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[2011] VCAT 1125
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2011-07-08
Senior Member J
Original judgment source is linked above.
24 May 1966 - 25 January 1968 (agreed that no discretion)
2 June 1966: commencement of contributions to the Fund
25 January 1968: marriage (This required Mrs. Markerink to cease to make contributions to the Fund and she received a refund of contributions to that date)
The parties agree that the Board has no discretion under regulation 13(1) of the Superannuation Regulations 1988 to recognise 24 May 1966 - 25 January 1968 as an additional period of service within the meaning of "recognised service" in section 3(1) of the Superannuation Act 1988.
26 January 1968 - 31 January 1969 (agreed that there is discretion)
Mrs. Markerink was not, and was not entitled to become, an officer or member of the Fund and she was not entitled to become an officer or member of any other prescribed superannuation fund[3].
The parties agree that the Board has a discretion under regulation 13(1) of the Superannuation Regulations 1988 to recognise 26 January 1968 - 31 January 1969 as an additional period of service within the meaning of "recognised service" in section 3(1) of the Superannuation Act 1988.
1 February 1969 - 31 December 1981 (dispute whether discretion)
1 February 1969: Married Women's Superannuation Fund ("MWSF") established by legislation subsequently repealed. Mrs. Markerink was not a contributor to the MWSF.
Mrs. Markerink contends that she was not entitled to become an officer or member of the MWSF and that the Board has discretion whether to recognise this period as an additional period of service.
The Board contends that Mrs. Markerink was entitled to become an officer or member of the MWSF and that the Board has no discretion.
1 July 1975: Amendments to the Superannuation Act 1958 meant that the 1958 Act applied to persons including a female officer who, on 1 March 1975, was married and who before 1 July 1975 elected to contribute to the Fund.
Mrs. Markerink contends that she was not entitled to become an officer or Member of the Fund between 1 March 1975 and 30 June 1975 and that the Board has a discretion to recognise this period as an additional period of service.
The Board contends that Mrs. Markerink was entitled to become an officer or Member of the Fund at any time between 1 March 1975 and 30 June 1975 and that the Board has no discretion.
1 January 1982 - 30 June 1982 (dispute whether discretion)
1 January 1982: Amendments to the Superannuation Act 1958 meant that the 1958 Act applied to persons including a female officer who was not a contributor as at 1 January 1982 but who elected to become a contributor within six months (that is, by 30 June 1982).
Mrs. Markerink did not become a contributor pursuant to those provisions.
Mrs. Markerink contends that she was not entitled to become an officer or member of the Fund between 1 January 1982 and 30 June 1982 and that the Board has a discretion to recognise this period as an additional period of service.
The Board contends that Mrs. Markerink was entitled to become an officer or Member of the Fund at any time between 1 January 1982 and 30 June 1982 and that the Board has no discretion.
(I add that the MWSF ceased to operate at or about this time).
1 July 1982 - 30 June 1988 (agreed that there is discretion)
Mrs. Markerink was not entitled to become an officer or Member of the Fund or any other prescribed superannuation fund during this period. The parties agree that the Board has a discretion to recognise this period as an additional period of service.
In a witness statement dated 29 November 2010 Mrs. Markerink said that she was aware that upon marriage she would have to exit the State Superannuation Fund. She said that but for that requirement she intended to continue contributing to the fund. Soon after she was married she received a refund of past contributions. She was not then aware that she was entitled to contribute to any relevant fund until about 1988 when she was required to become a member of what was described as "the New Scheme". She said that had she been aware that she was entitled to contribute to a fund between 25 January 1968 (the date of her marriage) and 1 July 1988 she would, after consulting her husband, have taken advantage of that opportunity.
Mrs. Markerink said that it was not until 2008 or 2009 that she became aware of the 1975 amnesty. Between 1 March and 1 July 1975 she was working at Cheltenham East Primary School. It was a large school with some 760 children. She described herself as a junior employee at that time. She said that there was not much interaction between her and senior management. When the school had information to pass on to teachers it would be communicated at weekly staff meetings. The meetings were often crowded and it was often impossible to fit everyone into the small meeting room. She said that this was not an effective way of communicating. She added that if the school had wished to communicate information to her it knew her home address and could have posted it.
Mrs. Markerink then made reference to various measures specified in a letter dated 30 March 2009 by a representative of the Board as ones used to provide information to persons about their options. She said that no "explanatory memorandum" booklet was provided to her about the 1975 amnesty nor did she know of its existence. She said that anyone from the school or any superannuation fund could have found her at work on any normal working day and could either have spoken to her or given her any written information. She continued working at that school until the mid-1980s.
Mrs. Markerink said that she knew nothing about the 1982 amnesty. Between 1 January 1982 and 30 June 1982 she was still working full time at Cheltenham East Primary School. She said that she knew nothing about a circular sent to the paymaster of her school or any advertisement placed in the Teacher's Union newsletter. She could not recall if she was a member of the union at the time: her membership was intermittent. Mrs. Markerink further said that she knew nothing about a notation put on teachers' payslips drawing attention to the circular. As she worked the same job for the same hours for the same pay there was no reason for her to pay particular attention to her payslip. It was not customary for important information to be noted on payslips. Her attention was not drawn to any notation on a payslip. She added that, reading now the notation that the Board said was put on some payslips, what she could say was that she probably would not have understood from the notation the amnesty or the implications of that. In about 1985 she moved to a school where she remained a permanent part-time teacher. She said that she considered that in 1968 she was discriminated against because of her sex and she saw no reason why in those circumstances the Board or the Department or both could not have "made an effort" to have informed her of her entitlements, especially given the changes and complexities involved. She said that she relied on the Board and the Department to give her that information as she was unable to access it herself.
Mrs. Markerink gave oral evidence. She impressed me as a frank and truthful witness (as, for that matter, did the Board's witnesses). When cross-examined by Mr. Horan she conceded that she was not really sure what if any consideration she had given to the question of superannuation between the date of her marriage and 1988 when she was required to join the New Scheme. She said that in her early married years one's husband had much more say about the family's financial affairs than was the case nowadays. She would have consulted him about the question and would have done what he advised. Asked whether it was possible that he would have considered there to be no need for her to join a fund, Mrs. Markerink was unsure but said that her husband probably would have advised her to. She agreed that by not joining a fund she had not made contributions or had money deducted from her salary.
She was asked about the school staff meetings, and it was put to her that she could not be sure that at no point did anyone mention changes to superannuation arrangements. She responded by saying that they might have. Regarding her payslips, she agreed that one or more could have contained information about superannuation but said that it was rare for extra information to appear there. She did not look at her payslips regularly to check their accuracy. She agreed that if she had seen and read any notation she could have made inquiries, but she also said that if she had read it she would not have assumed that it applied to her because she was not making contributions to superannuation at the time.
Two witnesses gave evidence for the Board - Peter Russell, Senior Technical Advisor, and Shane Pearse, General Manager (Member and Employee Administration).
In his witness statement Mr. Russell outlined his history as an officer of the Board and its predecessors in a variety of roles over a period of more than 30 years. Key responsibilities in his current role involved project work, data analysis, working with software systems and analysis and implementing business improvements. Mr. Russell went on to set out the background to Mrs. Markerink's application, the Board's decision, and the reasons for that.
Mr. Russell said that as at 24 May 1966 when Mrs. Markerink commenced her employment there were two relevant superannuation funds to which teachers might be eligible to contribute - the State Superannuation Fund under the 1958 legislation and the Married Women Teachers Pension Fund ("MWTPF"). Eligibility for the State Superannuation Fund was restricted to "officers" as defined in the legislation which included a permanent teacher. Other legislation - the Teaching Service Act 1958 - qualified that and provided that a married woman in permanent employment in the teaching service was not an "officer" for the purposes of the 1958 Act. The effect was that a female teacher who married could not remain as a member of the fund, but a married woman who had been employed for an aggregate of five years could elect to join the MWTPF. Mrs. Markerink had not served for long enough to have that option. In 1969 the Married Women's Superannuation Fund ("MWSF"), created by legislation that was subsequently repealed, provided that all married women could join a superannuation fund. (He said that the legislation - the Married Women's Superannuation Fund Act 1968 - provided in section 6(2) that any woman who was an officer within the meaning of the 1958 Act, but to whom that Act did not apply, could elect to become a contributor to the MWSF. The MWSF was open to all married women officers within the Victorian Public Service. Those women who had been members of the Fund and became ineligible by reason of marriage could transfer their equity in the Fund to the MWSF).
Mr. Russell went on to explain the 1975 and 1982 amnesties. In 1975 the 1958 Act was amended so that the 1958 Act applied to a woman who, as at 1 March 1975, was married and who, before 1 July 1975, elected to contribute to the fund. A woman who elected to take advantage of the amnesty would be deemed to have an additional number of years of prospective service recognised equal to the number of whole years of continuous past service immediately prior to 1 March 1975. In 1982 the 1958 Act was amended again with the effect that the 1958 Act would apply to a woman who was not a contributor but who elected to become one by 30 June 1982. The amnesty effectively gave married women who had not previously been contributors six months from 1 January to 30 June 1982 to elect to join the fund. A woman who elected to take advantage of that amnesty would be deemed to have an additional number of years of prospective service equal to the number of whole years of continuous past service immediately prior to 1 January 1982.
Department employees were notified about the 1982 amnesty through a circular provided to educational institutions by the Fund. (A copy was received in evidence. On the letterhead of the State Superannuation Board of Victoria and headed "Circular No. 3", it was addressed to "Personnel Officers/Staff Officers/Salaries Officers/Principals"). Mr. Russell said that, in addition, a notification was printed on payslips issued to public school teachers in January 1982 that advised them to read the circular. The Board did not retain contact details for previous members such as Mrs. Markerink and had limited if any means of direct communication with her, Mr. Russell said. The only means of contact was through the Department by sending the circular. After the 1982 amnesty there was no opportunity for a married woman such as Mrs. Markerink to join "the Revised Scheme" until that was replaced in 1988 by "the New Scheme" which required public servants who were not already in an approved superannuation scheme to contribute as a New Scheme member.
Unlike today, during the 1970s and most of the 1980s the Board did not have members' direct contact details and relied on correspondence sent to the Department or schools. There were few relevant computer records. In 1975 the Board widely circulated the "explanatory memorandum" and in 1982 sent the circular mentioned above. The Department printed a message on payslips. (A sample was received in evidence containing the typed advice: "You are advised to read circular no. 3 issued to the principal/branch head regarding amendments to the Superannuation Act effective from 1 January 1982"). Mr. Russell said that service records provided by Mrs. Markerink indicated that she was not on leave at the time of the amnesties.
Mr. Russell provided an overview of Mrs. Markerink's membership consistent with the above chronology. He noted that on 2 February 1969 she became eligible to contribute as a married woman to the MWSF but that she did not do so. She did not contribute and was not a member of any relevant fund between 1968 and July 1988. She did not elect to join during the 1975 amnesty, though thereafter she was still eligible to join the MWSF. She did not elect to join during the 1982 amnesty. (I mention that Mr. Russell was cross-examined specifically about the use of the word "elect" in this context). After that she was not otherwise able to join until 1 July 1988 when she automatically became a member of "the New Scheme". He went on to set out the Board's conclusions and its reasons, including the application of policy.
Finally Mr. Russell provided some statistics about persons who became members on 1 July 1988, including the number with prior service, before expressing the view that if the Board were required to recognise applications from those persons it would represent a significant and unforseen liability for the Fund.
Under cross-examination by Mr. Bingham, Mr. Russell confirmed that he was not a member of Board or the Committee. He said that nearly all of what was contained in his witness statement were matters that he had known or read about. He described the service history and other records that he accessed for the purpose of giving evidence.
Mr. Russell was cross-examined at length about a number of matters. I need not mention them all. He agreed with the proposition that, in effect, he did not know the full extent of the information the Board had during the 1970s and 1980s or even now about individual members. Asked whether, if the Board had wanted that information it could have obtained that from the Department, Mr. Russell said that he did not know. He could not say exactly when personnel officers and others were notified about the 1982 amnesty but agreed that this may have been after the option commenced. He agreed that he had no knowledge of what happened to the material after if was sent. On the other hand Mr. Russell did not concede that the information disseminated by the Board was not easy to understand. He said that it might need to be read a couple times. It was put to him that there was no reason why the Department would not have given the Board the addresses of married teachers. He responded saying that he did not know. "Quite possibly" the Department had that information. He did not know how much information could be included on payslips or whether any memo could be included with it. The Department or Board could, for instance, "possibly" have posted the information, or visit schools to talk to Mrs. Markerink.
Regarding the statistics provided at the end of his witness statement, Mr. Russell agreed that "quite possibly" all the people represented by the figures were in different circumstances and that one could not say what the result of any application by them for recognition of prior service might be, so that it was unknown whether "a single dollar" would be paid to them. If nothing were paid no other member of the New Scheme would be affected because it was a defined benefit scheme, he agreed. On the other hand, Mr. Russell essentially maintained the view that there would be a significant liability for the Fund although, not being a Board member, he had not been privy to actuarial or other advice about that.
In his witness statement Mr. Pearse outlined his history as an officer of the Board over a period of more than 10 years. In particular he explained the Board's policy in relation to the recognition of prior service. (The relevant policy document dated February 1988 was received in evidence ("the policy document"). Among other things the policy document was said to have been the product of a review of legislation from 1963, available Board minutes, memoranda, correspondence and file notes over a period of 25 years, informal discussions with long-serving personnel, and discussions with officers then employed in the "recognition of prior service" area)[4].
Mr. Pearse referred especially to a part of the document that stated that in formulating policy with respect to the recognition of prior service "and the increased entitlement to benefits that such a policy may entail" the Board had "been cognisant of the fact that Government would become committed, eventually, to meeting a very substantial proportion of any pension or lump sums that may become payable".[5] He said that this consideration had always been and continued to be "an important policy imperative" of the Board. He further noted this qualification that immediately followed:
"Notwithstanding, the Board has always shown itself prepared to consider all appropriate applications for recognition of prior service, including those which arise out of special or unique circumstances. Where warranted, the Board has and will recommend recognition of prior service".[6] (Emphasis added)
"It has been assumed that where a conflict exits between the general Board policy and the specific policies formulated for the purpose of a particular section of the Act, the latter will take precedence. In formulating its policies in this area, the Board will keep in mind and strive to reach a balance between on [the] one hand, committing Government eventually to a significant proportion of any pensions or lump sum that may become payable as a result of recognising prior service, and on the other hand, the anomalies that would be created in rigidly applying existing policies to special and unique circumstances".[7] (Emphasis added)
(I note that whereas one part of the document refers to "special or unique" circumstances, another part of the document refers to "special and unique" circumstances. The intention would seem to be to refer to "special or unique" circumstances, for circumstances that are unique would be special but circumstances that are special may not be unique).
(The evidence summarised in Bennett actually also included this: Officers who did not take advantage of a scheme ought not to be entitled to a retrospective benefit by way of recognition of past service)[9].
Mr. Pearse referred to documents indicating that the policy continued. In particular there was a Board memorandum dated 12 July 1989. Under the sub-heading "Declined Membership" the memorandum referred to the "policy of not recognising a period of service where a person declined membership of [a fund]". Mr. Pearse said in effect that the policy was ultimately implemented in regulations, now regulation 13(4) of the State Superannuation Regulations 2008. He referred then to the amnesties before saying that the Board's policy was that once an amnesty or other relevant period expired, a member who "misses the boat" would not generally be given recognition of prior service for that period. He said that the rationale was that where eligibility was affected by a statutory time limit (as applied for the amnesties) that time limit should be strictly observed and applied by the Board. Therefore, where a member sought recognition after having failed to take advantage of a limited amnesty period, the Board would not generally recognise that prior service in the period after the cut-off date. He said that in formulating the policy the Board was mindful of the need to reach a balance, as was referred to in the February 1988 policy document.
Mr. Pearse added that this specific policy was relevant and applicable even in circumstances where it was demonstrated that a member was not aware of the cut-off date for the amnesties[10]. This, he said, was "so as to ensure equity across the entire Fund membership". He said that a deviation from that approach could have far reaching consequences in that it would increase the liability of the Fund and cause disadvantage to long-standing contributing members. The Board had continued to apply the policy. Ignorance of the policy or the cut-off date had not generally been treated by the Board as sufficient in itself to warrant a departure from the policy, he said. He mentioned a VCAT decision - Stelmachiw v Emergency Services Superannuation Board[11]- that I will refer to later. He concluded the witness statement by referring to the current application form used by persons applying for recognition of prior service which document, he said, reflected the policy.
Mr. Bingham cross-examined Mr. Pearse. Mr. Pearse too agreed that he was not a member of the Board or the Committee. He agreed that his statement was his understanding of the Board's policy. He maintained that the Board would be open to considering unique circumstances if they were put forward. I need not mention all the matters regarding which Mr. Pearse was cross-examined. He agreed that there was no mention of "special or unique circumstances" in particular documents such as the relevant application form. Although he heard the Committee's discussion in the present case he said that he could not say what was in the mind of the Committee.
There were questions put to Mr. Pearse about the New Scheme having defined benefits. Mr. Pearse agreed that recognising Mrs. Markerink's prior service would not decrease the entitlement of another member of the New Scheme, however he also said that if liability to Members kept increasing the Government would consider introducing changes in order to limit the benefit. Future growth could be affected.
Asked effectively to say whether he thought it was equitable to treat persons who were ignorant of the amnesties in the same way as people who were aware of them, Mr. Pearse said that the Board did not know whether people were aware or not. The concern was that people might come and say they did not know about that (whether or not that was the case). He said it would be inequitable to allow anyone back into a scheme once the amnesties closed.
I mention that Mr. Bingham formally objected to parts of the witnesses statements filed on behalf of the Board, on grounds including that they were not within the knowledge of the witness, were legal submissions or were wrong.
"recognised service, in relation to an officer, means the total period (calculated in years, months and days) during which the officer contributed (or in the case of a new scheme member, was entitled to contribute) to the State Superannuation Fund and the Fund and includes ...
(b) any additional period of service (if any) determined by the Board in accordance with the regulations ..."
(1) ...[F]or the purposes of paragraph (b) of the definition of recognised service in section 3(1) of the Act, the Board may on application by an officer recognise part or all of a period of continuous employment in accordance with this regulation ...
(4) The Board must not recognise a period of prior employment which was not continuous and which did not immediately precede the date on which the applicant became an officer or any part of such period during which the applicant -
(a) was or was entitled to become an officer or a member of a prescribed superannuation scheme ..."
It is uncontroversial, I think, that "an officer" has no meaning for the purpose of regulation 13(4)(a)[12].
Was Mrs. Markerink was entitled from 1 February 1969 to 30 June 1982 to become a member of the MWSF?
"Any woman who is an officer within the meaning of the Superannuation Act 1958 but to whom that Act does not apply ... may elect to be a contributor to the [MWSF] ..."
"A married woman in permanent employment in the teaching service shall not be an officer for the purposes of the Superannuation Act 1958; and if prior to marriage she was such an officer she shall on marriage cease to be such an officer ..."
Decision regarding entitlement to become a member of the MWSF
Regarding the periods 26 January 1968 - 31 January 1969 and 1 July 1982 - 30 June 1988, how should the discretion to recognise prior service be exercised?
"The rationale for this policy is that where eligibility is affected by a mandatory time limit (as was the case in relation to the six month 1982 amnesty) that time limit must be strictly observed and applied by the Board.
An eligibility period with a strict time limit will always appear 'unfair' to an applicant who misses the cut off date. But the Board's policy is that an express time limit, particularly those set by statute, must be adhered to ..."[17]
Mr. Bingham said that this ignored the evolution in legislative policy over the past 50 years. He said in effect that the Board's "strict observance" policy was inconsistent with developments including the 1982 amnesty which itself had regard to persons who had missed the cut-off date under the 1975 amnesty. He drew attention to the fact that Parliament had not in regulation 13(4) excluded persons who had not taken advantage of the amnesties. An exercise of the discretion under that regulation would not extend the amnesties but would be an exercise of the discretion given by the regulation, he said. He argued, further, that there was no logical connection between failure to take advantage of one of the amnesties and exclusion from the exercise of discretion under a 2008 regulation. This, he said, was highlighted by the fact that there was no suggestion that there was any warning in 1975 or 1982 about such a consequence.
There were other grounds of attack. Mr. Bingham submitted that the policy was unclear because, on the one hand, the Board seemed to contend that ignorance would not render the policy inapplicable yet, on the other hand, the Board also contended that the test of Mrs. Markerink's knowledge about the existence of the amnesties was objective. It was neither fair nor just to treat in the same way someone who was unaware of the cut-off date and someone who was aware and deliberately decided not to take advantage of the amnesty.
Mr. Bingham submitted that there was no basis for reading any objective test into the provision but that a decision-maker would in any event be required to take into account factors that were subjective to Mrs. Markerink, having regard to all of the relevant circumstances including her mental state at the time[18]. To avoid the policy being unfair or unjust the Board would have to show that Mrs. Markerink, with her knowledge and capacity, not only ought to have realised there was an amnesty with a cut-off date but also that she would have deliberately decided not to take advantage of it.
Mr. Bingham urged me not to follow Stelmachiw. In that case Senior Member Davis concluded that, given the relatively unsophisticated means of storing and communicating information available in past decades, the Board did everything reasonable to inform people about the amnesty. The conclusion reached in that case was not supported by evidence in the present case and would require an analysis of what Government or the Board would have been prepared to spend on the exercise, he submitted. Further, if the Board was reasonably able to take only certain, albeit ineffective, steps, that would not mean that a reasonable person should have known about the amnesty. The fact that the steps taken were ineffective and that no more could reasonably have been done was a compelling reason why people now, when communication had improved, should have the benefit of the exercise of discretion. It did not follow from identifying the limits of what one person could "reasonably" do to inform another that the other ought to be taken to have been so informed. In oral submissions, referring to cross-examination of the Board's witnesses, Mr. Bingham said that the Board's evidence about measures to inform people about the amnesties was unpersuasive and that the Board could have done a lot more than it did. Its failure to do more was a reason why the discretion should be exercised in Mrs. Markerink's favour.
Mr. Bingham submitted that the Board's "floodgates" argument indicated that it had shut its eyes and ears to the facts of Mrs. Markerink's application and reverted to a pre-existing general policy. But he also submitted that the argument was flawed: the evidence about that was vague and unsubstantiated; no other member could suffer in relation to their benefit because recognition was accorded to Mrs. Markerink; and to the extent that Government would need to provide extra funds for her increased benefit, that was a direct result of the passage of the regulations and was "no doubt" a liability foreseen by Government. In his oral submissions Mr. Bingham pointed out that there was no quantification of the likely financial impact were prior service to be recognised in all cases and he said that it was "speculation" as to whether the Government might make changes to the scheme to limit the benefit. He submitted that the fact that the Government conferred discretion on the Board indicated that it accepted there would be a cost.
The policy placed the interests of the Board in administrative convenience and of the Government in not paying out money above the interests of applicants; it failed to recognise the beneficial nature of the legislation; and it was based on "outdated or illogical reasoning", Mr. Bingham submitted.
Concerning whether the policy was properly applied, Mr. Bingham cited Sami v Roads Corporation[19] in which case Vickery J discussed a number of the authorities that were to the general effect that decision-makers had to keep an open mind and must not shut their eyes and ears to an application and revert to some pre-existing policy: that discretion must not be fettered by "an unyielding self-imposed policy".[20]
Citing Skoljarev v Secretary, Department of Primary Industries and Energy[21] Mr. Bingham submitted in effect that there was nothing in regulation 13 to suggest that the discretion was to be exercised only when "special or unique" circumstances were established. He also cited Ivo Skoljarev v Australian Fisheries Management Authority[22]. In that case Davies J said that policy does not constitute a binding rule unless a statute so provides and that, in the absence of a statutory provision requiring compliance with policy, a decision-maker may depart from policy and, in an appropriate case, should do so. Davies J referred to Drake and Minister for Immigration and Ethnic Affairs (No 2)[23] in which case Brennan J, as he then was, said that the (Commonwealth) AAT should apply lawful policy "unless there are cogent reasons to the contrary" such as "injustice in a particular case".[24]
Finally, on the subject of "special or unique circumstances" Mr. Bingham referred to Bennett[25] in which case evidence was given that there were at the time - and since then had been - several thousand applications for recognition of prior service and that, although each was considered on its merits, the Board's witness was unaware of any in which the policy (of requiring participation in another superannuation scheme where one was available) was not applied. Mr. Bingham submitted that it was "difficult to believe" that "special or unique" circumstances did not exist in any one of those thousands of applications. After noting that even if the policy were applicable it was only one of the matters to be taken into account, Mr. Bingham submitted that in the present case there were these special circumstances that the Board had ignored -
For the Board, during the course of argument Mr. Horan made the point that because in this jurisdiction VCAT undertakes merits review there was no benefit in exploring whether the Board applied its policy too rigidly. It was accepted, though, that the Board should not apply its policy inflexibly without regard to individual circumstances. The Tribunal should have regard to the policy and apply it in the absence of cogent reasons not to, for instance that it would be unjust in the circumstances of an individual case. In written submissions Mr. Horan submitted that the Board's policy was consistent with the governing statute and did not preclude consideration of the merits of a particular case. He said that the policy was not unjust or unreasonable and that if all persons in Mrs. Markerink's position were entitled to obtain recognition for prior service the Fund would be subject to a significant amount of unforseen liabilities. Attached to Mr. Horan's written submission were figures put forward to demonstrate the point.
While Mr. Horan submitted that actual notification of the amnesties was not required, he said that in any event it was likely that Mrs. Markerink did receive actual notification of the amnesties. Citing Stelmachiw, he submitted that it was sufficient that a reasonable person in her position would have known of the amnesties and that the Board did everything reasonable at the time to inform people about each of the amnesties.
I mention now that Mr. Bingham more or less put the Board to proof regarding the delegation to its Benefits and Service Committee. He referred to section 14 of the Emergency Services Superannuation Act 1986 and the definition of "governing instrument" in section 3(1) of that Act, submitting that the Board had no power to delegate and that the discretion had to be exercised by the Board itself. Even if the Board had power to delegate, the instrument of delegation did not delegate the power, he submitted. That, he said, demonstrated that there was a "blanket policy". Insofar as the Board asked the Tribunal to apply a blanket policy that was not permissible, he submitted. Because the Tribunal exercises merits review, I do not have to determine the regularity or otherwise of the delegation, but it appears to me that the delegation was regular. Section 14 enables the Board to delegate a function, power or duty that it has under a Superannuation Act or governing instrument (which includes regulations). The instrument of delegation refers to functions and powers set out in schedules to the instrument. The schedules include power to determine a dispute under the State Superannuation Act 1988 in relation to the exercise of the functions and powers of the Board in relation to benefit issues. Whatever the position, the Tribunal must exercise the discretion given by regulation 13(4) and, in so doing, should have lawful regard to the policy.
I mention too that Mr. Bingham submitted that the inadequacy of the reasons given to Mrs. Markerink indicated that Board merely rejected her application. (He also pointed to the use of a "form" letter). And he said that the continuation of a policy that was adopted in the early 1990s beyond the time that regulations were passed in 1998 and 2008 appeared to indicate that the regulations were ignored.
In summary, in relation to the question of fairness, Mr. Bingham submitted that it might have been thought that the regulations would have allowed a decision-maker to take into account that Mrs. Markerink suffered the result of what today would be identified as discrimination on the basis of marital status. No man would be in her situation, he said.
Mr. Horan submitted that while there may have been discrimination against married women in the 1950s and 1960s the decision of the Board under review did not discriminate on the basis of marital status. Rather it related to Mrs. Markerink's failure to join a fund when there were opportunities for her to do so, whether that was a conscious decision made by her or not. In this regard the policy was not punitive but was directed to the general administration of the fund in a way that promoted equity among members.
As to when the discretion might be exercised in a person's favour, he put forward some hypothetical situations - including where there was some administrative oversight or where communication regarding the election to join had miscarried. He said that these kinds of situation might lead to an unjust outcome if the discretion were not exercised favourably but that the mere fact of prior service could not justify the favourable exercise of discretion. The absence of subjective knowledge of the amnesties could not justify that either, he submitted.
Referring to the terms of the policy, Mr. Horan submitted that the long history of its development was itself relevant. He conceded that the policy should not be applied inflexibly but said that one had to find circumstances warranting a departure from it. The history showed that the Board was attempting to publicise the amnesties to persons who were not members. The best the Board could do was what it did do. Mr. Horan submitted that it was impracticable to suggest that an unidentified class of persons should be contacted individually or that the Board should somehow request information from the Department about those persons or visit schools.
Regarding Mrs. Markerink's knowledge, Mr. Horan submitted that she was conscious of the change in 1968 and again in 1988, that is when first she was required to leave the Fund and later when she was required to join the New Scheme. She was therefore aware that she was not a member at the time that she received a notation on her payslip about that. She took no steps to inquire about the matter of superannuation.
In his final response at the hearing Mr. Bingham said that Mr. Horan's submissions amounted to a re-writing of the policy, for the actual policy, in using the word "declined", implied knowledge on the part of persons affected. Mr. Bingham submitted that the policy did not apply to Mrs. Markerink because she did not decline to take advantage of the amnesty. He said that the difference between the actual policy and what called this "re-writing" was instructive in that it recognised the policy's deficiencies. Mr. Bingham submitted that the Tribunal was actually being asked to apply something that was not the policy. The authorities relied on for Mrs. Markerink showed that the Tribunal should apply only a policy that was valid. There was evidence, he said, that the policy was applied inflexibly because it had not been exercised in favour of one single person.
The Tribunal is engaged in merits review of the administrative decision by the Board that involved it deciding to act in accordance with the policy. I have to decide how the discretion should be exercised by the Tribunal in the circumstances.
VCAT is not bound by the rules of evidence and may inform itself on any matter as it sees fit.[26] I am conscious of the objections made to evidence given on behalf of the Board. Insofar as that contained what could be said to amount to legal submissions it was really subsumed by the submissions that Mr. Horan made. The evidence assisted me to understand legal and practical background generally but, importantly, the legal and practical background as it was understood and implemented by the Board.
Consistent with other decisions of the Tribunal and its predecessor, the AAT, on what I think is reasonable now to accept as the best evidence available of what took place in 1975 and 1982, given by those with at least adequate corporate knowledge about that, I find that the measures said to have been taken to inform people about the amnesties were taken. While the Tribunal is not bound by the rules of evidence, the logic that underpins the presumption of regularity provides helpful guidance in this case. I do not apply the presumption, but I note the absence of evidence that would suggest to me that the Board did not do what the Board's evidence indicates the Board did, enabling others to communicate directly with teachers, whether or not they were current union members, to inform people about the amnesties. I find further that those measures were reasonable, judged as I think they should be judged by the conditions and standards of the time.
Mrs. Markerink said that she was not aware of the amnesties. It may be that, after so many years, the fact is rather that she has no memory of being aware. And, for instance, it would be difficult for her to say, and I did not understand her to say, that she attended all meetings where it may have been discussed but that it was not actually discussed.
Further, although Mrs. Markerink said that her union membership was intermittent, she did not positively say that she was not a member of the union at material times. Had she been a union member then, the information that would be expected to have been disseminated via the union should have been available to her. Had she, for whatever reason, not been especially interested in the subject of superannuation during the 1970s and 1980s she would perhaps not be expected decades later to recall discussion of that. The notation on one or more of her payslips may have made only broad reference to superannuation but, in my view, that was or ought to have been sufficient to prompt a person with an interest in the subject to find out more.
I do not think that the subjective test relating to a persons' knowledge that is applicable in a criminal context assists. For good reason, a person potentially liable to a penalty ought not suffer a penalty unless that person's subjective knowledge would make the person culpable. I agree with what Senior Member Davis said in Stelmachiw to the effect that the test should be objective.[27] In the present context, I am ultimately considering what is reasonable, fair and just. What Mrs. Markerink's knowledge was during the 1970s and 1980s can really only be determined now by her recollection of that. And whether, for instance, she saw the notation on her payslips and, if she did, she understood sufficient about that to realise that it could be in her interests to find out more, can really only be determined by what she can now say, decades later.
I respectively find myself also in agreement with the views expressed by Senior Member Davis in Stelmachiw regarding the reasonableness of the Board's conduct in attempting to inform as many persons as possible. But here too the ultimate questions are the reasonableness, fairness and justness of the policy and whether the circumstances warrant a departure from the policy. As I have said, the reasonableness of the Board's conduct has to be judged according to the conditions and standards of the time. Considering the evidence in the present case about what the Board did in the present case, I am satisfied that the Board acted reasonably.
This means that I conclude that Mrs. Markerink was given notice of the amnesties that was reasonable and so adequate to provide a reasonable person in her situation with the opportunity to make an election one way or other about the amnesties. 9. At its highest, the case for Mrs. Markerink would be that she was definitely not aware of the amnesties because, from the point of view of what was reasonable, the Board had not done enough to inform her about that but also that, had she been aware, she would definitely have taken advantage of one of the amnesties. It is significant, I think, that in her oral evidence Mrs. Markerink said that her husband "probably" would have advised her to take advantage of one of the amnesties if they had discussed that. It does not appear to me to be the case that Mrs. Markerink had given such thought to the question of superannuation so that it could be said that if and when an opportunity presented itself she would definitely have taken that opportunity and that the only reason she did not was because the Board did not do enough to bring the amnesties to her attention.
As the policy was explained to me, it applied so as to deny recognition of prior service to a person in Mrs. Markerink's circumstances whether or not she was actually aware of the amnesties. Mr. Bingham made submissions focussing on the word "declined". I agree that in the ordinary meaning of the words a person could be said to "decline" an offer or invitation, or "elect" not to accept it, only if the person knew that some offer or invitation had been made. I have already considered what the Board did to make the amnesties known to people and the state of Mrs. Markerink's knowledge. The policy is not a statute or contract to be strictly construed but one needs to understand how the policy, as it has been developed over time, is intended to operate and to what circumstances it is intended to extend, and the rationale for that. There was evidence that I accept that in its application the policy extended to people who said that they were unaware of the amnesties and for that reason did not "take advantage of" either of them. This was essentially for the reasons given in the Board's evidence: that people might approach the Board and say they did not know about the amnesties, whether or not that was the case; and that the potential liability of Government was to be taken into account. It being self-evident that a reasonable degree of certainly would be required in order for the proper planning and management of a superannuation scheme, this policy is reasonable, in my view. I think that it implicitly recognises that some people may genuinely not have been aware of the amnesties; some people may have been aware but say they were not; and then some people may genuinely believe that they were not aware of the amnesties but (36 years after 1975 and 29 years after 1982) the fact may be that they cannot recall being aware of that.
If this policy admitted no exceptions it could work unjustly or unfairly but the policy does admit exceptions. Concerning the balance that has to be struck between a potential liability for Government and the circumstances faced by an individual, I say this. Although some figures were provided by Mr. Horan, it may still be said that there was a lack of concrete evidence that there would be a (presently quantifiable) negative impact on other contributors or Government liabilities. That should not mean that the chance of at least an indirect impact on other contributors is something to be ignored. In my view it certainly cannot mean that a potential impact at least on Government's liabilities is something to be discounted. Even if these matters are something that could be said at present to be unmeasurable, they are matters to which at least some regard should be paid, in my view.
Bearing all that in mind, I do not consider this to be a case where the Tribunal, in seeking as it must to make the correct or preferable decision, should effectively disregard the policy.
As I see it, the occasion for considering the application of the policy arose because Mrs. Markerink was a married woman who had been forced to leave the Fund and who had not rejoined until required to do so in 1988. The policy was not applied to her in the way that it was because she was a married woman but rather because she did not recommence making contributions when she could have.
I see a difference between looking at 1968 legal arrangements from the vantage point of 2011 and trying to look at them from what the vantage point in 1968 would have been. In enacting the Equal Opportunity Act 2010 Parliament effectively renewed and extended its purpose in seeking to provide "protection from discrimination" for persons who might suffer discrimination for instance by reason of their marital status[28]. Whatever might now be said of laws that had the effect that they had on Mrs. Markerink upon her marriage, having regard to all the considerations I have mentioned, I am of the view that the discretion under regulation 13(4) of the regulations should not be exercised in her favour. It is easy to understand that the result of this application for recognition of prior service by reference to the policy may appear unfair to the individual affected, especially someone who, as Mr. Bingham noted, has given a lifetime of service to the State. However, looking more broadly at reasonableness, justice and fairness as I must do, I do not consider the outcome to be unreasonable, unjust or unfair.
There can be cases in which the discretion should be exercised favourably. Mr. Horan suggested some. There may be others. It may be that there have been no cases in which this has occurred. But it really may be only that there have been none so far. Mrs. Markerink's circumstances are unfortunate but I do not think that they can properly be described as special or unique. I add that I do not see any other consideration that would justify a departure from the policy.
The submissions in relation to the Charter that were made on behalf of Mrs. Markerink can be summarised in this way. The Tribunal as a public authority[29] must not act in a way that is incompatible with a human right or, in making a decision, fail to give proper consideration to a relevant human right[30]. The human right in question is the right to equality before the law, equal protection of the law without discrimination, and effective protection from discrimination.[31] It was submitted that there was discrimination in this case for the reason that Mrs. Markerink was treated less favourably because, as a married woman, she had (in the Board's view) to take advantage of the amnesties. She was the subject of discrimination upon her marriage in 1968 and she still suffered from that.
Developing the point about discrimination, the submissions referred to Human Rights and Equal Opportunity Commission v Mount Isa Mines Limited[32]. What essentially emerged from the judgment of Lockhart J in that case was that a tribunal having relevant jurisdiction may consider that there may be more than one ground for action taken by an "alleged discriminator" but that the tribunal should look for the "operative ground" in deciding whether there has been unlawful discrimination: was there "cause and effect" between the person's relevant characteristic and the less favourable treatment of that person? If the Board discriminated on the basis of Mrs. Markerink's "conduct" that did not mean that the Board did not also discriminate on the ground of marital status.
It was further submitted that the regulations should be construed in a way that does not involve discrimination and in a way that provides equal and effective protection against discrimination. That is, the regulations should be construed in such a way that, given that Mrs. Markerink was required to seek an amnesty because she had been discriminated against as a married woman, she not be excluded from recognition because of the existence, unknown to her, of the amnesties.
I now summarise the submissions on behalf of the Board. To the extent that regulation 13(4)(a) excludes or removes discretion, section 38 of the Charter does not have any application. This is for the reason that section 38(2) of the Charter provides in effect that the duty that a public authority has - the duty not to act in a way that is incompatible with a human right - does not apply if, as a result of the relevant statutory provision (defined in the Charter to include regulations), the public authority could not reasonably act differently or make a different decision. Regulation 13(4)(a) is not incompatible with any human right, in any event, for it precludes recognition of prior service only for periods when the officer was, or was entitled to be, a member of another relevant superannuation scheme. So far as the exercise of discretion is concerned, it was submitted that the policy turns on whether the person had taken advantage of a previous period (such as an amnesty period). Reference was made to Ellwood[33] in which, it was submitted, a similar policy was applied to a male officer. The power under regulation 13(4) can be applied to any officer - male, female, married or unmarried. It applies by reason of conduct not status. Any past discrimination involved in the operation of the legislation that removed Mrs. Markerink from the scheme to which she first contributed has been "addressed and ameliorated" by the statutory provisions enacted to give effect to the 1975 and the 1982 amnesties. It is legitimate to have regard to the amnesties when exercising the discretion conferred by regulation 13. Therefore, a decision to refuse recognition of prior service would not involve discrimination against Mrs. Markerink on the basis of her marital status and so would not be incompatible with her relevant human right.
In summarising the submissions on behalf of Mrs. Markerink, I have incorporated the essential parts of the submissions in further reply. I mention, though, that in response to the reference to Ellwood it was submitted that that the circumstances of the male applicant in that case were not the same or similar to Mrs. Markerink's circumstances.
[1] See State Superannuation Act 1988 section 3 and Emergency Services Superannuation Act 1986 section 5. At the hearing the Board's representatives produced a copy of the relevant instrument of delegation dated 12 February 2009 at the request of Mrs. Markerink's representatives.
[2] I refer to the Department and its predecessors as "the Department"
[3] The State Superannuation Regulations 2008 provide in regulations 5 and 8 that a prescribed superannuation scheme includes any superannuation scheme established and maintained by an Act of Victoria. This therefore includes the schemes referred to in this proceeding.
[4] State Superannuation Board of Victoria Recognition of Prior Service Board Policy, February 1998, page 22 (attachment 1 to witness statement of Shane Pearse)
[8] I cite the reported version: Re Bennett and State Superannuation Board (1989) 3 VAR 354 at 356
[10] He referred to another AAT decision - Ellwood v The State Superannuation Board of Victoria, unreported, AAT, Judge O'Shea 1 November 1991 - in which it was held that even the fact that the applicant was unaware of the cut-off date did not make the circumstances
[12] See Stelmachiw v Emergency Services Superannuation Board at paragraphs 41-45 relating to the equivalent provisions of the former regulations.
[13] Section 2(2) of the Superannuation (Amendment) Act 1968 and section 6(2) of the Married Women's Superannuation Fund Act 1968
[18] Mr. Bingham cited cases including Boughey v R (1986) 161 CLR 10 at 28-29 regarding the subjective element to the expression "ought to have known" in criminal context
[20] Mr. Bingham also cited North West Lancashire Health Authority v A.D & G [1999] Lloyd's Rep Medical 399; R v Warwickshire County Council, ex p Collymore [1995] ELR 217 and R v London Borough of Bexley, ex p Jones [1995] ELR 42
[24] Mr. Bingham also cited Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627
[29] See, for instance, Kracke v Mental Health Review Board [2009] VCAT 646
[30] Charter section 38
[31] Charter section 8(3)
[33] Unreported, AAT, Judge O'Shea 1 November 1991
Skoljarev v Secretary, Department of Primary Industries and Energy [1994] FCA 57
R v Warwickshire County Council, ex p Collymore [1995] ELR 217
R v London Borough of Bexley, ex p Jones [1995] ELR 42
Ivo Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732; (1995) 39 ALD 517
Sami v Roads Corporation [2008] VSC 377
Kracke v Mental Health Review Board [2009] VCAT 646
(1993) 118 ALR 80
(1986) 161 CLR 10