FEDERAL COURT OF AUSTRALIA

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

BY CONSENT THE COURT FURTHER ORDERS THAT:

2.    There be no order as to the costs of the appeal.

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

REASONS FOR JUDGMENT

the court:

INTRODUCTION

1    This is an appeal from the judgment of a single judge of the Court, dismissing an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘Administrative Appeals Tribunal Act’) from a decision of the Administrative Appeals Tribunal (‘the AAT’). The effect of the judgment in this Court was to affirm the decision of the AAT, which had set aside a decision of the Social Security Appeals Tribunal (‘SSAT’). The SSAT had affirmed a decision of a delegate of the Secretary, Department of Families, Housing, Community and Indigenous Affairs (‘the Secretary’) to reject a claim for a disability support pension made on behalf of the respondent by his parents on 2 March 2011 (‘the claim’). The respondent, Andro Mahrous, was at that time almost sixteen years of age.

2    The issue on the appeal is whether the primary judge and the AAT correctly held that the respondent was eligible to be paid a disability support pension from 2 March 2011. For reasons set out below, we would uphold the judgment of the primary judge and dismiss the appeal.

BACKGROUND

3    By way of further background, we note that the claim was rejected on 29 April 2011 by the Secretary’s delegate on the basis that the respondent did not meet the residence requirements for a disability support pension in s 94(1) of the Social Security Act 1991 (Cth) (‘the Social Security Act’). An Authorised Review Officer and, as noted above, the SSAT affirmed the rejection of the claim.

4    On review, the AAT set aside the SSAT’s decision and held that the respondent satisfied the residence requirements for a pension: see Re Andro Mahrous and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 355, 129 ALD 24 (‘AAT Decision’). Since the Secretary accepted that the respondent met the other qualifications, the respondent was found to be eligible to be paid a disability support pension.

5    As already noted, an appeal from the AAT to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act was dismissed by a single judge: see Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275, 131 ALD 450 (‘Primary Judgment’). This is an appeal from that judgment.

CIRCUMSTANCES GIVING RISE TO THE ISSUE IN DISPUTE

6    The circumstances giving rise to the question on appeal, as found by the AAT, were as follows.

7    The respondent, Andro Mahrous, was born in Egypt on 27 March 1995. In 1998, when Andro was about three years old, his family emigrated to New Zealand. He and his family became New Zealand citizens. Some years later, on 6 November 2003, Andro, then about eight years old, moved to Australia with his family.

8    Approximately one year after arriving in New Zealand, Andro (then aged about four) became unwell and began having epileptic seizures. He now has “a confirmed intellectual impairment of some magnitude”, although the precise aetiology of his condition cannot accurately be determined: AAT Decision at [8]. In relation to the medical evidence before it, the AAT stated (at [11]-[12]):

In respect of the appeal against the decision of the SSAT, there is evidence of Dr Khalil, a General Practitioner who certified Andro would require 24 hour a day 7 day a week care. The Principal of Narbethong State Special School certified similarly.

There is expert medical evidence of real substance or weight. This is shown in the report of Dr Robertson, paediatrician of the Mater Hospital, dated 14 March 2011, who found that Andro had “development delay and epilepsy which had been fully investigated previously. His epilepsy has been stable on medication”. Dr Ron James, Consultant Paediatrician, opined on 30 April 2009 that Andro’s epilepsy had stabilised on medication and stated Andro had had no seizures for 5 years at that time. He described Andro as having “global developmental delay”. Dr Anita Cairns, Paediatric Neurologist, in her report dated 24 November 2011, rejected a diagnosis of cerebral palsy and her professional opinion was that “Andro has intellectual impairment, visual impairment and symptomatic epilepsy”. …

9    Unsurprisingly, in light of this, the Secretary conceded in the AAT that Andro Mahrous is severely disabled. The Secretary’s contention before the AAT and before the primary judge was simply that he could not satisfy the residence requirements for a disability support pension: see AAT Decision at [15], [20]; Primary Judgment at [7].

10    The AAT rejected the Secretary’s contention, holding that the respondent satisfied the residence requirements. This was because, in the AAT’s view, s 6 of the Social Security (International Agreements) Act 1999 (Cth) (‘the International Agreements Act’) and the “Agreement on social security between the Government of Australia and the Government of New Zealand” in Schedule 3 to that Act (‘the Agreement’) had the effect that he met the residence qualification for a disability support pension in s 94(1)(e)(ii) of the Social Security Act: see AAT Decision at [37].

11    When the primary judge considered the issue, he noted that “no particular controversy attended a conclusion [by the AAT] that Andro did not satisfy either s 94(1)(e)(i) or s 94(1)(e)(iii) of the Social Security Act”: see Primary Judgment at [16]. (We interpolate here that a notice of contention filed on the respondent’s behalf on 23 January 2013 might have extended the controversy, but was abandoned prior to the hearing of the appeal.) After noting that the International Agreements Act “gives an overriding effect to the scheduled international social security agreements … so far as … ‘social security law’ is concerned”, the primary judge rejected the Secretary’s submission that article 12(4) of the Agreement was simply and absolutely a provision of limitation: see Primary Judgment at [23], [28], [38]. This meant, so the primary judge held, that Andro Mahrous satisfied the eligibility criterion in dispute: Primary Judgment at [39].

THE STATUTORY PROVISIONS

Social Security (Administration) Act 1999 (Cth)

12    A claim for a disability support pension must be made in accordance with the Social Security (Administration) Act 1999 (Cth) (‘Administration Act’). This provides, among.st other things, for the manner in which a claim for a social security payment is to be made. A social security payment includes a disability support pension: see s 3(2) and s 1 of Schedule 1 to the Administration Act, read with s 23(1) of the Social Security Act.

13    Section 11(1) of the Administration Act provides as follows:-

Subject to subsection (2) and Subdivision B, a person who wants to be granted:

(a)    a social security payment; or

(b)    a concession card;

must make a claim for the payment or card in accordance with this Division.

Section 16 in subdivision C, in particular, sets out what must be done to make a claim.

14    Generally speaking, a person who may make a claim is a person identified in s 29, which provides:-

(1)    Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:

(a)    is an Australian resident; and

(b)    is in Australia.

(2)    Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

Social Security Act 1991 (Cth)

15    Broadly speaking and subject to the International Agreements Act, to be eligible for a a disability support pension, a claimant must satisfy s 94(1) of the Social Security Act, which relevantly provides as follows:

A person is qualified for disability support pension if:

(a)    the person has a physical, intellectual or psychiatric impairment; and

…

(c)    one of the following applies:

(i)    the person has a continuing inability to work;

        …

(d)    the person has turned 16; and

…

(e)    the person either:

(i)    is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)    has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)    is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)    is not an Australian resident; and

(B)    is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; …

…

16    As will be apparent by now, the Secretary accepts that the respondent satisfies all but the residence qualification in paragraph 94(1)(e)(ii). As a result, the parties’ arguments proceeded from s 94(1)(e)(ii). As noted above, paragraphs 94(1)(e)(i) and (iii) were not relied on below or on appeal.

17    Turning to s 94(1)(e)(ii), we observe that the phrase “qualifying Australian residence” is defined in s 7(1) as having the meaning given by s 7(5) of the Social Security Act. That sub-section provides that:

A person has 10 years qualifying Australian residence if and only if:

(a)    the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or

(b)    the person has been an Australian resident during more than one period and:

(i)    at least one of those periods is 5 years or more; and

(ii)    the aggregate of those periods exceeds 10 years.

18    Pursuant to s 7(1) of the Social Security Act, the term “Australian resident” has the meaning given by s 7(2). Section 7(2) provides that an “Australian resident” is a person who:

(a)    resides in Australia; and

(b)    is one of the following:

(i)    an Australian citizen;

(ii)    the holder of a permanent visa;

(iii)    a special category visa holder who is a protected SCV holder.

The respondent was not an Australian citizen. He was neither the holder of a permanent visa nor a ‘protected SCV holder’.

19    The Secretary’s argument has been and remains that, at the time the claim for a disability support pension was made on his behalf, the respondent did not satisfy s 94(1)(e)(ii) because he did not have “10 years qualifying Australian residence”, as defined in the provisions of the Social Security Act referred to at [17] above. The Secretary maintained that, by virtue of article 5(1) of the Agreement, he would not satisfy the requirement in s 94(1)(e)(ii), as read with s 7(5), until 6 November 2013.

20    The only issue on the appeal is whether the respondent in fact satisfied the relevant residence requirement at the time he lodged his claim by virtue of the International Agreements Act and article 12(4) of the Agreement.

21    The International Agreements Act and the Agreement are therefore central to the appeal. As the long title to that Act states, it is “An Act to give effect to international social security agreements, and for related purposes.”

Social Security (International Agreements) Act 1999 (Cth)

22    Sections 3, 4, 5 and 6 of the International Agreements Act are important. They provide as follows:

3    Interpretation

(1)    Unless a contrary intention appears, an expression that is used in the Social Security Act 1991 has the same meaning, when used in this Act, as in the Social Security Act 1991.

(2)    A reference in this Act (other than the reference in section 4) to the social security law is a reference to this Act, the Social Security Act 1991 and any other Act that is expressed to form part of the social security law.

(3)    A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the Social Security Act 1991 or any other Act that is expressed to form part of the social security law.

4    Social Security law

    This Act forms part of the social security law.

5    Scheduled international social security agreements

(1)    For the purposes of a provision of the social security law, an agreement is a scheduled international social security agreement if;

(a)    the agreement is between Australia and another country; and

(b)    the agreement relates to reciprocity in social security or superannuation matters; and

(c)    the text of the agreement is set out in a Schedule to this Act.

(2)    The reference in subsection (1) to a scheduled international social security agreement includes a reference to such an agreement as amended, or otherwise affected in its operation, by a further agreement or further agreements between Australia and the other country concerned.

6    Overriding of social security law by scheduled international social security agreements

(1)    The provisions of a scheduled international social security agreement have effect despite anything in the social security law.

(2)    Subsection (1) applies to a provision of an agreement only in so far as the provision is in force and affects the operation of the social security law.

…

23    Section 23(17) of the Social Security Act, which is in similar terms to s 3(2) above, is also relevant to a proper reading of the Agreement within the broader social security regime. It is uncontroversial that the Agreement is an agreement within s 5(1) of the International Agreements Act.

24    The effect of ss 7, 8 and 9 of the International Agreements Act is that regulations may be made adding or repealing a schedule to that Act to give effect to the text of an international agreement. The text of the Agreement, in its current form, was enacted as Schedule 3 to the International Agreements Act by virtue of the Social Security (International Agreements) Act 1999 Amendment Regulations 2002 (No 1) (Cth).

Agreement On Social Security Between The Government Of Australia And The Government of New Zealand

25    As noted above, the Agreement is set out in Schedule 3 to the International Agreement Act. The preamble to the Agreement states that the Government of Australia and the Government of New Zealand made the Agreement:

WISHING to strengthen the existing friendly relations between the two countries, and

DESIRING to coordinate the operation of their respective social security systems and to enhance the equitable access by people covered by this Agreement to specified social security benefits provided for under the laws of both countries, …

26    Part 1 of the Agreement, entitled “Definitions and Scope”, defines various key words and phrases “[i]n this Agreement unless the context otherwise requires”. In particular:

    under article 1(1)(a), “Australian resident” has the meaning given to it under article 5;

    under article 1(1)(b), the word “benefit” “… means the benefit as listed and defined in [a]rticle 2 …”;

    under article 1(1)(f), “date of severe disablement” means:

the date a person who applies for a disability support pension ... was first assessed as meeting the criteria for a disability support pension … under this Agreement or, where evidence supports an earlier date, the competent institutions may agree on an earlier date.

    under article 1(1)(l), “severely disabled” means a person who:

(i)    has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:

(aa)    to work for at least the next 2 years; and

(bb)    unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

(ii)    is permanently blind …

    under article 1(1)(m), “social security law” means “… the laws of that Party specified in [a]rticle 2”;

    under article 1(1)(p), “working age residence” has the meaning given in article 5; and

    article 1(2) stipulates that:

In the application by a Party of this Agreement in relation to a person, any term not defined in this Article shall, unless the context otherwise requires, have the meaning assigned to it in the social security law of either Party.

27    Article 2 is headed “Legislative Scope” and is critical to understanding the application and content of the Agreement. Article 2 provides as follows:

1.    Except as provided under paragraph 2, this Agreement shall apply to the following laws, as amended at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, consolidates or replaces them:

(a)    in relation to Australia: the Acts forming the social security law in so far as those Acts provide for, apply to or affect the following benefits:

(i)    age pension;

(ii)    disability support pension;

(iii)    carer payment in respect of the partner of a person who is in     receipt of a disability support pension …

…

2.    For the purposes of this Agreement an Australian disability support pension and a New Zealand invalid's benefit shall be limited to cases where:

(a)    the person is severely disabled;

(b)    the person was a resident of one of the Parties at the date of severe disablement; and

(c)    the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.

28    Article 3, headed “Personal Scope”, provides that the Agreement applies “to any person who: (a) is or has been an Australian resident; or (b) is or has been a New Zealand resident”.

29    Article 5 concerns “Residence Definitions”. Article 5(1) provides a wider definition of ‘Australian resident’ than s 7(2) of the Social Security Act. Article 5(1) is in the following terms:

1.    “Australian resident” has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia. In deciding whether a person is residing in Australia, regard must be had to the following factors:

(a)    the nature of the accommodation used by the person in Australia;

(b)    the nature and extent of the family relationships the person has in Australia;

(c)    the nature and extent of the person’s employment, business or financial ties with Australia;

(d)    the nature and extent of the person’s assets located in Australia;

(e)    the frequency and duration of the person’s travel outside Australia; and

(f)    any other matter relevant to determining whether the person intends to remain permanently in Australia;

…

30    The provisions of article 5(3) and (5) may also be usefully noted. Article 5(3) provides that a “‘permanent resident’ in relation to Australia means a person who is a citizen of Australia or who holds a permanent visa under the Migration Act 1958 of Australia”. Article 5(5) further provides:

“working age residence” … means a period of residence between the ages of 20 and 64 years inclusive (being a maximum of 45 years) but does not include any period deemed pursuant to Article 8 or Article 12 to be a period in which that person was an Australian resident or a New Zealand resident.

31    Part III, which embraces articles 11 to 13 inclusive, sets out “Provisions Relating to Australian Benefits”. An equivalent Part II, which covers articles 6 to 10, concerns New Zealand benefits. The remaining Parts of the Agreement are not presently relevant.

32    Article 11 deals with the situation where a person would not qualify for a benefit “under the social security law of Australia or by virtue of this Agreement only because he or she was not an Australian resident and present in Australia on the date on which the claim for that benefit would be lodged (emphasis added)” but that person “is an Australian resident or a New Zealand resident” and “is physically present in Australia, or in New Zealand”. In this situation, article 11 deems that person to be an Australian resident and in Australia, on that date, for the purpose of lodging the claim. Beyond the deeming function, article 11 also has further significance to the proper reading of the Agreement, to which we return shortly.

33    Article 13 deals with the calculation of Australian benefits and may be put to one side for present purposes.

34    The argument on the appeal focussed on the significance of article 12(4) of the Agreement. Article 12, headed “Totalisation for Australia”, is in the following terms:

1.    Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:

(a)    a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the social security law of Australia for a benefit;

(b)    a period of working age residence in Australia equal to or greater than the period identified in accordance with paragraph 3; and

(c)    a period of working age residence in New Zealand.

then:

That period of working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident only for the purposes of meeting any minimum qualifying periods for that benefit set out in the social security law of Australia.

2.    Where a person's period of working age residence in Australia and a period of working age residence in New Zealand coincide, the period of coincidence shall be taken into account once only by Australia for the purposes of this Article as a period as an Australian resident.

3.    The minimum period of working age residence in Australia to be taken into account for the purposes of subparagraph 1(b) shall be 12 months, of which at least 6 months must be continuous.

4.    No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand.

5.    A claimant for an age pension must be at least 65 years of age to be able to obtain the benefit of this Article.

Article 12(3) was amended by an exchange of notes but the terms of the amendment are not presently relevant.

PARTIES’ SUBMISSIONS

35    The Secretary contended that the primary judge erred in concluding that the AAT correctly found that article 12(4) of the Agreement allowed the respondent to qualify for a disability support pension. The Secretary’s primary contention was that article 12(4) “does not carry over to the social security law on a proper construction of the [A]greement”. The Secretary argued that article 12(4) simply set out a separate requirement that a person must satisfy before he or she could invoke the Agreement to assist in qualifying for a disability support pension. Ultimately, the Secretary submitted that, properly construed, article 12(4) did not prevail over s 94(1)(e)(ii) of the Social Security Act and did not provide an alternative way to meet the residence qualification for a disability support pension, as the primary judge held.

36    The respondent argued that article 12(4) of the Agreement provided “an alternative avenue for the respondent to meet the residence requirement for entitlement to” a disability support pension, because, by virtue of s 6 of the International Agreements Act, this article prevailed over s 94(1)(e)(ii) of the Social Security Act.

CONSIDERATION

37    As already noted, the issue in this appeal is whether, by virtue of s 6 of the International Agreements Act, article 12(4), read with other articles of the Agreement, effectively overrides s 94(1)(e)(ii) of the Social Security Act.

To what extent is article 12(4) part of the law of Australia?

38    We commence our consideration of the issue on the appeal with the question, whether and, if so, to what extent, has Australian law implemented the Agreement? As Callinan, Heydon and Crennan JJ said, in their joint judgment in NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 at 71 [61], where an international instrument has been adopted by, or referred to in, an enactment, “[t]he first step is to ascertain, with precision, what the Australian law is, that is to say what and how much of an international instrument Australian law requires to be implemented …”. As the Secretary submitted, this step is informed by the ordinary principles of statutory construction.

39    Section 6 of the International Agreements Act provides that the provisions of scheduled agreements, such as the Agreement with which this appeal is concerned, “have effect despite anything in the social security law”, although “only in so far as the provision is in force and affects the operation of the social security law”. As already noted, the term “social security law” includes the Social Security Act and the Administration Act. Hence, by virtue of s 6 of the International Agreements Act, where the provisions of the agreement are in force and affect the provisions of the Social Security Act or the Administration Act (or, indeed, any other part of the social security law), the provisions of the agreement override the provisions of those enactments. The effect of s 6 of the International Agreements Act is, in this way, to enact the overriding provisions of the Agreement as part of the law of Australia.

40    Only certain provisions of the Agreement are enacted as part of Australian law. Thus, s 6 does not enact as part of Australian law a provision of the Agreement that does not affect the operation of a social security law, such as a provision solely directed to the obligations of State parties to one another in their capacity as State parties. A provision of this last-mentioned kind is article 18, within Part V, dealing with the “Exchange of Information” between the competent authorities of the State parties to the Agreement. This is not a provision that affects any provision of the social security law.

41    As noted already, the Secretary’s primary contention was that article 12(4) was not a provision of the kind described in s 6 of the International Agreements Act because it did not affect a provision of the social security law. Accordingly, so the Secretary’s argument ran, article 12(4) did not apply to, or consequently, override any part of the social security law.

42    The Secretary altered his position in argument on the appeal, however, conceding that, in relation to a disability support pension, article 12(4) affected the “entitlement to bring a claim” or “an entitlement to make a claim under the agreement”; and, to the extent that it did so, article 12(4) was a provision of the kind described in s 6 of the International Agreements Act and was, therefore, part of the law of Australia.

43    We reject the Secretary’s primary contention that article 12(4) of the Agreement does not affect a provision of the social security law, because, even on the narrow interpretation of article 12(4) advocated by the Secretary, this article, read with article 5(1), affects ss 11 and 29 of the Administration Act. By virtue of s 6 of the International Agreements Act, article 12(4) has effect notwithstanding ss 11 and 29 of the Administration Act. Article 12(4) could only do so as part of the law of Australia.

What is the proper construction of article 12(4)?

44    As elaborated at the hearing of the appeal, the Secretary’s case was that article 12(4) operated to limit the people who could make a claim for a disability support pension under the Agreement; and that article 12(4) had no other operation. The Secretary argued that the effect of article 12(4) was that only persons who have an aggregate of more than 10 years residence in either Australia or New Zealand or both countries were able to claim a disability support pension under the Agreement. As a result, the Secretary conceded that the respondent could claim a disability support pension because he satisfied article 12(4), since he had spent “an aggregate of more than 10 years residence in Australia and/or New Zealand”. The Secretary’s position was that, when the respondent made a claim on 2 March 2011, as he was entitled to do, he was nonetheless not entitled to be paid the pension because he did not satisfy the residence qualification in s 94(1)(e)(ii) of the Social Security Act. In the Secretary’s submission, both article 12(4) and s 94(1)(e)(ii) remained live criteria, which the respondent had to satisfy before he could receive a pension; and, despite satisfying article 12(4), Mr Mahrous did not satisfy s 94(1)(e)(ii). Plainly enough, the Secretary’s argument assumed that article 12(4) did not override the residence requirement in s 94(1)(e)(ii).

45    The Secretary relied on the following textual and contextual considerations as indicating that article 12(4) imposed an additional requirement on a person seeking to claim a disability support pension under the Agreement without affecting that person’s entitlement to a pension.

(1)    The language of article 12(4) of the Agreement is that of limitation, “not of extension or liberalisation”.

(2)    Language differing from that employed in article 12(4) is used elsewhere in the Agreement to indicate an intention to effect the operation of a domestic residence requirement. Thus, article 8(2), which applies to the New Zealand equivalent of the Australian disability support pension, directs the competent institutions of New Zealand to deem a period as an Australian resident to be a period during which that person was “both a New Zealand resident and present in New Zealand”. There is no formulation like article 8(2) with respect to the Australian disability support pension.

(3)    Other provisions of the Agreement expressly identify the circumstances in which a period of residence in one State party may be included in the calculation of residence in another State party, or specifically vary the requirements for the acquisition of resident status. For example, articles 12(1)-(3) specifically provide for circumstances in which a “period of working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident … for the purposes of meeting any minimum qualifying periods for [a] benefit set out in the social security law of Australia”. Another example is article 5(1), which provides for an extended meaning of “Australian resident” beyond that in s 7(2) of the Social Security Act, with the effect that the expression not only has the meaning given by the social security law of Australia “but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia”, having regard to six enumerated factors. That is, for the purposes of the Agreement, there is no need to fall within s 7(2)(b) of the Social Security Act.

(4)    Other provisions of the Agreement demonstrate an intention to affect the operation of a provision of the social security law. Thus, for example, article 2(2)(a) expressly limits eligibility for “an Australian disability support pension” “to cases where … the person is severely disabled”, as defined in article 1(1)(l). This is a more restrictive requirement in relation to work capacity than the equivalent requirement in s 94(1)(c), read with s 94(2) and the definition of “work” in s 94(5), of the Social Security Act. Hence, a person who claims a disability support pension under the Agreement must show a greater inability to work than a person who claims the benefit directly under the Social Security Act.

(5)    If article 12(4) operated to qualify a claimant for a disability support pension, then the limitations inherent in articles 12(1)-(3) would be “neutralised” in respect of such a benefit because periods of residence in one or both of Australia and New Zealand (even though not “working age residence” or shorter than 12 months’ “working age residence” in Australia) could be accumulated to meet the residence requirement in s 94(1)(e)(ii) of the Social Security Act.

(6)    Article 12(4) of the Agreement instead operates to prevent a person from claiming a disability support pension under the Agreement on the basis that he or she satisfied s 94(1)(e)(i) of the Social Security Act unless that person had accumulated an aggregate of more than 10 years of residence in either or both of Australia and New Zealand.

46    None of these considerations is sufficient to persuade us that the Secretary’s interpretation of article 12(4) should be accepted. First, as we show below, we do not consider that article 12(4) necessarily uses the language of limitation. Secondly, the identification of some articles in the Agreement (articles 2(2)(a), 5(1), 12(1)-(3)) as affecting the social security law for the purposes of s 6 of the International Agreements Act does not mean that these articles are the only articles having this effect, as the Secretary’s argument apparently assumed.

47    Thirdly, we do not consider that articles 12(1)-(3) require us to draw the conclusion urged by the Secretary. Articles 12(1)-(3) are general provisions in the sense that they apply to “an Australian benefit” (including a disability support pension) claimed under the Agreement. Article 12(4) is a specific provision, which, as its language indicates, applies only in the case of a disability support pension claim. Accordingly, it is always open to any person seeking a pension of this kind to rely on article 12(4), in which case articles 12(1)-(3) will be immaterial to his or her claim.

48    We are fortified in this conclusion by two further matters. First, like article 12(4), article 12(5) is similarly directed to one class of benefit (the age pension). Secondly, by virtue of article 5(5), the working age residence provisions of articles 12(1)-(3) do not in terms apply to a person under 20 years of age. Under the social security law of Australia, a person need only be 16 to qualify for a disability support pension: see Social Security Act, s 94(1)(d). Articles 12(1)-(3) would not therefore apply to benefit any claimant for a disability support pension aged 16 and less than 20. There is nothing in the Agreement that would justify an inference that persons in this younger class were intended to be disadvantaged, as the Secretary’s argument would have it. Such an outcome is also inconsistent with the preamble to the Agreement stating that the State parties made the Agreement to “enhance the equitable access by people covered by this agreement to specified social security benefits provided for under the laws of both countries”. A disability support pension is a specified social security benefit: see article 2(1)(a)(ii).

49    Finally, the proposition that article 12(4)’s intended operation was to prevent a person claiming a disability support pension under the Agreement from relying on s 94(1)(e)(i) of the Social Security Act lacks independent support and fails to address s 94(1)(e)(ii). It also fails to acknowledge the existing requirement imposed by article 2(2)(c) of the Agreement.

50    As already indicated, we do not consider that the Secretary’s preferred construction of article 12(4) should prevail. As we have seen, the Secretary’s argument depended on a construction of article 12(4) that purported to derive support from certain textual and contextual factors. Our rejection of the Secretary’s argument depends on other textual and contextual considerations, to which we attribute greater weight.

51    For the following reasons, we consider that, as senior counsel for the respondent argued, article 12(4) of the Agreement both describes the category of persons who are “entitled to claim a disability support pension” and identifies those who would satisfy the residence qualification for such a benefit once a claim can be made. Put another way, we would construe article 12(4) to provide that, if a person “has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand”, then that person can not only claim a disability support pension but has also satisfied the residence criterion for that pension. This interpretation is also, we note, further consistent with the language and assumptions in other parts of the Agreement. Article 11, for example, expressly contemplates that a person could qualify for a benefit under the social security law or the Agreement. The result is that, by virtue of s 6 of the International Agreements Act, article 12(4), read with certain other articles (see [57]-[64] below), overrides s 94(1)(e)(ii) of the Social Security Act. As noted already, ss 11 and 29 of the Administration Act are, in consequence, also affected by article 12(4) of the Agreement.

52    In deciding the issue that arises on this appeal, we have had regard not only to the text of the Agreement, especially article 12(4), but also, in the case of the provisions of the Agreement that have domestic effect despite the social security law, to the principles that guide the interpretation of international agreements. These are the principles set forth in the Vienna Convention on the Law of Treaties (opened for signature on 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)) (‘the Vienna Convention’), especially in articles 31 and 32. These principles guide the process of construing provisions of an international agreement where, as under s 6 of the International Agreements Act, they have, by enactment, become part of the law of Australia: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 (‘QAAH’) at 14-16 [34], citing Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161 (‘Great China Metal’) at 186 [70] and Povey v Qantas Airways Ltd (2005) 223 CLR 189 at 202 [24]-[25] and 230 [128].

53    The effect of articles 31 and 32 of the Vienna Convention has been explained in numerous Australian cases. Thus, for example, McHugh J said in Great China Metal at 186 [70]:

… Article 31 provides that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of its object and purpose. Under Art 32, interpretative assistance may be gained from extrinsic sources in order to confirm the meaning resulting from the application of Art 31 or to determine the meaning of the treaty when interpretation according to Art 31 leaves the meaning “ambiguous or obscure” or “leads to a result which is manifestly absurd or unreasonable”. Those extrinsic sources include the travaux preparatoires and the circumstances of the conclusion and history of the negotiation of the treaty.

54    Earlier, in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 255-6, McHugh J referred to the Vienna Convention and continued (omitting citations):

… taking the text as the starting point is consistent with the basic principle of interpretation that courts should focus their attention on the “four corners of the actual text” in discerning the meaning of that text. …

[T]he mandatory requirement that courts look to the context, object and purpose of treaty provisions as well as the text is consistent with the general principle that international instruments should be interpreted in a more liberal manner than would be adopted if the court was required to construe exclusively domestic legislation.

[I]nternational treaties often fail to exhibit the precision of domestic legislation. This is the sometimes necessary price paid for multinational political comity. …

55    The principles set out in the Vienna Convention apply to both multilateral and bilateral treaties: see Russell v Federal Commissioner of Taxation (2011) 190 FCR 449 at 455-456 [26]-[29] (Dowsett J, with whom Edmonds J relevantly agreed); Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349 (Dawson J), 356 (McHugh J); Federal Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597 at 604 (Burchett, Hill and Emmett JJ); McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation (2005) 142 FCR 134 at 143 (Hill, Sundberg and Stone JJ); and R K Gardiner, Treaty Interpretation (Oxford University Press, 2008) p 71.

56    Accordingly, construction of the relevant provisions of the Agreement commences with the text of the Agreement and considered in its context and “in light of its object and purpose”: see Vienna Convention, article 31(1). The context of the Agreement includes the preamble to the Agreement: article 31(2).

57    We turn first to the text of article 12(4) and to related articles. Article 12(4) provides “[n]o person shall be entitled to claim a disability support pension under this Agreement unless” he or she satisfies the residence criterion stipulated in it. Accordingly, if he or she satisfies that criterion because he or she has “accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand”, then he or she is, by virtue of article 12(4), “entitled to claim a disability support pension under this Agreement”. This residence criterion refers to a person who has accumulated a period of 10 years residence in either Australia or in New Zealand or an aggregate of more than 10 years derived from a combination of residence in Australia and residence in New Zealand. This is signified by the word “aggregate” and the words “and/or”. Our preferred construction also permits the provision to fall comfortably within the description “Totalisation for Australia”, which is the heading borne by the whole of article 12.

58    A construction that would confine the criterion to those persons who had a period of 10 years residence in Australia or those persons who had 10 years residence in New Zealand would be contrary to the ordinary and natural meaning of the language used in article 12(4). Such a construction would deprive the provision of some of its intended operation. Thus, for example, a claimant who had 10 years residence in Australia would not need the benefit of article 12(4). To so provide would be unnecessary. Had it been intended to confine article 12(4) to those claimants who had 10 years residence in New Zealand, the provision would have been drafted quite differently.

59    Whilst the use of the word “unless” would in some other contexts indicate a limitation, in the case of article 12(4), we consider that it does no more than set out the boundaries of, or limit, the extent to which s 94(1)(e)(ii) is “overridden”. The effect of article 12(4) is that, where a person has “accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand” in the sense discussed above, he or she is “entitled to claim a disability support pension”. To say a person is entitled to claim a benefit would ordinarily and naturally mean that that person has acquired some entitlement to the benefit, as opposed to having acquired merely a right to claim, in the sense of “request”, the benefit. Indeed, reference to the Macquarie Dictionary on-line and in print (Macquarie, 2008, p 317) indicates that this is in fact the ordinary and natural meaning of the expression “entitled to claim”. Thus, this Dictionary gives the verb “to claim” the primarily meaning of “to demand by or as by virtue of a right; demand as a right or as due” (emphasis added).

60    Article 2 of the Agreement shows what article 12(4) contemplates by a person becoming “entitled to claim a disability support pension under th[e] Agreement”. The effect of article 2(1)(a)(ii) is that a person (who falls within article 3) may, under the Agreement, claim a disability pension for which the Social Security Act makes provision. The effect of article 12(4) is that where a person has “accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand” that person can seek a disability support pension as of right, providing he or she satisfies article 2(2) (and any other relevant provision of the social security law that has not been overridden by the Agreement).

61    Article 2(2), not article 12(4), is the provision of the Agreement that limits, in express terms, the availability of a disability support pension under the Agreement. Thus, article 2(2) expressly provides that “[f]or the purposes of this Agreement an Australian disability support pension … shall be limited to cases where” the person is severely disabled (article 2(2)(a), read with article 1(1)(l)); was a resident of Australia or New Zealand at the date of severe disablement (article 2(2)(b), read with article 1(1)(f)); and was residing in New Zealand for a period of not less than one year at any time prior to the date of severe disablement (article 2(2)(c)). (We note that the Secretary did not dispute that, at the time his parents claimed a disability support pension on his behalf, Mr Mahrous satisfied each of these criteria. That is, it is accepted that Mr Mahrous is, and has been at all relevant times, a person with a severe disability; that he was residing in New Zealand for at least a year prior to the date of severe disablement; and that he was a resident of Australia or New Zealand at that date.)

62    Further, to construe article 12(4) of the Agreement in the manner for which the Secretary contends would not be justified in light of the preamble to the Agreement. If article 12(4) is construed as the Secretary contends, the article will not “enhance … equitable access” to disability support pensions. So construed, article 12(4) would, for example, place claimants under 20 years of age at a disadvantage compared with claimants 20 to 64 years of age: see [48] above.

63    In conformity with article 31 of the Vienna Convention, article 12(4) should be construed so far as appropriate (having regard to the text and other contextual factors) in conformity with the preamble, “to enhance the equitable access by people” covered by the Agreement to disability support pensions. We have already referred to other provisions that are clearly designed to enhance this “equitable access”. Thus, for example, article 5(1) broadens the definition of “Australian resident” for the purposes of the Agreement. Other provisions enable periods of residence in both countries to be combined, with the effect that the total period of residence is deemed to be residence in the country in which the benefit is sought: see articles 12(1)-(3). If article 12(4) is construed in the manner we have indicated (see [51] above), then article 12(4) will enhance the equitable access to disability support pensions, as the preamble contemplates, because article 12(4) will ensure that, providing article 2(2)(c) is satisfied, whether a person’s residence was in Australia or in New Zealand is immaterial: all that will matter is that that person has accumulated an aggregate of more than 10 years residence, whether in Australia, in New Zealand or in both countries.

64    A disability support pension is only available under the Agreement where a person is severely disabled, in accordance with article 2(2)(a), and otherwise satisfied the residence requirements in article 2(2). Where a person has an impairment sufficient to qualify as severely disabled, it is unsurprising that article 12(4) treats residence in Australia and New Zealand as equivalent, in order, as the preamble states, “to enhance … equitable access” to disability support pensions. The position of a severely disabled person necessarily attracts unique considerations and calls for special provision, in order to meet this object.

65    We have sought to confirm the meaning of article 12(4) by reference the preparatory work of the treaty, as contemplated by article 32 of the Vienna Convention. To this end, after the hearing, with leave, the Secretary filed an affidavit by a senior lawyer within the Secretary’s Department deposing to the enquiries that she had made to ascertain whether there was any record of preparatory work for the Agreement in existence. Some records of this preparatory work were exhibited to the affidavit. We have been unable to derive any assistance from these records (except perhaps to see that drafts made by the Parties carried a similar arrangement of provisions to enable equitable access in limited situations).

66    When a claim for a disability support pension was made on behalf of the respondent on 2 March 2011, the respondent had more than 10 years of residence in New Zealand and Australia and thus met the residence criterion in article 12(4). Pursuant to article 12(4) of the Agreement, the respondent was “entitled to claim a disability support pension”. This meant that, under the Agreement, not only could he claim a disability support pension but he also satisfied the residence criterion for the pension set out in this article. By virtue of s 6 of the International Agreements Act, this residence criterion overrode the residence requirement in s 94(1)(e)(ii) of the Social Security Act. In the circumstances of the case, the respondent can be taken to be eligible to receive a disability support pension from the date when his parents first claimed the pension on his behalf.

DISPOSITION

67    For the reasons stated, the appeal should be dismissed, with costs.

Associate:

Dated:    19 July 2013