Federal Court of Australia

Secretary, Department of Social Services v Pedel [2025] FCA 516

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision made on 2 July 2024 by the Administrative Appeals Tribunal in Pedel v Secretary, Department of Social Services (Social Services second review) [2024] AATA 2182 be set aside.

3.    The matter be remitted to the Administrative Review Tribunal, differently constituted, to make a determination according to law.

4.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STELLIOS J:

1    The applicant (Secretary) appeals the decision of the Administrative Appeals Tribunal in Pedel v Secretary, Department of Social Services (Social Services second review) [2024] AATA 2182 (Tribunal Decision) made on 2 July 2024. The appeal was filed pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act) prior to the commencement of the Administrative Review Tribunal Act 2024 (Cth) on 14 October 2024. This Court has jurisdiction to hear the statutory appeal and make its orders: AAT Act s 44(3) (repealed); Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Sch 16 item 25(2).

2    The Secretary relies on two grounds:

    Ground 1 alleges that the Tribunal made an error in law in concluding that the term “deployment” in s 46(4)(a) of the Paid Parental Leave Act 2010 (Cth) (PPL Act) connoted a wider range of arrangements than would qualify as a “deployment” within the meaning of a determination made under the Defence Act 1903 (Cth) specifying the conditions of deployment.

    Ground 2 alleges that the Tribunal’s conclusion that the respondent was “unable to return” to Australia “because” of a deployment, within the meaning of s 46(4)(a) of the PPL Act was: (a) illogical, in the sense that it lacked a logical connection to the evidence before the Tribunal; or (b) a finding for which there was no evidence before the Tribunal.

3    The Notice of Appeal dated 30 July 2024 identified the following questions of law:

(1)    Is the power under s 46(4)(a) of the PPL Act available with respect to a person who is not on a “deployment” within the meaning of a determination made under the Defence Act specifying the conditions of such deployment?

(2)    Was the Tribunal’s conclusion that the respondent was “unable to return” to Australia “because” of a deployment, within the meaning of s 46(4)(a) of the PPL Act:

(a)    illogical, in the sense that it lacked a logical connection to the evidence before the Tribunal; or

(b)    a finding for which there was no evidence before the Tribunal?

4    For the reasons below, I allow the appeal and answer those questions of law as follows:

(1)    The power under s 46(4)(a) of the PPL Act is not available with respect to a person who is not on a “deployment" within the meaning of a determination made under the Defence Act specifying the conditions of such deployment.

(2)    In light of the answer to question 1, it is unnecessary to answer question 2.

Legislation, history and context

5    The Tribunal Decision concerned an application by the respondent (Major Pedel) for paid parental leave under the PPL Act. At the time that Major Pedel first lodged her application, s 31(1) of the PPL Act provided that “[t]his section sets out when a person is eligible for parental leave pay for a child on a day that is not a flexible PPL day for the child”. For a person to be eligible for parental leave pay for a child on that day, the person had to satisfy, amongst other things, “the Australian residency test”: PPL Act, ss 31(2)(c) and 31(4)(a)(iii). (Section 31 has since been repealed and replaced by ss 30 and 31AA which are in relevantly identical terms).

6    Subsection 45(1) of the PPL Act provides that “[a] person satisfies the Australian residency test on a day if, on that day, the person: (a) is an Australian resident; or (b) is a special category visa holder residing in Australia; or (c) satisfies subsection (2)”. Paragraph 45(1)(a) is relevant to this appeal.

7    However, s 46 of the PPL Act places an additional restriction on the residency test. That section provides:

46 Effect of absence from Australia on Australian residency test

(1)    Despite section 45, a person does not satisfy the Australian residency test on a day (the relevant day) if:

(a)    before the relevant day, the person left Australia; and

(b)    on the relevant day, the person has been absent from Australia for more than 56 weeks since the day the person left Australia.

Effect of a person’s return to Australia within 56 weeks

(2)    If:

(a)    a person who has been absent from Australia for more than 6 weeks, but not more than 56 weeks, returns to Australia; and

(b)    the person leaves Australia again less than 6 weeks later;

then the person is taken not to have returned to Australia for the purposes of subsection (1).

…

Extension of 56 week period for Australian Defence Force and Australian Federal Police deployments

(4)    The Secretary may extend the 56 week period referred to in subsection (1) or (2), to a period of no more than 3 years, if the Secretary is satisfied that the person is unable to return to Australia within the 56 week period because the person is:

(a)    deployed outside Australia as a defence force member, under conditions specified in a determination made under the Defence Act 1903 that relates to such deployment; or

(b)    deployed outside Australia, for the purpose of capacity-building or peacekeeping functions, as:

 (i)    a member or a special member of the Australian Federal Police; or

 (ii)    a protective service officer within the meaning of the Australian Federal Police Act 1979.

8    Ground 1 concerns the proper construction of s 46(4)(a). Specifically, it concerns the meaning of the words “deployed” and “deployment” which are not defined in the PPL Act.

Legislative history of s 46(4)

9    Subsection 46(4) was inserted into the PPL Act by the Social Services and Other Legislation Amendment Act 2014 (Cth): Sch 10 item 13. The Legislation Amendment Act 2014 amended s 46 of the PPL Act to reduce the time that a person could be overseas and still satisfy the residency test. That period was reduced from three years to 56 weeks: see Legislation Amendment Act 2014 Sch 10 item 9. Subsection 46(4) was inserted to allow persons who fell within the terms of the subsection to “continue to be eligible for ... parental leave payments for up to three years while temporarily absent from Australia”: Revised Explanatory Memorandum, Social Services and Other Legislation Amendment Bill 2013 at 66.

10    The Legislation Amendment Act 2014 also inserted s 24(10) into the A New Tax System (Family Assistance) Act 1999 (Cth) (Family Assistance Act): Sch 10 item 5. Sections 46(4) of the PPL Act and 24(10) of the Family Assistance Act are in relevantly identical terms. The Revised Explanatory Memorandum indicated that the drafting inspiration for these provisions was s 63A(4) of the Family Assistance Act which was also in relevantly identical terms. Section 63A(4) of the Family Assistance Act was inserted by the Families Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth), but later repealed by the Social Services Legislation Amendment (Family Measures) Act 2016 (Cth). The text of s 46(4) is also replicated in s 85EE(6) of the Family Assistance Act which was inserted in 2017 by the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 (Cth): Sch 1 item 40.

The Defence Determinations

11    Throughout the periods during which each of these provisions has operated, a defence force determination made under s 58B of the Defence Act has been in place, dealing with the conditions of service of members of the Australian Defence Force (ADF): first the Defence Determination 2005/15, Conditions of Service (2005 Determination) and then the Defence Determination 2016/19, Conditions of Service (2016 Determination) (collectively, Defence Determinations).

12    The 2005 Determination commenced operation on 31 May 2005; the 2016 Determination commenced on 3 May 2016 and was in force at the time that Major Pedel’s application for paid parental leave was lodged. These Determinations were made pursuant to s 58B(1) of the Defence Act, which authorises the relevant Minister to make determinations providing for and in relation to matters including the remuneration of members (s 58B(1)(a)), the payment of allowances and pecuniary benefits (s 58B(1)(b) and (c)), and the provision of other benefits (ss 58B(1)(e)). It also authorises the making of determinations providing for and in relation to “the meanings to be attributed to words and expressions used in existing determinations and future determinations made under this section, and the circumstances in which those meanings are to apply”: s 58B(1)(h).

13    Each Defence Determination provided that it was “the main Determination authorising ADF conditions of service within Australia and overseas” and that it “deal[t] with a wide range of ADF conditions of service”: 2005 Determination cl 1.2.9; 2016 Determination cl 1.2.1. It was common ground that each determination was a “determination” of the kind referred to in s 46(4)(a).

14    As will be seen, in identifying the conditions of service, the Defence Determinations distinguish between the conditions of service for “deployment” and the conditions of service for other types of service.

15    The 2005 Determination defined:

    “Deployment” to mean “warlike or non-warlike service overseas by members assigned for duty with a UN mission or a similar force”: cll 1.3.18 and 12.3.6;

    “Warlike service” to mean “service in the Defence Force of a kind determined as warlike service for the purposes of the Veterans’ Entitlements Act 1986”: cl 1.3.73; and

    “Non-warlike service” to mean “both these kinds of service for the purposes of the Veterans’ Entitlements Act 1986”: “a. Service with a peacekeeping force for the purposes of Part IV” and “b. Hazardous service for the purposes of section 120”: cll 1.3.43 and 12.3.10.

16    The definition of “long-term posting overseas” involved, in short, a period of duty in an overseas country or countries exceeding six months: cll 12.3.1 and 12.3.9. Subclause 12.3.9(2) dealt with the position of “a member who [had] spent time at a location while assigned to a deployment, and then [did] further duty there after the end of the deployment”. The “further duty” was to be a “long-term posting if the total period [was] longer than 6 months”, and “the long-term posting” was to start “on the date of approval of the further duty”. This differentiation was indicative of the 2005 Determination treating “deployment” and a “long-term posting” as distinct categories of overseas service.

17    “Short-term duty overseas” was also defined in the 2005 Determination to mean, in short, “a temporary absence to go to an overseas location ... for the purpose of performing duty overseas”, where the period of absence was expected to be less than six months: cll 1.3.69 and 12.3.18.

18    Chapter 17 of the 2005 Determination dealt with warlike and non-warlike deployments:

    Clause 17.0.1 provided that “[t]his Chapter contains legislation and guidelines for warlike and non-warlike deployments”;

    Clause 17.1.1 provided that “[t]he purpose of this Chapter is to provide for and inform members about conditions of service for deployments” and that “[t]he purpose of these conditions of service is to compensate members for additional disabilities or hardships that they are likely to experience”;

    Clause 17.1.3 provided that “[t]his Chapter applies to members on warlike and non-warlike deployments”;

    Clause 17.1.4 provided that “[t]his Chapter does not apply to a member serving overseas on peacetime service, a long-term posting or short-term duty”;

    Clause 17.2.1, within Pt 2 entitled “Eligibility to receive conditions of service”, provided that “[t]he purpose of this Part is to describe who is eligible to receive conditions of service for deployment”; and

    Clauses 17.2.2(1) and (2) provided that “[m]embers with diplomatic status are not eligible for conditions of service for deployments”, but “may be eligible for long-term posting or short-term duty conditions of service”.

19    Other provisions in Chapter 17 then specified the benefits and allowances applicable to members on deployment.

20    While it is evident from Endnote 3 (“Table of Amendments”) to the 2005 Determination that some of the provisions referred to above (namely, cll 1.3.73, 12.3.9, 17.0.1 and 17.1.4) were modified after the determination commenced in 2005, it is clear that, from the outset, the 2005 Determination differentiated between the conditions of service for “deployment” and the conditions of service for other types of service.

21    This scheme was continued in the 2016 Determination, and at the time of Major Pedel’s application:

    “Deployment” was defined as “warlike or non-warlike service overseas by members force assigned with a United Nations mission or a similar force”: cl 1.3.18; see also cl 12.3.1;

    A member is “force assigned if they are recorded in PMKeyS as being force assigned”: cl 17.1.2, definition of “force assigned”; and

    “Warlike service”, “[n]on-warlike service”, “long-term posting overseas”, and “short-term duty overseas” are given corresponding definitions to those in the 2005 Determination: see cll 1.3.36, 1.3.45, 1.3.79, 12.3.1, 12.3.9 and 12.3.18.

22    Like its forerunner in the 2005 Determination, Ch 17 of the 2016 Determination deals with “Deployments”, with corresponding statements of purpose (cl 17.1.1), application (cl 17.1.3), exclusion (cl 17.1.4), and eligibility (cll 17.2.1 and 17.2.2); and sets out the benefits and allowances available to members on deployment.

Background

23    The background facts are recorded in the Tribunal Decision. Major Pedel is an Australian citizen and has served as an officer in the ADF since 2007. She currently holds the rank of Major.

24    On 28 May 2021, Major Pedel departed Australia to the United States of America. On 16 March 2022, she gave birth whilst in the United States. Apart from a short 24-day visit over the summer of 2022, she did not return to Australia until November 2023.

25    The Tribunal accepted that Major Pedel assumed a posting in the United States. This finding was disputed in the written and oral submissions on this appeal (see further at [51], [57], [94]-[95] below). In short, in addressing the Tribunal, Major Pedel indicated that she accompanied her husband on his posting with the Marine Corps and that she was still working for an Australian Army unit back in Australia. While the Secretary had accepted before the Tribunal that Major Pedel was on a posting, it was suggested by the Secretary before this Court that Major Pedel’s evidence before the Tribunal indicated nothing more than she was working remotely for her Australian unit whilst based in the United States. Major Pedel submitted that it had been assumed throughout the decision-making and merits review processes that Major Pedel had been in the United States on a posting. Neither Major Pedel’s orders nor her personnel management record (PMKeyS) were before the Tribunal.

26    In light of my conclusion on Ground 1, it is unnecessary to determine the precise nature of Major Pedel’s working circumstances in the United States. What is critical to the outcome is the acceptance by the parties that Major Pedel was not on “deployment” in the United States within the meaning of the 2016 Determination.

The original refusal and procedural history

27    On 27 July 2022, Major Pedel lodged an application for paid parental leave under the PPL Act. On 13 December 2022, the application was refused on the basis that, in relation to the days for which a claim was made for parental leave pay, the decision-maker did not consider that Major Pedel satisfied the Australian residency test (Original Refusal Decision). The Original Refusal Decision was affirmed on review by an authorised review officer on 18 January 2023. That decision stated that Major Pedel did not satisfy the residency test because she had been absent from Australia for more than 56 weeks.

28    The decision was then affirmed on first review by a member of the Tribunal on 28 June 2023 (Tribunal’s Initial Decision). The Tribunal took the view that the terms “deployed” and “deployment” used in s 46(4)(a) take their meaning from what the Minister has determined to be a deployment under s 58B of the Defence Act, and found that Major Pedel was not “deployed” in that sense. The Tribunal concluded that, “[a]s [Major] Pedel’s inability to return to Australia within 56 weeks of 28 May 2021 was not due to a deployment, her absence from Australia for more than 56 weeks, without returning for at least six weeks, means that she does not satisfy the residency test for parental leave pay”: Tribunal’s Initial Decision at [21].

29    On 8 July 2023, Major Pedel applied for a second review by the Tribunal. The second review decision is the subject of this statutory appeal.

The Tribunal Decision

30    The Tribunal’s ultimate finding was set out at [27]:

I find that at the relevant time the Applicant [Major Pedel] was deployed under conditions specified in a determination made under the Defence Act that relates to such deployment. I therefore conclude that the terms of paragraph 46(4)(a) of the PPL Act apply to the Applicant.

31    The Tribunal Decision set aside the Tribunal’s Initial Decision and remitted the matter back to the Secretary “for further processing with a finding that the Applicant satisfies paragraph 46(4)(a)” of the PPL Act: Tribunal Decision at [29].

32    These conclusions involved two findings: first, that Major Pedel was “deployed” within the meaning of s 46(4)(a) of the PPL Act; and, secondly, that Major Pedel was “unable to return to Australia … because” of that deployment.

33    The first of these findings was based on the Tribunal’s acceptance that Major Pedel had “assume[d] a posting” in the United States (at [1]) and, necessarily, was premised on a construction of the words “deployed” and “deployment” in s 46(4)(a) that was sufficiently wide to include overseas postings. There was no evidence to suggest, nor any finding made, that Major Pedel was “deployed” within the meaning of the 2016 Determination.

34    On the construction of s 46(4)(a), the Senior Member said at [26]:

The words “deployed” and “deployment” are not terms of art. Their usage in paragraph 46(4)(a) is not explicitly governed by their usage in the Determination made under the Defence Act. They are ordinary words of the English language. For present purposes, they should be interpreted as such.

35    In reaching this conclusion, the Senior Member said:

    “The Tribunal is cognisant of the approach to statutory interpretation which focuses upon the purpose of the legislation, rather than narrowly focussing on the specific words in question”: at [17];

    “The ordinary meaning of words may yield to some other meaning discerned in the statute as a whole, taking account of not just the language used but extrinsic aids which illuminate the meaning of particular phrases or words”: at [17];

    “The PPL Act is beneficial legislation”, pointing to the objects in s 3A of the PPL Act: at [18];

    The Secretary’s construction “would defeat many of the purposes articulated in section 3A”: at [19];

    “[I]t cannot be doubted that there is an ambiguity of expression in the relevant provision, and a leeway of choice. It is … not correct to assert that paragraph 46(3)(a) [sic] speaks in ‘clear terms’”: at [23]; and

    “[T]here is a lack of clarity in the relevant provision and that the interpretation [of the PPL Act] which supports and furthers the objectives of the legislation should be preferred”: at [25].

36    The Tribunal’s construction of the words “deployed” and “deployment” in s 46(4)(a) of the PPL Act is the subject of Ground 1.

37    The second finding of fact, that Major Pedel was “unable to return to Australia … because” of her “deployment” (in the wider sense accepted by the Tribunal), is the subject of Ground 2. In that respect, the Tribunal had earlier accepted at [9] that:

The Applicant gave evidence that she was unable to return to Australia because the standard of care available to expectant mothers in the [United States] was sufficiently high and repatriation was not standard practice or indeed possible. This was unlike the situation pertaining to some overseas postings, where the local facilities might be deemed inadequate. She said that she was therefore unable to return to Australia. I am prepared to accept at face value the evidence given by the Applicant on this point. As a serving member of the ADF, she was not simply at liberty to return to Australia without the approval of the chain of command. Her pregnancy was not an automatic trigger for repatriation.

Submissions on Ground 1

Secretary’s submissions

38    The Secretary accepted the principle of interpretation that beneficial legislation should be given a liberal interpretation where there is a constructional choice: see e.g. R v Kearney; Ex parte Jurlama (1984) 158 CLR 426 at 433. However, the Secretary submitted, when properly construed, s 46(4)(a) did not present an ambiguity requiring a choice of construction. Rather, the words “deployed” and “deployment” were to be interpreted in the context of the provision in its entirety, with a presumption that all the words used in the provision have work to do. When properly construed, s 46 was a disqualifying provision save for the limited exception in s 46(4). When viewed in its legislative history and context, Parliament’s intention was to confine the operation of s 46(4) to a very narrow set of circumstances.

39    The Secretary submitted that the Tribunal had impermissibly disregarded the qualifying words of the provision, that is, the phrase “under conditions specified in a determination made under the Defence Act 1903 that relates to such deployment” (hereafter referred to as the qualifying words). The qualifying words, it was contended, qualify what otherwise might have been the ordinary or dictionary meaning of the words “deployed” and “deployment”.

40    The Secretary traced the operation of the 2005 Determination and the 2016 Determination, identifying the different treatment of “deployments” and other types of overseas service. That operation of the Defence Determinations, the differing treatment of the various types of overseas service, and the suite of corresponding definitions contained therein, are outlined above at [11]-[22]. Given these definitions, and the specific provision for “deployment” conditions, it was contended by the Secretary that there was a deliberate distinction made in the Defence Determinations between long-term postings, short term duty, peacetime service and deployments, and that it is evident that Parliament intended the word “deployment” in s 46(4)(a) to have the same meaning as determined by the Minister in the Defence Determinations.

41    It was also submitted by the Secretary that such a construction would be consistent with the use of the word “deployed” in s 46(4)(b) of the PPL Act, which is similarly tethered to a specific operational role of “capacity-building or peacekeeping functions”, and with the words “unable to return” which, similarly, indicates that deployment is an operational necessity arising from the role of an ADF member, police officer, or protective service officer.

42    Finally, it was submitted that the Secretary’s construction did not detract from the purposes of the PPL Act despite the practical operation of the Defence Health Manual as it applies to pregnant female ADF members. I address this point at [78]-[79] below.

Major Pedel’s submissions

43    On the respondent’s construction of s 46(4)(a), the word “deployed” should not be given a meaning that is limited to ADF members who are sent on operational deployments:

The question that arises under s 46(4)(a) is whether the person has been deployed under conditions specified in a determination. The word “deployed” is not defined in the PPL Act, but, adopting its ordinary meaning, means “sent” or “posted”. Words in a provision of an Act should generally be given their natural and ordinary meaning unless it is plain that Parliament intended the provision to have some different meaning.

44    On that interpretation, “deployed” should be construed simply as meaning “sent” or “posted”.

45    Major Pedel submitted that the qualifying words of s 46(4)(a) “require that the relevant deployment is under conditions specified in a determination that relates to such deployment”. In oral submissions, counsel for the respondent clarified that Major Pedel’s construction would limit the provision’s operation to those ADF members who benefit from conditions specified in the 2016 Determination. In other words, not all ADF members who are overseas would be covered and, accordingly, the qualifying words would have work to do. On that construction, s 46(4)(a) would cover three categories of ADF personnel under the Defence Determinations, those on: short-term duty overseas (Ch 13), long-term posting overseas (Ch 15), and deployment (Ch 17). Consistently with the Tribunal’s conclusion, on the respondent’s construction, Major Pedel was “deployed” within the meaning of s 46(4)(a) because she was on long-term posting overseas.

46     Major Pedel identified a number of difficulties with the Secretary’s construction of s 46(4)(a):

    First, if the Parliament intended that s 46(4)(a) deployments were to be limited to “deployments” within the meaning of the 2016 Determination, it would have used different language; for example, deployments having “the same meaning” as that in the determination (an expression used to define “Australian resident” in s 6 of the PPL Act), “as defined in a determination”, or “as approved by the Minister in a determination”.

    Secondly, the applicant’s construction is incoherent with the use of the word “deployed” in s 46(4)(b). If it is to be presumed that Parliament intended to give a word the same meaning, then the Secretary’s construction would lead to s 46(4)(b) being given a meaning limited to an operational deployment under a determination. That would give paragraph (b) “a nonsensical and unworkable effect”.

    Thirdly, s 46(4)(a) is not a disqualifying provision – it is a saving provision that should be given a wide and beneficial interpretation, particularly if the Tribunal was correct that there is a “leeway of choice”.

    Fourthly, while the 2016 Determination distinguishes between different kinds of service, s 46(4)(a) does not.

    Fifthly, while “[i]t may be accepted that the objects of the PPL Act extend beyond birth mothers ... the applicant’s construction excludes the interests of birth mothers, in circumstances where a pregnant woman on an operational deployment would be required by Defence to return home”. That, Major Pedel submitted, conflicts with the stated objects of the PPL Act, particularly ss 3A(2)(a), (b), (c)(ii), and (c)(iii). An interpretation that does not discriminate between parents, and would achieve better equality between different categories of parents (particularly expectant mothers), should be preferred.

    Sixthly, the Secretary’s construction was problematic because it would lead to the words having an ambulatory effect by reference to what a Minister decides to put in a legislative instrument. That, the respondent contended, was a highly unorthodox way of construing a statute.

    Finally, the fact that the Secretary’s construction would confine the operation of s 46(4)(a) to “a very narrow category of defence force member” should militate against the Secretary’s interpretation.

Secretary’s submissions in reply

47    The Secretary’s reply contended that there are a number of ordinary meanings for the terms “deploy” and “deployed”, and that “the ordinary definition of ‘deploy’ infers something more than mere movement or use”.

48    The Secretary also contended that, if accepted, the respondent’s construction of s 46(4)(a) would include “any member who was sent overseas (irrespective of the reason for doing so)”, with the result that the qualifying words would have no work to do. That would be inconsistent with statements in the Revised Explanatory Memorandum to the Legislation Amendment Act 2014 which, it was contended, indicated a more confined application. If the Parliament had intended such an outcome, it would have drafted the provision differently, for example, by removing the word “deployed” from the sentence or by stopping the sentence after the words “defence force member”.

49    It relation to the respondent’s contention of incoherence in the Secretary’s construction arising from the use of the word “deployed” in both paragraphs (a) and (b), the Secretary submitted that the use of “deployed” in paragraph (b) is also tethered to stated operational purposes: “It is clear from both provisions that the use of the word ‘deployed’ is not intended to capture every ADF or AFP personnel who may be ‘sent’ or ‘posted’ overseas, but rather, is only to apply to more discrete or limited personnel, who are sent overseas for specific (limited) purposes”.

Submissions on Ground 2

Secretary’s submissions

50    The Secretary submitted that, if Major Pedel was deployed in the relevant sense, then the Tribunal’s finding that she was “unable to return to Australia” was “illogical (in the sense that it lacked a logical connection to the evidence), or that there was no evidence capable of supporting such a finding”.

51    The Secretary contended that the evidence before the Tribunal established only that Major Pedel was permitted to stay in the United States, not that she was prohibited from returning. In reaching its conclusion, the Tribunal conflated permission with prohibition. Furthermore, even if the evidence established a prohibition, it only pointed to a qualified or theoretical impediment to returning. None of the reasons given by Major Pedel equated to an actual inability to return because of her role. While Major Pedel gave evidence before the Tribunal that she was unable to return without permission, there was no evidence of her orders before the Tribunal; nor was there any evidence that Major Pedel sought permission to return or that a request had been denied. Instead, the Secretary submitted, that the only evidence was that Major Pedel was working remotely for her Australian based unit in order to keep her family together. Thus, it was argued, any impediment to returning was a social impediment not connected to her role and, therefore, her inability to return was not because of her deployment.

Major Pedel’s submissions

52    Major Pedel contended that the relevant findings were set out at paragraph [9] of the Tribunal’s Decision. That paragraph is reproduced at paragraph [37] above.

53    Contrary to the Secretary’s submissions, the respondent pointed to various parts of the evidence that supported those findings:

a.    Under Defence requirements, she was not allowed to return home even though she was pregnant;

b.    Once posted, there is an allocated period of time she had to live in the United States and the only basis for returning was extensive welfare grounds or severe illness that required repatriation;

c.    Being posted in the United States, due to the quality of their health care system, meant that being pregnant was not an allowable circumstance for repatriation to Australia;

d.    She was unable to return to Australia due to her posting overseas unless Defence ordered her to return.

(footnotes omitted).

54    Major Pedel further contended that the evidence before the Tribunal was “that it would require an order from the Army to return to Australia, and that being pregnant on a posting in the United States would not be seen by Defence as a reason to permit return to Australia”. In oral submissions, counsel for the respondent emphasised that Major Pedel was not required to return home under defence policy because it was safe for her to remain in the United States because of the available health services. She was not only permitted to stay, but she was not permitted to return home without approval of the chain of command. Major Pedel contended that the evidence recorded at paragraph [9] of the Tribunal Decision was not the subject of challenge in cross-examination and, consequently, the Tribunal was entitled to take it at face value.

55    While it was accepted that there was no evidence that Major Pedel sought permission to leave her posting, the respondent submitted that the relevant question “is whether there was evidence supporting the Tribunal’s conclusions at [9]”.

56    As to the requisite causal connection between Major Pedel’s work and her inability to return home, it was submitted that her posting kept her in the United States. It might have been different if she were not on a posting and merely accompanied her husband in some other capacity. However, it was submitted that it was Major Pedel’s posting that was keeping her in the United States.

The Secretary’s submissions in reply

57    The Secretary replied that “the only evidence about the nature of the Respondent’s actual role was that she was working for an Australian Army unit in Australia, but the job was based in Australia and she was working remotely from the USA”. Furthermore, there were references in the transcript of proceedings before the Tribunal to the effect that Major Pedel was included on the military service orders of her husband, and that she had requested to be included to keep her family together.

58    Accordingly, the Secretary contended that the findings of the Tribunal at paragraph [9] were illogical “because there was no sensible connection between the evidence relied upon and the inferences that were ultimately drawn”. Given the nature of her work, it did not logically follow that the impediments she described in her evidence had any bearing on her “ability to return”. Instead, “her reason for not returning was simply to stay with her family”.

Determination of Ground 1 – The meaning of “deployed”

59    For the reasons that follow, I agree with the Secretary’s construction of s 46(4)(a) of the PPL Act.

Principles of statutory construction

60    The principles of construction are well established. In R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [32]-[33], Kiefel CJ and Keane J said that the method of construction (see also at [124] per Bell and Gageler JJ):

... commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy.

61    To similar effect, Kiefel CJ, Nettle, and Gordon JJ in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 identified at [14] that:

[t]he starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

See also Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [31] per Gordon, Edelman and Steward JJ.

62    Accordingly, “the process of construction must always begin by examining the context of the provision that is being construed” (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] per McHugh, Gummow, Kirby, and Hayne JJ), and legislative context “should be regarded in its widest sense, including by reference to legislative history and extrinsic material”: ENT19 v Minister for Home Affairs (2023) 278 CLR 75; [2023] HCA 18 at [86] per Gordon, Edelman, Steward and Gleeson JJ.

The text of s 46(4)(a) necessitates consideration of the qualifying words

“Under” imports a connection between deployment and the determination

63    Commencing with the text, the word “deployed” in s 46(4)(a) is qualified by the words “under conditions specified in a determination made under the [Defence Act] that relates to such deployment”. I accept the Secretary’s submissions that these are words of qualification. The word “under” is generally used to mean “pursuant to” or “by virtue of”: Pearce, Statutory Interpretation in Australia (10th ed, 2024) at [12.15], referring to Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 249. As Wilcox J said in Elmslie v Commissioner of Taxation (1993) 46 FCR 576 at 592, “the word ‘under’ usually imports a direct connection between the relevant act and the instrument”: referred to in Pearce at [12.15]. Thus, the text of s 46(4)(a) imports a direct connection between being “deployed” and the conditions specified in the determination.

64    Accordingly, the qualifying words indicate that the word “deployed” in s 46(4)(a) is not at large in identifying the category of persons to whom the provision applies, and that it cannot be given a meaning divorced from the remainder of the provision. An interpretation of “deployed” and “deployment” that ignores the qualifying words is incorrect.

65    Counsel for Major Pedel accepted that the qualifying words do have work to do in identifying the category of persons who fall within s 46(4)(a). The essential difference between the parties is whether the “determination” referred to in the qualifying words gives content to the entire expression “deployed … under conditions specified in a determination … that relates to such deployment” (the Secretary’s construction), or merely gives content to the meaning of the words “conditions specified in a determination” (Major Pedel’s construction).

Consistency of language with s 46(4)(b) is not persuasive

66    I do not find much assistance in the usage of “deployed” in both ss 46(4)(a) and (b). While each of paras (a) and (b) is conditioned by the word “deployed”, it is clear that the word is to operate, and be understood, according to the terms of each paragraph.

67    Paragraph (a) identifies a category of “deployed” persons by reference to conditions specified in a Defence Act determination, whereas para (b) identifies a second category of “deployed” persons by reference to specified functions. The scope of each provision takes a different form and the term must be read alongside the remainder of the relevant provision.

68    Accordingly, the appearance of the word “deployed” in s 46(4)(b) does not, necessarily, militate in favour of the respondent’s position.

“Unable to return” is not limited to an operational context

69    I also do not find assistance in the use of the words “unable to return” in s 46(4). The Secretary contended that those words imply an operational necessity arising from a deployment. However, the expression “unable to return” has been used in other provisions relating to a range of other circumstances (see Family Assistance Act ss 24(7) and 85EE(3)) and, accordingly, it is inapposite to confine it to having a deployment-specific meaning in the context of s 46(4)(a) of the PPL Act.

The statutory text and context directs attention to “deployment” in the Defence Determinations

70    The wider enactment context, including the operation of a determination which is referred to in s 46(4)(a), is more instructive for understanding the legislative scheme in which that provision operates: see Master Education Services Pty Limited v Ketchell (2008) 236 CLR 101; [2008] HCA 38 at [19]. At the time that s 46(4)(a) commenced operation, the 2005 Determination had been in place for over a decade. It was also in place at the time that the similarly worded provision in s 63A(4) of the Family Assistance Act was inserted. The 2005 Determination had established a clear differentiation between the “conditions of service for deployments” and the conditions of service for persons serving in other capacities.

71    As indicated earlier in these reasons, the “conditions of service for deployments” are dealt with in Ch 17 of the 2016 Determination (and, at the time of s 46(4)(a)’s insertion, in Ch 17 of the 2005 Determination). In the expression, “conditions specified in a determination ... that relates to such deployment”, there is correspondence in the language used in s 46(4)(a) and that used in Ch 17 of the Defence Determinations. That correspondence militates in favour of the view that the words “deployed” and “deployment” in s 46(4)(a) were intended by the Parliament to be a reference to the way that those expressions were, and are, treated in the 2005 Determination and the 2016 Determination.

72    That view is further strengthened by the terms of s 58B(1)(h) of the Defence Act which authorises the relevant Minister to provide for and in relation to the meanings to be attributed to words and expressions in a determination made under that section. That is, the statutory power to create the very instrument referred to in s 46(4)(a) authorises the Minister to define the words and expressions within it. The 2005 Determination, which was in existence at the time s 46(4)(a) was inserted, defined the very terms referred to in that section. The Secretary’s construction would produce a coherent and harmonious result across s 46(4)(a) of the PPL Act, s 58B of the Defence Act, and the terms of the Defence Determinations: see ENT19 at [87] per Gordon, Edelman, Steward, and Gleeson JJ.

73    As was accepted by the respondent in oral argument, Major Pedel’s submission on the meaning of “deployed” and “deployment” involves acceptance of the proposition that the language of “conditions specified” in s 46(4)(a) refers to the language of “conditions” that is used in the Defence Determinations. However, the respondent’s construction would disregard the corresponding language of “deployment” in both s 46(4)(a) and the Defence Determinations. No basis for that approach can be found in the terms of the power to make the Defence Determinations. The power in s 58B(1) to provide for and in relation to conditions of service is a broad one, enabling the relevant Minister, as has been done, to identify variable conditions attaching to distinct categories of service. Furthermore, the power in s 58B(1)(h) of the Defence Act to provide for the meanings to be attributed to words and expressions used in determinations is also broad. It may be accepted, as the respondent submitted in oral argument, that it is the prerogative of the Minister to set the conditions. However, it is also the prerogative of the Minister to determine categories of conditions, and to define the expressions used to identify those categories. Given that wider statutory context, it is unclear why the drafters of s 46(4)(a) would have chosen to pick up the language of “conditions” from the Defence Determinations, but disregard the language of “deployment”, leaving the latter to have its ordinary and natural meaning.

74    In summary, the text and wider enactment context support the view that the word “deployed” in s 46(4)(a) must be read with the qualifying words in a way that limits the provision’s operation to “deployments” within the meaning of the 2016 Determination. Given the wider enactment context, if it were the intention of the Parliament to give the words “deployed” and “deployment” a meaning different to that determined by the relevant Minister, then it might have done so more directly in the PPL Act.

Extrinsic materials of little assistance

75    Extrinsic materials are an aid to identifying the context and purpose of the enactment of a provision where the ordinary rules of statutory construction have been exhausted: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [32]-[33] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. However, the extrinsic materials supporting the enactment of s 46(4)(a) and its analogues shed little light on its intended scope of operation. Nor do the extrinsic materials supporting these various provisions assist as to the scope of the qualifying words.

76    However, I accept the Secretary’s argument that the confined operation of s 46(4)(a) is consistent with the goal of narrowing the eligibility period from three years to 56 weeks. It is also consistent with the special treatment in the Defence Determinations of conditions of service available to persons on deployment in recognition of the additional disabilities or hardships that they are likely to experience: see Project Blue Sky at [70].

77    The legislative history, specifically the replication of the provision in other Commonwealth provisions, is likely to explain the drafting choices made in the context of s 46(4)(a). In any event, there is nothing in the extrinsic materials that would favour a wider reading of the words “deployed” and “deployment”.

General legislative purpose not determinative

78    The Tribunal supported its conclusion by reference to the objects set out in s 3A of the PPL Act and considered that the Secretary’s construction would defeat many of those objects. However, some care needs to be taken when applying general purposes to the operation of particular provisions, particularly in this case where s 46(4) operates as an exception to a disqualifying provision: see R v A2 at [31]-[37]. I accept the Secretary’s contention that the general objects of the PPL Act cannot be elevated above the text and context of s 46(4)(a).

79    The respondent sought to support a wider reading by reference to the inequitable operation of the provision on birth mothers. It was argued that “the applicant’s construction excludes the interests of birth mothers, in circumstances where a pregnant woman on an operational deployment would be required by Defence to return home”. There are difficulties with that submission. It appeared to be common ground that operational requirements, as reflected in Chapter 3 of the Defence Health Manual (vol 2, pt 9, Ch 3, paras 3.3, 3.33, 3.37(f), 3.41, 3.53, 3.55, and 3.57), would result in most pregnant mothers returning to Australia, thereby satisfying the residency test and avoiding the need to rely upon the extension provision in s 46(4)(a). It was also accepted by the parties that, in some circumstances, albeit limited, s 46(4)(a) could operate to benefit birth mothers.

80    In any event, as the Secretary contended, s 46(4)(a) would have work to do in its application to deployed fathers, non-gestational or non-biological female partners and adoptive parents, both male and female. I accept the Secretary’s submission that the application of s 46(4)(a) to those persons would be consistent with objects set out in s 3A of the PPL Act.

Ambulatory application permissible

81    The respondent also argued against an ambulatory reading of the provision that would give the Minister power to define the category of persons in s 46(4)(a). No authority was provided to support that argument.

82    There are many examples of statutory provisions that leave it to delegated legislation to determine the content of a statutory expression. Two examples are found in s 110T of the Defence Act which leave it to regulations to define the words “defence award” and “defence honour”.

83    It is also accepted that a provision can do so in an ambulatory way if that is the intention of the provision: see Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379 at 395 per Sackville J; D Pearce and R Geddes, Statutory Interpretation in Australia (8th ed, 2014) at [6.22] (Pearce and Geddes). In my view, given the wider statutory context, that is the intention of s 46(4)(a). Indeed, Major Pedel’s construction would also give the provision an ambulatory operation by permitting the Minister to determine the conditions of overseas service that would attract the operation of s 46(4)(a).

No room for presumption of liberal interpretation

84    Once s 46(4)(a) is understood as only covering persons “deployed” within the meaning of a determination that relates to deployment, the words of the provision have a clear meaning and operation and the occasion to apply the presumption in favour of a liberal application does not arise: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 at [33] per French CJ, Kiefel, Bell and Keane JJ; see also at [94] per Gageler J.

85    In any event, this was not a clear case for the application of the presumption. It is evident from the legislative history that there were competing public interests being balanced by the Parliament: Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd (2004) 139 FCR 147; [2004] FCAFC 183 at [17]. There was a clear policy to tighten the residency requirement, thereby restricting entitlement to parental leave pay (and other benefits). However, there was also recognition that access to the longer period of absence should be retained for defined groups of persons. It is evident that s 46(4) was intended to strike a balance. In such circumstances involving both “enabling and excepting provisions” (see Rose v Secretary, Department of Social Security (1990) 21 FCR 241 at 244 per Lockhart, Gummow and Einfeld JJ), the presumption should not be assumed to apply, and the provisions should be “interpreted carefully in order not to destroy that balance” (Pearce and Geddes, at [9.5]; see also Adelaide Brighton Cement Ltd at [17]).

Summary and conclusion on Ground 1

86    In summary, the correct reading of the text in s 46(4)(a) of the PPL Act is that a person will be “deployed ... under conditions specified in a determination ... that relates to such deployment” only if the person is “deployed” within the meaning of a current determination under the Defence Act – at present the 2016 Determination.

87    Accordingly, the Tribunal fell into error in its construction of s 46(4)(a) of the PPL Act and in its conclusion that, on the evidence before the Tribunal, Major Pedel was “deployed” within the meaning of that paragraph.

Determination of Ground 2 – Inferences unsupported by evidence, IRRATIONALITY, and illogicality

88    Ground 2 challenges the Tribunal’s conclusion that Major Pedel was “unable to return” to Australia “because” of a deployment within the meaning of s 46(4)(a) on the basis that such a finding was illogical or not supported by the evidence. In light of my conclusion on Ground 1, it is not necessary to consider whether the shortcomings in the state of the evidence before the Tribunal were sufficient to establish legal error on the basis that the conclusions reached, or reasoning process, were illogical or lacked evidential support. Nonetheless, I make the following observations on the difficulty of establishing such an error in this case.

89    The making of findings or the drawing of inferences unsupported by a “skerrick” of probative evidence is an error of law: XRZG v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 305 FCR 349; [2024] FCAFC 131 at [63] per Markovic, Cheeseman, and Horan JJ; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 per Mason J; 367-8 per Deane J; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] per Hayne, Heydon, Crennan, and Kiefel JJ; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at [17] per Keane, Gordon, Edelman, Steward and Gleeson JJ.

90    It has also been accepted that illogicality may give rise to jurisdictional error: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. Whether there has been “illogicality” in the relevant sense is not a conclusion that should be lightly reached: SZMDS at [40] per Gummow A-CJ and Kiefel J; [122], [130] per Crennan and Bell JJ; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [44]-[47] per Griffiths, Perry, and Bromwich JJ. “Not every lapse in logic” will create legal error: SZMDS at [130] per Crennan and Bell JJ; ARG15 at [44]. As Crennan and Bell JJ said in SZMDS at [131], [135]:

... the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

...

[A] decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

91    There is no reason to doubt that these categories of error can give rise to a question of law for the purposes of s 44 of the AAT Act: see Allan v Transurban City Link Ltd (2001) 208 CLR 167; [2001] HCA 58 at [11] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [62], [135], and [202] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ.

92    In two important respects, there were difficulties with the state of the evidence before the Tribunal. First, the Tribunal accepted Major Pedel’s evidence that she was not allowed to return home. Secondly, it accepted her evidence that her inability to return home was due to her posting.

93    At the core of these findings was an acceptance that Major Pedel was posted to the United States. On that basis, it was reasoned by the Tribunal that, given the availability of adequate health care in the United States and in the absence of extenuating circumstances requiring repatriation, Major Pedel was not permitted to return home without the approval of her chain of command. It followed also that her inability to return was because of her posting.

94    Some of the evidence before the Tribunal did not sit comfortably with its findings:

    First, as the Secretary contended, some of the evidence, including Major Pedel’s answers to the Tribunal, suggested only that, in the circumstances and despite her pregnancy, she was permitted to stay in the United States, rather than being prohibited from returning to Australia.

    Secondly, as the Secretary contended, some of Major Pedel’s evidence suggested that her working arrangement was not to be characterised as a posting.

95    These uncertainties might have been put beyond doubt if the Tribunal had before it Major Pedel’s orders or her PMKeyS. However, throughout the decision-making and AAT review processes, the language of “posting” was used to describe Major Pedel’s role in the United States, and the Secretary accepted that the precise nature of Major Pedel’s role was not addressed before the Tribunal. Indeed, in written submissions before the Tribunal, the Secretary accepted that Major Pedel “was posted outside Australia in the course of her service”.

96    Based on the evidence before the Tribunal, particularly that provided by Major Pedel to the effect that she was unable to return to Australia in her circumstances, it would be difficult to conclude that the Tribunal’s conclusions were not open on the evidence, or that there was no logical connection between the evidence and the inferences or conclusions drawn. That is particularly the case given the high threshold to be satisfied, and being mindful that “not every lapse in logic” will establish legal error. The evidence summarised at paragraph [9] of the Tribunal’s Decision was given by Major Pedel and accepted at face value by the Tribunal.

97    The fact that there was no evidence that Major Pedel requested a return to Australia does not take the Secretary’s position further. The absence of such a request might have reflected a perception of the futility of making it given Major Pedel’s evidence of ADF policy. The possibility of seeking an “exemption” was put to Major Pedel by the Tribunal. The response was, “[o]nly under certain circumstances ...”. The Tribunal then said, “if I understand you correctly, what you’re saying is that it could be said that you were unable to return”. That conclusion was repeated in the findings of fact in paragraph [9] of the Tribunal’s Decision. Again, it would be difficult to conclude that there is lacking a logical connection between the evidence and the inferences or conclusions drawn.

Conclusion

98    For the reasons given, the statutory appeal should be allowed on Ground 1. As the Tribunal has now been replaced by the Administrative Review Tribunal (ART), the matter must be remitted to the ART for determination according to law: Transitional Provisions, Sch 16 item 25(2).

99    As agreed by the parties, there is to be no order as to costs.

Associate:

Dated:    20 May 2025