FEDERAL COURT OF AUSTRALIA
Secretary, Department of Family & Community Services v Waldron
[2007] FCAFC 131
A New Tax System (Family Assistance) Act 1999 (Cth) s 22
Acts Interpretation Act 1901 (Cth) s 15
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Adoption Act 1988 (SA) s 4, s 21
Adoption of Children Act 1966-1967 (NSW) s 39
Commonwealth Powers (Family Law) Act 1986 (SA)
Domicile Act 1982 s 4
Family Law Act 1975 (Cth) s 4
Hague Convention on the Protection of Children and Cooperation in respect of Inter-country Adoption
Immigration (Guardianship of Children) Act 1946 (Cth) s 6
Immigration (Guardianship of Children) Regulations 2001 (Cth) reg 9, reg 10
Marriage Act 1961 (Cth) s 23
Marriage Amendment Act 1976 (Cth)
Migration Regulations 1994 (Cth)
Social Security Act 1991 (Cth) ss 5, 993, 999,
Social Security and Repatriation Legislation Amendment Act 1984 (Cth) s 33
Social Services Act 1947 (Cth) 105
Social Services Act (No 3) 1975 (Cth) s 105
Social Services Act (No 4) (Cth) 1973 s 19
Social Services Amendment Act 1981 (Cth) s 14
Social Services Amendment Act 1979 (Cth) s 26
Social Services Legislation Amendment Act 1982 (Cth) s 5
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 387 referred to
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES v HEATHER WALDRON
SAD 281 OF 2007
BRANSON, LINDGREN AND BESANKO JJ
17 AUGUST 2007
ADELAIDE
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
SAD 281 OF 2007 |
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ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES Appellant
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AND: |
HEATHER WALDRON Respondent
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BRANSON, LINDGREN AND BESANKO JJ |
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DATE OF ORDER: |
17 AUGUST 2007 |
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WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The order made by Mansfield J on 30 November 2006 be set aside and in lieu thereof it be ordered that:
(1) The appeal be allowed.
(2) The decision of the Administrative Appeals Tribunal made on 9 November 2005 be set aside and in lieu thereof it be ordered that:
(a) the decision of the Social Security Appeals Tribunal dated 22 December 2004 be set aside; and
(b) the decision of the Authorised Review Officer dated 24 September 2004 be affirmed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
SAD 281 OF 2007 |
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ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES Appellant
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AND: |
HEATHER WALDRON Respondent
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JUDGES: |
BRANSON, LINDGREN AND BESANKO JJ |
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DATE: |
17 AUGUST 2007 |
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PLACE: |
ADELAIDE |
REASONS FOR JUDGMENT
BRANSON J
1 I have had the advantage of reading in draft the reasons for judgment of Besanko J. I agree with the orders proposed by his Honour and generally with his Honour’s reasons. I wish to add only the following observations.
2 The issue required to be determined on the appeal is the meaning, in the context of the Social Security Act 1991 (Cth) (“Social Security Act”), of the words “a young person adopted under the law of any place, whether in Australia or not, relating to the adoption of children”. The appellant contended that these words, which define an “adopted child” for the purposes of the Act, are to be understood to include a young person whose adoption under the law of a foreign jurisdiction is not recognised as a valid adoption by the law of Australia. The respondent contended that the words are not to be so understood but rather, that the words include only a young person whose adoption, whether undertaken pursuant to the law of Australia or not, is recognised as a valid adoption by the law of Australia.
3 Persuasive arguments were advanced in support of each of the two possible constructions. Unfortunately, as Besanko J has pointed out, the extrinsic material brought to the Court’s attention provided no real assistance (s 15AB of the Acts Interpretation Act 1901 (Cth)). Ultimately I am persuaded that the construction for which the appellant contended is that which is more likely to reflect the intention of the legislature. It accords with the natural and ordinary meaning of the language of the definition. Moreover, it gives the words qualifying the expression “the law of any place” some work to do. The law of any place is required to be a law “relating to the adoption of children”. This qualification would, it seems to me, be unnecessary if the definition were intended to include only a young person whose adoption is recognised by the law of Australia. The qualification seems calculated to cover the possibility that under the law of a foreign jurisdiction a child might be “adopted” other than pursuant to a law relating to the adoption of children.
4 Additionally, I consider it significant that s 4 of the Family Law Act 1975 (Cth) (“Family Law Act”) contains a definition that bears a striking similarity to the definition of “adopted child” in the Social Security Act. That definition is in the following terms:
adopted, in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
5 The similarity of the two definitions suggests a legislative intention that a child who is an “adopted” child within the meaning of the Family Law Act is also an “adopted child” for the purposes of the Social Security Act. Having regard to the objects of Part VIII – Children of the Family Law Act, which include ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children, it seems unlikely that the definition of “adopted” in that Act was intended to exclude an adoption not recognised as such by the law of Australia.
6 To the extent that it may be significant, I note that by the Commonwealth Powers (Family Law) Act 1986 (SA) the Parliament of South Australia referred to the Parliament of the Commonwealth the following matters:
(a) the maintenance of children … and the payment of expenses in relation to children or childbearing;
(b) the custody and guardianship of, and access to, children.
Part VIII of the Family Law Act thus extends to South Australia (s 69ZE of the Family Law Act).
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I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. |
Associate:
Dated: 17 August 2007
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IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
SAD 281 OF 2007 |
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ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES Appellant
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AND: |
HEATHER WALDRON Respondent
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JUDGES: |
BRANSON, LINDGREN & BESANKO JJ |
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DATE: |
17 AUGUST 2007 |
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PLACE: |
ADELAIDE |
REASONS FOR JUDGMENT
LINDGREN J:
7 I have had the benefit of reading in draft the reasons for judgment of Besanko J. His Honour has set out the background facts relating to Isabelle (I will use his Honour’s abbreviated forms of reference) and the relevant legislation. Notwithstanding this, I find it useful to trace, with my own observations, the legislative genesis of the provisions in question.
8 A “double orphan’s pension” was introduced when Part VIA was inserted into the Social Services Act 1947 (Cth) (the 1947 Act) by s 19 of the Social Services Act (No 4) 1973 (No 103 of 1973) (the 1973 amending Act).
9 Adoption was then and is now governed by State and Territory law. The Court was told that the Adoption of Children Act 1966-1967 (NSW)was typical of the State and Territory Acts in force in 1973. Section 39(2) of that Act provided that the adoption of a person in a country outside the Commonwealth and the Territories of the Commonwealth was to have the same effect as an adoption of the person made in the State, provided the following four conditions were satisfied:
(a) the adoption was effective according to the law of that country;
(b) at the time at which the legal steps that resulted in the adoption were commenced, the adopter, or each of the adopters, was resident or domiciled in that country;
(c) in consequence of the adoption, the adopter or adopters had, or would (if the adopted person had been a young child) have had, immediately following the adoption, according to the law of that country, a right superior to that of any natural parent of the adopted person in respect of the custody of the adopted person; and
(d) under the law of that country the adopter or adopters were, by the adoption, placed generally in relation to the adopted person in the position of a parent or parents.
Of importance for present purposes is condition (b). The Waldrons were never resident or domiciled in Ethiopia. Accordingly their adoption of Isabelle would not have been recognised for the purposes of Australian State and Territory laws relating to adoption.
10 It will be noted that s 39(2) did not distinguish between one foreign country and another. Section 39(3) of the Adoption of Children Act 1966-1967 (NSW)did, however, empower the Governor to declare that all or any adoptions under the law of a particular country outside the Commonwealth and its Territories, specified in the proclamation, should be conclusively presumed to comply with conditions (c) and (d) of s 39(2), but the power did not extend to condition (a) or condition (b).
11 The first section in the new Pt VIA of the 1947 Act was s 105A. Section 105A contained two definitions: “child” and “double orphan”. The definition of “child” is not of present relevance. The expression “double orphan” was defined to mean:
(a) a child (other than an adopted child) both of whose parents are dead; or
(b) an adopted child both of whose adoptive parents are dead or, if there was only one adoptive parent, whose adoptive parent is dead.
The definitions assume that a child other than an adoptive child must have had “parents”, and that an adopted child must have had “adoptive parents” or one “adoptive parent”. To be a “double orphan”, the child (not being an adopted child) must not have a natural parent surviving, and an adopted child must not have an adoptive parent surviving. There was no definition of “parent”, “adopted child” or “adoptive parent”.
12 In the Second Reading Speech for the Bill for the 1973 amending Act, Mr Hayden, the Minister for Social Security, explained (Australia, House of Representatives, Debates, (11 September 1973) Vol HR85 pp 756-757) the reason for introducing the double orphan’s pension in these terms:
Double orphan’s pension removes an area of human neglect that should not have been allowed to continue. It is incredible and inexcusable that this anomaly should have been tolerated for so long by past governments. Imagine the grave social distress and severe disadvantage that has been caused to thousands of unfortunate and innocent children over the years because of these injustices. Let me give one illustration of the intolerable nature of this injustice. Children of a widow receiving a widow’s pension would attract a mother’s allowance and additional pension for children. If the mother were to die, all pension entitlement from the Australian Government, until this Government accepted its responsibilities with this legislation, ended. Previous governments washed their hands of all responsibility. I am pleased that this important reform has been achieved as one of our earliest actions.
The new pension will not be paid in respect of an adopted child if both adoptive parents are still alive. However, a benefit will be payable to the guardian of a child if both adoptive parents are deceased or if one is deceased and the whereabouts of the other parent are unknown. There will be no means test. However, double orphan’s pension will not be paid if the child attracts a war orphan’s pension payable under the Repatriation Act.
The conditions of payment, generally, will be broadly along the lines of those applying to child endowment. Payment will be made in respect of orphans who are under 16 years of age or who are full-time students aged 16 to 21. My Department will make payment by the same method and at the same time as child endowment. In most cases the new pension will supplement child endowment.
13 The general purport of the Minister’s speech is that the double orphan’s pension was intended to be payable where other benefits that had previously been payable in respect of a child ceased to be payable because the child ceased to have a parent or adoptive parent, even though, of course, the child was being cared for by someone and so the call for government support continued unaffected. But no benefits ceased to be payable by the Australian Government in respect of Isabelle when she became a double orphan in Ethiopia because she was an Ethiopian child of Ethiopian parents living in Ethiopia. Thus, the Second Reading Speech shows that Isabelle’s circumstances were not in contemplation as calling for the double orphan’s pension because she had not been a child, biological or adopted, of Australian citizens. It was not the point for double orphan’s pension purposes that Australian citizens became her carers, whether under an Ethiopian adoption or not.
14 By the Social Services Act (No 3) 1975 (Cth) (No 110 of 1975) s 105A was amended by the addition at the end of s 105A(1) of two definitions, the relevant one being a definition of “parent” to include an “adoptive parent”. The expression “adoptive parent”, however, remained undefined.
15 Section 26 of the Social Services Amendment Act 1979 (Cth) (No 121 of 1979) (the 1979 amending Act) inserted the following definition of “adopted child” in s 105A:
“adopted child” means a child adopted under the law of any place (whether in or out of Australia) relating to the adoption of children, and “adoptive parent” has a corresponding meaning.
16 The plain meaning of this definition is that a person placed as Isabelle was, was to be treated for the purposes of Pt V1A (Double Orphan’s Pension) of the 1947 Act, not as an orphan but as an adopted child, from the moment he or she was adopted under the law of any place (including Ethiopia) relating to the adoption of children.
17 I have reached the conclusion that the definition should not be read down as subject to an implied qualification by reference to recognition of the foreign adoption in Australian law.
18 In other legislation the Commonwealth Parliament has expressly defined “adopted child” by reference to such a qualification. I refer, first, to the definition in s 23 of the Marriage Act 1961 (Cth) (No 12 of 1961) as it was enacted in 1961. That section occurred in Pt III of that Act which was concerned with the application of the prohibited degrees of consanguinity and affinity. Section 23 was concerned with the application of the prohibited degrees in respect of relationships by adoption, and within that section, subs (1) provided:
(1) In this section, “adopted child” means –
(a) a person adopted under a law of a State or of any Territory of the Commonwealth; or
(b) a person adopted under the law of any other place, if the adoption of the person would be recognized as valid under the law of the Australian Capital Territory.
and “adopted” has a corresponding meaning.
(Emphasis added.)
This definition shows that the drafter was well capable of expressing a qualification of the kind supported by the primary Judge and by the respondent on appeal.
19 By the Marriage Amendment Act 1976 (Cth) (No 209 of 1976) Pt III was repealed and replaced, and the definition of “adopted” in the new s 23(6) of the Marriage Act 1961 (Cth) was:
“adopted”, in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
This legislative change, made only some three years prior to the 1979 amending Act, abandoned the requirement of recognition of validity. The omission makes plain that the expression “the law of any place (whether in or out of Australia) relating to the adoption of children” is to be understood free of any implied qualification of the kind in contemplation.
20 Some three years after the 1979 amending Act was passed, s 4 of the Domicile Act 1982 (Cth) also defined “adopted” as including a requirement of recognition under State or Territory law. Again, this demonstrates that when Parliament wished a qualification to operate, it was disposed to say so expressly.
21 In his Second Reading Speech on the Bill for the 1979 amending Act, Mr Garland, Minister for Special Trade Representations, stated in relation to the double orphan’s pension (Australia, House of Representatives, Debates, (11 October 1979) Vol HR116 pp 1970-1971):
Mr Deputy Speaker, in order to qualify for a double orphan’s pension a person must be caring for a child, other than a child he has adopted, both of whose parents are no longer living, or one of whose parents is deceased and the other is not able, because of specified circumstances, to support the child. Honourable members will be aware that some people have travelled overseas to adopt children under the laws of other countries or to bring children to Australia with a view to adoption under Australian law. Overseas adoptions may not be recognised under Australian law. While there is no barrier to payment of a double orphan’s pension where a child, Australian born or otherwise, is awaiting adoption in Australia, it has never been the intention to pay the double orphan’s pension for any adopted child, including those adopted under the laws of another country. The proposed amendment in this bill will ensure there is no doubt about this.
This passage is not as clear as one might have wished. There is a danger of reading into it meaning by reference to the problem to be solved to which the Minister did not direct his mind. The passage is concerned with overseas orphans who were available to be adopted by Australian citizens. I think that Mr and Mrs Waldron are within the first broad category identified by the Minister of those who had adopted an overseas orphan under the law of another country, even though they did not travel overseas to do so.
22 The dichotomy assumed is between people who adopt orphans under the laws of other countries and persons who bring orphans to Australia with a view to adopting them under Australian law. The problem, as the present case shows, is that the two categories are not necessarily mutually exclusive. The Waldrons fall within both.
23 The sentence “Overseas adoptions may not be recognised under Australian law” could be merely explanatory of the latter part of the preceding sentence, that is to say, it could merely explain why some people do not adopt under the laws of other countries and prefer to bring overseas orphans to Australia for adoption here. If, on the other hand, the sentence is read simply with the following sentence commencing “While there is no barrier ...” the two seem to be related, the Minister would be saying that where an overseas adoption, even one that has in fact occurred, is not recognised under Australian law and the child is awaiting adoption in Australia, there is no barrier to payment of the double orphan’s pension. So understood, his statement would encompass Isabelle’s circumstances.
24 However, the Minister’s statement “It has never been the intention to pay the double orphan’s pension for any adopted child” is problematical for this latter view. A possible reading is that the intention is to make clear that precisely cases of the present kind (overseas orphans who have been adopted under foreign law where the adoption is not recognised under Australian law) are excluded from the double orphan’s pension provisions. On this view, the intention would not mark a change from the position outlined in the Second Reading Speech that had been made on the Bill for the 1973 amending Act (see [7] above) in the sense that responsibility was not being accepted for overseas double orphans as such.
25 Because of its uncertainty, I do not find the present Second Reading Speech to be particularly illuminating.
26 Section 14 of the Social Services Amendment Act 1981 (Cth) (No 159 of 1981) omitted from s 105A(1) the definition of “parent” as including an adoptive parent that had been inserted in 1975, and substituted for it the following definition:
“parent” means –
(a) in relation to a child (other than an adopted child) – a natural parent of the child; or
(b) in relation to an adopted child – an adoptive parent, or the adoptive parent, of the child.
I do not think that this definition signified a change of any significance: as noted earlier, in common parlance, for every adopted child there must be one or two adoptive parents.
27 By the Social Services Legislation Amendment Act 1982 (Act No 37 of 1982) s 5, the title of the 1947 Act was changed from “Social Services Act” to “Social Security Act”.
28 In 1984 the Social Security and Repatriation Legislation Amendment Act 1984 (Cth) (No 78 of 1984), by s 33, omitted from s 105A the definition of “adopted child” that had been inserted in 1979, and inserted (by s 5) the following substituted definition into s 6, the general definition section of the 1947 Act:
“adopted child” means a child adopted under the law of any place, whether in Australia or not, relating to the adoption of children.
It will be noted that the new definition omits from the definition that had been inserted in 1979, the concluding words “and ‘adoptive parent’ has a corresponding meaning”. I do not think that this signifies a change of present significance.
29 In the Second Reading Speech for the Social Security and Repatriation Legislation Amendment Bill 1984, the Minister for Science and Technology, Mr Jones, described these amendments as being “of a law revision kind, updating and simplifying the legislation and removing minor anomalies and deficiencies” (Australia, House of Representatives, Debates, (10 May 1984) Vol HR137, p 2255). The Explanatory Memorandum stated simply that the omission from s 105A flowed from “the consolidation of the term in the Principal Act”, and from the new definition inserted into s 6. It stated only that it was the same as the existing definitions concerning the supporting parent’s benefit and the double orphan’s pension which it was to replace. The Explanatory Memorandum made no reference to the dropping of the words “and ‘adoptive parent’ has a corresponding meaning”. The omission is probably explained by the presence of para (b) of the definition of “parent” that had been inserted in 1981, only some three years earlier, noted above. It would have been duplicative of para (b) to have retained the words “and ‘adoptive parent’ has a corresponding meaning”. In any event, in general parlance an adoption inevitably signifies the presence of an adopted child and at least one adoptive parent.
30 Australia ratified the Hague Convention on the Protection of Children and Cooperation in respect of Inter-country Adoption (the Hague Convention) with effect from 1 December 1988. In implementation of the Hague Convention, State and Territory adoption laws provided for automatic recognition of adoptions effected pursuant to the laws of Convention countries. Thus, by way of illustration, in 1996 a new subsection (a1) was inserted into s 21 of the Adoption Act 1988 (SA) as follows:
Subject to any law of the Commonwealth, an adoption order made under the law of a Convention country will be recognised under the law of the State as having the same effect as an adoption order under the law of the State.
Subsection (1) of s 21 of the South Australian Act was a provision generally similar to s 39(2) of the New South Wales Act set out at [3] above. Thus, from December 1988 there came to be a dual régime in the Australian States and Territories for the recognition of overseas adoptions: the former régime continued to apply to non-Convention countries, whereas there was “automatic recognition” in the case of Convention countries. Ethiopia was not a Convention country.
31 The Social Security Act 1991 (Cth) (the 1991 Act) came into operation on 1 July 1991. Section 999 provides for the qualification of a person for a double orphan’s pension in respect of a young person who is a “double orphan” (s 999(1)(c)). The definition of the expression “young person” is not presently relevant.
32 Section 993(1) states that a young person is a double orphan if:
(a) the young person is not a refugee child; and
(b) each parent of the young person is dead.
The definition of the expression “refugee child” (s 993) is also not presently relevant. Section 5(1) of the 1991 Act defines “parent” to mean (so far as relevant):
(i) in relation to a young person, other than an adopted child – a natural parent of the young person; or
(ii) in relation to an adopted child – an adoptive parent of the young person.
Finally, s 5(1) defines “adopted child” to mean:
a young person adopted under the law of any place, whether in Australia or not, relating to the adoption of children.
33 Accordingly, the legislative developments since the amending Act of 1984 have not altered the position.
34 In my view, Isabelle was not a double orphan within the definition of “double orphan” in s 993(1) of the 1991 Act.
35 My reasons for holding this view are, in summary, as follows:
(1) that the plain meaning of the expression “a child adopted under the law of any place, whether in Australia or not, relating to the adoption of children” in the definition of “adopted child” in s 5(1) of the 1991 Act signifies that Isabelle became an adopted child of Mr and Mrs Waldron at the time when they adopted her under the law of Ethiopia (see [10] above);
(2) if the Parliament had wished to qualify that expression by reference to a recognition of the foreign adoption under State and Territory laws relating to adoption, the Parliament would have done so expressly, as it demonstrated itself disposed to do in other legislation namely, s 23(1) of the Marriage Act 1961 (Cth) (as it was in 1961) and s 4 of the Domicile Act 1982 (Cth) (see [12]-[14] above);
(3) the policy underlying the introduction of the double orphan’s pension by the 1973 amending Act did not encompass a person such as Isabelle because there was no acknowledgment of a responsibility of the Australian Government to provide a social security benefit to such a person’s last surviving parent or adoptive parent prior to the death of that person (see [6]–[7] above).
36 For the above reasons, I agree that the orders proposed by Besanko J should be made.
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I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. |
Associate:
Dated: 17 August 2007
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IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
SAD 281 OF 2007 |
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ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES Appellant
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AND: |
HEATHER WALDRON Respondent
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JUDGES: |
BRANSON, LINDGREN & BESANKO JJ |
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DATE: |
17 AUGUST 2007 |
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PLACE: |
ADELAIDE |
REASONS FOR JUDGMENT
BESANKO J
37 This is an appeal from orders made by a Judge of this Court. The matter in issue was whether Mrs Heather Waldron was entitled to a double orphan pension under the Social Security Act 1991 (Cth) (“the Act”). An authorised review officer held that she was not so entitled, but the Social Security Appeals Tribunal reversed that decision. The Administrative Appeals Tribunal upheld the decision of the Social Security Appeals Tribunal. The Secretary of the Department of Family and Community Services appealed to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The primary Judge dismissed the application and the Secretary now appeals to this Court.
The facts
38 Isabelle is an Ethiopian child who was born on 3 April 1999. Her biological parents are dead. Isabelle was adopted by Mrs Waldron and her husband (“the Waldrons”) according to Ethiopian law. Isabelle could not leave Ethiopia until she had been adopted according to Ethiopian law. The Waldrons were not required to travel to Ethiopia in order to adopt Isabelle. The Ethiopian authorities issued a birth certificate for Isabelle on 13 November 2003 and in that certificate the Waldrons are described as Isabelle’s adoptive parents. The adoption of Isabelle under Ethiopian law is not recognised under Australian law.
39 On or about 14 December 2003, Isabelle came to Australia under an adoption visa and she has been in the care of the Waldrons since that time. The Waldrons took action to adopt Isabelle under Australian law and, on the hearing of the appeal, the Court was told that that process was completed on 30 June 2006.
40 The issue of whether the Waldrons were entitled to a double orphan pension in relation to Isabelle now relates to a closed period between her arrival in Australia on 14 December 2003 and her adoption according to Australian law on 30 June 2006.
Relevant legislation
41 The double orphan pension is dealt with in Part 2.20 of the Act. The qualifications for such a pension are set out in s 999 which provides, relevantly:
“(1) A person is qualified for a double orphan pension for a young person if:
(a) the young person is an FTB child of the person, or would be an FTB child of the person except that the young person, or someone on behalf of the young person, is receiving payments under a prescribed educational scheme; and
(b) the person is eligible for family tax benefit, or would be so eligible except that:
(i) the young person is not an FTB child of the person, but only because of the receipt of the payments referred to in paragraph (a); or
(ii) the person’s rate of family tax benefit, worked out under Division 1 of Part 4 of the Family Assistance Act, is nil; and
(c) on the day on which the person claims the double orphan pension, the young person is a double orphan; and
(d) either:
(i) the young person continues to be a double orphan; or
(ii) if the young person is no longer a double orphan, the person has not become aware that the young person is no longer a double orphan.”
There is no dispute that the requirements of subsections (1)(a) and (b) were satisfied and that during the relevant period Isabelle’s status did not change.
42 An “FTB child” has the meaning given to the term in the A New Tax System (Family Assistance) Act 1999 (Cth) (“Family Assistance Act”). Section 22(2) provides relevantly:
“(2) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b) the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; and
(c) the individual is in the adult’s care; and
(d) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.”
43 The matter in issue was whether Isabelle was a double orphan within s 999(1)(c). Section 993 defines the circumstances in which a person is a double orphan and it provides relevantly:
“(1) A young person is a double orphan if:
(a) the young person is not a refugee child; and
(b) each parent of the young person is dead.
Note 1: for young person and parent see section 5.
Note 2: for refugee child see section 995.
Note 3: if the young person does not qualify as a double orphan under this subsection, and the young person is a refugee child, the young person may qualify as a double orphan under section 994.”
44 Isabelle was not a refugee child and, as I have said, her biological parents are dead. The only way she would not meet the definition of double orphan is if the Waldrons were her parents within the provisions of the Act. Section 5(1) contains a definition of “parent” and of “adopted child”. Those definitions are as follows (relevantly):
“adopted child means a young person adopted under the law of any place, whether in Australia or not, relating to the adoption of children.
…
parent means:
(a) (except in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G):
(i) in relation to a young person, other than an adopted child – a natural parent of the young person; or
(ii) in relation to an adopted child – an adoptive parent of the young person;”
45 As I have said, Isabelle’s adoption under the law of Ethiopia was not recognised under Australian law, in particular, the law of South Australia. Certain adoptions under foreign law are recognised under the law of South Australia by virtue of the provisions of the Adoption Act 1988 (SA). Section 21(a1) of that Act provides that an adoption order made under the law of a Convention country will be recognised under the law of the State as having the same effect as an adoption order under the law of South Australia. However, Ethiopia is not a Convention country (see s 4). There is provision for an adoption order made in a country which is not a Convention country to be recognised under the law of South Australia if certain requirements are met, including a requirement that when the order in the country outside Australia was made, the Waldrons were domiciled in that country or had been resident in that country for at least 12 months (s 21(1)). The Waldrons did not meet that requirement.
46 In 1979 when the Minister made his Second Reading Speech on the introduction of the amendment to the Act containing the definition of “adopted child” (see [51]-[52] below), the relevant law relating to adoption in South Australia was the Adoption of Children Act, 1966-1967 (SA). That Act was part of uniform legislation, at least as to the recognition of foreign adoptions, introduced in all States and the Northern Territory. The Act contained provisions, albeit in different terms from the Adoption Act 1988 (SA), for the recognition of foreign adoptions in this State.
47 There is no doubt that the Waldrons were not entitled to the double orphan pension once the adoption process was completed according to Australian law. However, the question is whether they were entitled to it after they had taken Isabelle into their care and before they had adopted her according to Australian law.
48 Before turning to consider the reasons of the Tribunal and of the primary Judge, it is appropriate to outline the legislative history of the double orphan pension and to explain Isabelle’s status upon her arrival in Australia and prior to her adoption according to Australian law.
49 The double orphan pension was introduced into the then Social Services Act 1947 (Cth) in 1973 (Part IVA, s 105A et seq). The relevant provisions contained definitions of “child” and “double orphan” but no definition of “adopted child”, “parent” or “adoptive parent”. The definition of “double orphan” in s 105A was as follows:
“‘double orphan’ means –
(a) a child (other than an adopted child) both of whose parents are dead; or
(b) an adopted child both of whose adoptive parents are dead or, if there was only one adoptive parent, whose adoptive parent is dead.”
50 In 1975 (Social Services Act (No 3) 1975 (Cth)), s 105A was amended to include a definition of “parent” and “person”. The word “parent” was defined as including an adoptive parent, although that term was not defined.
51 In 1979 (Social Services Amendment Act 1979 (Cth)), a definition of “adopted child” was introduced into s 105A and was as follows:
“‘adopted child’ means a child adopted under the law of any place (whether in or out of Australia) relating to the adoption of children, and ‘adoptive parent’ has a corresponding meaning;”
52 The Second Reading Speech relevant to the introduction of this amendment included the following:
“Mr Deputy Speaker, in order to qualify for a double orphan’s pension a person must be caring for a child, other than a child he has adopted, both of whose parents are no longer living, or one of whose parents is deceased and the other is not able, because of specified circumstances, to support the child. Honourable members will be aware that some people have travelled overseas to adopt children under the laws of other countries or to bring children to Australia with a view to adoption under Australian law. Overseas adoptions may not be recognised under Australian law. While there is no barrier to payment of a double orphan’s pension where a child, Australian born or otherwise, is awaiting adoption in Australia, it has never been the intention to pay the double orphan’s pension for any adopted child, including those adopted under the laws of another country. The proposed amendment in this bill will ensure there is no doubt about this.”
53 In 1981 (Social Services Amendment Act 1981 (Cth)) the definition of “parent” in s 105A was amended to read:
“‘parent’ means –
(a) in relation to a child (other than an adopted child) – a natural parent of the child; or
(b) in relation to an adopted child – an adoptive parent, or the adoptive parent, of the child;”
54 In 1984 (Social Security and Repatriation Legislation Amendment Act 1984 (Cth)) the term “adopted child” was amended to read:
“‘adopted child’ means a child adopted under the law of any place, whether in Australia or not, relating to the adoption of children;”
55 It will be noted that the reference to “adoptive parent” having a corresponding meaning to that of “adopted child” was removed. That may have been because of the amendment in 1981 to the definition of “parent”. In any event, for present purposes I would not place any significance on the fact that the reference to “adoptive parent” having a corresponding meaning was removed.
56 This then is the relevant legislative history and I turn to consider Isabelle’s status upon her arrival in Australia.
57 On her arrival in Australia under an adoption visa, Isabelle was a non-citizen child under the Immigration (Guardianship of Children) Act 1946 (Cth) (“the Immigration Act”) and, by virtue of s 6 of that Act, the Minister for Immigration and Multicultural Affairs (“the Commonwealth Minister”) was her guardian from that time. She was a non-citizen child because she fell within s 4AAA(1) of the Immigration Act and did not fall within any of the exceptions to that sub-section. Section 4AAA(1), (2), (3) and (4) provide as follows:
“(1) Subject to subsections (2) and (3), a person (the child) is a non‑citizen child if the child:
(a) has not turned 18; and
(b) enters Australia as a non‑citizen; and
(c) intends, or is intended, to become a permanent resident of Australia.
(2) Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of:
(a) a parent of the child; or
(b) a relative of the child who has turned 21; or
(c) an intending adoptive parent of the child.
(3) Subsection (1) does not apply if:
(a) the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age (the adult); and
(b) a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and
(c) the adult intends to reside with the child in a declared State or Territory.
(4) A person is a non‑citizen child if:
(a) the person has not turned 18; and
(b) a direction under section 4AA is in force in relation to the person.”
58 Subsection (2) of s 4AAA did not apply to Isabelle’s circumstances because the Waldrons were not Isabelle’s parents, relatives or intending adoptive parents. In ordinary parlance the Waldrons would probably have been considered Isabelle’s intending adoptive parents, but there is a definition of that term in s 4 of the Immigration Act which precludes that conclusion. The definition is as follows:
“intending adoptive parent, in relation to a person (the child), means a person who intends to:
(a) adopt the child under the laws in force in a declared State or Territory; or
(b) secure the recognition, under the laws in force in a declared State or Territory, of an adoption of the child by the person under the laws of a foreign country.”
59 No declarations of States or Territories have been made which would activate the above definition.
60 The Commonwealth Minister has the power to delegate functions under the Immigration Act (see s 5) and certain functions have been delegated to the Manager, Adoption and Family Information Service, South Australian Department for Families and Communities (“the SA Manager for Adoptions”). The SA Manager for Adoptions became responsible for Isabelle and had all the powers and functions of the Commonwealth Minister in relation to her other than some powers and functions which it is not necessary to mention. On her arrival he exercised the power under s 7 of the Immigration Act and placed Isabelle in the custody of the Waldrons and she has remained in their custody ever since. The Waldrons were legally responsible for her day-to-day welfare and care. They were subject to various obligations including an obligation not to place Isabelle in the care of another person without the consent of the SA Manager for Adoptions, obligations under reg 9 and reg 10 of the Immigration (Guardianship of Children) Regulations 2001 (Cth) and the laws of South Australia relating to child welfare (s 8 of the Immigration Act).
61 The question in this case was simply whether Mrs Waldron and her husband are Isabelle’s “parents” within the provisions of the Act. The appellant submits that Mrs Waldron and her husband were her adoptive parents within the Act during the relevant period and therefore did not satisfy all of the requirements for the payment of a double orphan pension. The respondent submits that they were not adoptive parents within the Act and therefore they qualified for the pension.
The Tribunal’s reasons
62 The starting point in terms of understanding the Tribunal’s reasons is the Tribunal’s conclusion that the meaning of “adoptive parent” in the definition of “parent” in s 5 of the Act did not correspond with the meaning of “adopted child” as defined in the same section. In other words, the definition of “adopted child” did not inform the meaning of “adoptive parent”. Having reached that point, the Tribunal considered the meaning of “adoptive parent”. First, the Tribunal said that it was required to adopt a construction of the Act which promoted its purpose or object: s 15AA Acts Interpretation Act 1901 (Cth) (“AIA”). The Waldrons were not considered Isabelle’s parents for the purposes of receipt of other benefits under the Act and therefore it would create an injustice if they were Isabelle’s adoptive parents for the purpose of depriving them of the double orphan pension. Secondly, the Tribunal said that the Waldrons were intending adoptive parents and the interpretation advanced by the Secretary would involve reading those words into the definition of “parent” in s 5. I note at this point that the conclusion that the Waldrons were “intending adoptive parents” under the Immigration Act is incorrect because no declaration had been made in relation to any State or Territory.
63 The Tribunal concluded that the Waldrons did not fall within the definition of “parent” in s 5 of the Act, and therefore they were entitled to the double orphan pension.
The primary Judge’s reasons
64 The primary Judge started his consideration by referring to s 5(1) of the Act and the definition of “adopted child” and said the word “adopted” would ordinarily be taken to refer to an adoption recognised under Australian law. The primary Judge said that there was nothing in the Act pointing to the opposite conclusion. He said that one would expect a clear indication that, although for general purposes the Waldrons were no more than intending adoptive parents for the purposes of the Act, they were to be regarded as adoptive parents. The primary Judge suggested that if the Secretary’s interpretation was correct, then s 999(1)(c) would add little to the requirements in the other paragraphs of that subsection. The primary Judge noted that, under s 7(2) of the Immigration Act, a child in the position of Isabelle might be removed from her custodian and placed in the custody of some other person. The primary Judge then said:
“As the Immigration Act and the Act and the Family Assistance Act intersect on their operation, at least in respect of eligibility for the double orphan pension, they should be regarded as operating with consistently expressed meanings except where there is clearly a contrary intendment (eg the definition of ‘intending adoptive parent’ in the Immigration Act): see eg per Brennan J in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 367-8. That approach maintains that consistency.”
65 The approach the primary Judge was referring to in this passage was that of concluding that the relevant qualification for the double orphan pension was that the young person did not have a parent either natural or adoptive and recognised under Australian law.
66 The primary Judge said the term “adoptive parent” was not defined in the Act and therefore should be given its ordinary meaning. He said that even if it was given the meaning to be derived correspondingly to the definition of “adopted child”, that:
“[T]here is no reason to extend that term’s scope to a child whose legal guardian is the Commonwealth Minister and whose present status under Australian law generally is not yet that of an adoptive child. There is not, in the definition of ‘adopted child’, any firm indication that it is intended to extend to a child who, under Australian law, is not recognised as having been adopted, and whose ‘adoption’ is under a law of a country other than Australia and which is not, and is not capable of being, recognised under Australian Law.”
67 The primary Judge considered whether persons in the position of the Waldrons might be eligible for other benefits under the Act. He said that “their circumstance is addressed to some degree by the Family Assistance Act where, generally the relevant eligibility criterion is the existence of responsibilities towards the child by reason of lawful custody of the child”. The primary Judge said that the eligibility for benefits under other provisions of the Act would be determined by the particular terms of the relevant provisions.
Issues on the appeal
68 The starting point is whether the term “adoptive parent” in paragraph (a)(ii) of the definition of “parent” in s 5 of the Act corresponds with the meaning of “adopted child” as set out in the definition of that term. In other words, is an adoptive parent a person who has adopted a young person under the law of any place, whether in Australia or not, relating to the adoption of children? In my opinion, the answer to that question must be in the affirmative because, although the term “adoptive parent” is not defined, the words which precede reference to it in paragraph (a)(ii) of the definition of “parent” are “in relation to an adopted child”. In my respectful opinion, the Tribunal erred in law in reaching the contrary conclusion and to the extent the Judge adopted the same approach as the Tribunal, he also erred in law.
69 It may be accepted that a reference in legislation to “adoption”, “adopted” or “adoptive” will, without more, be construed as a reference to an adoption recognised under Australian law. However, subject to the matters I am about to consider, it seems to me that there is something more in the case of this legislation, in that there is the definition of “adopted child” which also provides a corresponding definition of “adoptive parent”.
70 Both parties referred to the relevant passage in the Second Reading Speech on the introduction of the amendment in 1979 (see [52] above) and sought to gain support for their respective submissions from what the Minister said. There is no doubt the Court can have regard to the Second Reading Speech in determining the mischief the Act or amendment was designed to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 387 at 408 per Brennan CJ, Dawson, Toohey, Gummow JJ; AIA s 15AB.
71 The appellant submitted that the Court should conclude from the Minister’s comments that Parliament sought to make clear that the double orphan pension was not to be paid in respect of any adopted child whether that child was adopted under the laws of Australia or the laws of any other country and he referred to the concluding words of the relevant passage. The respondent submitted that the Court should conclude from the Minister’s comments that Parliament sought to make clear that the double orphan pension was not to be paid in respect of an adopted child who was adopted under the laws of another country and that adoption was recognised under Australian law. In other words, a person who had adopted a child under the laws of another country which was recognised under Australian law could not claim the double orphan pension by arguing that only those children adopted in Australia were prevented from doing so. It should be noted there is no evidence either in the Second Reading Speech or from any other permissible source that claims were, in fact, being made on that basis. In support of her submission, the respondent referred to various aspects of the relevant passage including the words, “While there is no barrier to payment of a double orphan’s pension where a child, Australian born or otherwise, is awaiting adoption in Australia …”.
72 I have looked carefully at the relevant passage in the Second Reading Speech. I am inclined to think that the respondent’s interpretation is correct. However, the matter is far from clear and the appellant’s interpretation is certainly an available reading of the passage. In those circumstances, the Second Reading Speech is of no assistance in determining the proper construction of the relevant statutory provisions. The primary Judge did not place any weight on it, and neither do I.
73 There are other matters put against what seems to me to be the interpretation suggested by the clear words of the definition of “adopted child”.
74 First, there is the matter which appears to have weighed heavily with the Tribunal. The Tribunal considered that if it adopted the appellant’s construction of “parent” it would lead to anomalies in that the Waldrons would be considered parents for the purposes of the double orphan pension but would not be considered parents under the definition of “parent” under the Act for the purposes of the receipt of other benefits. No examples of such anomalies were given by the Tribunal, nor were any identified by counsel for the respondent on the appeal. Counsel for the appellant submitted that the proposition is simply wrong because there is only one definition of “parent” in the Act. It seems to me that in relation to this point it is appropriate to adopt the analysis adopted by the primary Judge and referred to in [67] above. He did not rely on any anomalies which would arise on the adoption of the appellant’s construction for the purposes of reaching his conclusions and, in my opinion, the Tribunal erred in concluding that there would be anomalies if the appellant’s construction is accepted. This conclusion is subject to one qualification. There may be one unintended gap in the legislation if the appellant’s construction is adopted. It was identified by counsel for the respondent. If a young child was removed from the custody of an intending adoptive parent because of the unsuitability of arrangements and placed in the care of another, neither the intending adoptive parent nor the other custodian would be able to claim the double orphan pension. That does seem to be an unintended result, but the possibility of its occurrence is not of sufficient significance to dissuade me from the construction suggested by the clear words of the definition of “adopted child”.
75 Secondly, the primary Judge referred to the intersection on their operation of the Immigration Act, the Act and the Family Assistance Act and the need for the legislation to operate with consistently expressed meanings except where there is clearly a contrary intendment. It is true that the interpretation advanced by the appellant means that the Waldrons were “parents” for the purposes of the Act and that, but for the absence of a declaration of a State or Territory, would have been “intending adoptive parents” for the purposes of the Immigration Act. It also seems that they were “prospective adoptive parents” for the purposes of the Migration Regulations 1994 (Cth) (Schedule 2 Subclass 102). However, in each case the definition is designed to operate for the purposes sought to be achieved by the particular legislation and the differences cannot be decisive on the question of construction. Counsel for the respondent did not identify any inconsistency in the operation of the Immigration Act, the Act and the Family Assistance Act if the appellant’s construction is adopted.
76 Thirdly, an argument accepted by the primary Judge but not advanced by the respondent on the appeal was that the respondent’s interpretation of “adoptive parent” should be accepted because otherwise the requirement in s 999(1)(c) would add nothing to the other requirements in s 999(1). With respect, I do not think the primary Judge’s conclusion was correct. In this case, s 999(1)(a) requires consideration of s 22(2) of the Family Assistance Act, whereas s 999(1)(c) requires consideration (in this case) of whether Isabelle is a young child adopted under the law of any place, whether in Australia or not, relating to the adoption of children.
77 In my opinion, the appellant’s construction of the Act is the correct one. The Waldrons were parents of Isabelle within the meaning of the Act upon her arrival in Australia. It follows that they did not qualify for the double orphan pension.
Conclusion
78 I would allow the appeal and set aside the order made by the primary Judge. The appeal to the primary Judge should be allowed and the decision of the Administrative Appeals Tribunal should be set aside and, in lieu thereof, an order should be made that the decision of the Social Security Appeals Tribunal dated 22 December 2004 be set aside and the decision of the Authorised Review Officer dated 24 September 2004 be affirmed.
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I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. |
Associate:
Dated: 17 August 2007
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Counsel for the Appellant: |
Mr P J Hanks QC with Ms K J Bean |
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Solicitor for the Appellant: |
Australian Government Solicitor |
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Counsel for the Respondent: |
Ms J von Doussa |
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Date of Hearing: |
18 May 2007 |
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Date of Judgment: |
17 August 2007 |
