Supreme Court New South Wales Medium Neutral Citation: Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2011] NSWSC 983 Hearing dates: 29 July 2011 Decision date: 26 August 2011 Jurisdiction: Equity Division Before: Rein J Decision: 1. Summons dismissed. 2. Plaintiff to pay the defendant's costs. Catchwords: STATUTORY CONSTRUCTION - the plaintiff was married to a former member of NSW Parliament during his parliamentary career and when he retired at which point the former member became entitled to a pension - the plaintiff and the former member then divorced - they remarried shortly before the former member's death - the plaintiff has not remarried since and seeks payment of a pension as the former member's widow pursuant to s 23(1) of the Parliamentary Contributory Superannuation Act 1971 (NSW) - whether the plaintiff falls within the bracketed exception in s 23(1), ie "(not being a person who became the spouse or de facto partner of the former member after the former member became entitled to that pension)", as a matter of statutory construction Legislation Cited: Interpretation Act 1987 (NSW) Legislative Assembly Members Superannuation Act 1946 (NSW) Parliamentary Contributory Superannuation Act 1971 (NSW) Parliamentary Contributory Superannuation Act 1970 (QLD) Parliamentary Contributory Superannuation Act 1962 (VIC) Cases Cited: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 Kingston v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 Taylor v Centennial Newstan Pty Ltd (2009) 76 NSWLR 379; [2009] NSWCA 276 Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 Wentworth Securities Ltd v Jones [1980] AC 74 Whiting v JDS Engineering and Labour Services Pty Ltd [2010] NSWCA 28 Category: Principal judgment Parties: Diane Maree Griffiths (plaintiff) The Trustees of the Parliamentary Contributory Superannuation Fund (defendant) Representation: D M J Bennett QC; A Tokley; A Flecknoe-Brown (plaintiff) M G Sexton SC; A Izzo (defendant) Indemnity Legal Pty Ltd (plaintiff) Crown Solicitor (defendant) File Number(s): SC 2010/396263 Judgment 1Diane Maree Griffiths is the widow of Terence Allan Griffiths who served as a Member of the New South Wales Parliament from 19 March 1988 to 3 March 1995. Mr Griffiths became the Minister for Justice in 1991 and was appointed Minister for Police and Minister for Emergency Services in 1993. 2Mr Griffiths received a parliamentary pension under the Parliamentary Contributory Superannuation Act 1971 (NSW) ( "the Act" ) from March 1995 till his death on 18 June 2009 from cancer. 3Mrs Griffiths seeks payment of a pension to herself as Mr Griffiths' widow. The Trustees of the Parliamentary Contributory Superannuation Fund ( "the Trustees" ) resist the claim on the basis that Mrs Griffiths does not qualify for a spouse's pension under s 23(1) of the Act. The Trustees took advice on the matter from the Crown Solicitor and acted on that advice in rejecting the claim. A copy of the advice was provided to Mrs Griffiths by the Trustees but it is not in evidence. 4The background to the dispute is that Mrs Griffiths was married to Mr Griffiths from 1974 until 1999. They separated in 1999 and were divorced on 22 April 2000. They had three children born between 1974 and 1980. 5Mrs Griffiths and Mr Griffiths remarried on 5 March 2009. 6Following Mr Griffiths' death in June 2009, Mrs Griffiths has not remarried. 7Mrs Griffiths seeks a declaration that she is eligible to receive Mr Griffith's parliamentary pension from 18 June 2009 and an order for costs. 8Mrs Griffiths' claim is based on s 23(1) of the Act which provides: "(1) On the death of a former member who immediately before his or her death was receiving, or was entitled to receive, a pension under this Part, the spouse or de facto partner (not being a person who became the spouse or de facto partner of the former member after the former member became entitled to that pension) of the former member shall be entitled to an annual pension..." (emphasis added) 9Mr D M J Bennett QC appears for Mrs Griffiths with Mr A Tokley and Mr A Flecknoe-Brown. The NSW Solicitor General, Mr M G Sexton SC, appears with Mr A Izzo for the Trustees. The Trustees are in fact a body corporate created by statute: see s 14A of the Act. 10The argument advanced for the plaintiff had these steps: (1)the phrase "person who became the spouse or de facto partner of the former member" within the bracketed exception in s 23(1) of the Act is ambiguous because it could mean when the person became the spouse under the first marriage or under the second marriage: see T44.19-28. (2)To resolve the ambiguity, the Court may have resort to extraneous materials. The extraneous materials relied on are: (a)the contents of the Parliamentary Report by the Committee of Inquiry to review the Emoluments of Statutory and Other Senior Officeholders and the Emoluments and Allowances and the Facilities and other Benefits of Members of the Legislature of New South Wales dated 30 November 1971 ( "the Goodsell Report" ) (see pages 24-48 of Exhibit A, particularly at pages 32 and 42-43); (b)the Legislative Assembly Members Superannuation Act 1946 (NSW)("the 1946 NSW Act" ); (c)the second reading speech introducing the 1946 NSW Act; (d)the first reading speech in 1971 introducing the Act (described by Mr Bennett as the second reading speech); (e)the 1971 speech by the Leader of the Opposition; (f)the Parliamentary Contributory Superannuation Act 1962 (VIC) ( "the Victorian Act" ); (g)the Parliamentary Contributory Superannuation Act 1970 (QLD)("the Queensland Act") ; and (h)the seconding reading speech on the introduction of the 2002 amendments to the Act (see tab 15 of Exhibit A). (3)The purpose of the Parliamentary Contributory Superannuation Bill 1971 (NSW) was to implement the recommendations of the Goodsell Report. (4)The authors of the Goodsell Report thought that the Victorian Act provided the model for an Act for New South Wales. (5)The Goodsell Report paraphrased the provisions of the Victorian Act and the Queensland Act (and the provisions of the 1946 NSW Act) by saying that they each provided that a widow would be excluded from the pension if she was not married to the member at the time he ceased to be a member. (6)The paraphrasing may not have accurately conveyed what had been contained in the Victorian Act and Queensland Act but it conveys what the authors of the Goodsell Report thought those Acts were saying and ought to be providing, namely to exclude only spouses who were not spouses at the time of the member ceasing to be a member. (7)The parliamentary draftsman fell into error because he incorporated the form of words used in the 1946 NSW Act and Victorian Act and not the less restrictive paraphrasing of the Victorian Act that the Goodsell Report and the NSW Parliament had intended to put in place. (8)The point of the exception in s 23(1) of the Act was to exclude persons who only became the spouse or de facto partner of a former member after the former member had "earned" his or her pension. The subsection should be read so that Mrs Griffiths, having been married to Mr Griffiths before his entry into parliament (and during his service as parliamentarian) is not excluded from the bounty of the legislation by the exception. The exception should be read as if it contained the word "first", ie "not being a person who first became the spouse or de facto partner of the former member after the former member became entitled to that pension", and this would reflect the evident intention of the Goodsell Report. (9)The requirement that the person seeking a pension under s 23(1) of the Act be a spouse and secondly that the spouse be someone who did not marry the member after he ceased to be a member of parliament are independent, so that the second requirement can be met even if the person was a spouse by a second marriage. (10)The exclusion of a spouse who was married to the member before he ceased to be a member but who then remarried her former spouse after he had ceased to be a member was a " casus male inclusus " (wrongly included case) - see Taylor v Centennial Newstan Pty Ltd (2009) 76 NSWLR 379; [2009] NSWCA 276 at [58]. (11)The plaintiff contended that "the parliamentary intention...was to provide for widows who were married to members at the conclusions of their parliamentary careers" and that the Court would be justified in giving the provision a "strained construction" to achieve that purpose "rather than to record that it has been missed", and would be justified as treating the provision as containing an additional word (ie "first"): see paragraphs 21 and 22 of the plaintiff's written submissions, relying on the passage in McHugh J's judgment in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113. (12)Mr Bennett maintains that the words used in s 23(1) of the Act were reasonably open to the construction for which the plaintiff contends and he gave, as an example, what he said would be the response of a de facto couple, who had interrupted their relationship for a period, to the question of how long they had been de facto partners. 11It should be noted that although the Act in its original form limited pensions (when otherwise payable) to widows, this was later amended to include widowers, and then later to include de facto spouses as well. An amendment to the Act introduced in 2002 (s 23(1A) and s 23(5)) provided that a spouse who had married a retired member in receipt of a parliamentary pension could obtain a pension (albeit reduced) if the spouse had a child with the former member during their marriage or relationship, being a child who, in the opinion of the Trustees, was wholly or substantially dependent on the former member at any time during the marriage or relationship or who was conceived before and born alive after the death of the former member. There is no suggestion that Mrs Griffiths falls within s 23(1A) and her claim is brought solely under s 23(1) of the Act. 12The expansion of the criterion to spouse and de facto partners are irrelevant in this case because Mrs Griffiths meets both the narrow and more expansive definition, and I shall in the balance of these reasons refer to the spouse criterion even though originally the criterion was more narrowly expressed in the section. 13There was evidence from Mrs Griffiths, which was not put in issue, that whilst Mr Griffiths was a member of Parliament and later a Minister, she, as his then wife, carried out duties in support of her husband's parliamentary and ministerial functions. Principles of Statutory Construction 14The approach that is to be taken by courts in construing legislation has been the subject of much consideration. The most recent consideration of the approach by the NSW Court of Appeal is in Taylor per Beazley, Giles and Basten JJA, which itself made reference to R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 and Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297. See also Whiting v JDS Engineering and Labour Services Pty Ltd [2010] NSWCA 28. 15In Taylor, Beazley JA noted that the techniques of statutory construction are clearly stated in R v Young by Spigelman CJ. 16The techniques of statutory construction identified in R v Young are set out at [3]-[37], but of particular importance are [5]-[15] where Spigelman CJ said the following: "5 The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what parliament meant by the words it used, not to determine what Parliament intended to say: see Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236G; [1978] 1 All ER 948 at 952; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613G and 645C-D; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459. 6 In order to construe the words actually used by parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used. Judicial statements which appear to have been prepared to countenance something more than this, should be so understood. 7 The most frequently cited formulations are: '... It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.' Thompson v Goold & Co [1910] AC 409 at 420, per Lord Mersey; and '... we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.' Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 at 445, per Lord Loreburn LC. To similar effect is the following formulation: 'Additional words ought not to be read into a statute unless they are required in order to make the provision intelligible.' Wills v Bowley [1983] 1 AC 57 at 78B. 8 The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the court, must remain capable of characterisation as a process of construction of the words actually used. 9 The contemporary approach is as set out by Lord Diplock in Wentworth Securities v Jones [1980] AC 74 at 105-107: 'My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.' 10 The passage has been adopted and applied in this Court: see Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422, per McHugh JA (an authority frequently quoted with approval, for example, in Bropho v Western Australia (1990) 171 CLR 1 at 20; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283, per Mahoney JA: Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292 at 299-300, per Hope JA; (at 302), per McHugh JA, see also Saraswati v The Queen (1991) 172 CLR 1 at 22, per McHugh J and Newcastle City Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85 at 113, per McHugh J). 11 The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute. 12 As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based. 13 The contemporary approach to construction is well described as 'literal in total context' (E Dreidger, Construction of Statutes , 2nd ed at 2): see, eg , CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]. The courts no longer 'make a fortress out of the dictionary': Cabell v Markham 148 F 2d 737 (1945) at 739, per Learned Hand J. 14 Putting to one side obvious typographical errors (see Bennion, Statutory Interpretation: A Code , 3rd ed (1997) Butterworths, London at 675-677), the court supplies words 'omitted' by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable, form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words 'omitted' by inadvertence per se. 15 Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed: McAlister v The Queen (1990) 169 CLR 324 at 330; R v Di Maria (1996) 67 SASR 466 at 472-474. If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction." 17Of importance too is what Spigelman CJ said in R v Young at [22] about Cooper Brookes : " Cooper-Brookes is not, in my opinion, authority for reading words into a statute. It is a case in which words of general application were read down." 18In Taylor at [61], in addition to R v Young, Beazley JA cited the comments of Mahoney JA (with whom McHugh and Clarke JJA agreed) in Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283: "Legislative inadvertence may consist, inter alia, of either of two things. The draftsman may have failed to consider what should be provided in respect of a particular matter and so fail to provide for it. In such a case, though it may be possible to conjecture what, had he adverted to it, he would have provided, the court may not, in my opinion, supply the deficiency. In the other case, the legislative inadvertence consists, not in a failure to address the problem and determine what should be done, but in the failure to provide in the instrument express words appropriate to give effect to it. In the second case, it may be possible for the court, in the process of construction, to remedy the omission." 19The plaintiff's submission placed considerable emphasis on the approach taken by McHugh JA (as his Honour then was) in Kingston v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404 and by his Honour in Newcastle City Council v GIO General Ltd. That approach, to the extent that it was endorsed by Spigelman CJ in R v Young, is the approach taken by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 which is replicated at [9] of R v Young and see also what appears in [11]-[12] of R v Young as set out in [16] above. 20Although the precise circumstances of Mr and Mrs Griffiths are not relevant to the task of statutory construction, there was an attempt in the contentions advanced on behalf of Mrs Griffiths to downplay the significance of the divorce in 1999 and to paint the period between divorce and remarriage in 2009 as merely an interlude. Whether the second marriage in 2009 was seen by Mr Griffiths as an act of kindness given his advanced illness and impending death was not investigated and is not relevant, but it is clear that had there been no second marriage to Mr Griffiths, Mrs Griffiths would have had no entitlement to any benefits under the scheme irrespective of the contribution she had made whilst Mr Griffiths was a member of Parliament and a Minister. It seems clear that the divorce settlement in 1999, in which not only was the marriage dissolved but property was distributed, proceeded on the basis that what Mr Griffiths received by way of pension would be treated as entirely his own: see T5-6. 21I have referred to the plaintiff's reliance on extraneous materials. Section 34(1) of the Interpretation Act 1987 (NSW) provides: "(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable." 22There was a contest as to the relevance and admissibility of these extraneous materials and Mr Sexton drew attention to the limits of use of statutory material and the views expressed by Mason P in Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 at [166]-[168] with whom Spigelman CJ concurred in relation to even a clear contradiction between a Minister's understanding of what the legislation provides and the text of the legislation. 23A further strand in the plaintiff's argument was that the purpose of the grant of a pension to widows was to recognise the importance of the contribution of parliamentary wives whilst their husbands were members of Parliament. In a very broad sense that may be true, but since the Act provided no pension to a widow (and later a spouse) who had been married to a member whilst in Parliament but was not married to the member at the time of the member's death, the concern that spouses receive a benefit in recognition of their contribution cannot be taken too literally. 24By virtue of s 23(1) of the Act, there are in effect two requirements for eligibility, one being that the person be the spouse of the deceased former member at the time of the member's death and the second being that the spouse did not become the spouse of the deceased member or former member after he had ceased to be a member of Parliament. Mrs Griffiths meets the first requirement but does not meet the second requirement. Mrs Griffiths only meets the first requirement by virtue of her second marriage to Mr Griffiths in March 2009 and the second marriage was after Mr Griffiths had ceased to be a member of Parliament. 25The case for the plaintiff is based upon the proposition that her earlier marriage can be taken into account even though it was not as a result of that first marriage that she was married to the former member at the time of his death. In my view, since the first marriage was dissolved it has no relevance to her status as widow which arises only by virtue of the second marriage in March 2009. 26The ambiguity alleged by the plaintiff is quite artificial in my view since it is clear that the spouse who is the subject of the right to a pension is the spouse married to the former member at the time of his death - a previous marriage (a rather unusual occurrence) is irrelevant. In my view, s 23(1) of the Act is neither ambiguous nor obscure. I do not think that the example of what would or might be said by or about a de facto couple who had resumed a de facto relationship or how persons who had remarried might celebrate their wedding anniversary (see T7.34-T8.4) provided any useful guidance as to how the legislation should be interpreted and I do not accept that the words in the Act are reasonably open to the construction for which the plaintiff contends. 27It follows that Mrs Griffiths is not entitled to the pension pursuant to s 23(1) of the Act. It also follows that regard should not be had to the extraneous materials upon which the plaintiff's case relies in order to determine the meaning of s 23(1) of the Act as the conditions required for their reception for that purpose are not met: see s 34(1)(b)(i) and (ii) of the Interpretation Act as set out in [21] above since, in my view, there is nothing obscure or ambiguous about s 23(1) of the Act and the result is not "manifestly absurd" or "unreasonable". 28Notwithstanding the conclusion to which I have come, I shall set out the extraneous materials on which the argument advanced on behalf of the plaintiff relies. Extraneous Materials 29Paragraphs 50-52 of the Goodsell Report (see page 32 of Exhibit A) state: "50. A summary of the main provisions of the various States' parliamentary superannuation schemes, including that in New South Wales, is contained in annexure "B". From an examination of this it is clear that New South Wales, which was the first to introduce a scheme, is lagging seriously behind all other States. In our view, the present scheme is grossly inadequate. 51. We have carefully examined the schemes operating in other States and note that those in Victoria and Queensland are in many essentials similar, and provide, inter alia, for the pensions to be related to salary and for election to commute portion of pension to a lump sum payment. They require a contribution by members of 11 per cent of salary. On the basis of the salaries we have recommended, this would involve an increase in the contribution by members from $804 per annum to $1,322 rising to $2,507 by Ministers and to $2,990 by the Premier. While there are, perhaps, some points in both schemes which could be improved, they are in their totality schemes which do substantial justice to all concerned. In the circumstances, we recommend that legislation be introduced in this State to provide for a parliamentary superannuation scheme similar to that now operating in Victoria. It would be necessary to make special provision in any Act to cover the cases of the two former Ministers still serving in the Legislative Council, namely, the Honourable R. R. Downing and the Honourable J. J. Maloney. In order that they may qualify under the proposed new scheme they should be required to pay arrears of contribution under the present one and then contribute at the higher rate from the date of operation of the new Act. 52. It is to be noted that the Victoria scheme makes no provision for pensions or adjustment of pensions to persons who retired before the date of operation of the new legislation. In this and other schemes the practical difficulties of determining an equitable and beneficial rule which might be applied to existing pensioners have been recognized. Although we have looked with great sympathy at the cases of existing pensioners, we, too, have been unable to suggest a common rule which might equitably be applied. However, there may be cases of distress, amongst them to which urgent and sympathetic attention should be directed. We suggest that these can only be identified by inviting each pensioner who so desires, to submit, confidentially, details of his situation for examination by some person, e.g. the President of the State Superannuation Board, who might be requested to submit an appropriate confidential recommendation for consideration by the Government." 30Part IV "Benefits - Widows and Children" of Annexure B in the Goodsell Report state in relation to New South Wales, Victoria and Queensland (see pages 42-43 of Exhibit A): "A. WIDOW'S PENSION (i) Conditions New South Wales - (a) The deceased must have been in receipt of pension or, if a serving member, qualified for pension at the date of his death. (b) The widow must have been married to the deceased at the time he ceased to be a member. (c) The pension ceases on the widow's remarriage, Victoria - (a) The widow must have been married to the deceased at the time he ceased to be a member. (b) The pension ceases on the widow's remarriage. Queensland * - The same as for Victoria except that where a widow who had remarried again becomes a widow, pension again becomes payable. However, a widow is not entitled to derive pension through more than one member and her sole entitlement is through the member through whom she would derive the greatest entitlement to pension." 31On the first reading of the Parliamentary Contributory Superannuation Bill 1971 (NSW), the then Premier Sir Robert Askin said: "As the Leader of the Opposition said in regard to two other bills that I have introduced tonight, at the introductory stage I am giving a little more detail than usual because of the interest in these measures. Of course, all members will want to study the bills in more detail at the second-reading stage. The purpose of the bill is to give effect to the recommendations regarding the superannuation entitlement of members of the Legislative Assembly and the Legislative Council contained in the report of the independent committee of inquiry set up in August, 1971, under the chairmanship of Sir John Goodsell, former Chairman of the Public Service Board, to advise on the emoluments of members of the legislature and of certain statutory and other senior office holders. ... First, the new scheme will require a significant increase in the rate of contribution by ordinary members and a very substantial increase in the case of Ministers, in keeping with the enhanced benefits for which they will become eligible. Second, though some of the specific benefits under the new scheme are not as good as those currently available under the Legislative Assembly members' provident fund, it has been considered important, as a general principle, to adhere as closely as possible to the provisions of the Victorian scheme recommended by the committee which overall provides benefits superior to those of the present New South Wales scheme. In other words, some of the good points in our existing scheme will have to be dropped." Mr Patrick Hills, the then Leader of the Opposition, said: "The widows are indeed important. All honourable members acknowledge that their wives deal with irate constituents and also with constituents who raise matters with them that ordinarily are dealt with by a local council. They handle all sorts of people ranging from members of the press and the staff of television and radio stations, to the many people who telephone seeking information. My own wife acts as a sort of guide, philosopher and friend to people who are concerned about something or another and often need somebody to talk to. I am sure that one of the greatest concerns of all men inside and outside of this place is that, if they are suddenly taken from this vale of tears, their widows will be able to live in circumstances similar to those that they at present enjoy. I am sure that all honourable members feel it their duty to ensure that, if they leave this vale of tears suddenly, their widows will not be pushed out of the houses in which they are living. I am sure that members wish the same for all the community, but we here have a particular responsibility to our own families. Let us acknowledge that our vocation takes us away from our homes for considerable periods, at all hours of the day and night and at the weekends. At least our wives should have a pension scheme that will in some way protect them. The proposal to pay a widow five-eights of her husband's pension seems reasonable." 32On the second reading of the Legislative Assembly Members Pensions Bill 1946 (NSW), Mr Baddeley, the then Deputy Premier, said: "A pension of £3 a week will be payable to the widow of a pensioner, provided she was married to him before he became a pensioner, or to the widow of a person eligible to receive a pension who dies whilst still a member. Upon her re-marriage any pension payable to the w idow shall cease. If a person ceases to be a member and receives a pension and later again becomes a member, he shall cease to receive the pension and shall again contribute to the fund. Upon his ceasing to be a member he shall be entitled again to receive a pension." 33The 1946 NSW Act's exclusion (found in s 12(4)) was in the following terms: "(4) Upon the death of a male person who is in receipt of a pension under subsection one of this section there shall be paid out of the fund to his widow a pension at the rate of six pounds per week, which pension shall, subject to this section, be payable to her until her death: Provided that where a male person who is in receipt of a pension under subsection one of this section marries whilst he is in receipt of that pension his widow shall not be entitled to a pension under this subsection." 34The Victorian Act's exclusion (found in s 7(5)) was in the following terms: "In this section "widow" shall not include a woman who married a former member after he had finally ceased to be a member." 35The Queensland Act's exclusion (found in s 20) was in the following terms: "In this Act "widow" does not include a woman who married a former member after he had finally ceased to be a member." 36The second reading speech for the 2002 amendments to the Act states: "The Bill also extends the circumstances in which pensions may be paid to spouses, in all the schemes, so that in certain situations pensions may be paid where the relationship commenced after the member's retirement. Currently, spouse pensions can only be paid if the relationship commenced before the member's retirement." 37Even if regard is paid to the extraneous materials, for reasons which I shall endeavour to state briefly, I do not think they support the conclusion contended for on behalf of the plaintiff. 38The argument advanced on behalf of the plaintiff asserts that the purpose of the Act was to implement the Goodsell Report. In a literal sense that may be true, but in reality the purpose of the Act was: "to establish a Parliamentary Contributory Superannuation Fund...to provide a new scheme of contributory superannuation benefits for members of the Legislative Council and the Legislative Assembly in substitution for the scheme contained in the Legislative Assembly Members Superannuation Act, 1946;" which I take from the Explanatory Note which accompanied the Bill: see page 49 of Exhibit A in which are set out all the objects of the Bill. The plaintiff's argument seeks to turn the Goodsell Report into a legislative enactment. This argument is even weaker when regard is had to the fact that first the Goodsell Report itself, apart from summarising or paraphrasing provisions relating to widows in the 1946 NSW Act, the Victorian Act and the Queensland Act, said nothing about the topic of widows' pensions (as Mr Bennett agreed: see T17.44-47); and secondly the three legislative provisions were each actually couched in terms that excluded claims by spouses of members who became spouses after the member had ceased to be a member of Parliament or who had commenced receiving the pension (presumably because they had retired or lost their seat). 39I think it is clear from paragraph 51 of the Goodsell Report set out in [29] above that what the authors were proposing was the adoption of a scheme "similar to that now operating in Victoria". The paragraphs of the Goodsell Report set out above make it clear that the principal purpose of the proposed changes was to update the provisions for NSW Parliamentarians and to bring these benefits in line with what was provided in Victoria and Queensland, particularly by expanding superannuation to Legislative Councillors and by requiring contributions as a percentage of salary rather than as a lump sum to be made. What was enacted was a scheme similar to that then operating in Victoria and the wording of s 23(1) of the Act was identical, in effect, to the exclusion in s 7(5) of the Victorian Act and to the exclusion in the 1946 NSW Act. If any inference can be drawn, it is that the authors of the Goodsell Report saw no need to alter the substantive effect of the exclusion in the 1946 NSW Act. The then Premier, Sir Robert Askin, in introducing the Parliamentary Contributory Superannuation Bill 1971 (NSW), said that it had been "considered important...to adhere as closely as possible to the provisions of the Victorian scheme recommended by the committee...": see page 51 of Exhibit A. No mention of the exception was made by Sir Askin on introducing the Bill (see pages 51-52 of Exhibit A) or in his second reading speech (see pages 53-58 of Exhibit A). 40The argument of the plaintiff seeks to rely on a brief summary of the provisions in the Queensland Act and the Victorian Act (and the 1946 NSW Act for that matter) in the Goodsell Report and to build out of that a legislative purpose, which I do not accept is a legitimate process. Mr Bennett, at T16.48-T18.2, appears to accept that the distinction between "married at the time of the member ceasing to being a member" and "married at the time of the member's death" was unlikely to have been noticed - I think this is because the relatively unusual circumstance of remarriage to the same person would very likely not have been in anyone's contemplation in 1971. I would add that that is probably the reason why those paraphrasing the exception in the 1946 NSW Act, the Victorian Act and the Queensland Act used the shorthand phrase of "married to the deceased at the time he ceased to be a member". I do not accept that wives who remarried a member after he has ceased to be a member were intended to be benefited. 41Furthermore, considering the extraneous materials relied on by the plaintiff, they only confirm that the meaning of s 23(1) of the Act is the ordinary meaning conveyed by the text of the provision (which captures Mrs Griffiths within the bracketed exception) taking into account its context in the Act and the purpose or object underlying the Act, rather than the meaning contended by the plaintiff: see s 34(1)(a) of the Interpretation Act. 42I do not think that one of the purposes of the Act as originally enacted was to provide a parliamentary pension for widows of retired members. Rather, it was one of its purposes to provide a pension to widows who had not married the member of parliament after he had retired. I think that the general intention of Parliament was to introduce legislation in largely similar terms to the Victorian Act which, insofar as the exception is concerned, it did. I do not think that there was any inadvertence by the draftsman, nor do I think that there was a need for the draftsman or parliament to give consideration to persons who might divorce a member and then remarry him at a later time. I doubt that had the specific prospect of such an occurrence been raised the draftsman would have found it necessary to deal with it. I am even less confident that had the legislature's attention been drawn to the prospect that a person who had married a member for a second time would be excluded if the word "first" was not included the legislature would have thought it appropriate to provide for a pension in such circumstances. If, contrary to my view, there had been "legislative inadvertence", the inadvertence would fall within the first category of the two types described by Mahoney JA in Tokyo Mart, as cited by Beazley JA in Taylor as set out in [18] above, namely it was a failure "to consider what should be provided in respect of a particular matter and so fail to provide for it". 43The plaintiff, in reality, seeks to have the Court amend the legislation and as the cases referred to in R v Young make clear, this is no function of the Court. Conclusion 44It follows that the plaintiff is not entitled to a pension and her claim should be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2011