisions in the SDA prohibiting discrimination are found at ss 5 and 6. Section 5(1) says:
"For the purposes of this Act, a person (in this subsection referred to as the discriminator_) discriminates against another person (in this subsection referred to as the_ aggrieved person_) on the ground of the sex of the aggrieved person if, by reason of:_
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex."
15. Section 6(1) says:
"For the purposes of this Act, a person (in this subsection referred to as the discriminator_) discriminates against another person (in this subsection referred to as the_ aggrieved person_) on the ground of the marital status of the aggrieved person if, by reason of:_
(a) the marital status of the aggrieved person; or
(b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the marital status of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status."
16. The Tribunal cannot declare an Act invalid even if it is convinced of the invalidity. That would amount to an exercise of judicial power, and the Tribunal is not a Chapter III court: see Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 241-242 per Brennan J. But it is still necessary for the Tribunal to identify and apply the law in the course of making or reviewing an administrative decision. That task is more complicated where - as in this case - there are two laws that appear to be inconsistent.
17. I accept that for the VEA requirement that a person either be married to the veteran or, if unmarried, be a partner of the veteran who is of the opposite sex, is discriminatory within the meaning of s 5 of the SDA. But that does not mean the provisions of the VEA give way to the SDA.
18. As a general proposition, a later statute will prevail over the words of an earlier statute. Parliament is assumed to have been aware of the earlier law and would therefore be unlikely to have contradicted itself: see, Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 276 per Fullagar J.
19. The SDA was passed in 1984 to give effect to a policy against discrimination on the basis of irrelevant criteria. That policy was set out in s 3. Section 3(b) provides the Act is intended:
"...to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs..."
20. Parliament effectively carved out an exception to that policy only two years later in so far as veterans' entitlements were concerned. It was clearly the intention of the government of the day that this was to occur. The explanatory memorandum that accompanied the Bill puts that beyond doubt, although it sheds no light on the apparent volte face. The memorandum says in relation to clause 9 of the Bill dealing with the definition of dependents:
"This clause will specify those persons who, for the purposes of this Act, will be regarded as dependants of a veteran. The dependents of a male veteran will be the veteran's wife or widow (including a de facto wife or widow) and any child of the veteran. The dependant of a female veteran will be a child of the veteran only."
21. This argument was also considered by the Human Rights and Equal Opportunity Commission in Ward and Repatriation Commission [1997] HREOCA 19. The Commission reached the same conclusion as the Tribunal on this point.
22. Mr Nolan candidly acknowledged the difficulty but suggested an additional development needed to be taken into account. He pointed out the Parliament had amended the SDA in 1995 by inserting a new preamble in the Long Title to the Act. The preamble reads:
"Recognising the need to prohibit, so far as is possible, discrimination against people on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs: Affirming that every individual is equal before and under the law, and has the right to the equal protection and equal benefit of the law, without discrimination on the ground of sex, marital status, pregnancy or potential pregnancy."
23. The applicant suggested the preamble was of some value in ascertaining the will of Parliament. He appeared to suggest the changes to the SDA in 1995 effectively refreshed it, as if it were passed subsequent to the VEA. If that were so, the question would then arise as to whether the later general words of the SDA impliedly repealed the earlier, more specific words of the VEA. That would be a difficult issue to decide. In Saraswati v R [1991] HCA 21; (1991) 172 CLR 1, Gaudron J explained (at 17):
"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other."
"More particularly, an intention to affect the earlier provision will not be implied if the later is of general application ... and the earlier deals with some matter affecting the individual ... Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation."
24. In the event, it is unnecessary for me to consider that issue because I am satisfied the preamble does not have the effect contended for by the applicant. At most, the preamble may be used as an aid to the interpretation of ambiguous words in the Act in which the preamble is located: see, Wacando v Commonwealth [1981] HCA 60; (1981) 37 ALR 317 at 333 per Mason J; cf, Gibbs CJ at 327. For Mr Nolan to succeed in this case, it would be necessary for the Tribunal to conclude the preamble to the SDA introduced in 1995 had the effect of repealing another Act. That cannot be right. If Parliament had intended to actually implement the high-minded statement of principle that it proclaimed in the preamble to the SDA in 1995, it would have passed amending legislation.
25. The applicant referred to another case of this kind that was the subject of a press report. The report said the unsuccessful applicant in that case was approaching the United Nations to seek redress for the discrimination he encountered.
26. The High Court acknowledged in Minister for Immigration and Ethnic Affairs v Teoh [1973] HCA 31; (1995) 128 CLR 353 that the words of international treaties which had not been formally enacted into domestic law might have some role to play when interpreting a statute. Mason CJ and Deane J explained in Teoh (at 362):
"It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law."
27. I was not referred to any international treaties in the course of the argument. But even if I had been, it is difficult to see how they might assist the applicant given the clear words of the VEA. The language of the VEA does not permit a different construction to the one I have given it.
28. I have great sympathy for the applicant. The veterans' legislation discriminates against him on the basis of what appear to be irrelevant criteria, notwithstanding the Parliament's express intention to eliminate injustices of this kind. But the legislation says what it says. Until it is changed, the applicant cannot succeed in his claim for a pension.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed: .....................................................................................
Solicitor for the Respondent Mr J Kelly, Departmental Advocate
Butler
Attorney-General
(1991) 172 CLR 1
(1981) 37 ALR 317
(1995) 128 CLR 353
(1976) 12 ALR 239
(1961) 106 CLR 268
The Tribunal affirms the decision under review (decision delivered 6 December 2002 by Mr B J McCabe, Member) (opening Decision and para 29).