FEDERAL COURT OF AUSTRALIA

“Statutory Construction”
Panel Discussion Presentation 
delivered at
The Administrative Appeals Tribunal Members Conference
Twin Waters Resort, Sunshine Coast
Queensland
Monday, 23 May 2016
___________________________________________________________________________

The Honourable Justice Logan RFD
A Judge of the Federal Court of Australia 
As with the Federal Court of Australia, the jurisdiction of the Administrative Appeals Tribunal is wholly statutory.  In modern times and irrespective of the political persuasion of the government of the day, one could be forgiven for thinking that there is a view abroad that the measure of the worth of the Commonwealth Parliament is the quantity and length of legislation it enacts or amends and by the empowering of the making of a plethora of subordinate legislation in respect of subjects within our respective jurisdictions. Whatever may be the reason, the result is that the task of statutory construction is ever more frequently encountered by us.  These same considerations mean that the encounter often entails novel questions rather than just applying the work of others. Further, even if others have earlier construed a provision, if that construction is not binding on us, we may be asked by a party to depart from it. 
In relation to statutory construction, our position might be contrasted with that of the State and Territory Supreme Courts.  The difference is only one of degree for, in modern times, State Parliaments have displayed a like penchant to their Federal counterpart.  But the position remains, albeit much eroded by the loss of subjects of jurisdiction to Commonwealth courts and tribunals and by statutory intrusions, that these are courts of general jurisdiction.  So they exercise jurisdiction in respect of controversies which arise at common law, under contract or under a will which do not call for any statute to be construed. 
This difference of degree has come home to me when I sit in the Supreme Court in Papua New Guinea hearing civil appeals from the National Court.  The latter is a court of general jurisdiction.  Further, the parliament there, while hardly inactive, does not produce the volume or length of legislation of its Australian counterparts. And that statement is not a criticism.
It would be idle in the time available and a conceit to attempt any comprehensive treatment of the principles of statutory construction.  For that I commend to you Pearce and Geddes work, Statutory Interpretation in Australia, now in its 8th edition.  Instead what I propose to do is to highlight the modern approach to statutory construction as exemplified by a case which had its origins in the Tribunal, decided by the High Court earlier this month.   Then I propose to make some observations about particular challenges which face Tribunal members in relation to statutory construction.
I begin by offering these reminders about the difficulties of construction presented by the English language.  The former is based on a recollection of a characteristically bawdy but amusing skit on the English comedy programme, “The Benny Hill Show”.  The latter is based on an apocryphal entry in an army officer’s annual confidential report; not taken from one of mine!
•	What is this thing called love?
•	He works well within the limits of limited abilities.
These examples illustrate that giving primacy to the text may not always supply a certain answer.  Divorced from context, the meaning of each of these sentences differs radically, depending upon the emphasis one gives to particular words.  That is so even without any need to construe the meaning of any words within those sentences. 
The recent High Court case is Military Rehabilitation and Compensation Commission v May (May).  Mr May was a prospective pilot who was discharged from the RAAF in the rank of Officer Cadet after suffering from “dizziness” from which he was “significantly disabled”.  He applied for compensation under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). The provision confers an entitlement to compensation “in respect of an injury suffered by an employee [where] the injury results in death, incapacity for work, or impairment” (emphasis added). Not an uncommon type of case for the Tribunal one might think.
Mr May did not contend that he suffered from a “disease”, which is the statutory alternative qualifying condition.  His claim for compensation was rejected by the Military Rehabilitation and Compensation Commission (the Commission) on primary and internal review.  He then sought the review by the Tribunal of the Commission’s decision to deny him compensation. 
The medical evidence before the Tribunal as to what caused Mr May’s disablement was inconclusive.  There was a consensus that he was not a malingerer.  A reaction to the course of post-recruitment injunctions he had received was ruled out as a cause.  There was a lack of pathology consistent with any of his symptoms. 
Working through the elements of the definition of “injury” in s 4(1) of the SRC Act and earlier authority, the Tribunal concluded that Mr May had failed to establish his case: he had not demonstrated that he had suffered a physical injury amounting to a “sudden or identifiable physiological change”.  The Commission’s decision was affirmed.
Mr May instituted an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).  These appeals are best termed statutory appeals. They are not in any sense an appeal by way of rehearing but lie only on a question of law and are heard in the Federal Court’s original jurisdiction.  This appeal was heard by a single judge (Buchanan J).  His Honour found no legal error in the Tribunal’s decision, only an orthodox application of the SRC Act so as to reject a claim for which there was little or no supporting medical evidence. 
Mr May then appealed to the Full Court.  There it was held that the Tribunal made an error in construing “injury” as requiring a “sudden or identifiable physiological change” in every case.  The Full Court’s conclusion was that the question posed by the definition of injury was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind”.  The appeal was allowed and the matter remitted to the Tribunal for further hearing according to law.
By special leave, the Commission appealed to the High Court against the Full Court’s judgement.  The appeal succeeded on the basis that the construction adopted by the Full Court was in error.  The High Court’s conclusion was that, even though an employee might genuinely complain of feeling unwell, without an accompanying physiological or psychiatric change there was no “injury”, as defined.  Materially, the SRC Act compensated an “injury” as defined, not feeling unwell. And so the appeal was allowed and the Tribunal’s decision as affirmed on the statutory appeal restored.
In addressing the meaning to give to the term “injury” as defined, French CJ, Kiefel, Nettle and Gordon JJ observed that the “question of construction is determined by reference to the text, context and purpose of the Act”.  Their Honours cited two authorities for this proposition:
•	Project Blue Sky Inc v Australian Broadcasting Authority; and
•	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue. 
That proposition and those two cases feature repeatedly in modern times as the received wisdom in relation to the approach to statutory construction. 
It is in the nature of judicial decisions that outcomes have about them a certainty, perhaps even inevitability, in hindsight that they do not present in prospect.   Though Gageler J delivered a separate judgement in May, his Honour did not dissent as to the outcome.  That outcome reversed a unanimous result reached in the Full Court which, exceptionally, was also constituted by five judges (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).  Based on equivalence of judicial numbers alone, some might perhaps think that, in prospect, this was a classic case where there was potential for ambiguity of language to be conceded. 
Yet May was resolved at ultimate appellate level without any perceived need to refer to legislative history or to any statutory presumption, notably that if competing constructions are open, that which favours conferring entitlement on the worker should be preferred.  To mention this is not to seek to be an apologist for or critic of the Full Court, for that is not my place, but rather to emphasise the importance of giving primacy to the text, context and purpose of an Act and to caution against bringing to the task of statutory construction a priori assumptions based on its character or legislative history.  Perhaps that was always so, even in workers’ compensation cases, and, if so, May is a stark reminder of the need ever to begin with the text of the statute.
If the end result of this approach is a tolerably clear meaning of the statutory provision in question, then, inconvenient though that meaning may be, that is the meaning which the provision must bear.  It is the constitutional function of a parliament, not the judiciary or the Tribunal, as an agency of the executive, to legislate. The same holds good in relation to subordinate legislation and other statutory instruments. It is for the body empowered by statute to make, amend or repeal them if the language employed leads to an inconvenient result, not for the judiciary or the Tribunal to construe them otherwise.
Sometimes calls to look first to legislative history or to secondary materials can be Siren-like. But they should be resisted because they can engender a pre-disposition as to a preferred meaning even if that meaning would not have commended itself by reference first to the text alone. 
Beginning with the text of a statute does not mean beginning with a dictionary so as to interpret each and every word chosen by parliament before examining their collective meaning.  Employing such an approach is fraught with the risk of losing sight of the wood for the trees. 
Nor, in the case of ordinary English words used in an ordinary way in a statute, does it mean elevating particular past examples of their application on particular facts to principles of statutory construction.  The temptation so to do can be considerable and be presented for the best of reasons.  With the aim of giving consistency to administrative decision-making, checklists of facts which prove decisive, one way or the other, in the context of particular cases can be developed.  The temptation then in a later case is to work one’s way through such a checklist either in an absolute way for the presence or otherwise of such factors or in a comparative way, each to the detriment of examining the whole of the circumstances and just asking whether they fall within or outside the word’s ordinary meaning.
Of course, consideration of context and statutory purpose can indicate that apparently ordinary English words ought not to bear their ordinary meaning. Hafza v Director-General of Social Security (Hafza)  offers a good example of this.  The question in that case was the meaning to give to the then provisions governing entitlement to child endowment payments as found in the Social Security Act 1947 (Cth) (since repealed) and, in particular, to the meaning of the phrase “usual place of residence”.  While acknowledging that the phrase could be construed as synonymous with “resident”, which admitted of broader meanings, including that one might be resident in more than one place, Wilcox J considered that considerations of context and the purpose of child endowment meant that the phrase should be more narrowly construed so as to limit benefits to endowees who, during any particular period, ordinarily eat, sleep and live in a place in Australia.
Of course, if there is prior judicial authority in federal jurisdiction on the construction of a provision, such as, for example Hafza, the Tribunal is bound to follow that authority.  In this regard, when I exercise my commission as a Deputy President of the Tribunal, I am just as much bound to follow that judicial authority as any other member of the Tribunal. 
Binding authority on the point apart, the challenge of determining whether an ordinary English word is used in an ordinary way and, if so, resisting the temptation mentioned is but one of those confronting Tribunal members.  Another arises from a tendency in both legislation and subordinate legislation in modern times to prefer micro-management of decision-making over specifying conceptual elements or outcomes.  This tendency has greatly increased not just the occasion for statutory construction but also the likelihood that the provision concerned will fall for construction for the first time before the Tribunal. 
With conceptual specification a desired element or outcome is described in a broad way with its meaning and application to particular facts left to be worked out on a case by case basis.  The word, “resident” used in accordance with its ordinary meaning offers one example of this; the word, “income” as a touchstone for liability to tax is another.
Micro-management can take on many guises.  It may be found in an Act which seeks, as with the Migration Act 1958 (Cth), to codify the content of a natural justice obligation which might otherwise arise under the general law in any event.  It may be found in Ministerial directions or in so-called “guides” as to how a discretion is to be exercised or in detailing considerations which are or not relevant to the making of a particular decision under statute. In relation to penalties for an incorrect return, Parliament has gone much further and inserted into legislation considerations as to a level of penalty which once were nothing more than guidelines as to how a broadly based statutory discretion might be exercised. It may also be found in endeavours to predict and dictate in advance how causal controversies are to be determined.  For the Tribunal, probably the most notorious example of the latter is the Statements of Principles regime for which the Veterans’ Entitlements Act 1986 (Cth) (VEA) makes provision. 
One could devote an entire conference to debating the public policy merits of such measures.  And a lively conference it would be.  But we are gathered not for that purpose.  Further, the formulation of public policy is not the place of the judiciary or of members of the Tribunal.  The point for the present is that this plethora of prescription has, almost exponentially, increased the construction tasks a member of the Tribunal may be called upon to confront.
This may be illustrated in the following way.  A century ago, the task of a predecessor of the Tribunal, a Pensions Board convened under the then legislation governing war pensions, would merely have been to ask, whether a soldier’s death or incapacity had “resulted from warlike operations in which His Majesty is, or has since the commencement of the present state of war been, engaged”?  That is a paradigm example of a concept based specification in legislation. 
In contrast, the nature and difficulty of the statutory construction task which may be presented to a Tribunal member in respect of a soldier claiming to have a war or defence-caused disability or disease occasioned by the contemporary preference for micro-management is illustrated by this question, derived from the current Statement of Principles regime:
Does a a soldier wounded or killed by the spikes of a whip or door booby trap consisting of a spiked length of bamboo configured so as to swing on a fixed line if triggered, suffer a “physical injury due to munitions discharge”?
The term “physical injury due to munitions discharge” is defined by a Statement of Principles to mean, “damage to body tissue, organs or bone as a direct result of munitions explosion, weapon discharge or shrapnel fragments”?  The Viet Cong employed such booby trap devices in the Vietnam War.  Their activation and a consequential wound could be regarded as the result of the discharge of a weapon but does “weapons discharge” fall within a genus which requires the presence of a propellant?  Would it make any difference to the application of this Statement of Principles if the booby trap were a bow and arrow configured to fire on a fixed line, rather than the spiked length of bamboo?  These were also employed by the Viet Cong, along with the more conventional booby traps based on grenades, bullets and artillery shells.
Another type of statutory construction challenge presented by the Statement of Principles regime is a need to adapt and then apply to the circumstances of defence force service examples uncritically copied from publications designed for use in the realm of civilian experience.  In the “Statement of Principles concerning acute stress disorder”, a category, derived from DSM V, of being “exposed to actual or threatened death, serious injury, or sexual violation” is “experiencing repeated or extreme exposure to aversive details of the traumatic event(s)”.  The Statement of Principles gives this example in respect of this category, “first responders collecting human remains, police officers repeatedly exposed to details of child abuse”.  It is, with all due respect, odd to describe a medic or another member of a patrol in Afghanistan who has retrieved the body parts of a fellow digger blown apart by an improvised explosive device as a “first responder” but that is the construction challenge presented.  
An apt note on which to hand over to others is to close by reference to transitional provisions and the challenges of construction which they present.  For a Tribunal charged with the review on the merits of particular administrative decisions, this can present very difficult statutory construction questions when the enactment concerned has been amended or even repealed following the making of the decision under review.  Ordinarily, the Tribunal applies the law and the facts as at the time it makes its decision. But sharp controversies can arise either via s 7(2) of the Acts Interpretation Act 1901 (Cth) or a more specific transitional provision in an amending or repealing Act as to whether an applicant has an accrued right such that the Tribunal must look to the old law.  And sometimes the right which is regarded as accrued can be inchoate, amounting more than no more than a right to have a discretion exercised.
The principles of statutory construction do not differ as between the judicial and executive branches of government.  Yet for the Tribunal, as an independent merits review part of the executive the task can be more difficult than for a judge.  We encounter litigants in person but not with the same frequency as does a member of the Tribunal.  When we do, it is usually the case that the other party will have legal representation.  In the Tribunal, that may not be so.  The respondent may be represented by a departmental advocate, perhaps legally trained, perhaps not but in either event unable or unwilling to do other than proffer the respondent department’s or agency’s view as to the meaning of a provision.  This can make the statutory construction task for a Tribunal member a lonely one indeed. Perhaps we on the Federal Court need more overtly to acknowledge that in those statutory appeals to which I have referred.

© J A Logan 2016, Moral right of author asserted. Non-exclusive publication licence granted to the Administrative Appeals Tribunal.