3.3.6 Did the Tribunal proceed on a misconstruction of s 7(4) of the SRC Act?
71 Ultimately, therefore, the s 7(4)(b) issue reduced to a difference as to the manner in which s 7(4) was to be construed and, in particular, whether (as Comcare submitted) the Tribunal ought to have found that the date of "the last noisy exposure" constituted "the day when … the disease …. resulted in … impairment of the employee" for the purposes of s 7(4)(b).
72 Under established principles of statutory construction, "[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention": Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at 47 [47] (Hayne, Heydon, Crennan and Kiefel JJ). This approach does not, however, exclude a "consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy": Alcan at 47 [47]; see also Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 250 CLR 523 at 539-540 [47] (the Court). These principles do not exclude the possibility that a purposive construction may permit reading a provision as if it contained additional words, or omitted words, with the effect of expanding or contracting its field of operation, as French CJ, Crennan and Bell JJ explained in Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 (Taylor) at [37]. However, as their Honours also held in Taylor at [38]:
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".
(citations omitted)
73 The starting point here is therefore the language of s 7(4)(b) which relevantly requires the identification of "the day when" an identifiable event occurred, i.e., when the disease "resulted in … impairment" of the employee. There is, with respect, no foothold in those words or otherwise in the language of the section for suggesting that either the last day on which a person was exposed to the harm in her or his employment which had incrementally caused the disease, or the day on which the employee's employment in the course of which the harm was sustained was terminated, are criteria under s 7(4)(b). The suggested construction would involve reading into the section words which do not appear. It would, of course, have been open to the Parliament to include either of these days as alternatives. The difficulty however is that the Parliament did not do so and to read those words into the provision would be "too much at variance" with the words actually used.
74 Similarly, in Katterns, Logan J held that the Tribunal had erred in applying the SRC Act prior to amendments in 2007 because this was "fair" in circumstances where all of Mr Kattern's reserve service occurred before those amendments. Logan J held that the Tribunal was entitled to apply the earlier version of the Act only if s 7(4) permitted reliance upon that test. However, his Honour held that s 7(4) did not because "[n]either limb of s 7(4) focussed upon when a claimant's service in the Reserve Forces had occurred" (at [45]). Equally, contrary to Comcare's submission, neither limb focusses upon when Mr Kemp's employment with the Commonwealth occurred. Similarly, in Comcare Australia v McGuire [1996] FCA 1681; (1996) 68 FCR 329 (McGuire) Carr J found that the Tribunal had erred (albeit not in a material respect) in finding only that the employee had suffered an injury during his six year period of his employment in the army, as opposed to making a finding about when the employee had first sought medical treatment for the purposes of s 7(4)(a) (at 340-341).
75 Nor can it be said that Comcare's construction would "best" promote the purposes of s 7(4)(b) of the SRC Act and therefore must be preferred under s 15AA of the Acts Interpretation Act 1901 (Cth): see also Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ). The policy underlying the provision is clear: as in the case of industrial deafness, a disease may develop incrementally without the person being aware of its development and it may prove difficult, if not impossible, later to determine a day on which the disease was first "sustained". Section 7(4) is intended to address that difficulty by positing a number of possible alternative events by reference to which an employee "shall be taken to have sustained an injury, being a disease, or aggravation of a disease" for the purposes of the Act. It then deems the injury to have been sustained "on the day' when the first of those events happens, even if in reality the day so selected bears no relationship to the unknown and perhaps unknowable date on which the injury was in fact sustained.
76 Futhermore, in a given case, the evidence may establish a date which meets the criterion in subs (a) and another date which meets the criterion in subs (b). Where that is the case, s 7(4) mandates that the earlier date will constitute the date on which the employee is taken to have sustained the injury. However where the evidence can establish only a date under (a) or (b), the intention was plainly that that date would be taken to be the date of injury, consistently with the purpose of s 7(4). As Mr McManamey submitted for Mr Kemp, if only one of the dates referred to in s 7(4) is established, then there is no other known date for the purposes of the section which could be earlier. Thus, insofar as Comcare suggested in submissions that it was necessary in every case to undertake a comparison between the dates in (a) or (b), that proposition is incorrect.
77 In a post-hearing note filed on 5 June 2020 pursuant to leave, Comcare drew the Court's attention to three authorities on the question of the proper construction of s 7(4), namely, Wonson at [26(2)], [28] and [62]; Katterns at [42] to [45] and [65]; and McGuire at 340F to 341A, 341G to 342A, and 343C to 343D. While leave was granted to the respondent to do likewise, no note was filed by the respondent. Nor did the parties seek leave to re-open to make any further submissions with respect to these authorities, despite orders made at the hearing providing that there was liberty to apply on or before 5 June 2020 in the event that either party wished to seek leave to re-open the matter and file any further submissions arising from any authorities identified dealing with the construction of s 7(4).
78 I have earlier discussed the decisions in Katterns and McGuire which are consistent with the construction which I favour. In my view, the Full Court's decision in Wonson is distinguishable. In that case, Ms Wonson relevantly argued that the Tribunal erred in failing to decide whether she was suffering from a psychological disorder which was significantly contributed to by her employment before disqualifying reasonable administrative action for the purposes of s 5A of the SRC Act took place against her in late September 2015 (at [55]). The Full Court rejected that contention on the ground that:
59. … Since the Tribunal determined that Ms Wonson would not have suffered the ailment but for the Department's refusal to reclassify her leave and that decision was "reasonable administrative action taken in a reasonable manner in respect of [her] employment", the date that ailment occurred was immaterial. It was not an injury within the meaning of the Act. Accordingly, the Tribunal was not required to make a finding, as the relevant inquiry ended there.
(emphasis added)
79 By contrast in the present case, the Tribunal found that an injury within the meaning of the SRC Act had been sustained and therefore the Tribunal was required to address the question posed by s 7(4).
80 In Wonson at [62] to which Comcare in particular drew the Court's attention, the Full Court expressed the view in obiter that:
62. In any event, the effect of the Tribunal's finding that the adjustment disorder was suffered as a result of the administrative action taken with respect to Ms Wonson's request for the reclassification of her leave is that the ailment did not arise until 18 September 2015 at the earliest. As counsel for Comcare put it in oral argument, if Ms Wonson would not have suffered the ailment which she did if that action had not been taken, she cannot have suffered it before the time the action was taken. In other words, it is abundantly clear from the Tribunal's reasons that the Tribunal found that the ailment occurred between 18 September 2015 and 11 November 2015. Provided that it satisfied its obligations under s 43(2) of the AAT Act, a question to which we will come in due course, the Tribunal did not need to go further.
(emphasis added)
81 In other words, because the Tribunal found that the ailment was suffered as a result of the disqualifying administrative action, the Full Court held that on no view could the ailment have been suffered before that action was taken. That is a simple matter of logic. Contrary however to the position in Wonson, there is no suggestion in this case that s 7(4) could operate to deem the disease to have occurred before logically it could have occurred. Rather, in this case s 7(4) was applied so as to deem a disease to have been sustained long after it was in fact sustained on an unknown day. But that will be the result in many cases to which s 7(4) applies and is part of its intended operation, given the nature of the mischief to which the provision is directed.