Picker v SAS Trustee Corporation

Aboriginal Land Rights Act 1983 Industrial Relations Act 1996 Interpretation Act 1987 Landlord and Tenant (Amendment) Act 1948 LEGISLATION CITED: Landlord and Tenant (Amendment) Act 1968 Police Regulation (Superannuation) Act 1906 Superannuation Administration Act 1996 Superannuation Legislation Amendment Act 2000 Superannuation Legislation Amendment Act 2006 Western Lands Act 1901

Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Boyce v Hughes (1970) 72 SR 54 Colley v Futurebrand FHA Pty Ltd & Anor [2005] NSWCA 223; 63 NSWLR 291 CASES CITED: Commissioner of Police (NSW) v Gray [2009] NSWCA 49 Director of Public Works v Ho Po Sang [1961] AC 901 Goodwin v Phillips (1908) 7 CLR 1 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Winbar Claim No 3) (1988) 14 NSWLR 68 Royal Automobile Club of Australia Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282

APPELLANT: Mr P O'Rourke of counsel with Ms K Balendra of counsel Oates & Smith, solicitors LEGAL REPRESENTATIVES: (Ms K Smith)

RESPONDENT: Mr T Ower of counsel with Mr R Blume, solicitor

Application by Terry Picker to appeal against a determination of the SAS Trustee Corporation given on 3 April 2008

1 This is an appeal pursuant to s 88 of the Superannuation Administration Act 1996 by Terry Picker against a determination of the SAS Trustee Corporation in which the Corporation declined to pay a superannuation allowance under s 10 of the Police Regulation (Superannuation) Act 1906 ("the Act") to the appellant. Section 88 provides: 88 Appeals (1) A person aggrieved by a determination of STC under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission). (2) The appeal must be made within 6 months after the appellant is notified of the determination of STC or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC in making the determination the subject of the appeal. (4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant. (5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit. (6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC. 2 Section 67 of the Superannuation Administration Act provides: 67 Determination of disputes (1) A dispute under this or any other Act concerning an STC scheme is to be determined by STC or an STC disputes committee, except as otherwise provided by the regulations. (2) Regulations made for the purposes of subsection (1) may require that a dispute concerning the entitlements or obligations of an employee or beneficiary arising in respect of service by the employee with an employer that: (a) was responsible for the payment of benefits under an STC scheme of which the employee was a member or to which the employee was a contributor, and

(b) has ceased to be responsible for the payment of benefits under that scheme but is responsible for the payment of benefits under a new superannuation scheme created in accordance with section 127, be determined, not by STC or an STC disputes committee, but by the trustee of the new superannuation scheme. (3) In determining a dispute, STC, an STC disputes committee or the relevant trustee may inform itself on any matter in such manner as it thinks fit and, in so doing, is not bound to observe rules of law relating to evidence. (4) A trustee acting in accordance with regulations referred to in subsection (2) and an STC disputes committee have and may exercise the powers conferred on STC by sections 66 and 68. (5) This section does not apply to a dispute in respect of which an application may be made to the District Court under section 21 of the Police Regulation (Superannuation) Act 1906. Note. The rights of a scheme member or other person to lodge a dispute with STC in relation to an STC scheme are set out in the Police Regulation (Superannuation) Act 1906, section 23E; the State Authorities Non-contributory Superannuation Act 1987, section 33B; the State Authorities Superannuation Act 1987, section 54B and the Superannuation Act 1916, section 85A.

3 The appellant is a former member of the NSW Police Force. The appellant was attested on 4 December 1961 and became a contributor to the "Police Superannuation Fund" established pursuant to s 3 of the Act. It was common ground that at the time he made his application under s 10B(2) of the Act (in July 2006), the appellant had reached the age of 60 years and that it had been more than five years since he resigned (in August 1996) from the Force. 4 Prior to his resignation the appellant had applied for a medical discharge on 30 May 1996 (later withdrawn) and had made two claims for hurt on duty benefits (on 12 January 1994 and 29 May 1996 respectively). Also in evidence were medical reports that the appellant relied upon to contend that he was incapable of performing the duties of a police officer. Reasons for declining payment 5 In making its determination declining to pay the superannuation allowance, the respondent specified three reasons: (1) that the appellant's application had not been made within the statutory time limits specified in s 10(1BA); (2) that s 10(1BA) was in direct conflict with s 16A of the Act (the latter provision giving a discretion to the respondent to accept an application that was not made or received within the time required under the Act) and as s 10(1BA) was enacted at a later time than s 16A, the later provision prevailed over the earlier provision; and (3) that even if there was no conflict between s 10(1BA) and s 16A, s 10(1BA) prevented the respondent from making payments in respect of applications made or received outside the specified time limits. 6 Mr Ower of counsel for the respondent expanded on these reasons in his submissions to the Court. Relevant legislation

7 The Act relevantly provides as follows: Section 3(2): (2) The Fund consists of: … (b) the deductions made under section 5, …

Section 3(3): (3) STC must pay out of the Fund: (a) the benefits provided by this Act, …

Section 5(1): (1) Subject to subsection (2), there shall be deducted from the salary of office of each qualified person and paid to the Fund an amount equal to 6 per cent of that salary of office.

10 Superannuation allowance where member hurt on duty (1) In this section: … disabled member of the police force means: … (b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member's resignation or retirement, was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement, that infirmity being determined, pursuant to section 10B (3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be. retired includes discharged as referred to in section 7 or 14. (1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is: (a) an amount that is equal to 72.75 per cent of the member's attributed salary of office,

(b) except where paragraph (c) applies, an additional amount that is: (i) not more than 12.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the member's incapacity for work outside the police force, and (c) if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, an additional amount that is: (i) not less than 12.25 per cent and not more than 27.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed, multiplied by the equivalent service ratio of the member as at the date of the member's discharge, resignation or retirement. … (1BA) A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsection (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made: (a) before the member reaches the age of 60 years, or (b) not later than 5 years after the member resigns or retires, whichever is the later. … (1D) STC may: (a) make a determination at any time of an additional amount of a superannuation allowance under this section, and (b) vary any such determination at any time, and may direct that the determination or variation take effect from such date as STC considers appropriate. … 8 Section 10 of the Act was amended so as to include s 10(1BA) by s 3 (Schedule 1, cl 1.2[8]) of the Superannuation Legislation Amendment Act 2006 and s 10(1BA) commenced operation on 30 June 2006. 9 Section 10B of the Act requires the claimant to undergo a medical examination and imposes an obligation on the Police Commissioner to determine whether or not any certified infirmity was caused by the claimant having been hurt on duty: (1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990. (2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement. (2A) For the purposes of determining a member's or former member's incapacity under this section: (a) STC is not to have regard to the member's or former member's actual rank or position or any functions (other than the functions referred to in subsection (2) (c)) of the member or former member at the time to which the certification relates, and

(b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function. (2B), (2BA) (Repealed) (2C) In this section: medical advice means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the STC. (3) Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision. 10 Section 16A of the Act provides: 16A Late elections, applications and choices (1) STC may accept an election, application or choice that is not made or received within the time required under this Act if it is satisfied that in all the circumstances of the case it is desirable to do so. (2) STC may impose conditions on the acceptance of the election, application or choice. (3) STC may deal with the election, application or choice accepted under this section as if it had been made or received within the required time. 11 Section 16A was part of amendments to the Act introduced by the Superannuation Legislation Amendment Act 2000 (s 5 (Schedule 3)) and commenced operation on 13 December 2000. Appellant's submissions

12 The appellant addressed each of the three reasons given by the respondent for declining the claim. As to the first reason, that the appellant's application had not been made within the statutory time limits specified in s 10(1BA), the appellant contended that he had an accrued right to make an application that was preserved by virtue of s 30(1)(c) of the Interpretation Act 1987 and that in the absence of the clearest legislative intention to divest the appellant of his right, the right was retained. Indeed, it was submitted that the regulation making power set out in Schedule 6 of the Act and the second reading speech reinforced the appellant's contention that there was no legislative intention to divest him of his right to make application. 13 As to the accrued right, the appellant relied on the following: s the beneficial nature of the Act; s that he had paid money into a superannuation fund from which he was entitled to be paid benefits upon satisfying the criteria in s 10B; s that he had satisfied two of the criteria in s 10B of the Act, namely, that he was a former member of the Police Force and had notified the Commissioner of Police before his resignation and within 6 months of receiving the injury which has caused his infirmity of body or mind, of that injury; s that there was no time limit prior to the introduction of s 10(1BA) on a claimant seeking to satisfy the criteria in s 10B to qualify for payment of the superannuation;

s that his rights to apply for a superannuation allowance had crystallised at the date he resigned from the Police Force;

s that the only criteria left to be satisfied was medical certification that he was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer and consideration by the Police Commissioner of whether the infirmity was caused by being hurt on duty; s that the appellant was being denied the opportunity of obtaining certification and consideration of whether he was hurt on duty because of the interpretation adopted by the respondent of s 10(1BA); and s that to divest the appellant of his right to apply for a superannuation allowance would be harsh. 14 The appellant relied on Boyce v Hughes (1970) 72 SR 54 and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Winbar Claim No 3) (1988) 14 NSWLR 68. 15 In respect of the second reason regarding the asserted conflict between s 16A and s 10(1BA), the appellant submitted there was no conflict and that s 16A was available to provide relief from the otherwise harsh and arbitrary application of s 10(1BA) of the Act. 16 As to the third reason, that even if the appellant obtained relief under s 16A such relief would be of no use, it was submitted that the effect of an acceptance of a late application under s 16A is that the application is deemed to be within the required time and the allowance becomes payable, subject to the application having merit. CONSIDERATION

17 The issue in these proceedings falls to be determined according to the principles governing statutory construction. The main issue is whether the appellant has an accrued or acquired right to make application for a superannuation allowance under s 10 of the Act.

18 Section 10(1BA) provides that a superannuation allowance is not payable to a disabled member of the police force (which includes a former member of the police force who resigned or retired) unless an application for payment of the allowance is made: (a) before the member reaches the age of 60 years, or

(b) not later than 5 years after the member resigns or retires, whichever is the later. 19 It was common ground that no application by the appellant was made prior to the amendment that introduced s 10(1BA) into the Act and it was some 10 years after the appellant resigned that the application was made. 20 The appellant relied on a reading down of s 10(1BA) based on the common law presumption that Parliament does not intend to interfere with vested rights or on the general savings and transitional provisions in s 30 of the Interpretation Act. Section 30(1) of the Interpretation Act relevantly provides: (1) The amendment or repeal of an Act … does not: …

(b) affect the previous operation of the Act … or anything duly suffered, done or commenced under the Act …, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act …" 21 The appellant also relied on the regulation making power under Pt 1 of Schedule 6 of the Act as evidence of an intention not to interfere with an accrued right. Whilst the power to make regulations that contain provisions of a savings or transitional nature consequent on the enactment of the Superannuation Legislation Amendment Act 2006 (but only to the extent to which it amended the Act) existed, no such regulation had been made. 22 In my opinion, the right to make an application for payment of a superannuation allowance is not an accrued or acquired right protected by s 30(1)(c) of the Interpretation Act or the common law presumption. It is a mere right to take advantage of s 10(1BA). 23 Prior to the amendment that introduced s 10(1BA) in 2006, an officer to be entitled to a superannuation allowance would, relevantly, have needed to have satisfied four criteria: (1) that he or she was a former member of the Police Force who had resigned or retired; (2) that the former member had notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, (3) that the respondent (having regard to medical advice on the condition and fitness for employment of the member) had certified that the former member would have been incapable, from the member's infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement; and (4) that the Commissioner of Police had decided the infirmity to which the certificate relates was caused by the former member having been hurt on duty when he or she was a member of the Police Force. 24 Prior to the introduction of s 10(1BA) there was no time limit in which the foregoing criteria had to be satisfied and there was no prescribed application form or for that matter any indication of how the process for claiming the superannuation allowance was to be set in train. 25 Following the introduction of s 10(1BA), the former member has to still meet the above criteria, but in order to receive payment of the allowance has to make application within the prescribed time. The time allowed is a minimum of five years, which on the face of it, would not appear to be unreasonable. 26 The appellant contended that against the background of the nature of the fund to which he contributed, because he had resigned and notified the Commissioner before his resignation and within 6 months of receiving his injury, that he had accrued a right to apply for a superannuation allowance. Is that sufficient to constitute an accrued right? 27 If the appellant had, prior to the introduction of s 10(1BA), sought to have the respondent certify that as a consequence of his infirmity he was incapable of personally exercising the functions of a police officer at the time of his resignation, it is arguable that the appellant may have accrued a right to make application for payment of the superannuation allowance. But the appellant did not do that and, in fact, in his letter of resignation specifically eschewed any intention of proceeding with a hurt on duty claim, for whatever reason and did not seek to revive that claim until 10 years later. 28 The appellant referred to Boyce v Hughes. In that case the appellant, who had resided with Mrs C, the lessee of prescribed premises, for some 26 years before the death of the lessee and was entitled to the protection conferred by s 83A(1)(d) of the Landlord and Tenant (Amendment) Act 1948 continued in possession of the premises after that death. Section 83A(1)(d) was repealed by the Landlord and Tenant (Amendment) Act 1968. The appellant applied for an injunction restraining the lessor from interfering with his right to the use and enjoyment of the premises. It was held, that the appellant's right to continue in possession of the premises under s 83A(1)(d) was a "right" "acquired" or "accrued" within the meaning of s 8(b) of the Interpretation Act 1897 and, accordingly, survived the repeal of s 83A(1)(d). 29 Section 83A(1)(d) provided that the appellant was entitled to a right to continue in possession after the death of Mrs C because he had resided with her for a period of not less than two years immediately before her death. Sugerman P (with whom Holmes JA agreed) stated at 57: It is not, however, essential in my opinion… that the acquisition or accrual of the specific right should occur by virtue of some act done on the part of the individual who acquires it or to whom it accrues. The right may be acquired or accrue by reasons of the happening of an event specified by the statute which is independent of the act of the individual concerned… In the present case the event on which the right was acquired or accrued under s 83A of the Landlord and Tenant (Amendment) Act was the death of Mrs Clements. This was coupled with the circumstances that the plaintiff had resided with Mrs Clements, the lessee, for a period of not less than two years immediately before her death and was thus one of the classes of persons qualified to acquire a right to continue in possession under the section as it stood.

Asprey JA took a not dissimilar view to Sugerman P: see 59. 30 In the present case, the act done by the appellant was a far cry from that of the appellant in Boyce who had taken possession in accordance with the then prevailing statute. The appellant merely resigned, having indicated he did not wish to press his hurt on duty claim and made no attempt to acquire a certificate from the respondent as required by s 10B of the Act, which is a fundamental prerequisite to the making of a successful claim. 31 In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act, prior to its amendment in 1986 the Aboriginal Land Rights Act 1983, provided in s 36(9): "Any transfer of lands to an Aboriginal Lands Council under this section shall be for an estate in fee simple." After the amendment to that section in May 1986, s 36(9) provided: "Except as provided by subsection (9A), any transfer of lands to an Aboriginal Lands Council under this section shall be for an estate in fee simple." Section 36(9A) provided: Where the transfer of lands to an Aboriginal Lands Council under this section is of land to which the Western Lands Act 1901 applies but which is not within an area determined by the Minister administering that Act as being the urban area of a city, town or village, the transfer shall be effected by the granting to the council of a lease in perpetuity under that Act. 32 On 26 April 1984, the New South Wales Aboriginal Land Council made application to the Minister in respect of claimable Crown lands being lands to which the Western Lands Act 1901 applied. On 8 November 1984 the Minister refused the claim. On 21 December 1984 the Land Council lodged an appeal against the Minister's refusal to the Land and Environment Court. On 2 May 1986 the amendments to the Aboriginal Land Rights Act, s 36(9), came into force. On 3 September 1987 the Minister decided to approve the Land Council's land claim. However the Minister thereafter proposed to transfer the land to the Land Council by way of a lease in perpetuity under the Western Lands Act. The Land Council filed a further appeal with the Land and Environment Court seeking a declaration that it was entitled to a transfer of the land in fee simple. The Land and Environment Court dismissed that appeal. 33 In the Court of Appeal it was held that the Land Council had a statutory right, pursuant to the Aboriginal Land Rights Act, s 36(9), in respect of the land claimed to which it had applied to the Minister, at the time its initial appeal was lodged with the Land and Environment Court and that proceeding could be continued in that Court as if the law had remained the same as it was at the time when the appeal was instituted, and nothing in the amendments to s 36(9) in May 1986 suggested that the matter should be dealt with otherwise than upon that basis. 34 In that case, after referring to what Lord Morris had said in Director of Public Works v Ho Po Sang [1961] AC 901 at 920 regarding a lessee's right in relation to the repeal of an ordinance under which a lessee, in certain circumstances, could apply for a rebuilding certificate (Lord Morris said the "lessee had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects"), Hope JA said at 694: The rights conferred by the Aboriginal Land Rights Act do not fall into this category. On the other hand the Act does not in terms expressly confer a right in the land on the applicant at the time the claim is made. It envisages that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is then bound to grant the claim. If the Minister refuses, the court on appeal again investigates the same matters but the onus is put on the Minister. As it seems to me, assuming the conditions were in fact satisfied, the Land Council did not merely have a right to have its claim investigated; it had a right to have the claim granted. If the Minister wrongly refused to grant it, it had the right to have the court grant it. The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional. 35 It was this passage upon which the appellant relied to contend that he had an accrued right to make the application for the payment of a superannuation allowance. I do not think this authority adds any weight to the appellant's claim. The appeal was allowed on the basis that a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been set in force before the repeal or amendment (see 696 per Hope JA, Samuels and Clarke JJA agreeing). The statutory machinery had been set in force before the amendment by the Land Council making application in 1984 to the Minister in respect of claimable Crown lands being lands to which the Western Lands Act applied, some two years before the 1986 amendments. 36 In the present case, apart from resigning after having notified the Commissioner of hurt on duty claims (which the appellant indicated would not be pressed), the appellant took no further steps prior to the introduction of s 10(1BA) to set in force the necessary process to establish the merit of his claim for payment of a superannuation allowance. 37 The parties were referred by the Court to Colley v Futurebrand FHA Pty Ltd & Anor [2005] NSWCA 223; 63 NSWLR 291. In that case, the claimant entered into an employment contract with the first respondent on 15 May 2002 with a remuneration package of more than $200,000. On 18 March 2004, she sued her employer in the Industrial Court under s 106 of the Industrial Relations Act 1996 ("the IR Act"). The first respondent claimed her action was barred for want of jurisdiction by s 108A(1) of the IR Act, which came into effect on 24 June 2002, and excluded contracts of employment with a remuneration package of more than $200,000 from the Court's jurisdiction under s 106. The claimant asserted that s 108A had no application to existing contracts and relied upon s 30(1) of the Interpretation Act and the common law presumption that Parliament does not intend to interfere with vested rights. 38 The Court of Appeal dismissed the summons. It was held that until proceedings are commenced, s 106 only conferred "a right" to commence proceedings; it was an abstract rather than a specific right. Further, that neither s 30(1) nor the common law presumption protected the claimant's "right" to commence proceedings under s 106, which did not survive the enactment of s 108A(1). 39 Handley JA, who delivered the primary judgment (and with whom Giles JA agreed, Mason P not dissenting) stated at [30]-[34] (references omitted): [30] Given that the only right expressly conferred by s 106 is a right to apply to the Commission for specific relief, a would be applicant, as Meagher JA said in Fisher v Madden as Receiver and Manager of Dataflow Computer Services Pty Ltd (at 183 [12]) "has the right to apply for an order, nothing more". Even if the contract is unfair and an experienced practitioner could give some estimate of the likely order, there is, as Meagher JA said (at 183 [12]), no "right to a quantifiable order". The claimant had no ascertainable right or entitlement defined by reference to past facts similar to the rights to compensation in Hamilton Gell v White (see at 297 supra) and Resort Management Services Ltd , the right to the hardship allowance in Chief Adjudication Officer v Maguire (see at 297ff supra), or the land rights claim in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685. [31] The filing of an application under s 106 causes a right to accrue because the applicant acquires ( Esber (see at 296 supra); Gerrard (see at 296 supra)) a legally enforceable right to have the Commission hear and determine the application according to law. This is a new right, different from a mere right to take advantage of the section. [32] There is no other act or event which can convert the general right to take advantage of s 106 into an accrued or acquired right. This is not a case where a right or entitlement automatically accrues or is acquired on an event such as an unfair dismissal, the injurious affection of land ( Resort Management Services Ltd ), the giving of a notice to quit ( Hamilton Gell v White ), or an illness causing a special disability ( Chief Adjudication Officer v Maguire ). [33] Until an application under s 106 is made, the right under that section can fairly be characterised as a mere right to take advantage of the section, to use the language of Lord Herschell LC (see at 296 supra), and an abstract rather than a specific right to use the language of Atkin LJ (see at 297 supra).

[34] In my judgment the claimant was not protected by s 30(1)(c) or the common law presumption from the limitation of the Commission's jurisdiction brought about by s 108A(1). 40 I can see no reason not to follow Colley. As in Colley, this is not a case where a right or entitlement automatically accrues or is acquired on an event. A superannuation allowance is only payable to a former member of the police force who resigned or retired where, inter alia, the former member has been certified by the respondent as being incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer and where the Police Commissioner is satisfied the infirmity was caused by the officer being hurt on duty: s 10B. Whereas prior to the enactment of s 10(1BA) there was no time limit imposed on the making of an application for a superannuation allowance under s 10, after that enactment time limits were imposed. There is no persuasive indication in the statute that the legislature intended that the right to make an application under the conditions of no time limit survived the amendment that introduced s 10(1BA). Indeed, the wording of s 10(1BA) suggests a contrary intention: see s 5(2) of the Interpretation Act. Further, the existence of s 16A, which allows for late applications to be made or received by the respondent, reinforces a finding that the appellant is subject to the time limit imposed by s 10(1BA) of the Act. 41 The appellant submitted that: [A]s at 24 May 2006 there remained 3,700 serving police officers still contributors to the Police Superannuation Fund. If the Commission agrees with the submissions of the Applicant, the time limits imposed by s.10(1BA) would still have potential impact upon those among the 3,700 serving police officers. The Section would have substantial and ongoing impact on as many of those 3,700 who resign or retire. That is, even though not operating retrospectively, the Section still has substantial work to do. 42 It seems improbable that the legislature would have intended that a former officer who had resigned would not be subject to the time limit imposed by s 10(1BA) but a serving officer would be divested of any right to claim a superannuation allowance if an application was not made within the prescribed time. 43 I find that the appellant does not have an accrued right under s 10(1BA) to apply for a superannuation allowance. Whether conflict between ss 10(1BA) and 16A

44 The respondent contended that ss 10(1BA) and 16A were in conflict and so applying the rule that the later enactment usually takes precedence of the earlier enactment, s 10(1BA) prevailed: Goodwin v Phillips (1908) 7 CLR 1 at 7. 45 However as it was observed in Commissioner of Police (NSW) v Gray [2009] NSWCA 49 at [109]-[110], the doctrine enunciated in Goodwin: "[R]equires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands": Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 228 CLR 566 (at [48]) per Gummow and Hayne JJ; see also Gleeson CJ (at [2]).

[110] While "the legislature may, by necessary implication, manifest an intention" that a later statutory regime should apply to the exclusion of the first, "partial repeal of an earlier statute by a later statute will only be inferred on 'very strong grounds' ": Ferdinands v Commissioner for Public Employment [2006] HCA 5 ; (2006) 225 CLR 130 (at [4]) per Gleeson CJ referring with approval to Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 (at 17) per Gaudron J. Gummow and Hayne JJ (at [18]) also referred to the "general presumption that the legislature intended that both provisions should operate": Saraswati (at 17) per Gaudron J.

46 The respondent also submitted that the generalia specialibus non derogant rule of statutory construction would dictate that s 10(1BA) would be preferred. It was submitted that s 10(1BA) was a section of specific, as distinct from general, application. Given the express words and the clear statutory intent of the provision, there was no scope for s 16A to interfere in these circumstances: Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7. 47 In Royal Automobile Club of Australia Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282 at 292-7 Kirby P set out a number of principles relating to the maxim generalia specialibus non derogant including the following (at 293): Respectful of the law made by parliament, courts will not readily assume that words of apparently general application are to be narrowly confined: see Fullagar J in Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276. It is for the party seeking to confine such words to show that this is necessary to avoid an irreconcilable inconsistency or repugnancy between the statutory duties said to be in conflict: see, eg Goodwin v Phillips (1908) 7 CLR 1 at 11. There must be such conflict that the words necessarily "import a contradiction": see Garnett v Bradley (1878) 3 App Cas 944 at 966; Rose v Hvric (1963) 108 CLR 353 at 360; Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500 at 509; … In the absence of express repeal of earlier or other statutory provisions, it will normally be presumed that parliament intended the two statutes to work harmoniously together so that each operates within its respective field of application: see Hack v Minister for Lands (NSW) (1905) 3 CLR 10 at 23; Maybury v Plowman (1913) 16 CLR 468 at 473, 480; Lukey v Edmunds (1916) 21 CLR 336 at 341, 352; Bank Officials' Association (South Australian Branch) v Savings Bank of South Australia (1923) 32 CLR 276 at 288; South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603 at 626; Trade Practices Commission v BP Australia Ltd (1985) 7 FCR 499 at 506-7 62 ALR 151 at 158. To invoke the maxim it is essential that it should be shown that "effect cannot be given to both provisions at the same time", for otherwise such effect must be given out of deference to the imputed will of parliament: Kutner v Phillips [1891] 2 QB 267 at 272; Hack v Minister for Lands (NSW) (at 23f); Hill v Hall (1876) 1 Ex D 411 at 413, 414; Flannagan v Shaw [1920] 3 KB 96.

In giving meaning to the language used by parliament in succeeding statutory provisions, the court will not look to hypothetical or possible conflicts. Legislation being concerned with the highly practical business of lawmaking, the issue in every case of a suggested conflict will be the practical ways in which the legislation operates together and whether, in that context, an irreconcilable conflict of duties really arises. In answering this question it is relevant to consider whether one of the statutes applies to a special class or subject matter whereas the other applies to a more general or wider subject matter: see Associated Minerals Consolidated Ltd v Wyong Shire Council , ibid, at NSWLR 686-7; AC 554; cf Sarris v Penfolds Wines Pty Ltd [1963] SR(NSW) 10 ; 79 WN (NSW) 601; Sydney City Council v Paul Dainty Corp Pty Ltd [1984] 3 NSWLR 104 at 107; see also S G G Edgar, Craies on Statute Law , 7th ed, 1971, pp 377ff.

48 Section 16A was present in the Act well before s 10(1BA) made its appearance and applied at a time when there was no time limit on the making of applications for the payment of a superannuation allowance. Whilst it might be contended, therefore, that s 16A has no part to play in respect of s 10(1BA), the legislature must be presumed to have been aware of the existence of s 16A at the time the Act was amended to introduce s 10(1BA): see Royal Automobile Club at 293 per Kirby P. 49 The language of s 16A is unequivocal; it allows the respondent to accept an application "that is not made or received within the time required under this Act if it is satisfied that in all the circumstances of the case it is desirable to do so." Section 10(1BA) clearly establishes a time within which an application is to be made. It is a matter for the respondent to be satisfied it is desirable to accept the application. Moreover, the respondent may impose conditions on the acceptance of the application: see s 16A(2).

50 Section 16A is to be found in Pt 5 - Miscellaneous of the Act and has broad application. It uses the word "application", which is the same word used in s 10(1BA). Words in a statute are assumed to be used consistently unless there are strong reasons to consider differently. I do not consider such strong reasons exist in this case.

51 I can see nothing in the Act to support any implication that s 10(1BA) is in irreconcilable conflict with s 16A and, therefore, that s 10(1BA) takes precedence over s 16A. In my opinion, the two provisions stand easily together and "effect cannot be given to both provisions at the same time".

52 The respondent submitted that s 10(1BA) does not place a time restriction on the making of an application. Rather, it creates a prohibition on payment of a pension in certain circumstances. Therefore, it was contended, the discretion conferred by s 16A had no part to play. The application, it was submitted, was "technically futile because the Respondent has no power to make payments in relation to it even if it were ultimately successful." 53 I do not accept these contentions as being correct. The effect of an acceptance by the respondent of a late application under s 16A is that the application is then deemed to be within the required time. Section 16A(3) provides that the respondent may deal with the election, application or choice accepted under s 16A as if it had been made or received within the required time. If the respondent is satisfied that in all the circumstances of the case it is desirable to accept a late application (s 16A(1)) and subject to it imposing conditions on the acceptance of the election, application or choice (s 16A(2)), the respondent may then determine the merits of the application according to the ordinary rules that apply to the making of such determinations. Conclusions 54 It follows from the Court's findings that the respondent should consider any application by the appellant for the payment of a superannuation allowance. The application would necessarily be a late application to be dealt with in accordance with s 16A. As I have already noted, under s 16A the respondent may accept an application that is not made or received within the time required under this Act if it is satisfied that in all the circumstances of the case it is desirable to do so and, secondly, STC may impose conditions on the acceptance of the application. Those are matters for the respondent to address, but I would have thought that if there are sound reasons why Mr Picker did not make his application in a timely way the respondent would take these into account and if satisfied of the desirability of doing so, proceed to determine whether it should certify that the appellant was incapable, from infirmity of body or mind, of personally exercising the functions of a police officer at the time of the appellant's resignation or retirement.

55 The Court makes the following order: (1) The SAS Trustee Corporation shall consider any application by Terry Picker for payment of a superannuation allowance in accordance with the provisions of s 16A of the Police Regulation (Superannuation) Act 1906. 56 The usual order as to costs would be that the respondent bear the appellant's costs, as agreed or assessed. If the parties are unable to agree about this they have liberty to approach. That liberty should be exercised within 28 days. ______________________

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