CONSIDERATION
26 Section 23(3A)(d) falls to be construed having regard to its text, context and the legislative intention. The relevant principles were summarised by French CJ and Hayne J in Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at 388-389; [2012] HCA 56 at [23]-[24]. Their Honours there said:
23 It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
"This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the test of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."
24 The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, the "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision "by reference to the language of the instrument viewed as a whole", and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is construed".
(Citations omitted.)
27 Their Honours then turned their attention to the manner in which a Court should approach determination of the purpose of particular statutory provisions. That purpose was to be discerned from the text, structure and context of the legislation through application of the processes of statutory construction and not from the subjective intention of the legislators. They concluded (at 390 [25]) that: "The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention."
28 Resort to secondary material such as second reading speeches or explanatory memoranda cannot displace the ordinary and natural meaning of the statutory text: see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 517-518 (Mason CJ, Wilson and Dawson JJ). See also Combet v The Commonwealth (2005) 224 CLR 494 at 567; [2005] HCA 61 at [135] (Gummow, Hayne, Callinan and Heydon JJ); Nominal Defendant v GLG Australia Pty Limited (2006) 228 CLR 529 at 538, 555; [2006] HCA 11 at [22] (Gleeson CJ, Gummow, Hayne and Heydon JJ), [82]-[84] (Kirby J); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47; [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 265; [2010] HCA 23 at [32]-[33] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 598; [2011] HCA 10 at [61] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519; [2012] HCA 55 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).
29 It may be permissible, however, to have regard to a second reading speech to "demonstrate that a purpose of the Act was to narrow the law as laid down in [previous] cases": see Nominal Defendant at 538 [22], citing Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 at 592-593, 598; [2005] HCA 26 at [80]-[81], [101] (Gummow, Hayne and Heydon JJ).
30 The starting point must, therefore, be the text of s 23(3A)(d).
31 The ordinary and natural meaning of the language employed in s 23(3A)(d) was considered by a Full Court which was called upon to construe the equivalent paragraph in s 24.
32 In Grant v Repatriation Commission (1999) 57 ALD 1; [1999] FCA 1629 the Full Court (Merkel, Goldberg and Weinberg JJ) considered the construction of s 24(2A)(d), which is in the same terms as s 23(3A)(d). At 4-5 [8]-[12] the Court held that:
In order for a decision-maker to be satisfied that the criterion in s 24(2A)(d) has been met the decision-maker must determine:
• the "remunerative work" that the veteran was last undertaking before he or she made the claim or application;
• whether the veteran is, at any time during the assessment period, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake that remunerative work.
Determination of the "remunerative work" referred to in s 24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than the capacity in which that work was undertaken. The particular capacity in which the work was undertaken is dealt with as a separate criterion in s 24(2A)(g). Thus, whether or not the work was undertaken as an employee or as a self-employed person is irrelevant to the characterisation to be given to that work under s 24(2A)(d).
…
Section 24(2A)(d) can be contrasted with s 24(1)(c) which provides for a pension at the special rate for veterans under the age of 65 who are prevented by war-caused injury or disease from undertaking "remunerative work that the veteran was undertaking"; a term which has been construed as referring to the type of work that the veteran previously undertook: see Banovich v Repatriation Commission (1986) 69 ALR 395 at 401; 11 ALN N142. Although by focusing upon the last paid work s 24(2A)(d) may be more restrictive than s 24(1)(c), which focuses upon the remunerative work of the type the veteran previously undertook, neither subsection is concerned with the capacity in which the work is undertaken.
Having identified the last paid work for the purposes of s 24(2A)(d) the decision-maker is then required to determine whether at any time during the assessment period because of incapacity from war caused injury or disease or both, alone, the veteran was prevented from continuing to undertake that remunerative work. Thus, the reason why the veteran may have ceased to undertake the past paid work prior to the date of the claim is relevant to, but not determinative of, the inquiry required by s 24(2A)(d).
A veteran who has satisfied the requirements of s 24(2A)(d) must also satisfy the criterion in s 24(2A)(e) that, because the veteran was so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her account, that he or she would not be suffering if he or she were free from the incapacity.
(Emphasis added.)
The references to "capacity in which the work was undertaken" in the Full Court's reasons are references to the legal employment status of the veteran at relevant times, namely, whether he or she was an employee or working on his or her own account. That status fell to be assessed for the purposes of paragraph (g) of subsection 24(2A). The "assessment period", to which the Court referred, is the period starting on the day on which a claim or application is received at an office of the Department and ending on the day on which it is determined: see s 19(9).
33 A similar analysis may be applied to s 23(3A)(d) and a similar contrast drawn with s 23(1)(c). Sections 23 and 24 form part of the same statutory scheme. There is no textual or contextual basis for construing s 23(3A)(d) any differently from the construction placed on s 24(2A)(d) by the Full Court.
34 The distinction drawn between veterans under and over the age of 65 at the date of application is significant. This was the normal retiring age for workers at the time at which the scheme was enacted. So much is clear from the passages from the Second Reading Speech quoted above at [25]. The distinction was observed by the Full Court in Connell at 234 [33]. It was also remarked on by Hill J in Repatriation Commission v Haskard (2002) 126 FCR 1 at 10; [2002] FCA 1493 at [28]-[29]. His Honour said:
In s 23 capacity is dealt with in s 23(1), as supplemented by s 23(2). In the case of the Intermediate Rate, the veteran's capacity to work must be such as not to permit the veteran to work other than intermittently or on a part-time basis.
When one comes to look at the Intermediate Rate pension as applicable to someone who had turned 65, having still been in the last paid work when this happened, it can be seen that the veteran may still be capable of undertaking remunerative work on a part-time basis or intermittently, and in fact be undertaking work, for example, of less than twenty hours per week and still be entitled to the pension. However, that fact itself has nothing to do with the question whether the veteran has been prevented, by virtue of the war-caused injury or disease incapacity from continuing to undertake the particular remunerative work that he was last undertaking.
In these passages the word "capacity" or its variants is used in a different sense from that adopted by the Full Court in Grant. It is used to refer to the veteran's "ability" to work as a result of war-caused injury or disease. The qualifying criteria for a veteran who is over 65 at the time at which a claim is made are more restrictive than those which apply to a claimant who is under 65 because the older claimant has passed the normal retirement age. People over 65 were not normally to be compensated for incapacity to work because of war-caused injury or disease.
35 Had Mr Whitehouse been under 65 when he made his application for an intermediate pension, s 23(1)(c) would have applied. He could have been successful on the basis that he was "prevented from continuing to undertake remunerative work that [he] was undertaking …" in mid-June 2012. The temporal immediacy prescribed by s 23(3A)(d) ("the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim …") would not have operated as an impediment. Section 23(1)(c) would have allowed Mr Whitehouse's full-time work as a partner in the firm up to June 2012 to be brought into account because he would have been prevented, by his disabilities, from working full-time in that role prior to the designated normal retirement age. Further, so long as his subsequent part-time work as a consultant solicitor constituted different "remunerative work" to his full-time work as a partner, it would be no impediment that he was undertaking that part-time work at the time of his application: Connell at 234 [33].
36 It may be accepted, as Mr Whitehouse contends, that his prior full-time work as a partner is remunerative work that is capable of being distinguished from his later remunerative work as a part-time consultant solicitor: cf Connell at 233 [28]; see also Carter v Repatriation Commission (2001) 113 FCR 314 at 319; [2001] FCA 992 at [22] (Branson J); Haskard at 11 [32] and 13 [38] (Hill J).
37 Nevertheless, it is also apparent that the Tribunal implicitly accepted this distinction. At [28] it rejected the submission that Mr Whitehouse's "work as a full-time solicitor" was his last paid work. At [30] it found that his last paid work was his work "as a solicitor, or part-time solicitor". At [32] it referred to its finding that the "last paid work is Mr Whitehouse's work as a solicitor". The Tribunal's repeated use of the word "solicitor", when read with the last line of the extract from Haskard which it quoted at [30], may be thought to give rise to some uncertainty as to whether it distinguished between Mr Whitehouse's full-time and part-time work. However, in my opinion, when the finding at [30] is read with [28] and [33] and without "an eye keenly attuned to the perception of error" (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow JJ)), it is tolerably clear that the Tribunal did find that Mr Whitehouse's last paid work as a solicitor was remunerative work that was distinguishable from his prior full-time work.
38 The fact that Mr Whitehouse's full-time and part-time work may constitute different "remunerative work" for the purpose of s 23(3A)(d) does not provide an answer to the question posed in this proceeding. What s 23(3A)(d) requires is the identification of the particular remunerative work which constituted Mr Whitehouse's "last paid work" at the time that he made his application for an increased pension rate and then consideration of whether he was prevented from continuing to undertake that work.
39 On the facts found by the Tribunal, Mr Whitehouse ceased to be engaged in full-time remunerative work in about June 2012. At that time he had already turned 65. He then commenced working between four and five hours per day as a consultant solicitor in the same firm. At the time at which he made his application for an intermediate rate of pension, over a year later, he was continuing to perform this work as a part-time consultant solicitor. This was the "remunerative work" which he was last undertaking and for which he was last paid before he made the application. He continued to perform this particular remunerative work after he made his application and was so engaged at the time his application was heard and determined by the Tribunal, that is, during the whole of the "assessment period". At no time during that period was Mr Whitehouse prevented, by his war-caused disabilities, from continuing to undertake his last paid remunerative work as a part-time consultant solicitor.
40 The characterisation of Mr Whitehouse's "specific remunerative activity" as that of a practising solicitor who worked part time is not affected by the answer to the separate question in s 23(3A)(g) of whether he was an employee or practising on his own account and whether he had been doing so for a continuous period of at least 10 years that began before the veteran turned 65: cf Grant at 4 [9]; Ralph v Repatriation Commission (2016) 69 AAR 462 at 472; [2016] FCAFC 89 at [33] (Collier, Logan and McKerracher JJ).
41 The question of law posed by Mr Whitehouse should be answered: "No".
42 This finding means that Mr Whitehouse also failed to meet the criteria prescribed by paragraphs (e) and (g) of s 23(3A).
43 If the construction of s 23(3A)(d) which I consider to be correct is thought to be, in some way, "absurd" or anomalous the solution lies in legislative amendment: cf Ralph at 476-477 [56].