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Social Security Reporter |
Disability support pension: New Zealand citizen; residency requirements; international agreement
(2012/0347)
Decided: 14th June 2012 by K. S. Levy
Mahrous was born in Egypt on 27 March 1995. The family emigrated from Egypt to New Zealand in 1998 and became New Zealand citizens. They then moved to Australia on 6 November 2003. Mahrous suffered from a number of significant disabilities. His parents applied for disability support pension (DSP) for him on 2 March 2011. Centrelink decided that he did not meet the residency requirements and so his application was rejected on 29 April 2011. The original decision was affirmed by an Authorised Review Officer (ARO) on 10 October 2011 and on 29 November 2011 the Social Security Appeals Tribunal (SSAT) affirmed the original decision.
The issue for determination was whether Mahrous was residentially qualified for DSP.
Qualification for DSP is provided for in s. 94 of the Social Security Act 1991 (Cth) (‘the Act’). The Secretary conceded that Mahrous was severely disabled and would satisfy all the requirements of s.94 except the ‘residency’ requirements in s.94(1)(e).
Section 94(1)(e) requires that an applicant is either:
(i) an Australian resident when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residency or has a qualifying residence exemption for 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...
Where s.94(1)(e)(ii) is relied upon then the Social Security (International Agreements) Act 1999 (Cth) (‘the International Agreements Act’) is also relevant.
Schedule 3 of the International Agreements Act is an International Convention between Australia and New Zealand for Social Security matters (the Agreement). Clause 2 of Article 2 in the Agreement limits cases where a New Zealand citizen can be eligible for an Australian DSP to cases where the person is severely disabled; was a resident of Australia or New Zealand at the date of severe disablement and prior to the date of severe disablement was residing in New Zealand for a period of not less than one year.
Article 12 of the Agreement provides:
1. Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:
(a) a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the social security law of Australia for a benefit;
(b) a period of working age residence in Australia equal to or greater than the period identified in accordance with paragraph 3; and
(c) a period of working age residence in New Zealand.
then:
That period of working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident only for the purposes of meeting any minimum qualifying periods for that benefit set out in the social security law of Australia.
2. Where a person’s period of working age residence in Australia and a period of working age residence in New Zealand coincide, the period of coincidence shall be taken into account once only by Australia for the purposes of this Article as a period as an Australian resident.
3. The minimum period of working age residence in Australia to be taken into account for the purposes of subparagraph 1(b) shall be 12 months, of which at least 6 months must be continuous.
4. No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/ or New Zealand ...
Mahrous’s father gave evidence to the Tribunal that Mahrous was born a healthy baby. The family passed the relevant medical tests to be granted visas to move to New Zealand. About a year after they arrived in New Zealand Mahrous began having epileptic seizures and he may have suffered brain damage as a result of that epilepsy. The Tribunal was told Mahrous had a confirmed intellectual impairment but its cause was not known.
The Tribunal considered whether Mahrous satisfied the residency requirements of s.94(1)(e)(ii) of the Act.
The Secretary submitted that he did not have 10 years qualifying residence and would not accrue that until 6 November 2013. The Secretary conceded that Mahrous met Article 2 of the Agreement but argued that he could not meet Article 12. The Secretary argued that the term ‘10 years qualifying Australian residence’ in s.94(1)(e)(ii) of the Act must be read strictly in accordance with he definition of that term in s.7(5) of the Act which requires an applicant to be an ‘Australian resident’ for 10 years continuously.
The Tribunal did not accept this interpretation.
The Tribunal noted that s.94(1)(e)(ii) and s.7(5) of the Act were enacted in 1991 prior to the International Agreements Act. Where there is inconsistency the ordinary rule is that a later Act overrides an earlier Act. The Tribunal concluded that the provisions of the Act apply strictly where there is no specific international agreement which has been given statutory force in Australian law. But the relative priority to be given to the two statutes, in cases of ambiguity and where an international convention or agreement is involved, must be treated in accordance with case law developed by the High Court of Australia over many years.
The Tribunal set out the relevant principle from the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (Teoh). Where there is an ambiguity between two statutes courts should tend towards a construction which is consistent with Australia’s obligations under an international convention or agreement.
The Tribunal then set out the principles to determine the correct interpretation of the interaction between s.94(1)(e)(ii) of the Act and Article 12, clause 4 of the International Agreements Act. These were:
• ratification of international agreements or treaties by the Executive Government does not give it any standing in Australia’s domestic law, unless it is also covered by separate legislation properly enacted and proclaimed (Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 305).
• where legislation is enacted but is ambiguous, then it should be given a construction which is consistent with Australia’s commitment to international agreements, either where the agreements were ratified before the legislation was enacted or where the legislation precedes the anticipated ratification of such an agreement (Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68-69; Teoh at 287; Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 71).
As the International Agreements Act gave legislative effect in Australia to an international treaty then the Social Security Act 1991 must be read subject to it. The Secretary argued that Article 12 clause 4 restricted the application of Article 12 and must be read subject to clauses 1, 2 and 3 of Article 12. Clause 4 could not apply to Mahrous as he was 16 years of age and below the age of 20 when according to the definition he could begin to accrue ‘working age residence’.
The Tribunal accepted that clauses 1 to 3 of Article 12 could operate as a restriction to clause 4 but did not accept that clause 4 could not apply to Mahrous because of his age. The Tribunal reached this conclusion for two reasons: first, it considered the heading of Article 12 - ‘Totalisation for Australia’ and stated that is the subject matter which is the purpose of Article 12. Clauses 1–3 provided a specific formula for calculating working age residence if relevant but here it was not relevant due to Mahrous’s age; secondly, DSP in clause 4 and age pension in clause 5 are given special treatment and are subject to specific restrictions. Those restrictions do not include any reference to ‘working age residence’.
The Tribunal then set out the proper approach to be taken to interpretation when there are apparent inconsistencies within an Act. All words of a statute must prima facie be regarded as having some meaning and effect. However, where it is not possible to give meaning to every word, a conclusion which ‘provides the greatest harmony and the least inconsistency’ should be adopted (Australian Alliance Association Co Ltd v Attorney-General (Qld) and Goodwyn [1916] St R Qd 135 at 161; T v T [2008] FamCAFC 4; (2008) 216 FLR 365 at 394). Where it is difficult to give meaning to all words, then a meaning which produces a more reasonable result should be sought (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 321; Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565 at 574).
Applying these principles the Tribunal considered the proper interpretation to give to clause 4 of Article 12. It said that to read clause 4 subject to clauses 1 to 3 when those clauses can have no application to Mahrous, would be tantamount to inferring conditions which are not specified in the statute. It would require an inference that would lead to an unreasonable result. In the case of minors, it would require an inference that Parliament intended that clause 4 of Article 12 would have no effect in some circumstances and in the Tribunal's view that result would be absurd.
The Tribunal found that clause 4 should not be read subject to clauses 1 to 3 in Mahrous’s case. As he had been a resident of either country continuously since 1998 he satisfied clause 4 and so satisfied s.94(1)(e)(ii) of the Act.
The decision was set aside and the Tribunal decided that Mahrous satisfied the residence requirements of s.94(1)(e) (ii) of the Act. [C.E.]
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URL: http://www.austlii.edu.au/au/journals/SocSecRpr/2012/25.html