FEDERAL COURT OF AUSTRALIA

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

1    The respondent to the appeal is the father of a minor, Andro Mahrous (Andro). Andro was born in Egypt on 27 March 1995. His father, who is his legal representative in this proceeding, Mr Raif Mahrous, and his wife, immigrated from Egypt to New Zealand with Andro in 1998. Andro was then about three years old. The family, including Andro, later became New Zealand citizens. After this, on 6 November 2003, the family moved to Australia from New Zealand.

2    While Andro was still a New Zealand resident, about a year after he had arrived in that country, he became unwell. He was then about four years of age. He started to have epileptic seizures. Andro remains significantly disabled. On 2 March 2011, Andro’s parents lodged with Centrelink a claim for the payment to him of a disability support pension pursuant to the Social Security Act 1991 (Cth) (Social Security Act). The following month a delegate of the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs, the present applicant, rejected that claim.

3    Andro’s parents then sought the review of that decision by an authorised review officer within Centrelink. That officer also decided to affirm the decision to reject the claim. Thereafter Andro’s parents sought the review of the original decision, as so affirmed, by the Social Security Appeals Tribunal. On 29 November 2011, the Social Security Appeals Tribunal decided to affirm the decision under review. As was his right under the Social Security Act, Andro by his father sought the review of the decision as so affirmed by the Administrative Appeals Tribunal (tribunal).

4    On 14 June 2012, the tribunal (Senior Member Dr KS Levy RFD) decided, materially that:

(a)    Andro satisfied the residence requirements of s 94(1)(e)(ii) of the Social Security Act; and

(b)    the decision under review should be set aside.

5    The tribunal’s decision had the consequence of binding the Secretary to uphold the claim for disability support pension. The Secretary has in turn appealed to this Court on questions of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (Administrative Appeals Tribunal Act). I was informed that the questions as to the construction of s 94 of the Social Security Act when read with the Society Security (International Agreements) Act 1999 (Cth) (International Agreements Act) were ones which had a general importance for the purposes of the administration of those two Commonwealth enactments.

6    Given that systemic importance and the relative resources available to each of the parties, the Secretary adopted the very commendable course of ensuring that Andro, by his legal representative, had access to counsel and solicitors. That course was beneficial, not merely to the Mahrous family but also to the Court in terms of having the benefit of submissions from a legally represented contradictor. It has certainly assisted me in being able promptly to give judgment in this case that this course was adopted.

7    The questions of law identified by the Secretary in the notice of appeal are these:

(a)    whether the tribunal misinterpreted the phrase “10 years qualifying Australian residence” in s 94(1)(e)(ii) of the Social Security Act; and

(b)    whether the tribunal misinterpreted the effect of Art 12 of Sch 3 of the International Agreements Act?

8    There is no dispute that the notice of appeal does indeed raise questions of law. The presence of a question of law goes to the existence of the jurisdiction conferred on the Court by s 44 of the Administrative Appeals Tribunal Act. As stated in the notice of appeal the questions are posed at a level of generality which, with all due respect to their author, are apt to conceal more than they reveal as to what is truly controversial in the appeal.

9    Greater precision is offered in the grounds specified in the notice of appeal. It is not necessary in the circumstances of this case to engage in any elaborate consideration as to whether the particularity found in the grounds ought to have manifested itself in the questions of law. Instead, it is desirable promptly to move to what is the central controversy. That is to be found in grounds 2.5 and 2.6 and 2.7 of the notice of appeal, which state:

2.5    The tribunal erred by holding that clause 4 of article 12 should not be read subject to clauses 1 to 3 of article 12.

2.6    The tribunal erred by holding that clause 4 of article 12 alone affects the operation of sections 7(5) or 94(1)(e)(ii) of the Social Security Act.

2.7    The tribunal erred by concluding that clause 4 of article 12 operates so that the respondent, [that is Andro,] satisfies section 94(1)(e)(ii) of the Social Security Act based on him having been a resident of either Australia or New Zealand continuously since 1998.

10    To understand further the nature of the controversy it is necessary to set out a number of provisions from both the Social Security Act and the International Agreements Act including, in respect of the latter, provisions in the agreement between Australia and New Zealand (international agreement) found in Sch 3 to the International Agreements Act.

11    Within the Social Security Act:

    s 7(5) provides:

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.

[emphasis in original]

    Section 94(1) provides:

Qualification for disability support pension

(1)    A person is qualified for disability support pension if:

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

(b)    the person's impairment is of 20 points or more under the Impairment Tables; and

(c)    one of the following applies:

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

(ii)    the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)    the person has turned 16; and

(da)    in a case where the following apply:

(i)    the person is under 35 years of age;

(ii)    the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person's locally accessible labour market;

(iii)    if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;

he person meets any participation requirements that apply to the person under section 94A; 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; and

(ea)    one of the following applies:

(i)    the person is an Australian resident;

(ia)    the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

(ii)    the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

Note 1:    For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2:    For Impairment Tables see subsection 23(1) and sections 26 and 27.

12    Within the International Agreements Act:

    s 3 provides:

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.

[emphasis in original]

    Section 4 provides:

Social security law

This Act forms part of the social security law.

[emphasis in original]

    Section 6 provides:

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.

(3)    If:

(a)    immediately before he or she reaches pension age, a person is receiving a social security payment (other than age pension) solely because of the operation of a scheduled international social security agreement; and

(b)    on reaching pension age, the person becomes qualified for age pension because of the operation of paragraph 43(1)(c) of the Social Security Act 1991;

the age pension is taken to be payable to the person under the agreement referred to in paragraph (a).

[emphasis in original]

    Schedule 3, Pt A provides:

within part 1, article 1, the definitions of:

“Australian resident” has the meaning given to it under Article 5;

“benefit”, in relation to a Party, means the benefits as listed and defined in Article 2 and unless otherwise stated includes any amount, increase or supplement that is payable in addition to that benefit or in respect of a person who is eligible for that amount, increase or supplement under the social security law of that Party;

“New Zealand resident” has the meaning given to it under Article 5;

“social security law”, in relation to a Party, means the laws of that Party specified in Article 2;

    Article 2 provides:

Legislative Scope

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; and

(b)    in relation to New Zealand: the Social Security Act 1964 and the Social Welfare (Transitional Provisions) Act 1990 in so far as they provide for, apply to or affect the following benefits:

(i)    New Zealand superannuation;

(ii)    veteran's pension; and

(iii)    invalid's benefit.

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.

[emphasis in original]

    Article 5 provides:

Residence Definitions

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;

and “residence in Australia” has a corresponding meaning.

2.    “New Zealand resident” means, in relation to New Zealand, a person who has or had New Zealand as their principal place of residence except where that person was unlawfully resident or present in New Zealand or lawfully resident or present in New Zealand only by virtue of:

(a)    a visitor's permit;

(b)    a temporary work permit; or

(c)    a permit to be in New Zealand for the purposes of study at a New Zealand school or university or other tertiary educational establishment;

and “residence in New Zealand” has a corresponding meaning.

3.    “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.

4.    “third country residence” means a period of residence when a person was not either an Australian resident or a New Zealand resident.

5.    “working age residence” in relation to a person 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.

    Article 12 provides:

Totalisation for Australia

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.    he 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.

13    The tribunal remarked of Andro, at para 22, that:

He is severely disabled and his parents are concerned as to how he will be looked after when he completes school this year. He is a big young man and the parents’ concerns are genuine.

14    It is not for me in an appeal of this nature to question that finding of fact made by the tribunal. The Secretary makes no attempt to do so. It is though a necessary discipline in respect of a case touching on whether or not there is eligibility to the payment of a benefit out of the consolidated revenue of the Commonwealth to decide the case according to the true construction of the governing legislation, rather than by reference to humane considerations. Either the legislation provides for the payment of a benefit against particular facts or it does not. To the extent that properly construed it does not in circumstances which may to some seem inhumane, any remedying of that deficiency is a matter for the value judgment of Parliament, not for the Court.

15    The tribunal further observed at para 23:

It is apparent that Andro Mahrous was not an Australian resident when he first satisfied section 94(1)(c) of the Act. He, therefore, does not satisfy section 94(1)(e)(i) of the Act. On the facts presented he also does not satisfy section 94(1)(e)(iii) of the Act.

16    Counsel who appeared for the parties in the appeal did not appear below. That said, it seems, having regard to the tribunal’s reasons, that no particular controversy attended a conclusion that Andro did not satisfy either s 94(1)(e)(i) or s 94(1)(e)(iii) of the Social Security Act. The tribunal’s reference to these particular provisions seems to me to manifest a necessary attention by the tribunal to criteria that might alternatively have provided a basis for eligibility but not an attention beyond that which the parties themselves chose to press. By that I mean there is nothing about the way in which the tribunal’s reasons are cast which suggests that there was any particular endeavour on the part of the applicant before the tribunal or for that matter the Secretary to raise a controversy about Andro’s satisfying or not satisfying s 94(1)(e)(i) or s 94(1)(e)(iii) of the Social Security Act.

17    An administrative tribunal must, of course, address the criteria for eligibility in respect of the decision under review but that does not mean that a party is not to be regarded as bound, where such criteria are addressed, by the way in which the party has chosen to conduct the case. In other words, if it is promoted to the tribunal that the issue between the parties is a particular question arising in respect of the statute governing the decision under review, and that other matters are either common ground or need not be considered, the tribunal is entitled to act on the basis that those other particular criteria are regarded as either satisfied or, as the case may be, not satisfied.

18    In this case that appears to have had the consequence of focusing attention both in fact and in law on the question as to whether, when read with the International Agreements Act, Andro met the criterion specified in s 94(1)(e)(ii) of the Social Security Act. The question is not so much one of the construction of that provision but rather the construction of the International Agreements Act as it incorporates the international agreement.

19    As to the construction of the international agreement, the tribunal, at paras 29 and 30, proceeded on the basis that assistance was to be gained from the decision of the High Court in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 (Teoh). Teoh has subsequently proved controversial but, that aside, the proposition for which the tribunal has cited it at para 29, namely, that where there is an ambiguity in an Australian statute, courts should tend towards a construction which is consistent with Australia’s obligations under an international convention or agreement, is not one which is relevant in this case. That is because this is not a case which involves a controversy as to whether an Australian statute should be construed by reference to an international treaty obligation to which Australia is a party but which treaty has not been incorporated into Australian domestic law.

20    Here, the international agreement in question has been incorporated into Australian domestic law via the International Agreements Act. In these circumstances, the principles to be followed are not those set out in Teoh but rather principles which are helpfully collected by Dowsett J in Russell v The Commissioner of Taxation (2011) 190 FCR 449 (Russell) at paras 25 to 30. His Honour there makes reference to some recent decisions of the High Court of Australia; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 (QAAH), and NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 (NBGM), each of which touch upon the construction of Australian legislation giving effect to international obligations, including treaties.

21    In QAAH at para 34, Gummow ACJ and Callinan, Heydon, and Crennan JJ stated, as Dowsett J notes at para 26 in Russell, after discussing various aids to interpretation of such legislation:

The relevant law of Australia is to be found in the Act and in the Regulations under it. It is Australian principles of statutory interpretation which must be applied to the Act and the Regulations.

22    In NBGM, Callinan, Heydon, and Crennan JJ, with whom Gummow ACJ agreed, observed at para 61:

It is appropriate to point out at this stage that to approach the matter in that way –

[I interpolate, ie the way in which the judge of this Court in the decision under appeal had approached the matter]

…was to invert the steps which an Australian court should take in situations in which international instruments have been referred to in, or adopted wholly, or in part by enactments. The first step is to ascertain with precision what the Australian law is. That is to say, what and how much of this international instrument Australian law requires to be implemented, a process which will involve the ascertainment of the extent to which Australian law, by constitutionally valid enactment adopts, qualifies, or modifies the instrument. The subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires. The first step is not, contrary to his Honour’s express holding, to derive an understanding of the proper interpretation and operation of the Convention.

23    Here, the International Agreements Act gives an overriding effect to the scheduled international social security agreements, including that with New Zealand, so far as what is termed “social security law” is concerned. That overriding effect is subject, in respect of the age pension, to a qualification found in s 6(3) which is not presently material. Social security law is, in effect, a reference to the International Agreements Act, the Social Security Act and any other Act that is expressed to form part of a social security law, see ss 3(2), 3(3) and 4 of the International Agreements Act.

24    Whilst I respectfully differ from the tribunal, for the reasons just given, as to the approach to be taken to construction, it does not necessarily follow from this that the tribunal’s decision, and the construction it came to adopt, is in error. The tribunal stated, at para 34, and by reference to a submission which the Secretary had made:

I accept that clauses 1 to 3 of article 12 can operate as restriction in clause 4. However, to argue it is not applicable to Mr Mahrous because he is 16 years old seem to me to unsustainable for a number of reasons. Firstly, the heading of article 12 is “Totalisation in Australia”. That is the subject matter which is the purpose of article 12 (working age residence) is merely one issue which provides a specific formula for calculating working age residence if relevant. Here it is not relevant to the applicant, Mr Mahrous. Secondly, clause 4, dealing with DSP – Disability Support Pension, and clause 5, Age Pension, are given special treatment and special restrictions also, but those restrictions do not include any reference to “working age residence”.

25    Later, at para 37, the tribunal concluded that cl 4 of Art 12 empowered:

The interpretation in the applicant’s special circumstances such that clause 4 should not be read subject to clauses 1 to 3 of that article, that is, he must be regard as having more than 10 years residence in Australia and/or New Zealand as he has been a resident of either country continuously since 1998, therefore he satisfies clause 4, consequently he satisfies section 94(1)(e)(2) of the Act.

26    There was some common ground between the parties as to the construction of Art 12 para 4 of the international agreement. It was common ground that the effect of the paragraph, arising in particular from the use of the word “aggregate” and the perhaps unfortunate abbreviation “and/or”, was such that either 10 years residence in Australia, 10 years residence in New Zealand of an aggregate of more than 10 years derived from a combination of residence in Australia and residence in New Zealand would be sufficient to satisfy the terms of Art 12, para 4, in this common ground they were not mistaken.

27    One finds in the Oxford English Dictionary (online addition) the following entry in respect of the formula “and/or”:

A formula denoting that the items joined by it can be taken either together or as alternatives.

It is in that sense that the formula is used in Art 12 para 4. Andro had, in terms of Art 12 para 4 an aggregate of more than 10 years residence derived from his residence in Australia and New Zealand.

28    The essence of the Secretary’s submission in relation to the construction of Art 12 para 4 was that it was a provision of limitation. It was submitted that it was a provision which limited the class of persons who might rely on the international agreement when claiming a disability support pension to those who had accumulated an aggregate of 10 years of residence in one or the other or both of the two countries. It was submitted that this particular paragraph of Art 12 imposed an additional requirement that claimants who sought to rely upon the international agreement must satisfy.

29    Support for that construction was said to be found in a report of a Joint Parliamentary Standing Committee on Treaties of August 2001 (Report 41, Six Treaties, tabled on 23 May 2001). That Joint Standing Committee’s report had preceded the making and incorporation of the present international agreement found in Sch 3 to the International Agreements Act. At para 3.6 of that report the committee stated:

Representatives of the Department of Family and Community Services advised us that this agreement with New Zealand is the only one of our reciprocal agreements where temporary residents of a country are eligible for some social security benefits. The Department also pointed out that the agreement enables the period of working life residents in either country to be added together to form an eligibility for the pension of one of those countries.

30    It was in the last sentence that some interpretative assistance was said to be found. The difficulty about this, readily acknowledged by counsel who appeared for the Secretary, is that there is nothing in any explanatory notes in respect of a regulation made pursuant to and for the purposes of s 7 of the International Agreements Act which would suggest that the Governor General in Council, in making the relevant regulation, had any regard at all to the report of the Joint Standing Committee. Further and in any event, the committee has, doubtless in good faith, been offered by an officer of the Department an overview of a provision but hardly, as the report extract cited indicates, a critique in detail.

31    I do not consider that I am entitled to have regard to the committee’s report under s 15AB of the Acts Interpretation Act 1901 (Cth) because there is nothing, as I have said, to suggest that it was utilised in the making of the regulation. Even if that be wrong, I derive no assistance from it.

32    So far as the international agreement is concerned, it forms a schedule to an Australian Act. That means, so far as the approach to construction is concerned, that the primary object should be to construe all of the provisions in a way which is consistent with the language and purpose of all of the provisions in the statute: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at para 69.

33    Allowance must be made, in terms of the language of the international agreement, for the fact that it is an agreement negotiated between nation states by diplomatic representatives. It has not been drafted by parliamentary counsel. There are many indications in the international agreement that its drafting has this feature. In Art 12, para 4 itself reference is made to an entitlement to claim a Disability Support Pension, “under this agreement,”. The claim though for such a pension is one made under the Social Security Act not the International Agreements Act or, for that matter, the international agreement. What the author presumably meant was a claim under whatever was the social security law of Australia governing Disability Support Pensions.

34    The terms of the recital found in Pt A of the international agreement are not to be ignored. An end to which that agreement, as incorporated into Australian law, is directed is the coordination of the two countries’ social security systems and an enhanced and equitable access by people covered by the agreement to specified social security benefits provided for by the law of Australia and New Zealand. One sees, so far as Australia is concerned, that those specified benefits are the Age Pension, the Disability Support Pension and Carer Payment in respect of the partner of a person who is in a receipt of a Disability Support Pension: see Art 2, para 1(a).

35    Recalling the recital and the “legislative scope” of the agreement is of assistance in the construction of Art 12. That is because Art 12, para 1, is directed to an “Australian benefit,” not to one type of benefit alone. That is in contrast to Art 12, para 4 and para 5, which are specifically directed to Disability Support Pension and Age Pension respectively. Further, the language of Art 12, para 2 and para 3, is such that, either by necessary implication from the language employed (Art 12, para 2) or expressly (Art 12, para 3) they qualify Art 12, para 1. That is not so in respect of either Art 12, para 4, or Art 12, para 5. Each, as I have said, is directed to particular types of benefit rather than just to the generic, “Australian benefit”.

36    Yet further and as the tribunal appreciated, Art 12 is directed to the general subject of, “totalisation for Australia,” and forms part of provisions in Pt E of the international agreement expressly relating to Australian benefits. The use of the word “totalisation” is unusual according to Australian idiom. It is not a word in general use, in my experience, but it is not one without meaning. That meaning, as found in the Oxford Dictionary (online edition), is:

…the action or process of totalising or the condition of being totalised, calculation of the total.

As found in the Macquarie Dictionary (Fifth Edition, page 1739), it is a noun which bears a meaning derived from the verb “totalise,” defined there to mean:

…to make total, combine into a total

37    Article 12 to me therefore, when read in the context of the international agreement is an article directed to how, in respect of particular benefits, periods of Australian or New Zealand residence are to be combined “or totalised” or exceptionally, in the case of the Age Pension, how an overriding age qualification is imposed. In other words, when, as the International Agreements Act requires, one reads the terms of that Act, including its incorporated international agreement, with the Social Security Act where there is, in the case of, materially, a Disability Support Pension, a need to look to a period of Australian residence Art 12(4), provides an answer in respect of persons who have both Australian and New Zealand residence.

38    Further, to the extent that the totalised outcome derived from Art 12, para 4, differs from that which is found in s 94(1)(e)(ii) read alone, the totalised figure derived from Art 12, para 4, prevails. That is the effect of s 6 of the International Agreements Act. I do not regard Art 12, para 4, as doing nothing more than providing a limitation as to who may take advantage of the international agreement. What it does is to provide a limitation in respect of totalised residence which then becomes paramount, to the extent of any inconsistency, over s 94(1)(3)(ii) if read alone.

39    What that means in the circumstances of this case, as the tribunal correctly concluded, is that Andro does meet the eligibility criterion when one, as Parliament requires, reads s 94(1)(e)(ii) with the terms of Art 12, para 4, as incorporated by and given paramountcy by s 6 of the International Agreements Act.

40    In these circumstances it is strictly unnecessary to deal with two further, purported alternative submissions by reference to which it was sought to uphold, on behalf of Andro’s legal representative, the tribunal’s decision. I use the adjective “purported” because there has not, in this instance, been either a notice of contention filed and served or, for that matter, insofar as any challenge to a conclusion of fact was concerned, leading to some different decision, a cross-appeal.

41    Here, it was initially sought to support the tribunal’s decision upon an alternative foundation based on Andro’s having a “continuing inability to work,” as at 27 March 2006 when he attained 11 years of age. The submission was that on that date he was an Australian resident and that he therefore, met the residence requirements in s 94(1)(e)(i) of the Act. That was contrary to a finding which the tribunal made in the passage which I have already cited. It was said, nonetheless, to be one which was open. That particular argument would have required a notice of contention. The Secretary highlighted the absence of observation of the requirement in the rules for this but focussed in particular upon possible injustice, were the matter to be determined on that basis, derived from that not having been at issue and therefore, there not having been any detailed addressing of it by evidence before the tribunal.

42    In any event, the Secretary’s submissions made reference to a decision of a Full Court of this Court, Secretary, Department of Family and Community Services v Michael (2001) 67 ALD 321 (Michael). In that case a Full Court had occasion to construe the expression, “first satisfies paragraph (c),” in s 94(1)(e)(i). It was held that that expression referred to the time at which the person first suffered the impairment. Further, the Court in Michael acknowledged that the exercise they described, at para 27, though it would be sometimes difficult to perform, would require in most cases only a determination as to whether or not the impairment, as it was at the relevant time, was present at the time at which the claimant became an Australian resident.

43    It is not necessary in this case in any event to explore further what application, if any, s 94(1)(e)(i) may have had. That is not just because of the conclusion reached as to the true construction of cl 4 of Art 12. It is also because of the way in which the case was conducted before the tribunal. Yet further, it was accepted, on behalf of Andro’s legal representative in the course of argument, that there had been a rejection in Michael’s case of a submission that the claimant there would not have worked or perhaps could not legally have worked until his 16th birthday. In other words, there had been, inferentially, a rejection of the need to consider a period truncated by reference to whether a claimant could legally have worked.

44    The end result is one which is determined not by the purported alternative submissions but rather by a disposal of the questions of law raised by answering them adversely to the Secretary. Those adverse answers are that, upon the true construction of the social security law, in other words, the Social Security Act read with the International Agreements Act and in particular, Art 12, para 4, of Sch 3 to the International Agreements Act and in the circumstances found by the tribunal, Andro met the requirements of s 94(1)(e)(ii) of the Social Security Act. It follows that the appeal must be dismissed.

Associate:

Dated:    15 November 2012