Anstis v Secretary, Department of Social Security [1999] FCA 1176

FEDERAL COURT OF AUSTRALIA

SOCIAL SECURITY – assets test – disposal of assets – whether value of disposed asset to be taken into account when calculating rate of Newstart Allowance – whether value of disposed asset to be taken into account when determining entitlement to and rate of partner’s Parenting Allowance – meaning of “whether … allowance is payable” in s 1125A of Social Security Act 1991 (Cth) – meaning of ‘person’ in s 1125A – whether asset disposed of in ‘pension year’ pursuant to s 1126 of Social Security Act 1991 (Cth).

Social Security Act 1991 (Cth) ss 9(1), 9(4), 11(10), 11(10A), 1078, 1125A, 1126

Blunn v Cleaver (1993) 47 FCR 111 referred to

Re De Ryk and Secretary, Department of Social Security (1994) 35 ALD 85 not followed

MICHAEL ANSTIS and TESSA ANSTIS v SECRETARY, DEPARTMENT OF SOCIAL SECURITY

VG618 of 1998

WEINBERG J

27 AUGUST 1999

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 618 OF 1998

BETWEEN:	MICHAEL ANSTIS First Applicant TESSA ANSTIS Second Applicant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent
JUDGE:	WEINBERG J
DATE OF ORDER:	27 AUGUST 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The applicants’ appeal be dismissed.

2. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 618 OF 1998

BETWEEN:

MICHAEL ANSTIS

First Applicant

TESSA ANSTIS

Second Applicant

AND:

SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

JUDGE:	WEINBERG J
DATE:	27 AUGUST 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The matter before the Court is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”). Although the word “appeal” is used in that Act, the proceedings lie in the original jurisdiction of the Court.

2 The applicants are Michael Anstis and Tessa Anstis. They are husband and wife. They appeal against a decision of the Administrative Appeals Tribunal (“the AAT”) dated 29 October 1998 which confirmed a decision of the Social Security Appeals Tribunal (“the SSAT”) that Centrelink properly took into account an asset disposed of by Michael Anstis when calculating the rate of his Newstart Allowance and when assessing Tessa Anstis’ eligibility for, and rate of, Parenting Allowance. Mr Anstis represented himself and Tessa Anstis before the SSAT and the AAT. He again represented himself and his wife before me.

Facts

3 On 22 December 1997 Mr Anstis made inquiries about applying for Newstart Allowance and about Mrs Anstis’ applying for Parenting Allowance. Mr Anstis told Centrelink that he would not become available for work until 2 January 1998. Allowances for Mr and Mrs Anstis began to be paid on 2 January 1998.

4 Also on 22 December 1997 Mr Anstis established the Anstis Discretionary Trust (“the Trust”). On that date he transferred to the Trust, for no consideration, a part interest in a joint tenancy with Mrs Anstis in 5A Ronald Avenue Noble Park (“the disposed asset”). The disposed asset was valued at $30 000.

5 In his application for Newstart Allowance, Mr Anstis disclosed the existence of the Trust and the fact that he had transferred the disposed asset to the Trust. Following discussions with Centrelink, Mr Anstis argued (in a letter explaining the nature of the Trust) that the rate of his Newstart Allowance should be calculated without regard to the value of the disposed asset. He also objected to the requirement that he keep a “jobseeker diary”. The matter of the diary formed part of the appeal to the AAT but was not pursued before me. It is not necessary to discuss it further.

6 Mr Anstis’ objections to the decision by Centrelink to take into account the value of the disposed asset when calculating the rate of his Newstart Allowance were considered by an authorised review officer of the Department of Social Security (“the Department”). The authorised review officer found that Mr Anstis’ objections were not made out and informed Mr Anstis by letter dated 10 March 1998 that the value of the disposed asset would be taken into account when calculating the rate of Mr Anstis’ Newstart Allowance. On 12 March 1998 Mr Anstis applied to the SSAT for review of the decision of the authorised review officer.

7 The SSAT found that Centrelink’s decision was correct. Mr Anstis appealed to the AAT, which rejected his appeal. He now seeks to have the AAT decision overruled on the basis that the AAT made several errors of law in deciding his case.

8 The history of Mrs Anstis’ objection to Centrelink’s use of the value of the disposed asset in calculating her Parenting Allowance is very similar to the history of Mr Anstis’ objections.

9 When Centrelink considered Mrs Anstis’ application for Parenting Allowance on 2 January 1998, it decided that 50% of the value of the disposed asset (that is, the asset disposed of by Mr Anstis) should be included (or, in Centrelink’s words, “maintained”) for the purpose of assessing Mrs Anstis’ entitlement to and rate of payment of Parenting Allowance.

10 Mrs Anstis’ objections were considered by an authorised review officer, who decided on 5 March 1998 that Centrelink’s decision was correct. Mrs Anstis appealed against Centrelink’s decision to the SSAT jointly with her husband on 12 March 1998. The SSAT affirmed Centrelink’s decision with respect to Mrs Anstis’ Parenting Allowance. Mrs Anstis’ appeal to the AAT failed. She now seeks to have the AAT decision overruled on the basis of several errors of law which she alleges were made by the AAT in deciding her case.

The legislative background

11 The Social Security Act 1991 (Cth) (“the Act”) replaced the Social Security Act 1947 (Cth). It came into operation on 1 July 1991. It has been amended on numerous occasions since then. Regrettably, it is drafted in a manner which is both prolix and obscure.

12 In Blunn v Cleaver (1993) 47 FCR 111 a Full Court of the Federal Court (Sheppard, Neaves and Burchett JJ) commented in the following terms upon the drafting of the Act (at 120-1):

“The Minister, in his Second Reading Speech on the Social Security Bill 1990 (which became the Social Security Act 1991), delivered in the House of Representatives on 6 December 1990, said:

“A legislation review was instituted by the then Minister for Social Security and carried out by the Department of Social Security with the cooperation of representatives of the welfare sector. This Bill is a result of that process. In February this year copies of an exposure draft of the Bill were released for public comment. Public seminars were held in each capital city to explain the background to the review of the legislation and to examine the structure, format and style of the draft legislation. Those attending were invited to suggest changes or improvements to the exposure draft. The response to these consultations was both constructive and positive.

The object of this Bill is to overcome the problem of readability by using a ‘clear English’ drafting style and format. That style and format should make it a more accessible piece of legislation that ordinary Australians can reasonably be expected to understand.””

13 Their Honours continued at 125-6:

“A consideration of the historical development of the legislative provisions leaves no doubt that the intention of the legislature has been to eliminate, so far as possible, what has been referred to as “double dipping” in those cases where there is a prescribed correlation between an entitlement to a social security pension, benefit or allowance of the prescribed kind and an entitlement to compensation. To achieve that end the legislation has sought to deal with a variety of situations and it would not be surprising, given that context, to find that the language used is not entirely apposite in some of the situations with which the legislation intends to deal.”

14 Their Honours then stated at 127:

“Before concluding this judgment, we feel constrained to make a general reference to the Act in which the legislation in question is contained, the Social Security Act 1991. The Act in its current form contains more than 1,364 sections. We have not counted the precise number. To do so would involve taking account of a number of sections which are identified by letters as well as numbers. These have been added to the Act in the short period of two years in which it has been in force. The Act, including the notes to it, occupies 1,471 pages of the Commonwealth Statutes.

The professed aim of the drafting of the Act is to make it more accessible to persons without legal training. It is necessary to say “more accessible” – perhaps it is really necessary to say “less inaccessible” – because no-one seriously believes the layman can master the Act unaided. This case shows its own authors did not – for if they had, they would not have left it so ambiguous.”

15 After then referring to the fact that in February 1993 the Senate Standing Committee on Legal and Constitutional Affairs made its first report on “The Cost of Justice” and recommended that the law which people must obey should be readily understood by them and should be as comprehensible to members of the public as possible, their Honours concluded at 128:

“The comments we have made are not intended to undervalue simplicity. But the pursuit of simplicity without due regard to the subject matter may be foolishness. And an Act that is two or three times as long is not necessarily easy to read because some technical expressions (which once understood were succinct) have been replaced by wordier ones. …

A substantial portion of these reasons contains our attempt to explain the provisions of the legislation relevant to the problem here at issue. We do not apologise for the fact that, to many, what we have written will appear complex and difficult to follow. Indeed, without a copy of the Act within one’s hand and a reference to a succession of provisions, one can make no sense of it. It is difficult to know what can be done about this problem. As the Senate Committee remarked, the increasingly complex society in which we all live very often demands that legislation be expressed in a complex form. That is the factor which will so often operate to prevent simplicity in legislative drafting. The area of social services legislation is a complex one as the terms of the previous legislation and judicial decisions upon it have demonstrated. That is what the draftsman of this legislation may have sought to overcome. Regrettably, the replacement consists of a maze of provisions made the more complex by prolix definitions, provisos and exceptions. Both those who claim entitlements under it and those responsible for its administration will not always find it easy to discover whether or not a benefit is payable.”

The structure and text of the Act

16 Before turning to the particular provisions which must be considered in order to determine the issues which have arisen in this case, it is necessary to say something about the structure of the Act.

17 It is important to note at the outset that throughout the entire Act there are detailed and elaborate provisions which set out comprehensively the entitlements of those who claim particular benefits. The scheme of the Act is to make provision for “income”, whether earned, derived or received, to be taken into account in determining whether a pension, benefit or allowance is payable, and if so at what rate.

18 The Act in its present form makes provision for what are described as “financial assets” to be taken into account for the same purpose. Sub-section 9(1) defines “financial assets” as including a “deprived asset”. Sub-section 9(4) defines a “deprived asset” as one which has been disposed of by a person in circumstances where the value of the asset is included in the value of a person’s assets by, inter alia, ss 1125A or 1126. Financial assets are relevant to the operation of Div 1B in Pt 3.10 of the Act which deems such assets to earn ordinary income at a statutory rate.

19 Section 1078 applies to a person who is a member of a couple, other than a pensioner couple. Mr and Mrs Anstis are relevantly members of a couple – see s 4(2) and the definition of that expression contained therein. A person who has financial assets is taken, for the purposes of the Act, to receive ordinary income on those assets in accordance with the statutory formula thereafter set out – see s 1078(2) and ss 1078(3), (3A) and (4). Section 1081 provides for what is described as a “deeming threshold”. Sub-section 1081(1) makes provision for a deeming threshold for a person who is not a member of a couple, while s 1081(2) makes provision for a deeming threshold for a pensioner couple. The deeming threshold for a member of a couple, other than a pensioner couple, is an amount equal to one half of the amount fixed by sub-s (2). The amounts fixed by sub-ss (1) and (2) are set out in the Act, and are indexed every 1 July.

20 From these provisions, it may be seen that the Act is structured in such a way as to treat members of a couple as a single economic unit for the purpose of determining whether there is an entitlement to a benefit, and if so, the basis upon which the rate to that entitlement should be calculated.

21 When the Act commenced operation on 1 July 1991 it contained two provisions which are of particular relevance to the issues raised in this proceeding, s 11(10) and s 1126.

22 Sub-section 11(10) provides a definition of the term “pension year”. In its present form it provides as follows:

“11(10) A reference in sections 1123 to 1128 (disposal of assets) to a pension year, in relation to a person who is receiving:

(a) a social security or service pension; or

(b) a social security benefit; or

is a reference to:

(d) if the person is a member of a couple and, immediately before the person and the person’s partner became members of that couple, the person was receiving a pension, benefit or payment referred to in paragraph (a), (b) or (c) or a job search allowance and the person’s partner was receiving such a pension, benefit or payment, a job search allowance or a youth training allowance - the period of 12 months beginning on the day on which they became members of that couple; or

(e) if:

(i) the person is a member of a couple but paragraph (d) does not apply; and

(ii) the person’s partner is receiving a pension, benefit or payment referred to in paragraph (a), (b) or (c), a job search allowance or a youth training allowance;

the period of 12 months beginning on the day on which:

(iii) the pension, benefit or payment referred to in paragraph (a), (b) or (c) or the job search allowance first became payable to the person; or

(iv) the pension, benefit or payment referred to in paragraph (a), (b) or (c), the job search allowance or the youth training allowance first became payable to the person’s partner;

whichever was the earlier; or

(f) otherwise - the period of 12 months beginning on the day on which a pension, benefit or payment referred to in paragraph (a), (b) or (c) or a job search allowance first became payable to the person;

and to each following and each preceding period of 12 months.

23 Section 1126 of the Act deals with the disposal of assets by a person who is a member of a couple. Sub-section 1126(1), in its present form, provides:

“1126(1) Subject to subsections (2), (3) and (4), if, on or after 1 March 1986:

(a) a person who is a member of a couple has disposed of an asset of the person:

(i) during a pension year of the person; or

(ii) if the person is not receiving a pension, benefit or payment of a kind referred to in subsection 11 (10) but the person’s partner is receiving such a pension, benefit or payment or is receiving a youth training allowance - during a pension year of the person’s partner; and

(b) the amount of that disposition, or the sum of that amount and the amounts (if any) of other dispositions of assets previously made by the person or the person’s partner during that pension year, exceeds the disposal limit;

then, for the purposes of this Act:

(c) there is to be included in the value of the person’s assets for the period of 5 years that starts on the day on which the disposition takes place:

(i) 50% of the amount by which the sum of the amount of the first-mentioned disposition and of the amounts (if any) of other dispositions of assets previously made by the person or the person’s partner during the pension year exceeds the disposal limit; or

(ii) 50% of the amount of the first-mentioned disposition;

whichever is the lesser amount; and

(d) there is to be included in the value of the assets of the person’s partner for the period of 5 years that starts on the day on which the disposition takes place:

(ii) 50% of the amount of the first-mentioned disposition;

whichever is the lesser amount.

Note 1: for “disposes of assets” see section 1123.

Note 2: for “amount of disposition” see section 1124.

Note 3: for the effect of a transaction that constitutes both a disposal of an asset and a disposal of ordinary income see section 1110.”

24 It is not surprising that right from the outset, the interpretation of these provisions gave rise to a number of difficulties. These difficulties are best understood by considering the decision of the AAT in Re De Ryk and Secretary, Department of Social Security (1994) 35 ALD 85, a decision which has been relied upon by both parties to this proceeding.

25 In Re De Ryk the applicant claimed Job Search allowance on 31 August 1992. A delegate of the Secretary decided that he should be paid the allowance at a reduced rate, on the basis that he had deemed income of $4,560.00 a year. An authorised review officer varied that decision by reducing the amount of income that the applicant was deemed to receive to $3,800.00 per year. The deemed income was said to derive from an amount of $75,000.00 that the applicant had disposed of by giving it to his three children in August 1991.

26 On review the SSAT affirmed the review officer’s decision. The applicant applied to the AAT for review of the SSAT’s decision. The AAT determined that the decision under review should be set aside on the basis that the gifts made by the applicant to his children in August 1991 did not constitute a disposal of assets of a kind which enabled the gifts to be taken into account in calculating the amount of allowance to which the applicant was entitled.

27 The first point to note about the decision of the AAT is that the amendments which were made to the Act by the Social Security Legislation Amendment (No 2) Act 1992 (Cth) with effect from 1 January 1993 were held to be inapplicable to Mr De Ryk’s particular situation. Those amendments included the introduction into the Act of ss 11(10A) and 1125A, to which I shall return. The AAT considered that these amendments should not be applied to the case before it because Mr De Ryk had accrued a right to have his claim considered on the basis of the law as it was in operation at the date his claim was made, ie 31 August 1992.

28 It followed, so the AAT held, that the amount of the allowance payable to Mr De Ryk was to be determined by reference to the general provisions of the Act including the ordinary income test set out in Pt 3.10, and the asset test set out in Pt 3.12. The AAT stated at 86-7:

“In assessing the amount of allowance payable to Mr De Ryk, the Act required the secretary to take into account the value of certain assets which he and his wife owned. The general provisions relating to the assets test, as it is known, are found in Pt 3.12 of that Act. In addition to assets which are owned at the date of assessment, Div 2 of Pt 3.12 also requires the secretary to take into account the value of some assets which have been disposed of in the past.”

29 The AAT went on to say at 88:

“Section 1125A and the corresponding amendments made in s 11(10A) seek to vary those rules relating to the calculation of the payment. There is, however, nothing, either expressly or implicitly, in the Amendment Act, s 1125A, s 11(10A) or the scheme of the provisions, which suggests that Parliament had any intention that they should operate retrospectively.”

30 This meant that the AAT confined its consideration in De Ryk to s 1126 and related provisions. After setting out s 1126 the AAT continued at 89:

“According to s 1126(1), the assets to which regard is to be had in calculating Mr De Ryk’s allowance are those assets disposed of “during the pension year of the person”. The Act does not define the term “pension year” as such but does so when it is used “in relation to a person who is receiving a social security or service pension; or a social security benefit; or an additional family payment.”

31 Section s 11(10) was then set out and the AAT thereafter continued (at 89):

“Section 11(10)(d) and (e) are not applicable in this case for Mr and Mrs De Ryk have been a “couple” for many years (para (d)) and Mrs De Ryk has not been receiving a pension, benefit or allowance: (para (e). That leaves para (f). According to that paragraph, once the allowance was payable to Mr De Ryk, the pension year started from the date on which it first became payable. As the allowance could not become payable before he lodged his claim, the earliest date from which it could have been payable was 31 August 1992 when he lodged his claim. Consequently, his pension year would have commenced on 31 August 1992.

If the meaning of “pension year” given in s 11(10) is the meaning to be given to those words when they are used in s 1126, it follows that Mr De Ryk did not dispose of those assets during a pension year. He did so in August 1991, which was quite some time before the commencement of Mr De Ryk’s pension year.

We think that the meaning given in s 11(10) is the appropriate meaning to be applied to s 1126 for s11(10) specifically refers to its use in ss 1123 to 1128. We have, however, considered the meaning of “pension year” without the benefit of s 11(10) in case we should be in error in our view. Our doubts about the correctness of our view arises [sic] from the fact that the term used in s1126 is “pension year” and it is not limited, as s 11(10) seeks to do, to a “person who is receiving” certain pensions and benefits.

Reading s 1126 as a whole, there appear to be only two possible interpretations which can be given to “pension year”. The first is that a pension year refers to the calendar year in which a person receives a pension, benefit or allowance of some kind regardless of whether or not he was receiving it at the time he disposed of his assets. The second interpretation is that a pension year only commences when a person actually receives a pension, benefit or allowance and that he must, to come within s 1126, dispose of his asset at some time after the start of that pension year.

We prefer the second interpretation and do so on what we see as the clear words of s 1126(1) …

That this is the preferred interpretation is supported also by the subsequent inclusion of s 1125A. We have already decided that s 1125A is not relevant in determining Mr De Ryk’s claim … but it is relevant in understanding what s 1126 means …

[The AAT then set out s 1125A(1) of the Act and continued]

Section 1125 [sic] then goes on to provide for the way in which assets disposed of during the five years preceding the “pre-pension years” are to be taken into account in assessing the amount of pension from a benefit or allowance that is payable …

[The AAT then referred to s 11(10A).]

It follows, therefore, that there is a clear distinction made by the Act between those who dispose of assets while they are in receipt of a pension, benefit or allowance and those who do so before they lodge a claim for such a payment. The former are covered by s 1126 and the latter by s 1125A. It follows also that s 1126 only relates to those who dispose of their assets while they are in receipt of a pension, benefit or allowance.”

32 As Mr De Ryk had given his children a total of $75,000.00 before he lodged his claim for the allowance, he had not disposed of his assets “during a pension year” within the meaning of that expression in s 1126. It followed that the sum of $75,000.00 should not have been taken into account in assessing his allowance.

33 It seems that the interplay between s 11(10) and s 1126 which was considered by the AAT in De Ryk had given rise to a number of difficulties of interpretation long before that case was decided. It may be that these difficulties led to the desire to “clarify” the position in this regard, which desire was said, in the Explanatory Memorandum, to be the explanation for the introduction into the Act of s 11(10A) and s 1125A.

34 Sub-section 11(10A) defines “pre-pension year” for the purposes of s 1125A. It provides:

“11(10A) Pre-pension year – disposal of assets. A reference in sections 1124A and 1125A (disposal of assets) to a pre-pension year, in relation to a person who is claiming:

(a) a social security or service pension; or

(b) a social security benefit; or

(ba) (Omitted)

(d) a non-benefit PP (partnered); or

(e) a non-benefit parenting allowance.

is a reference to the period of 12 months finishing on the day that is the person’s provisional commencement day and each preceding period of 12 months.”

35 Section 1125A of the Act applies to the disposal of assets in a pre-pension year by a member of a couple. Sub-section 1125A(1) provides::

“1125A(1) Subject to subsections (2), (3), (4) and (5), if:

(a) a person has disposed of an asset; and

(b) the person is a member of a couple when the person or the person’s partner claims a pension, benefit or payment of a kind referred to in subsection 11 (10A) or when the person’s partner claims a youth training allowance; and

(i) during a pre-pension year of the person; or

(ii) if the person has not claimed a pension, benefit or payment of a kind referred to in subsection 11 (10A) but the person’s partner has claimed such a pension, benefit or payment or has claimed a youth training allowance - during a pre-pension year of the person’s partner; and

(d) the amount of that disposition, or the sum of that amount and the amounts (if any) of other dispositions of assets previously made by the person or the person’s partner during that pre-pension year, exceeds the disposal limit;

then, for the purposes of determining whether a pension, benefit, payment or allowance is payable to the person:

(e) there is to be included in the value of the person’s assets for the period of 5 years that starts on the day on which the disposition took place:

(ii) 50% of the amount of the first-mentioned disposition;

whichever is the lesser amount; and

(f) there is to be included in the value of the assets of the person’s partner for the period of 5 years that starts on the day on which the disposition took place:

(ii) 50% of the amount of the first-mentioned disposition;

whichever is the lesser amount.”

36 It is clear that the applicants, Michael and Tessa Anstis, are a non-pensioner couple for the purpose of s 1078 of the Act. Subject to the submissions advanced by Mr Anstis in the present proceeding, the statutory formula for deemed income derived from the assets of either or both members of such a couple would apply to the part interest in the joint tenancy which was disposed of on 22 December 1997. If that asset is to be included for the purpose of considering Mr Anstis’ entitlement to Newstart Allowance, and calculating the rate thereof, and is also to be included for the purpose of considering the entitlement of Mrs Anstis to Parenting Allowance, it has an effect upon the amount of benefit to which each is entitled. It operates, in accordance with the statutory formula, to reduce those amounts.

Decision of the SSAT

37 On 30 March 1998, the SSAT affirmed Centrelink’s decisions that:

(a) The assets disposed of by Mr Anstis should be maintained in the assessment of Mr Anstis’ entitlement to and rate of payment of Newstart Allowance; and

(b) The assets disposed of by Mr Anstis should be maintained in the assessment of Mrs Anstis’ entitlement to and rate of payment of Parenting Allowance.

38 In affirming Centrelink’s decision concerning Mr Anstis’ Newstart Allowance, the SSAT referred to s 1078(2) of the Act, which provides that a person who has financial assets is taken, for the purposes of the Act, to receive ordinary income on those assets in accordance with s 1078. As noted above, s 9(1) defines a financial asset to include a deprived asset. Sub-section 1078(2) states that deeming income applies to deprived assets. This, the SSAT stated, is how the rate of Mr Anstis’ Newstart Allowance was affected by the disposal of the asset.

39 The SSAT then addressed Mr Anstis’ argument that the expression, “for the purposes of determining whether a pension, benefit, payment or allowance is payable to the person” in s 1125A limits the power of Centrelink, set out in s 1078(2), to use the deprived asset in calculating Mr Anstis’ rate of payment. Mr Anstis contended that s 1125A should be read narrowly and apply only to the threshold question of whether Newstart Allowance is payable at all, and not the rate at which it is payable. Mr Anstis contrasted the expression “for the purposes of determining whether…” in s 1125A with that used in the provision which had been enacted earlier in time, s 1126 – “for the purposes of the Act”. He submitted that the change of language signified an intent on the part of the legislature to restrict the powers of Centrelink in relation to assets disposed of in a pre-pension year to merely granting or refusing a benefit.

40 To support his argument, Mr Anstis referred to the Explanatory Memorandum that accompanied the Bill which introduced s 1124A and s 1125A into the Act. The Memorandum states:

“This amendment will clarify that the deprivation provisions are to apply to a person who disposes of assets without adequate consideration less than 5 years before claiming an asset tested social security pension or benefit.”

41 The SSAT noted that it was unable to see how the Memorandum supported Mr Anstis’ argument.

42 Mr Anstis relied upon Note 4 to s 1125A to support his interpretation of that section. Note 4 was introduced into the Act by Act No 229 of 1992 s 116, and was amended by Act No 197 of 1997 s 3. By s 39(1A) of the Act, a Note which follows a subsection, as Note 4 does, is taken to be part of the subsection. In its present form Note 4 provides:

“If a pension, benefit or family payment is payable to the person, section 1126 operates to determine the rate of payment and section 1125A ceases to apply to the person.”

43 Mr Anstis argued that Note 4:

“.. specifically says that s 1125A is not used to calculate the rate. It says that s 1125A is used to determine whether the pension is payable and then s 1126 is used to determine the rate.”

44 Mr Anstis also submitted that s 1126 could not apply to calculate the actual rate because the asset disposed of was not disposed of “during a pension year”. He relied upon the decision of the Tribunal in Re De Ryk (supra) as support for this proposition.

45 The SSAT rejected Mr Anstis’ submissions. It concluded that Mr Anstis’ interpretation of Note 4 would make the introduction of s 1125A meaningless. In its opinion, the correct reading of Note 4 was as a protection against s 1125A applying retrospectively. The SSAT stated:

“The Note is saying that if an allowance is already payable to a person who disposed of assets in a pre-pension year, the section cannot retrospectively apply. In that situation the persons [sic] rate must be determined according to s 1126.”

46 The SSAT concluded that the meaning of the term “payable” in s 1125A “must include what can be paid, that is, includes calculating the rate of allowance”.

47 In relation to Mrs Anstis’ Parenting Allowance, the SSAT disagreed with Mr Anstis’ submission that the terms ‘a person’ and ‘the person’ in that part of s 1125A which spoke of “determining whether a pension, benefit or allowance is payable to the person” (emphasis added) always referred to Mr Anstis (as the person who disposed of an asset) and not to Mrs Anstis. It did so by finding that as Mr and Mrs Anstis owned 5A Ronald Street as joint tenants, neither of them was able to sell an individual interest in the property. This was because neither of them owned an individual interest. The SSAT decided that any transfer of an interest in the property must have been by both parties. It decided that Mrs Anstis had disposed of an asset and therefore the same interpretation of s 1125A as applied to Mr Anstis also applied to Mrs Anstis.

48 Therefore, the SSAT decided that Centrelink had acted correctly in using the deprived asset in assessing Mrs Anstis’ entitlement to, and rate of, Parenting Allowance.

Decision of the AAT

49 The decision of the AAT, constituted by Mr C.G. Woodard, was made on 29 October 1998. That decision affirmed the decision of the SSAT. The AAT set out the relevant sections of the Act and applied them to the facts before it. The AAT, however, contrary to the approach taken by the SSAT, treated as correct Mr Anstis’ contention that Mrs Anstis had not relevantly disposed of an asset.

50 Before the AAT, the Department adopted the decision and reasoning of the SSAT, based on the Department’s view that the SSAT’s construction of s 1125A was the only one that gave meaning to the legislation and was supported by the authorities and extrinsic materials. Mr Anstis made essentially the same contentions before the AAT as he made before the SSAT. That is, in relation to his own Newstart Allowance, he contended that the term “payable” in s 1125A refers only to a threshold question of whether a payment is received or receivable; that where the Act addresses the calculation of a rate it says so specifically; and that s 1125A does not employ the phrase “for the purposes of the Act” which appears in s 1126 and which provides authority to take into account assets disposed of during a pension year in calculating a rate of payment.

51 Mr Anstis contended before the AAT that his interpretation did not give a strained meaning to the section, that the language of the section is clear and that, in the event of ambiguity, remedial legislation such as the Act should be construed beneficially.

52 The Department conceded before the AAT that the grammar and layout of s 1125A had a degree of “inelegance”, but relied on the reasoning of the SSAT that the term “payable” necessarily involves a calculation of entitlement – “what will be paid”.

53 The AAT considered the case of Re De Ryk (supra) which Mr Anstis cited in support of his interpretation of s 1125A. The AAT purported to follow Re De Ryk which, it said, supported the interpretation contended for by the Department, and not Mr Anstis’ interpretation.

54 In relation to Mrs Anstis’ Parenting Allowance, Mr Anstis contended: that the words “to the person” in s 1125A refer only to the person who disposes of an asset, and not to that person’s spouse; that in other sections of the Act where a spouse is included or affected, he or she is specifically mentioned; and that a unilateral disposal of property by one partner in a marriage cannot represent a disposal by the other partner and should not affect a different allowance received by that other partner.

55 As regards Mr Anstis’ Newstart Allowance, the AAT rejected Mr Anstis’ interpretation of Note 4 to s 1125A, noting that if s 1125A could not be used to calculate a rate of payment, the question of how a rate was to be calculated to give effect to a disposition of assets in a pre-pension year would be left up in the air. The AAT agreed with the SSAT’s decision that the purpose of Note 4 was to provide protection against s 1125A applying retrospectively. The AAT rejected Mr Anstis’ interpretation of the word “payable”, and affirmed the SSAT’s decision that embedded within that word was a consideration of “what can be paid”.

56 In deciding that the Department’s interpretation of s 1125A was correct as regards Mrs Anstis’ Parenting Allowance, the AAT rejected as illogical the contention put forward on behalf of Mrs Anstis that when a member of a couple disposes of an asset, that asset should be maintained against the partner of the person only if the person is receiving an allowance incorporating a component for the partner, and not where the partner is in receipt of a separate allowance. The AAT said the words “to the person” should not be given their “prima facie interpretation” (which would exclude an allowance payable to an eligible spouse) because:

“the section provides that irrespective of who disposed of the asset 50% of the disposed asset less the allowable threshold is maintained as an asset for each of the members of a couple. It is not material, contra the applicant, that each of a couple receives a different allowance.”

57 As to the question whether the legislation should be construed in a manner favourably to Mr and Mrs Anstis, the AAT held:

“The principle of interpreting beneficial legislation favourably to the applicant should not be derogated from, but the status of this endangered species is not enhanced by applying it in the circumstances of this case, in regard to an amendment whose purpose is restrictive, and if it confers an advantage which runs contrary to it.”

58 The AAT affirmed the decision of the SSAT.

Applicants’ contentions

59 There is some overlap between the contentions concerning Mr Anstis’ Newstart Allowance and those concerning Mrs Anstis’ Parenting Allowance, but I will deal with the contentions in respect of each applicant separately.

60 In his outline of argument filed on 23 February 1999, Mr Anstis contended that the reference in s 1125A to having regard to disposed assets for the purpose of “determining whether a pension, benefit, payment or allowance is payable to the person” only enables the Department to take into account disposed assets for the purpose of determining whether or not benefit is payable, and not the rate at which benefit is payable. In support of that contention, Mr Anstis stated that his interpretation was consistent with the natural meaning of the word “whether”, and with the meaning of the word “payable” as it is used in other parts of the Act.

61 Mr Anstis noted that while the word “payable” when used alone may have a variety of meanings, one of which might include “amount to be paid”, the meaning of “whether … payable” was far more restricted and could only apply to the threshold question of whether or not a payment could be made.

62 Mr Anstis contended that the question “whether … allowance is payable” is merely a threshold question which gives the Department authority to determine whether or not he is entitled to receive Newstart Allowance, and not at what rate he is entitled to receive it.

63 Mr Anstis maintained that this was the plain and natural meaning of s 1125A and that this meaning was consistent with the intention of Parliament at the time the legislation was passed, since at that time assets were not taken into account when determining the rate of allowance payable, but only whether allowance was payable.

64 Mr Anstis submitted that the AAT’s determination that s 1125A “needed” to calculate a rate for Newstart Allowance was incorrect as a matter of law. He submitted that in making its determination, the AAT had failed to take into account the fact that prior to Act No 1 of 1996, when the deeming provision, s 1078, was introduced into the Act, the value of a claimant’s assets was not taken into account when calculating Newstart Allowance. Section 1125A had, by then, been in operation for several years.

65 Mr Anstis claimed that the AAT had failed to take into account the difference in wording between s 1125A and s1126. He also alleged that the AAT’s finding that his interpretation of s 1125A was contrary to the intention of Parliament was not correct. He contended that, contrary to the AAT’s determination, Note 4 to s 1125A could not be interpreted as a savings provision. Mr Anstis also contended that, contrary to the respondent’s submission, Note 4 to s 1125A was quite unlikely to be a “savings provision” (see respondent’s contentions, below) as there were other provisions in the Act which were clearly identified as “savings provisions”.

66 Finally, as a global objection, Mr Anstis contended that the AAT’s interpretation of s 1125A did not accord with the beneficial interpretation which should be given to statutes of a remedial nature.

67 The contentions in respect of Mrs Anstis’ appeal were also based on her claim that the AAT had erred in law when interpreting s 1125A. Mr Anstis contended that his wife’s entitlement to Parenting Allowance ought to have been assessed without regard to the asset disposed of by Mr Anstis.

68 Mr Anstis claimed that the reference to “person” in the expression “for the purposes of determining whether … allowance is payable to the person” (emphasis added) is a reference to the person who has disposed of an asset – in this case, a reference to Mr Anstis. Mr Anstis claimed that this was the natural meaning of the section and that giving the section this natural meaning did not produce an anomaly that Parliament could not have foreseen – that in fact the meaning contended for by Mr Anstis was in accordance with the intention of Parliament at the time of drafting as at that time, in the case of Newstart Allowance, only one partner in a couple was paid an allowance, and that allowance included a component in respect of the other partner. Mr Anstis submitted that the meaning for which he contended was also consistent with other parts of s 1125A, ie ss 1125A(3), (4) and (5).

69 With respect to the findings of the AAT, Mr Anstis addressed them as follows:

· It is not anomalous that members of a couple are assessed differently.

· The statement in par 20 of the AAT’s reasons which starts “also to the person” and ends “receives a different allowance” is wrong.

· Also referring to par 20 of the AAT’s reasons, it would be odd if the Social Security Act was beneficial in nature but the income and assets components were not.

70 Mr Anstis filed a further outline of argument on 22 March 1999, after the hearing. He did so at my invitation, in response to an argument not previously advanced before the SSAT or the AAT, but raised for the first time by the respondent during the course of oral submissions before me. That argument had not been foreshadowed in the respondent’s contentions filed before the commencement of this proceeding. Mr Anstis was, therefore, given time to respond to that argument.

71 The respondent’s argument raised the question whether s 1126, and not s 1125A, was in fact the section applicable to the disposal of the asset by Mr Anstis. This argument, and Mr Anstis’ response, are set out below.

Respondent’s contentions

72 In its written submissions, the respondent adopted the reasoning of the AAT in respect of both Mr and Mrs Anstis’ appeals.

73 In Mr Anstis’ case, the respondent submitted that Parts 3.10 (which contains s 1078 and s 1081) and 3.12 (which contains s 1125A and s 1126) of the Act are directed at preventing the avoidance of assets tests and income tests. The respondent referred to the Second Reading Speech concerning the legislative precursors to ss 1124 and 1125 which the respondent submitted made clear that that was the aim of those Parts.

74 The respondent submitted that the Explanatory Memorandum to the Bill which introduced s 1125A into the Act demonstrated Parliament’s intention to extend the operation of the deprivation provisions by applying the previously existing rules to dispositions which were made within the period of 5 years before the claim for benefit or pension. Precisely how that particular conclusion was reached was not fully developed in argument.

75 The respondent submitted that Mr Anstis’ contention that s 1125A did not require the calculation of a rate of payment would, if correct, leave no purpose for the combined operation of s 1078 (which deems income from “financial assets”, defined as including “deprived assets” in s 9(1)) and s 9(4)(b), which provides that “deprived assets” includes assets the subject of s 1125A.

76 The respondent submitted that the deemed income from assets the subject of s 1125A is intended to be included in the ordinary income test, which affects the rate of payment.

77 The respondent further relied on the dictionary definition of “payable” referred to by the AAT. That definition said that a thing which is payable is, by definition, a sum of money. The respondent contrasted the language of s 1125A with that of s 1185D(5). The latter makes clear that certain matters are to be “disregarded when working out a rate” for the purpose of calculating the amount of a person’s pension bonus. Had Parliament intended to exclude assets disposed of in a pre-pension year from the process of calculating a rate, it would have used such language, rather than the language of s 1125A.

78 The respondent claimed that the difference between the language of s 1125A and s 1126 relied on by the applicant did not evince an intention on the part of the Parliament to exclude the operation of deprivation rules with respect to the calculation of rates of payment. Rather, the difference was properly attributable to the purpose of s 1125A – to catch the disposal of assets in a pre-pension year.

79 The respondent then referred to the text of Note 4 to s 1125A. The respondent submitted that Note 4 should be read in the light of the distinction properly to be drawn between s 1125A and s 1126 – while the use of the expression “ceases to apply” was described by the respondent as “inelegant”, the purpose of Note 4 was merely to make abundantly clear that if the subjects of s 1125A are in receipt of pension at the time of the disposition it is s 1126, and not s 1125A, which applies.

80 In relation to Mrs Anstis’ appeal against the decision of the AAT, the respondent made the following submissions. In adopting the reasoning of the AAT, it submitted that throughout the Act couples were generally treated as single economic units. Section 1125A addresses, and implicitly governs, applications for pensions and benefits either by a person who has disposed of an asset or his or her partner – s 1125A(1)(b).

81 Section 1125A addresses the situation where the person who disposed of the asset has not applied for a pension, but that person’s partner has applied – s 1125A(1)(c)(ii). The respondent submitted that it would be difficult to see a purpose for s 1125A(1)(b) or s1125A(1)(c)(ii) on the applicants’ construction of those subsections. Further, the respondent submitted, it would be difficult to ascertain the meaning of s 1125A(f).

82 The respondent submitted that the words “the person” between pars (d) and (e) of s 1125A(1) were intended by Parliament “to be a reference to the subjects of each of the subsequent paragraphs respectively”. The respondent submitted further that those words, when read in context, referred to the person making the claim, and not the person who had disposed of the asset.

83 The respondent raised one additional matter in the context of its submission as to how I ought to proceed if I were to conclude that the AAT had erred in law respect of either applicant, or both of them. The respondent submitted that one of two orders should be made – either that the error was inconsequential and therefore that the AAT decision should be allowed to stand, or that, if the error were not found to be inconsequential, nonetheless the declarations sought by the applicants should not be granted, and instead the matter should be returned to the AAT for a rehearing de novo.

84 The respondent submitted for the first time throughout these proceedings that Re De Ryk (supra) was wrongly decided. The AAT in De Ryk was said to have ignored the important words of extension at the end of s 11(10) which, prior to their amendment, appeared as, “and to each succeeding and each preceding period of 12 months”, and now read “and to each following and each preceding period of 12 months”. Those words of extension were said to apply to each of pars 11(10)(d), (e) and (f). They were said to have been ignored in Re De Ryk. The reference in s 1126 of the Act to a pension year, in relation to a person who is receiving a pension, benefit or payment, was said to incorporate into the pension year the period of 12 months preceding the day on which that pension benefit or other payment first became payable to that person.

· Mr Anstis’ application for Newstart Allowance and Mrs Anstis’ application for Parenting Allowance were made on 22 December 1997, the date upon which the part interest in the joint tenancy was transferred into the Trust.

· The asset was therefore disposed of in a pension year, not a pre-pension year.

· Section 1126 of the Act therefore applied to the disposition of an asset by Mr Anstis.

· Section 1126 did not contain the troubling expression “for the purpose of determining whether a pension benefit payment or allowance is payable to the person”, but rather the wider formulation, “for the purposes of this Act”.

85 On the basis of those facts and this reasoning, the respondent submitted that I should order that any error of law by the AAT was inconsequential, as it had reached the correct conclusion notwithstanding that its reasoning was flawed. The conclusion was correct because, based on that construction of the facts, it was clear that s 1126 applied and therefore that the AAT was correct in its decision to take into account the disposition of an asset by Mr Anstis both in calculating the rate of his Newstart Allowance, and in determining whether, and at what rate, Mrs Anstis was entitled to receive Parenting Allowance.

86 The respondent submitted that if I did not consider that, based on its construction of the facts outlined above, it was clear that s 1126 must apply, it would at least be appropriate to remit the matter to the AAT for reconsideration according to law.

87 The respondent submitted further, and in the alternative, that s 1126 applied for the following separate reason – that the disposal of the asset was during a pension year, because Newstart Allowance became payable to Mr Anstis, and Parenting Allowance became payable to Mrs Anstis on 22 December 1997. They were, therefore, in receipt of benefits within the meaning of s 1126 at the time of the disposal.

Mr and Mrs Anstis’ response to the s 1126 point

88 On 22 March 1999 Mr Anstis filed a further outline of argument in support of his claim and that of his wife, addressing the respondent’s contention that s 1126 applied to the disposal and that therefore the disposed asset was properly maintained in calculating the allowances payable to Mr and Mrs Anstis.

89 Mr Anstis argued, in the alternative, that either s 1126 did not apply, as the disposal did not take place during a pension year or, if s 1126 were the applicable section, and the disposal was therefore made in a pension year, that would not affect either his or his wife’s allowance.

90 With respect to the first alternative, Mr Anstis referred to the wording of s 11(10) and submitted:

“When I disposed of the asset I was not receiving a specified payment so when I made the disposal it was not a pension year. The most that could be said was that it subsequently became a pension year. However a pension year only begins on the day on which the benefit becomes payable. To say that a pension year, which is a reference to a period of time, can exist before it begins is to my mind a nonsense.”

91 Mr Anstis then referred to the words to “each following and each preceding period of 12 months” in s 11(10):

“On the face of it these 2 words should cover the same time span however it is obvious that the following period can be indefinite as can be shown by the following example. If I claimed pension from 1993 but disposed of an asset in 1998 it is clear that I have disposed of an asset in a pension year so the term each following year must cover at least 5 years from the date the pension became payable but if this applied to the preceding period then pension year and pre-pension year would cover the same periods. If this were the case the period prior to claiming should be treated as a pre-pension year and not a pension year because pre-pension year clearly means a period prior to a pension year and S11(10A) was enacted at a later date and is more specific.”

92 As regards his alternative claim, Mr Anstis made two points. Concerning his wife’s payment, it was argued that even if s 1126 were the applicable section, his wife’s payment would not be affected. Section 1127(b) provides that Div 2 of Pt 3.12 of the Act does not apply to a disposition of an asset that took place less than five years before the time when the person who disposed of the asset, or his or her partner, became qualified for a pension or allowance if the Secretary is satisfied that at the time of the disposal the person who disposed of the asset could not reasonably have expected that either that person, or his or her partner, would become qualified for any such payment. Mr Anstis argued that if s 1126, or s 1125A, applied to the partner of the person who disposed of the asset, this could work a great unfairness to that partner. Section 1127(b) could not apply to disregard the value of an asset even if the partner had no knowledge of the disposition nor of the likelihood of claiming benefit in the future.

93 Finally, Mr Anstis argued that even if s 1126 were the applicable section, the expression “for the purposes of the Act” only applies for the purposes of the application of the assets test. Since he was below the asset test threshold, this would have no effect on him. Mr Anstis submitted that the Department had taken that view of the words “for the purposes of the Act” in s 1118(2), which deals with the proceeds on the sale of a principal home. This interpretation had been confirmed by the AAT in Thomas v SDFCS (unreported, AAT, 17 November 1998, McLean M). Mr Anstis stated that it was unlikely that the words “for the purposes of the Act” could be intended to have a different meaning in different sections of the Act.

94 Mr Anstis subsequently submitted a further supplementary outline of argument, which was received on 26 March 1999, concerning the meaning of “pension year” and “each preceding period”. He referred to s 11(10)(d) of the Act, which states that if a person and their partner were both in receipt of a prescribed payment prior to becoming members of the couple, the pension year begins on the day on which they become members of that couple.

95 Mr Anstis argued that it was clear that either the person or their partner may have disposed of an asset prior to their becoming a couple, but while they were in receipt of a prescribed payment. He contended that the term “each preceding period of 12 months” was designed to cover the period when the parties were in receipt of a prescribed payment, but had not yet become part of a couple. He submitted it served no other purpose.

Conclusions

96 I have concluded that the decision of the AAT to affirm the decision of the SSAT that Centrelink was correct to maintain the assets disposed of in the assessment of Mr Anstis’ entitlement to and rate of payment of Newstart Allowance was itself correct.

97 I have also concluded that the decision of the AAT to affirm the decision of the SSAT that Centrelink was correct to maintain the assets disposed of in the assessment of Mrs Anstis’ entitlement to and rate of payment of Parenting Allowance was correct, but not for the reasons given by the AAT. My reasons for arriving at this conclusion are explained below.

Mr Anstis’ claim to Newstart

98 If, as has been assumed all along, s 1125A is the governing provision because Re De Ryk determines that the disposal of assets took place in a pre-pension year, and not during a pension year, thereby rendering s 1126(1) inapplicable, s 1125A should, in my opinion, be construed in part in the manner for which the respondent contends.

99 The expression:

“…for the purposes of determining whether a pension, benefit, payment or allowance is payable to the person”

should not, in my view, be construed in the narrow and restrictive way for which Mr Anstis contends. That expression is not an “all or nothing” provision, confined in its scope to whether or not any such entitlement exists.

100 The word “payable” is defined in the Oxford English Dictionary as including a sum of money that is to be paid, or that is capable of being paid. What is capable of being paid must, in my opinion, be capable of being ascertained by being calculated.

101 Mr Anstis based his submission that Centrelink was not entitled to use assets that had been disposed of in a pre-pension year to calculate the actual rate of allowance that was to be paid, but only whether an allowance was payable, by contrasting the expression used in s 1125A with that used in s 1126, namely “for the purposes of the Act”.

102 I am unable to accept Mr Anstis’ contention which is, in substance, that the maxim expressio unius est exclusio alterius should be applied to the construction of the word “payable” so that wherever that word appears in the Act it is “always to determine a threshold question of whether a payment is received or receivable”. Nor do I accept that where the Act addresses calculation of a rate it says so specifically, and therefore must always do so.

103 This is to accord too much weight to the Latin maxim which is, at best, a guide to construction. The primary consideration is that, in accordance with s 15AA of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”), s 1125A of the Act must be read purposively. When so read, and when construed in the light of the extrinsic material to which, pursuant to s 15AB, reference may properly be made, Mr Anstis’ contentions are untenable.

104 The AAT referred to the underlying structure and text of the Act, and to extrinsic material which, in its view, made it plain that it was necessary to take account of both assets and income in any pension test in order for it to be both a fair measure of need and equitable to all members of the community. One of the principal objectives of the Act is to ensure that people cannot avoid the deprivation provisions, and thereby continue to receive publicly funded benefits, by transferring or gifting their assets to family or friends.

105 The Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 2) 1992 by which s 11(10A) and s 1125A of the Act were introduced reads in part as follows:

“Income/assets test

Currently, it might be argued that the deprivation provisions apply only to persons receiving a prescribed pension. The principal Act will be amended to remove any doubt that a claimant for pension or allowance who disposes of income or assets in the previous five years is caught by the deprivation rules.”

106 The fact that Mr Anstis made his disposition, as he contends, without the prior agreement of his wife, and that he and his wife receive different forms of social security benefit, makes no difference, in my view, to the appropriate disposition of these proceedings.

107 As noted earlier, the respondent conceded before the AAT a degree of inelegance in the “grammar” and “layout” of s 1125A. That concession was properly made. It was, if anything, understated. Nonetheless, the word “payable” in s 1125A, even when used in conjunction with the word “whether”, necessarily, albeit implicitly, assumes a capacity to calculate a rate of entitlement. This interpretation seems to me to accord with the requirement that a purposive construction be given to a provision of this nature. It also seems to me to accord with the intent of the legislature as manifested in the extrinsic material to which I have referred.

108 To construe the Act in the manner for which Mr Anstis contends would produce some peculiar results. A statutory regime which sets out in extraordinarily comprehensive detail the method by which various entitlements are to be calculated, and the adjustments which are to be made to those entitlements by reason of income derived, both actual and deemed, would not operate in relation to s 1125A merely because that section deals with disposal of assets in pre-pension years. The sections which surround s 1125A, namely ss 1125 and 1126, deal with disposal of assets in pension years. There is no doubt that the calculation regime contained in the earlier part of the Act applies to those sections. Why, it might be asked, should that regime not apply to s 1125A?

109 There is nothing which I have seen which suggests that the legislature intended to bring about the result for which Mr Anstis contends. The distinction between pre-pension years and pension years which is embodied in ss 1125A and 1126, provides no reason why s 1125A alone should be construed as an “all or nothing” provision, while s 1126 should be construed as incorporating the elaborate calculation methods comprehensively set out in Div 1B of Pt 3.10 of the Act.

110 I see nothing in Re De Ryk (supra) which supports Mr Anstis’ contention that s 1125A does not permit Centrelink to do any more than determine whether a pension, benefit, payment or allowance is payable, and not the rate at which it is to be calculated. The amount of the allowance payable to Mr Anstis must be determined by reference to the general provisions of the Act. These include the assets test set out in the deemed income provisions of Div 1B of Pt 3.10, as well as the ordinary income provisions in Div 1 of Pt 3.10.

111 It may be that the method of calculating the deemed income from assets disposed of in a pre-pension year (pursuant to s 1125A and s 11(10A)) produces an amount which is at variance with the amount arrived at pursuant to s 1126. It does not follow that s 1125A operates to impose a threshold test of eligibility only, beyond which no adjustments are made for deemed income arising from assets disposed of in a pre-pension year.

112 The SSAT concluded that Mr Anstis’ interpretation of Note 4 would make the introduction of s 1125A meaningless. It concluded also that the correct reading of Note 4 to s 1125A was as a protection against that section applying retrospectively. The SSAT observed:

As a consequence Note 4 clarifies the interpretation of the phrase “for the purposes of determining whether a pension, benefit, payment or allowance is payable to the person” in s 1125A. For if the Tribunal’s interpretation is given to Note 4 then the Note implies that the rate of payment for the person who has disposed of assets in the pre-pension year can be calculated using the value of the deemed assets in s 1125A.”

113 The AAT adopted this reasoning. I can discern no error of law in its having done so. In my view, the meaning of the word “payable” within s 1125A must include that which can be paid, and this necessarily involves calculating the rate of allowance.

Mrs Anstis’ claim to Parenting Allowance

114 I have concluded that Mr Anstis’ submissions regarding the construction of s 1125A, and the manner in which that section might, if applicable, affect his wife’s entitlement to Parenting Allowance, should be accepted. The expression “payable to the person” in s 1125A(1) should be confined “to the person who has disposed of an asset” as set out in s 1125A(1)(a). It does not apply to the person who is claiming the pension, benefit, payment or allowance.

115 Mr Anstis relies essentially upon the maxim expressio unius est exclusio alterius, but more particularly upon a closely allied rule of construction.

116 In DC Pearce and RS Geddes Statutory Interpretation in Australia 4^th ed (1996) the learned authors state in par [4.4]:

“… the view is taken that where a word is used consistently in legislation it should be given the same meaning consistently. Secondly, it is held that where a legislature could have used the same word but chose to use a different word, the intention was to change the meaning. The first part of this approach is well stated in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 by Hodges J at 452:

“I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”

See also Registrar of Titles (WA) v Franzon (1976) 50 ALJR 4 at 6 per Mason J. Similar views were expressed in R v Central Cane Prices Board; Ex parte Colonial Sugar Refining Co Ltd [1917] St R Qd 1 but in that case the Queensland Full Court held that the legislature had deliberately used a word in two different senses.”

117 These principles must, of course, be understood in the light of s 15AC of the Acts Interpretation Act. That section provides:

“15AC Where:

(a) an Act has expressed an idea in a particular form of words; and

(b) a later Act appears to have expressed the same idea in a different form of words for the purpose of using a clearer style;

the ideas shall not be taken to be different merely because different forms of words were used.”

118 It might be said that the introduction into the Act of s 1125A by way of amendment, some years after s 1126 had been enacted, using different terminology to express what seems to be “the same idea in a different form of words for the purpose of using a clearer style” suggests that the canon of construction relied upon by Mr Anstis should not be followed in this case.

119 It might also be said that the structure and text of the Act, when read as a whole, coupled with the clearest possible manifestation of legislative intent to treat members of couples as single economic units throughout, vies with the “fundamental rule of construction” referred to by Hodges J (supra), and that a purposive construction should prevail.

120 The word “person” in the context of the expression “payable to the person” in s 1125A(1) may theoretically be broad enough to encompass a person who claims a pension, benefit, payment or allowance. Such an interpretation would produce a result which accords with the objects of the legislation. At the end of the day, however, I am not persuaded that I should give to the word “person” in s 1125A an interpretation which is so much at odds with the ordinary and natural meaning of the word in the context of the section in which it appears. To accept the respondent’s submission regarding this aspect of Mrs Anstis’ claim would be to do serious violence to the language which the legislature has adopted when seeking to express its intent in s 1125A. The fact that there may be words which are necessarily implicit when dealing with the word “payable” in s 1125A does not mean that there are other words necessarily implicit when dealing with the word “person” in that same section.

121 In Byrnes v The Queen [1999] HCA 38 Kirby J remarked at par 80:

“… subjective intentions, even those that may reasonably be imputed to the makers of legislation, are irrelevant. The purposes of a legislature must be ascertained from the language of the legislation which it enacts. This is a cardinal rule. There are strict limits on the extent to which courts can fill gaps in legislation where they come to light … These considerations reveal, once again, why it is incorrect, and potentially misleading, to talk of the “intention” of Parliament …the focus must be upon the meaning and effect of the legislation appearing from its words.”

122 Any aspiration which the legislature had to ensure that s 1125A of the Act treated assets disposed of by a person’s partner as part of the assets of both parties for the purpose of assessing all pension entitlements, whether Newstart or Parenting Allowance, has, in my opinion, not been met by the wording of that section.

123 Even though I am of the view that the AAT erred in relation to Mrs Anstis’ claim to Parenting Allowance when applying s 1125A of the Act as contended for by Mr Anstis, I am still of the view that the appeal in relation to that claim should be dismissed.

124 In my opinion, the disposal of the asset which took place on 22 December 1997 occurred “during a pension year” of Mr Anstis within the meaning of that expression in s 1126(1)(a)(i) of the Act. Sub-section 11(10) of the Act which, inter alia, defines the expression “a pension year” for the purposes of s 1126 clearly gives an extended meaning to that expression. That extended meaning encompasses the period of twelve months prior to the date upon which one or more of ss 11(10)(d), (e) or (f) became operative. It also extends the concept of a pension year to the period of twelve months after that designated period of twelve months beginning on the day referred to in the particular sub-paragraph to which it is relevantly limited.

125 In other words, it seems to me that s 11(10), upon its proper construction, expands the meaning of “pension year” for the purposes of s 1126. That expanded meaning may well cover a period spanning some thirty-six months, twelve months prior to the date in question (in Mr Anstis’ case twelve months prior to the date on which the pension benefit or payment first became payable to him ie 2 January 1998), the period of twelve months from that date which is the “pension year” identified in s 11(10), and the following period of twelve months from that date. It is not, of course, necessary for me finally to determine whether the reference to “each following period of 12 months” is to be so construed. However, it seems to me that this is at least one possible interpretation of the subsection.

126 Once it is clear that s 1126(1), rather than s 1125A, applies then “for the purposes of this Act” there is to be included in the value of Mr Anstis’ assets for the period of five years that starts on the day on which the disposition takes place the amount specified in s 1126(1)(c) and also to be included in the value of the assets of Mrs Anstis, “the person’s partner”, for the same period an amount calculated upon the same basis. I specifically reject each of the written submissions advanced by Mr Anstis, after the conclusion of oral argument, as to why s 1126 should not be so construed.

127 I believe that there is substance in the criticism levelled at the decision of the AAT in Re De Ryk (supra) by the author of Annotations to the Social Security Act 1991 4^th ed (1998) Mr Peter Sutherland. With Mr Allan Anforth, Mr Sutherland contends that the reasoning of the AAT in this regard was at odds with the express wording of s 11(10) of the Act. The learned author comments that in Re De Ryk the AAT made no reference to the effect of the words of extension which had been in s 11(10) of the Act from the date of its enactment, in 1991. It seems to me that he is correct in that observation.

128 I am conscious of the fact that this construction of s 1126 results in there being at least some overlap between the operation of s 1126 and s 1125A of the Act. On one view, it may even make the introduction of s 1125A into the Act otiose. That is regrettable. However, if such an interpretation provides the only way in which these provisions may sensibly be read, then that interpretation must prevail.

129 It may be that s 1125A was intended to do no more than clarify, and confirm, the intent of the legislature that pre-pension year dispositions of assets should be taken into account for the purposes of deeming income provided they occurred within twelve months of the date upon which entitlements commenced to be received. What seems not to have been anticipated by the legislature was that the AAT in Re De Ryk would limit the operation of s 1126 to those who dispose of assets while they are in receipt of a pension, benefit or allowance, and would utilise s 1125A to cover the period of twelve months immediately preceding that period.

130 In Re De Ryk the disposition in question occurred more than twelve months prior to the date upon which the relevant entitlements were received. Section 1126 could not therefore be invoked to permit the asset disposed of to be maintained for the purpose of calculating the relevant payment. That is not the case with Mr Anstis’ disposal of the asset in question in the present proceeding. That disposal took place on 22 December 1997, only a week or so prior to commencing to receive benefits. The asset disposed of should, in my view, be regarded as a source of deemed income both in relation to Mr Anstis’ claim for Newstart Allowance, and Mrs Anstis’ claim for Parenting Allowance which arises directly out of Mr Anstis’ claim.

131 I would for the reasons set out above reject each of the applicants’ contentions, and dismiss each applicant’s appeal.

132 Had the respondent raised the s 1126 argument at an earlier stage in the proceeding it might have resolved the matter in the AAT and might therefore have obviated the need for the present application to be brought. The applicants would have been able to give proper consideration as to whether or not to pursue their claims, rather than having this argument belatedly thrust upon them.

133 My view is that the respondent’s belated reliance upon the s 1126 argument, coupled with Mr Anstis’ partial, albeit Pyrrhic, victory in relation to his argument concerning his wife’s claim to Parenting Allowance under s 1125A (had that been the relevant provision which governed their situation) makes it inappropriate to order that the applicants pay the respondent’s costs. In my view there should be no order as to costs.

I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:

Counsel for the Applicants:	The first applicant appeared in person.

Counsel for the Respondent:	Mr P Gray

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	15 March 1999

Date of Judgment:	27 August 1999

Top