[16] In Re McHattan and Collector of Customs (New South Wales) (1977) 1 ALD 67 at 70 Brennan J stated that "[a] cross the pool of sundry interest, the ripples of affection may widely extend". However, as Davies J pointed out in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Brennan J "did not propose that any ripple of affection would be sufficient to support an interest". A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. The present case involves such a statute. The starting point, as indicated by several authorities in the Full Court of the Federal Court, is the construction of the Authority Act with regard to its subject, scope and purpose." (footnotes omitted)
42 In addition to the matters referred to by the High Court, it is also relevant in a case as complex as the present to have particular regard to the mandate of the legislature as to purposive construction to be found in s 33 of the Interpretation Act 1987 where courts are required to prefer a construction which would promote the purpose or object underlying the statute (whether that purpose or object is expressly set out in the statute) to a construction which would not promote the purpose or object. See, for example, the judgment of McHugh J in Saraswati v The Queen (1991) 172 CLR 1 at 21 and also the reference in Commonwealth Bank v Hadfield [2001] NSWCA 440 at [57], to another judgment of McHugh J, Malakai Holdings v Stretton (2001) 178 ALR 218 at 225.
43 True it is in this case that the purpose or object of the complicated scheme itself presents some difficulties. As the appellant noted at p 9 of his submissions of 10 December, Cullen J observed in the unreported judgment of 3 November 1993 in Quinn v State Authorities Superannuation Board :
The right to such a pension is a valuable and expensive right and should not be granted unless the statutory requirements are met.
44 However, the important cautionary observation of Cullen J does not necessarily mean that once the requirements are met there should be any greater burden imposed upon a person to establish the entitlement or there should be implied in the legislation an extraordinary means of challenge to a person's entitlement.
45 I consider that the purpose or object of the legislation, or at least so far as is relevant to the present proceedings, is to provide valuable benefits to police officers and former police officers in relation to retirement arising from "hurt on duty" situations but to do so in a measured and careful way which allots certain responsibilities for the rather complex process involved, which are, and are to be seen to be, commensurate with the important rights and responsibilities granted to the STC and to the Commissioner of Police.
46 It may be that the rather complex scheme attempts to achieve a balance, on the one hand, between the valuable rights and the need, on the other hand, for caution in too readily extending those rights if that might result in inappropriate receipt of the allowance. There seems also to be an attempt to balance the recognition of the valuable role of police officers for their service in the public interest (with the consequent entitlement for officers subject to an adverse decision to have certain rights of appeal), with corresponding rights of appeal by the relevant authorities in the case of a decision in favour of police officers. However, it would be expected that any mechanism for appeal would reflect the allocation of responsibilities earlier referred to and not be so great as to become burdensome to the officers concerned or involve a level of complexity beyond that which could be seen to be reasonable to protect the interests or roles allocated by the legislation.
47 It may be that the complexity of the legislation also shows some elements of compromise between those representations which led to the legislation and which may have advanced claims for such benefits and those representations which were concerned to protect the public interest and the revenue. In that context it is to be observed that there are certain public authorities which, in the allocation of roles earlier referred to, are given a particular responsibility and the legislature appears to have assumed that the authority given the responsibility is the one in the best position to bring about a result which was most likely to be the correct and fair one.
48 The corollary of that consideration is that there is a division of function in the legislative scheme as between the appellant Commissioner of Police and the respondent STC. It is not, however, to be overlooked that part of the way in which the STC is to discharge its responsibilities involves the Police Medical Board constituted under s 15A which permits the STC, in the discharge of certain of its responsibilities, to have available to it the specialist advice of that Board, although it is not mandatory for the STC to avail itself of that advice. See, in that respect, the terms of s 10B(1) when read with the definition of "medical advice" in s 10B(2C).
49 Before I seek to apply that perhaps rather cumbersome attempt to identify the purpose and object of the legislation so far as is relevant, I should advert briefly to some submissions made which drew attention to the fact that the history of the matters as earlier referred to shows an earlier certification by the STC under s 10B(1); the applicant had challenged the subsequent determination by the appellant under s 10B(3) in the Compensation Court, presumably pursuant to s 21(1)(b) of the Superannuation Act and that it was subsequent to the commencement of those proceedings that the applicant sought the amendment of the certification under s 10B(1) which led, in turn, to the certification which is the subject of the present notice of appeal.
50 It was correspondingly submitted in the light of those circumstances, by both the appellant and the applicant, that the other side was seeking some forensic advantage from, in one case, an application to amend the s 10B(1) certificate and, in the other, from an attempt to appeal the STC's amended certificate under s 88 by an appeal to this Court. I do not consider that those matters properly considered bear upon the difficult task of statutory construction which will determine this matter. Those matters do, of course, tend to indicate that if, in these proceedings, it is held that the appellant Commissioner does have a right of appeal because he is a "person aggrieved", that adds a further level of complexity to the already rather complex processes under the Act. It is well established that it is appropriate in testing competing contentions as to interpretation of legislation to have regard to the consequences of each interpretation. See for example, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 302 - 305 and 321, and Drake Personnel Ltd (t/as Drake Industrial) v Workcover Authority of New South Wales (1999) 90 IR 432 at 444 - 446.
51 I have earlier indicated that one should commence with the assumption that the relevant words in s 88(1) are intended to be interpreted broadly. However, they are not to be considered as without limit or as extending beyond the language or purpose of the particular legislation which is subject to consideration. One of the reasons, no doubt, why the phrase chosen by the legislation is a wide one is that the Superannuation Administration Act is a piece of legislation arching across nine specialist examples of superannuation legislation which have different schemes and features, often reflecting the different histories of the legislation. Those statutes, without specifically referring to them, use different determinative words for similar matters; for example, for the purpose of entitlements. For example, the word "contributor" is relevant in some legislation as to entitlements and in others it is not. Certainly, as a matter of ordinary practice, legislation giving benefits on retirement or death may often refer to such entitlements being available to employees or contributors as one category; to former employees or former contributors as a second category; and beneficiaries or dependants as a third category (in the last example, where the benefits are available after the death of the contributor or former employee).
52 Those general considerations of themselves make clear why a general form of words was required and used. It may also mean that persons other than those receiving benefits may potentially be persons aggrieved for the purposes of the legislation. However, I do not consider that is the case in relation to s 88 so far as is relevant to the part of the Superannuation Act presently being considered here. Section 10B(1) has to be read in the context of other similar provisions such as s 10B(2) but the reading together of such provisions does not essentially change the situation which arises from consideration of the first subsection. It must, however, be also read with the terms of s 21 which I consider is a particularly important part of the context.
53 It has been common ground that "decisions" referred to in s 21(1)(a) are not decisions such as those made by the STC under s 10B(1) or s 10B(2) but rather include decisions such as to the level of benefit under s 10(1A) (and following provisions) and s 12D as those provisions are "matter(s) that arise ... by reason of a member of the Police Force being hurt on duty" in terms of s 21(1)(a) whereas the certification under s 10B(1) does not.
54 I consider that the concessions made by the respective parties as to that construction were correct as was the similar concession that the right of appearance in appeals provided by s 21(3) was limited in the case of the STC, to appeals under s 21(1)(a) and in the case of the Commissioner of Police, to appeals under s 21(1)(b). It was, however, made clear when that concession was made, that although there was no right for the other "party" to appear before the Compensation Court, it may seek and be granted leave to do so. That demarcation or division of function as disclosed by s 21 confirms the conclusion I have reached as to the demarcation or division of function under s 10B as between the STC and the Commissioner of Police in respect of this important question of "hurt on duty". There is clearly a significant public interest in decisions on this important matter being appropriately made and the legislature, as earlier adverted to, has made a decision as to which is the more appropriate body or person to deal with the particular aspects of it. The particular aspects which might be considered by the Compensation Court are relatively precisely set out in s 21(1). The situation as between s 10B and s 88 is more difficult but I do not consider the legislature would have intended a different approach in principle, nor would it have intended that this division of function would be complicated by the decision-making body in one respect having, in respect of a function distributed or demarked to the other body, a further or additional role in respect of that matter, not as a decision-making body, but as a litigant or appellant. As said earlier, that would lead to even greater complication to an already complicated process.
55 Applying that approach and principle to s 10B I consider the appropriate construction is that the legislature has determined the function of making the decision in the public interest and that in the interest of the fund under s 10B(1) or, for that matter, under s 10B(2) is that of the STC and also the function of issuing the relevant certificate. As earlier indicated, in doing so the STC is obliged to have regard to medical advice which, depending on its consideration of the matter and, no doubt the availability of the members of the Police Medical Board, could be the advice of two members of that Board with the specialist skills and expertise which they would bring to the task. The certificate having been issued, it is then the role, not of the STC, but of the Commissioner of Police to make the decision as to whether the infirmity, the subject of the certificate, was caused by the police officer or former police officer being hurt on duty, and also to make a subsidiary determination such as to the date or dates when that occurred, if relevant.
56 The terms and structure of s 10B make clear the different roles of the STC and the Commissioner of Police. There is no reason to consider, having so distinguished those roles, that the legislature intended to blur them or to give one decision-making body a role in relation to the area which it has allocated to the other. The fact that a step such as that taken by the applicant here has caused, undoubtedly in good faith, the STC to amend its certificate under 10B(1), and which may make more difficult for the Commissioner of Police any contest before the Compensation Court that he is involved in, subsequent to a further decision made under s 10B(3) is, in my view, not to the point. Properly construing the legislation, the Commissioner has not only the primary responsibility but the responsibility as to whether a particular infirmity has been caused in a hurt on duty situation and in dealing with appeals to the Compensation Court in relation to that matter. However, the legislature has not allocated or given to the Commissioner the role or responsibility of dealing with the question of the certification, having regard to medical advice, in terms of the matters to be determined under s 10B(1).
57 That construction and approach to the legislation, in my view, renders a very complex scheme as rationally workable as might be possible having regard to its complexity. Although the legislation may not quite be described, as the High Court did of the scheme in the Superannuation Act 1916 , as labyrinthine, it is not far from that situation. However, once one reaches this conclusion - and even though one must, for the reasons earlier given, ascribe to the operative phrase in s 88 a wide meaning - it does not follow, having identified the role and function of the Commissioner in the scheme, that it can be truly said he is a "person aggrieved" by the subject decision. Rather, that is a matter in respect of which the legislation instructs the Commissioner and obliges him to deal with by making a further determination under s 10B(3).
58 It is for those reasons that I consider the Commissioner is not a person aggrieved and has no standing to bring the appeal. The parties should bring in short minutes of order to reflect this decision and to have the motion dealt with.
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