The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal on pension entitlements for disabled members of the police force. The respondent Miles was injured on duty and medically discharged from the police force in 2003. He was certified under s 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) as being ‘incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer’ on the basis of four orthopaedic injuries, and, in accordance with s 10(1A)(a) of that Act, was entitled to a superannuation allowance equal to 72.75 per cent of his salary (at [12]). Under s 10(1A)(b)(ii), a disabled police officer is, subject to some conditions, entitled to an additional amount that is ‘commensurate, in the opinion of [the appellant, the SAS Trustee Corporation], with the member’s incapacity for work outside the police force’. From 2004 onwards, Miles made a number of applications under s 10(1A)(b) to increase his superannuation allowance, including to recognise a diagnosis of post-traumatic stress disorder in 2009 (see at [13]ff). A majority of the NSWCA held that ‘incapacity for work outside the police force’ meant an incapacity for work, whatever the cause, rather than an incapacity for work caused by being hurt on duty while a police officer (the view taken by Schmidt J in dissent, and Judge Neilson at the NSWDC).

The High Court unanimously allowed the appeal. The joint judges (Kiefel CJ, Bell and Nettle JJ) held that the phrase ‘member’s incapacity for work outside the police force’ means an incapacity from a specific physical or mental infirmity determined to have been caused by the member being hurt while on duty as a police officer. The joint judges began by recounting the statutory provisions and facts ([2]ff), before reiterating that s 10(1A)(b)(ii) allows for a constructional choice between the additional amount being paid for incapacity regardless of the cause of injury (the respondent’s contention) and paid only for the incapacity caused by being hurt on duty as a police officer (the appellant’s contention) (see [17]–[19]).

Noting that the starting point for statutory construction is the text of the provision in light of its context and purpose, the joint judges held that textual and contextual indicators in surrounding provisions operated to limit s 10(1A)(b)(ii) (at [20]). Section 7 suggested, or at least was consistent with, the legislative intention that no allowance be paid on work incapacities not caused by being hurt on duty (at [21]). The use of cognate phrases like ‘incapacity’ in nearby sections (see [22], [23], [26]), the additional amount being commensurate with ‘abnormal risks’ that the member was exposed to (at [24]), the unlikelihood that additional amounts by reference to risk extended to risks unconnected to police work (at [25]), and that no allowance is payable for members who resign or retire due to an injury that has not been determined under s 10B(3) (at [27]) together suggest that incapacity means one caused by being hurt on duty. The joint judges also rejected the  NSWCA majority and respondent’s suggestion that the power to vary an additional amount ‘at any time’ do not run counter to the section applying only to incapacities relating to on duty injuries (at [28]), and the respondent’s argument that recent case law supported their contentions (at [30]ff). Finally, the joint judges held that the appellant’s construction was consistent with the Act’s legislative history and extrinsic materials (see [33]ff), and rejected the respondent’s final contention that inconsistent requirements for SAS to seek medical advice at some points in the process suggested the respondent’s construction was correct: these points did nothing to lessen the force of the joint judges’ earlier considerations in favour of the appellant’s view (at [38ff]).

Gageler J agreed with the orders of the joint judges, endorsing the conclusions of Schmidt J on the NSWCA. For Gageler J, the ‘elaborate structure’ of determining the additional  allowance under s 10(1A)(b) or (c) works coherently if, and only if, the incapacity for each is the same incapacity, and that it is determined to have been caused by the member being hurt on duty (at [53]). The alternative construction of s 10(1A)(b)(ii) taken up by the NSWCA, that it refers to incapacity regardless of the source of incapacity, is textually available, but would distort the complementary operation of sub-ss (b) and (c) (at [56]).

Edelman J also agreed with the orders of the joint judges. Edelman J noted that the respondent’s argument encounters a textual difficulty where s 10(1A) is read with the definitions in the Act: the allowance is ‘for’ both a person and a purpose, where the person must be a police officer and the purpose must be to provide for an incapacity ultimately caused by the member being hurt on duty (at [62]). The ordinary meaning of s 10(1A) requires the allowance to be confined to that purpose (at [63]), and the wider context and purpose aligns with and reinforces that natural meaning (at [65]).