VCAT Considers Right to Equality and Retrospective Operation of the Charter

Valentine v Emergency Services Superannuation Board [2010] VCAT No G585/2008 (29 July 2010)

The Victorian Civil and Administrative Tribunal has held that s 32 of the Charter does not apply retrospectively to affect the interpretation of the State Superannuation Act 1988 (Vic) insofar as it governs spousal pension entitlements anytime before 1 January 2008 (when s 32 came into effect).  Nonetheless, VCAT Deputy President Macnamara found that the State Superannuation Board's position did not directly or indirectly discriminate against the applicant on the basis of her marital status, such that s 8 of the Charter, providing for equality before the law, would not have been violated.  However, it was suggested in relation to s 14 of the Charter, which protects the right to freedom of thought, conscience, religion and belief, that a legal interpretation which imposed a significant financial penalty on a citizen who adhered to her religious beliefs about marriage could be viewed as limiting the freedom of religion or belief in practice.


The applicant's husband was a member of a superannuation scheme administered under the Act, which provided for the payment of a spousal pension to the applicant upon the death of her husband.  However, pursuant to s 37(2) of the Act, a spouse's entitlement to a pension would be suspended during any period of remarriage.  Upon her husband's death in 1983, the applicant applied for and was granted spouse and children's pensions for herself and her three children by the Board, consistent with the rules of the superannuation scheme.  The applicant remarried in 1989, and the Board suspended her spousal pension in 1990.  In 1993, s 37(2) of the Act was repealed.  Following this amendment, the applicant made a number of informal requests to the Board seeking to recover pension entitlements said to have accrued to her since the repeal of s 37(2) of the Act.  In 2008, the applicant again wrote to the Board, formally requesting that it consider her application for reinstatement of her spousal pension with effect from 30 November 1993.  On 18 July 2008, the Board notified the applicant that it had declined her request, following which she applied to VCAT for a review of the Board's decision.

The applicant submitted that s 37(2) of the Act, prior to repeal, should be interpreted compatibly with the Charter and that the s 32 interpretative obligation required the effect of the repeal of s 37(2)(a) to be interpreted as having reinstated her previous entitlement to the spousal pension.  The Board contended that s 32 of the Charter could not apply retrospectively to determine the applicant's entitlement to a spousal pension in 1993.  Further, even if it did govern the current situation, the Board argued that there had been no infringement of the applicant's human rights, or that the discrimination was justified under s 7(2) of the Charter on the basis of 'needs' and the social context in which the provisions developed.


Retrospectivity of s 32

Section 32 of the Charter contains an obligation to interpret all statutory provisions, as far as possible, in a way that is compatible with human rights.  Section 49 of the Charter is a transitional provision, which provides that the Charter extends and applies to all Acts, whether passed before or after 1 January 2007 (the commencement date of Part 2 of the Charter, entitled 'Human Rights'), but that it does not affect any proceedings commenced or concluded before that date.  In considering whether s 32 of the Charter has retrospective effect, VCAT Deputy President Macnamara cited the conclusion of Bell J in Kracke v Mental Health Review Board [2009] VCAT 646, that s 49:

makes the special interpretative obligation in s 32(1) retrospective in the sense that it applies to past legislation.  It is one thing to make such an obligation apply to past legislation.  It is quite another to make it apply to the operation of past legislation on past events the settled legal relations arising from them.

Applying Bell J's approach in Kracke, Deputy President Macnamara held that s 32 did not have retrospective operation, and as such, the Charter provisions did not apply to the State Superannuation Act, insofar as it governed the applicant's pension entitlements anytime before 1 January 2008.  He noted that, if the Charter were to apply, the repeal of s 37(2)(a) of the Act could have a different meaning and consequence after 1 January 2008 (when s 32 of the Charter came into force) than it did before.  As there was no new post-Charter event bearing on the operation of this provision vis-à-vis the applicant, Deputy President Macnamara concluded that:

the cessation of [the applicant's] pension in 1990 is one of the 'settled relations' which remain undisturbed by the operation of section 32, whether one considers that situation by reference to pension payments that she might otherwise have received in 2006 for instance, or those which she might have received in 2008.

In light of this conclusion, Deputy President Macnamara observed that the outcome of the proceedings largely depended on the proper construction of the State Superannuation Act, in accordance with the rules of statutory interpretation existing at that time.  Relying on both a common law presumption against giving substantive changes to the law retrospective operation, as well as s 14(2)(d) of the Interpretation of Legislation Act 1984 (Vic) (which provides that when an Act or provision is repealed, the repeal shall not affect the previous operation of, or anything done or suffered under, that Act or provision), it was held that the repeal of s 37(2)(a) of the Act was not retrospective.

Whilst these findings, according to Deputy President Macnamara, determined the proceeding entirely in the Board's favour, he continued to consider the effect that s 32 of the Charter would have had if it did apply to determine the meaning of relevant provisions of the Act.

For reasons not made clear in the decision, the applicant submitted that it was unnecessary for VCAT to consider the operation of s 38 of the Charter.  As such, the extent to which the Board or VCAT in its review jurisdiction was bound to give proper consideration to the applicant's human rights, as required by s 38 of the Charter, was not considered.

Equality before the law (s 8)

Deputy President Macnamara observed that s 8 of the Charter generally prohibits discrimination, but specifically permits 'positive discrimination' in favour of particular groups in society, using as an example the nation's indigenous people.  He noted that what constitutes discrimination is not 'left at large', as it is defined in s 3 of the Charter, and informed and guided by s 6 of the Equal Opportunity Act 1995 (Vic).  The Equal Opportunity Act prohibits two kinds of discrimination, direct and indirect, the content and operation of which depend on what matters are considered to be 'attributes' for the purposes of that Act.  Deputy President Macnamara highlighted that 'martial status' is one such attribute.

According to the applicant, the Board's interpretation of s 37 of the Act both directly and indirectly discriminated against her on the basis of her marital status, and thereby violated the s 8 Charter entitlement to equality.  Directly, the applicant was said to have been treated less favourably than a spousal pension recipient who remarried after 30 November 1993.  However, Deputy President Macnamara accepted the Board's submission that as 'marriage status' is a relevant attribute, not the 'date of marriage', there were no facts giving rise to a claim of direct discrimination.  The extent to which 'date of marriage' is synonymous with 'marriage status' at a particular date was not discussed.

Deputy President Macnamara also rejected the applicant's argument that she had suffered indirect discrimination – in that the Board had imposed an 'unreasonable requirement' that she somehow terminate her remarriage – as discrimination of this kind requires that the person cannot do what is being required of him/her, and that the requirement is unreasonable.

Freedom of thought, conscience, religion and belief (s 14)

Invoking s 14 of the Charter, the applicant contended that the Board penalised persons in her position who, on religious grounds, were averse to cohabitation without marriage or a kind of 'divorce of convenience'.  Deputy President Macnamara suggested that an argument could be raised based on s 14 of the Charter, in that the imposition of a 'penalty' on the applicant for her living in 'lawful matrimony' with her second husband rather than 'in sin' constituted a violation of her religious beliefs:

A legal interpretation which would impose a significant financial penalty upon a citizen who adhered to her religious beliefs relative to matrimony could be regarded as a coercion or a restraint in her freedom to have or adopt a religion or belief in practice.

However, given that the applicant's arguments based on the Charter were unsuccessful, it was unnecessary for Deputy President Macnamara to decide this question.

The decision has not yet been published.

Georgina Dimopoulos is a Law Graduate and Monique Carroll is a Senior Associate with Allens Arthur Robinson