Bakelmun and Secretary, Department of Social Services (Social services second review)
[2015] AATA 969
•16 December 2015
Bakelmun and Secretary, Department of Social Services (Social services second review) [2015] AATA 969 (16 December 2015)
Division: GENERAL DIVISION
File Number: 2015/3051
Re: CYNTHIA BAKELMUN
APPLICANT
And:SECRETARY, DEPARTMENT OF SOCIAL SERVICES
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 16 December 2015
Place Melbourne
The Tribunal decides to:
affirm the decision of the former Social Security Appeals Tribunal dated 5 June 2015 affirming a decision by a delegate of the respondent as reviewed by an Authorised Review Officer refusing the applicant’s claim for an age pension.
……[sgd]……………….
Deputy President
CATCHWORDS – SOCIAL SECURITY – AGE PENSION – ten years qualifying Australian residence – regard cannot be had to period of residence in the United Kingdom as provisions of Australia United Kingdom agreement not applicable – decision affirmed.
LEGISLATION
Acts Interpretation Act 1901: s 15AB
Acts Interpretation Amendment Act 2011: s 3
Family and Community Services (2000 Budget and Related Measures) Act 2000: ss 2(3) and 3
Migration Act 1958: ss 5(1) and 30(1)
Social Security Act 1991: ss 7(1); 7(2A), (2), (2C), (2D), (2E) and (2F); 7(3); 7 (5); 7(6); 23(1); 23(5B), (5C) and (5D); 43; 43(1), (1A) and (3); 55(a);
Social Security (Administration) Act 1999: ss 11(1)(a);
Social Security (International Agreements) Act 1999: ss 3(1) and (3); 6(1), (2) and (3); 12A; Article 26 of Schedule 1CASES
Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1; 237 ALR 482; 154 LGERA 297
Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65; (1998) 196 CLR 161; 158 ALR 1
Maxwell v Murphy [1957] HCA 7; (1967) 96 CLR 261
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75; (2013) 213 FCR 532OTHER MATERIAL
Vienna Convention on the Law of Treaties
REASONS FOR DECISION
On 30 October 2014 when she was 67 years of age, Mrs Bakelmun lodged a claim for an age pension stating that she had resided in Australia since 18 October 2014. She had become an Australian citizen on 27 August 1980 but had resided in Australia on two separate occasions for a total period of approximately five years. The first period began on 1 April 1976 and the second on 29 August 2004. On 22 November 2014, a delegate of the Secretary of the Department of Social Services (Secretary) rejected her claim on the basis that she was not qualified for it as she had not resided in Australia long enough to have ten years qualifying Australian residence. An Authorised Review Officer (ARO) affirmed the delegate’s decision as did the former Social Security Appeals Tribunal (SSAT) in a decision dated 5 June 2015.
Mrs Bakelmun takes the view that the agreement between Australia and the United Kingdom (AUK Agreement) as set out in Schedule1 to the Social Security (International Agreements) Act 1999 (SSIA Act) requires the Secretary to include the period of her residence in the United Kingdom in determining whether or not she has ten years qualifying Australian residence. By the time Mrs Bakelmun attained the pension age of 64 and could lodge a claim, the AUK Agreement had been terminated and s 12A added to the SSIA Act. I have decided that the AUK Agreement preserved certain entitlements but not for a person who had not lodged a claim before it was terminated on 1 March 2001. I have also decided that Mrs Bakelmun could not take advantage of the provisions of the AUK Agreement under s 12A of the SSIA Act. Section 12A only allowed her to have her period of residence in the United Kingdom taken into account under the AUK Agreement if she last became an Australian resident on or before 1 March 2000. At the time she lodged her claim, her last period of residence in Australia had commenced on 29 August 2010 and so well after 1 March 2000. Therefore, I affirmed the decision of the former SSAT that Mrs Bakelmun does not have ten years of qualifying Australian residence and so is not yet entitled to an age pension.
BACKGROUND
The parties agreed, and I find, that Mrs Bakelmun attained the relevant pension age on 29 January 2011. They also agreed about the various places in which she has resided over the years. In light of that agreement, I find that Mrs Bakelmun has resided in the following countries for the following periods:
Country
Period of residence
Note
From
To
1.
Sri Lanka
29 January 1947
31 August 1965
2.
United Kingdom
1 September 1965
31 March 1976
3.
Australia
1 April 1976
19 December 1980
Australian citizen: 27 August 1980
4.
Sri Lanka
20 December 1980
28 August 2010
5.
Australia
29 August 2010
19 March 2011
6.
Australia
18 October 2014
Present
ENTITLEMENT TO AN AGE PENSION
Claim for an age pension
In order to receive an age pension, a person in Mrs Bakelmun’s circumstances must first make a claim in accordance with Division 1 of Part 3 of the Social Security (Administration) Act 1999 (SSA Act).[1] There is no question that Mrs Bakelmun made a claim for an age pension on 18 October 2014. By that time, she had reached the appropriate pension age for her birthdate. That, however, does not qualify her to receive the age pension for she must also have ten years of qualifying Australian residence. Only if she also meets that criterion will she be qualified to receive an age pension.[2] In this section of my reasons, I will set out the qualifications for an age pension and explain how they relate to her circumstances.
[1] SSA Act; s 11(1)(a). An age pension is a “social security pension” and so a “social security payment”: Social Security Act 1991; s 23(1)
[2] Qualification for an age pension and an entitlement to be paid it are two different things. The rate of payment of an age pension to a person who is not blind is determined by reference to the application of the assets and income tests using Pension Rate Calculator A at the end of s 1064: SS Act; s 55(a). If the rate is NIL, age pension is not payable. Payability is not a relevant issue in this case because, for the reasons I give later, I have concluded that Mrs Bakelmun is not qualified to receive it.
Qualifications for an age pension
Section 43 of the Social Security Act 1991 (SS Act) sets out the criteria that a person must satisfy before being qualified to receive an age pension. It provides:
“(1) A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a)the person has 10 years qualifying Australian residence;
(b)the person has a qualifying residence exemption for age pension;
(c)the person was receiving widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d)if the person reached pension age before 20 March 1997 – the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
Note 1:for qualifying Australian residence see section 7.
Note 2:For pension age see subsections 23(5A). (5B), (5C) and (5D).
(1A)A woman is qualified for an age pension if:
(a)the woman has reached pension age; and
(b)the woman’s partner has died; and
(c)both the woman and her partner were Australian residents when her partner died; and
(d)the woman was an Australian resident for a continuous period of at least 104 weeks immediately before the day she lodged the claim for the age pension.
(3)Subsection (1) has effect subject to subsection 6(3) of the Social Security (International Agreements) Act 1999.”[3]
[3] Section 43 does not incorporate subsection (2)
As Mrs Bakelmun was not receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance immediately before reaching pension age and did not reach pension age before 20 March 1997, neither ss 43(1)(c) nor (d) is applicable. Section 43(1A) is not applicable as her partner has not died. I will now elaborate further on ss 43(1)(a) and (b) and (3).
Section 43(1): What is “pension age”?
A woman reaches “pension age” when she meets the age specified as the pension age for her age group. The various age groups and the relevant pension age are specified in ss 23(5B), (5C) and (5D) of the SS Act.[4] Of relevance in this case is Item 8 of s 23(5C), which provides:
[4] Definition of “pension age”: SS Act; s 23(1)
“A woman born within the period specified in column 2 of an item in the following Table reaches pension age when she turns the age specified in column 3 of that item.
Table – Pension age for women
Column 1
Column 2
Column 3
Item no.
Period within which woman was born
(both dates inclusive)Pension age
…
8.
From 1 January 1946 to 30 June 1947
64 years
Section 43(1)(a): What is “qualifying Australian residence”?
The expression “qualifying Australian residence” is used in the criterion specified in s 43(1)(a). It is given its meaning by s 7(5) of the SS Act:[5]
“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.”
[5] SS Act; s 7(1)
A. What is an “Australian resident”?
The expression “Australian resident” is given its meaning by s 7(2) of the SS Act:[6]
[6] SS Act; s 7(1)
“An Australian resident” is a person who:
(a)resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
Note: for ‘holder’ and ‘permanent visa’ see subsection (1).”
As Mrs Bakelmun has been an Australian citizen since 27 August 1980, she meets the requirements of paragraph (b)(i) of the definition. That is enough to satisfy the requirements of paragraph (b) of the definition of “Australian resident”. Therefore, paragraphs (b)(ii) and (iii) of the definition are not relevant.[7] A person does not meet the definition, though, unless also satisfying paragraph (a) and I will turn to that now.
[7] A “permanent visa” has the same meaning as it does in the Migration Act 1958 (Migration Act) (SS Act; s 7(1) i.e. a “A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.”: Migration Act; ss 5(1) and 30(1). A SCV holder and a protected SCV holder is a New Zealand citizen who meets the criteria in ss 7(2A), (2), (2C) and (2D): SS Act; s 7(1).
A.1 When does a person “reside in Australia”?
Section 7(3) of the SS Act provides that:
“In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(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; and
(c)the nature and extent of the person’s employment, business or financial ties with Australia; and
(d)the nature and extent of the person’s assets located in Australia; and
(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.”
Reference is made in both ss 7(2C) and (2D) to a determination under s 7(2E). That subsection provides that a person may apply to the Secretary for a determination under it stating that:
“(a) the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or
(b)the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.”
Once a person has made an application under s 7(2E), s 7(2F) requires the Secretary to make the determination if:
“(a) the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and
(b)the application was made within whichever of the following periods is applicable:
(i)if paragraph (2E)(a) applies to the person – the period of 12 months beginning on 26 February 2001;
(ii)if paragraph (2E)(b) applies to the person – the period of 3 years beginning on 26 February 2001.
The Secretary must give a copy of the determination to the person.”
I am satisfied that Mrs Bakelmun has resided in Australia on three separate occasions as set out in the table at [3] above. On none of those occasions has she done so for a period of five years or more. I am also satisfied that the three separate periods do not add up to a period of ten years or more. Therefore, she does not meet the criteria specified in the definition of “qualifying Australian residence” in s 7(5) of the SS Act and so cannot meet the qualification specified in s 43(1)(a) of the SS Act.
Section 43(1)(b): What is “qualifying residence exemption for age pension”?
The expression “qualifying residence exemption for age pension” is used in the criterion specified in s 43(1)(b). It is given its meaning by s 7(6) of the SS Act:[8]
“A person has a qualifying residence exemption for a social security pension, a social security benefit (other than a special benefit), a mobility allowance, a pensioner education supplement, a seniors health care or a health care card if, and only if, the person:
(a) resides in Australia; and
(b)is either:
(i)a refugee; or
(ii)a former refugee.”
[8] SS Act; s 7(1)
As Mrs Bakelmun is neither a refugee nor a former refugee, she cannot satisfy the requirements of s 7(6)(b) and so cannot take advantage of the qualifying residence exemption for age pension.
Section 43(1) as qualified by s 43(3): Social Security (International Agreements) Act 1999
Section 43(3) provides that s 43(1) has effect subject to the effect of s 6(3) of the Social Security (International Agreements) Act 1999 (SSIA Act). Section 6(3) provides:
“If:
(a)immediately before he or she reaches pension age, a person is receiving a social security payment (other than an 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).”
Section 6(1) of the SSIA Act provides that the provisions of a scheduled international security agreement has effect despite anything in the social security law. That provision, however, “… 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.”[9] The “social security law” is the SS Act, the SSA Act and any other Act expressed to form part of that social security law.[10] The SSIA Act is expressed to form part of the social security law.[11]
[9] SSIA Act; s 6(2)
[10] SSIA Act; s 3(1) providing that, unless a contrary intention is expressed, an expression used in the SS Act has the same meaning when used in the SSIA Act and SSA Act; ss 23(1) and (17).
[11] SSIA Act; s 3(3)
Section 12A of the SSIA Act provides that:
“On and after 1 March 2001, the social security law has effect, in relation to a person who last became an Australian resident on or before 1 March 2000, as if the agreement the text of which is set out in Schedule 1 had not been terminated.”
A.Agreement between Australia and the United Kingdom
A.1 Article 4: Treating a person as an Australian resident
The agreement between Australia and the United Kingdom (AUK Agreement) that is set out in Schedule 1 to the SSIA Act is a “scheduled international social security agreement” as that term is defined in s 5(1) of that legislation. Article 4 concerns age pensions. It provides:
“1. Where a person is qualified to receive an age pension under the legislation of Australia otherwise than by virtue of the provisions of this Agreement, or the former Agreement, that pension shall be payable and the provisions of this Article shall not apply under that legislation.
2. For the purposes of any claim by a person to receive an age pension under the legislation of Australia, that person shall be treated as an Australian resident for any period prior to that person’s last arrival in Australia for which:
(a)that person; or
(b)if that person is a woman who is or has been married, her husband,
paid contributions, or had earnings or contributions credited under the legislation of the United Kingdom.
3. For the purpose of applying paragraph (2), any period during which the person (being a woman) and her husband both paid contributions or had earnings or contributions credited to them shall be counted only once.
4. For the purpose of applying paragraph (2), a period when the person or, if the person is a woman who is or has been married, her husband paid contributions or had earnings or contributions credited, which coincided with a period in which that person was an Australian resident, shall be counted only once.
5. A person who receives from Australia a wife’s pension or a spouse’s carer’s pension by virtue of the fact that the spouse of that person receives an age pension by virtue of this Article, shall, for the purpose of this Agreement, be deemed to receive that pension by virtue of this Agreement.”
Only paragraph 2 of Article 4 could be relevant to Mrs Bakelmun’s circumstances. If it were, she would need to produce evidence that either she or her husband, or both, paid contributions, or had earnings or contributions credited under the legislation of the United Kingdom during all or part of the period they resided in the United Kingdom. Mere residence is not enough to bring a person within that paragraph and so to treat residency in the United Kingdom as residence in Australia. I have not asked her to produce that evidence because, for the reasons that follow, I have concluded that she cannot take advantage of the AUK Agreement at all.
A.2 Termination of AUK Agreement
The issue Article 26 of the agreement contained termination provisions. Paragraph 1 of Article 26 provided that the agreement would remain in force until the expiration of 12 months from the date on which either party to it received from the other notice of its intention to terminate it. Even if the agreement were terminated in the manner set out in paragraph 1, it would:
“… continue to have effect in relation to all persons who by virtue of this Agreement:
(a)at the date of termination, are in receipt of benefits; or
(b)prior to the expiry of the period referred to in that paragraph, have lodged claims for, and would be entitled to receive, benefits.”[12]
[12] Agreement; Article 26; paragraph 2
Australia gave the United Kingdom notice of its intention to terminate the agreement with the effect that the agreement was terminated on 1 March 2001. Section 12A was inserted in the SSIA Act by the Family and Community Services (2000 Budget and Related Measures) Act 2000 (FCS Act) with effect from 1 March 2001.[13] It provides:
“On and after 1 March 2001, the social security law has effect, in relation to a person who last became an Australian resident on or before 1 March 2000, as if the agreement the text of which is set out in Schedule 1 had not been terminated.”
[13] FCS Act; s 3 and Schedule 4, Item 2 and s 2(3) regarding commencement.
B. The submissions
On behalf of the Secretary, Mr De Uray submitted that Mrs Bakelmun did not qualify for an age pension as she did not meet any of the qualifications for an age pension. On behalf of his wife, Mr Bakelmun focused on the application of the SSIA Act. He submitted that s 12A of the SSIA Act should be interpreted in light of the judgment of the Full Court of the Federal Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous[14] (Mahrous). In particular, s 12A should be applied as at the date of the former AUK Agreement rather than at the date of Mrs Bakelmun’s claim. Mr Bakelmun submitted that Mahrous established that:
“∙ Specific provisions of International Agreements override the Social Security Act;
∙The principles that guide the approach to and interpretation of international agreements apply to case such as this;
∙Those principles include articles 31 and 32 of the Vienna Convention;
∙As such an understanding and application of an international agreement must be interpreted in good faith and consistent with the ordinary meaning of the terms in their context and in the light of its object and purpose;
∙Interpretation assistance via extrinsic materials may be adopted;
∙International instruments should be interpreted in a more liberal manner than interpretation by courts of domestic legislation;
∙Consistent with these principles articles within agreements should be construed so far as appropriate in conformity with the preamble (para 63).”[15]
[14] [2013] FCAFC 75; (2013) 213 FCR 532; Kenny, Flick and Kerr JJ
[15] Submissions lodged on 31 August 2015
Mr Bakelmun also submitted that the SSIA Act should be interpreted as beneficial legislation. Where legislation is ambiguous, the interpretation favouring the person to be benefitted should be adopted.
Finally, Mr Bakelmun submitted that Mrs Bakelmun had accrued a positive right or entitlement on the day that the FCS Act amended the SSIA Act.[16] He referred to Chang v Laidley Shire Council[17] (Chang) and Maxwell v Murphy[18] and relied particularly on the reference made by Kirby J in Chang that:
“… what is involved may fall short of an immediately enforceable legal right in the strict sense.”[19]
In his wife’s situation, Mr Bakelmun submitted, she was entitled to a prospective right or entitlement which was not necessarily an immediately enforceable legal right in the strict sense but was, nevertheless, impinged upon by the amendments made by the FCS Act. Given the beneficial nature of the SSIA Act, Mrs Bakelmun retained a prospective entitlement to the age pension on and from 1 March 2001.
[16] See [23] above
[17] [2007] HCA 37; (2007) 234 CLR 1; 237 ALR 482; 154 LGERA 297; Kirby, Hayne, Callinan, Heydon and Crennan JJ
[18] [1957] HCA 7; (1967) 96 CLR 261; Dixon CJ, Williams, Kitto and Taylor JJ; Fullagar J dissenting
[19] [2007] HCA 37; (2007) 234 CLR 1; 237 ALR 482; 154 LGERA 297 at [40]; 15; 492; 310
C. Interpretation of an international agreement
As a general proposition, when interpreting an international instrument:
“… The first step is to ascertain, with precision, what the Australian law is, that is to say what and how much of an international instrument Australian law requires to be implemented, 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 the Australian law requires. …”[20]
[20] NGBM v Minister for Migration and Multicultural Affairs [2006] HCA 54; (2006) 231 CLR 52; 231 ALR 380; 93 ALD 43 at [61]; 71; 395; 58 per Callinan, Heydon and Crennan JJ
In the case of Mahrous, the Full Court of the Federal Court considered the Agreement between Australia and New Zealand that is set out in Schedule 3 to the SSIA Act and its application in relation to an entitlement to a disability support pension. In coming to its decision, the Full Court of the Federal Court referred to Articles 31 and 32 of the Vienna Convention on the Law of Treaties entered into force on 27 January 1980. The effect of those Articles was summarised by McHugh J in Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad:[21]
“… Article 31 provides that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of its object and purpose. Under Art 32, interpretative assistance may be gained from extrinsic sources in order to confirm the meaning resulting from the application of Art 31 or to determine the meaning of the treaty when interpretation according to Art 31 leaves the meaning ‘ambiguous or obscure’ or ‘leads to a result which is manifestly absurd or unreasonable’. Those extrinsic sources include the travaux preparatoires and the circumstances of the conclusion and history of the negotiation of the treaty.
Earlier, in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 255-6, McHugh J referred to the Vienna Convention and continued (omitting citations):
... taking the text as the starting point is consistent with the basic principle of interpretation that courts should focus their attention on the ‘four corners of the actual text’ in discerning the meaning of that text. ...
[T]he mandatory requirement that courts look to the context, object and purpose of treaty provisions as well as the text is consistent with the general principle that international instruments should be interpreted in a more liberal manner than would be adopted if the court was required to construe exclusively domestic legislation.
[I]nternational treaties often fail to exhibit the precision of domestic legislation. This is the sometimes necessary price paid for multinational political comity. ...
The principles set out in the Vienna Convention apply to both multilateral and bilateral treaties: see Russell v Federal Commissioner of Taxation [2011] FCAFC 10; (2011) 190 FCR 449 at 455-456 [26]- [29] (Dowsett J, with whom Edmonds J relevantly agreed); Thiel v Federal Commissioner of Taxation [1990] HCA 37; (1990) 171 CLR 338 at 349 (Dawson J), 356 (McHugh J); Federal Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597 at 604 (Burchett, Hill and Emmett JJ); McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2005] FCAFC 67; (2005) 142 FCR 134 at 143 (Hill, Sundberg and Stone JJ); and R K Gardiner, Treaty Interpretation (Oxford University Press, 2008) p 71.
Accordingly, construction of the relevant provisions of the Agreement commences with the text of the Agreement and considered in its context and “in light of its object and purpose”: see Vienna Convention, article 31(1). The context of the Agreement includes the preamble to the Agreement: article 31(2).”[22]
[21] [1998] HCA 65; (1998) 196 CLR 161; 158 ALR 1; Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
[22] [2013] FCAFC 75; (2013) 213 FCR 532 at [53]-[56]; 545
Articles 31 and 32 of the Vienna Convention are consistent with the relevant provisions of Commonwealth’s Acts Interpretation Act 1901 (AI Act). I make particular reference to ss 15AA and 15AB of the AI Act. Section 15A provides: “In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.” Section 15AB provides for the circumstances in which regard may be had to material not forming part of an Act and sets out examples of the material to which regard may be had. Regard may be had to that material either to confirm that meaning of a provision is the ordinary meaning conveyed by its text taking into account its context in the Act and the purpose or object underlying the Act.[23] It is also permissible to have regard to that material to determine the meaning of a provision when its meaning is ambiguous or obscure or the ordinary meaning of the text, taking into account its context in the Act and the purpose or object underlying the Act, is manifestly absurd or unreasonable.[24]
[23] AI Act; s 15AB(1)(a)
[24] AI Act; s 15AB(1)(b)
D.Relationship between social security law and AUK Agreement
It is clear from the text of the SSIA Act that its purpose, and that of the bilateral agreements set out in its Schedules is to ensure that persons who are in need of benefits and who find themselves in one country rather than another when they need them, are not disadvantaged by having resided in both. In the case of the AUK Agreement, the practical result was that Australia would have regard to residence in the United Kingdom for the purposes of qualification for an age pension under Article 4 and the United Kingdom would have regard under Article 3 to residence in Australia for the purposes of its retirement pensions. The regard in each case was circumscribed by the terms of each Article. Given the termination provisions in Article 26, it is clear that Australia and the United Kingdom did not necessarily intend the arrangements to continue indefinitely.
Sections 6(1) and (2) of the SSIA Act, to which I have referred at [18] above, carry this into effect in so far as the various agreements are concerned. Their effect is that, subject to a qualification, the provisions of any agreement in one of the Schedules to that legislation have effect despite anything in the social security law, which includes the SS Act. The qualification is that the provision under consideration “… is in force and affects the operation of the social security law.” (emphasis added)
E. Period for which AUK Agreement in force and effect
The AUK Agreement was in force until the date of its termination on 1 March 2001. That was a date 12 months after Australia gave notice on 1 March 2000 of its intention to terminate it. It is the date of termination determined by Article 26 of the AUK Agreement itself. Putting aside s 12A for the moment, that meant that, until 1 March 2001, it was in force and affecting the operation of the social security law. That is the effect of ss 6(1) and (2).
Mrs Bakelmun cannot take advantage of the saving provisions in ss 6(1) and (2) for she was neither in receipt of benefits as at 1 March 2001 nor would she have been entitled to a benefit had she lodged a claim, which she did not, before that date.
That brings me to s 12A. Section 12A provides that the social security law applies in relation to a person who last became an Australian resident on or before 1 March 2000 as if the AUK Agreement had not been terminated. It was inserted by the Family and Community Services (2000 Budget and Related Measures) Act 2000 (FACS Act).[25] At first sight, this section might seem to be at odds with the provisions of Article 26 but it is not for they are directed at different situations. Article 26 is directed to the preservation of benefits in relation to persons who fall into two separate classes. One class comprises those who are in receipt of benefits at the date of termination. The other comprises those who have lodged claims for, and would be entitled to receive, benefits at the date of termination.
[25] FACS Act; s 3 and Schedule 3, Item 2
Section 12A extends the effect of the AUK Agreement to a third class of persons. It is made up of those persons who “last became an Australian resident” on or before 1 March 2000. The meaning of s 12A is clear and consistent with both the object of the SSIA Act and the AUK Agreement. I have, however, had regard to the Explanatory Memorandum to confirm that is so. It states:
“The terms of the Social Security Agreement between the United Kingdom and Australia will be preserved for migrants who became Australian residents on or before 1 March 2000.
Estimated program savings of this measure and the termination of the Social Security Agreement with the United Kingdom are:
2000-01 - $1.3m
2001-02 - $2.9m
2002-03 - $4.1m
2003-04 - $5.5m”
The time at which a person must satisfy the criterion to come within this category is determined at the date on which the claim is made or in the 13 week period following the date of that claim for that is the date on which her qualification to an age pension must be determined.[26]
[26] This follows from a reading of s 42 and cl 4(1) of Schedule 2 to the SSA Act. Clause 4(1) provides:
That means that the last time Mrs Bakelmun became an Australian resident is determined by reference to her situation on 30 October 2014 and in the 13 week period after that date. The application of s 12A is not determined by reference to what her situation was on 1 March 2001. That was a time when she was not resident in Australia but she had “last became an Australian resident” before 1 March 2000. Had Mrs Bakelmun attained pension age and lodged a claim at some time before 29 August 2010 when she came to reside in Australia the second time, Mrs Bakelmun would have been a person who “last became an Australian resident” (emphasis added) before 1 March 2000. As it is, she lodged her claim on 30 October 2014 when she returned to reside in Australia for the third time. At that time, the time that she “last became an Australian resident” was 18 October 2014 and so well beyond 1 March 2000.
F.AUK Agreement and accrued rights
Mr Bakelmun relied on the following passage from the judgment of Kirby J in Chang:
“ A review of the cases, in this and other courts, suggests that, in the present field of discourse, the presumption against retrospective abolition or qualification of existing interests is not one that has, traditionally, been given a narrow application.
The ultimate explanation for this approach is that given by Barwick CJ in Geraldton Building Co Pty Ltd v May… [[1977] HCA 17; (1977) 136 CLR 379 at 387]. In effect, it is the ‘credit’ that courts give to elected legislatures, in countries such as Australia, that ‘by their enactments, they intend to do justice to all affected parties’ … [Dossett [2003] HCA 69; (2003) 218 CLR 1 at 17 [55] …]. This ‘credit’ may be displaced by a closer examination of the legislation in question, read with an eye to the entire context, to the legislative history and to any extrinsic materials that may be used to throw light on the parliamentary ‘intention’ or purpose. However, because the presupposition of ‘credit’ is one concerned with the operation of the law, affecting the practical legal expectations of those subject to the law, no narrow view has been, or should be, taken of its operation.
This is why I have preferred in these reasons to use the word ‘entitlement’ rather than ‘right’. It indicates that what is involved may fall short of an immediately enforceable legal right in the strict sense. For example, it might be a right subject to procedural steps that are treated as routine and straightforward. ‘Accrued entitlement’, it should be noted, was the phrase that Lord Brightman used in Yew Bon Tew …[[1983] 1 AC 553 at 565] to explain the broader types of ‘rights’ protected against extinguishment by non-specific laws. The House of Lords has accepted …, as did the Privy Council earlier …, that inchoate rights, obligations and liabilities are protected by statutory provisions such as s 20 of the Acts Interpretation Act 1954 (Q) which the appellants invoked here. The same is true of the common law principle that preceded, and moulds itself to, such statutory provisions.”[27]
[27] [2007] HCA 37; (2007) 234 CLR 1; 237 ALR 482; 154 LGERA 297 at [38]-[40]; 15-16; 492; 310-311. Section 20 of the Acts Interpretation Act 1954 (Qld) provided:
It is clear from a reading of the whole of the judgment of Kirby J that he was, in this passage, exploring the various approaches that had been taken to resolving whether rights, however described, created under legislation are preserved when the legislation is repealed. His Honour stated later in his judgment that:
“Commencing with the legislative text: The correct starting point for the analysis of any question such as the present is the statute itself. This is a common theme of recent decisions of this Court …. Common law principles, judicial dicta and earlier cases will only take the decision-maker so far. The ultimate conclusion to a problem such as this must be derived from a close study of the legislation. This should not be confined to a single provision …. The whole scheme of the legislation has to be read in order to derive the meaning of particular provisions where they are said to impinge upon crystallised ‘interests’ and already established ‘entitlements’.”[28]
[28] [2007] HCA 37; (2007) 234 CLR 1; 237 ALR 482; 154 LGERA 297 at [59]; 20-21; 496-497 (citations omitted)
This is consistent with the approach taken in the AI Act. At the time that the AUK Agreement was repealed and when the FCS Act inserted s 12A in the SSIA Act, the relevant provision of the AI Act was s 8. In so far as it is relevant, it provided:
“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a)revive anything not in force or existing at the time at which the repeal takes effect; or
(b)affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(d)affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or
(e)affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”[29]
[29] Section 8 was repealed by the Acts Interpretation Amendment Act 2011; s 3 and Schedule 1, Item 7 with effect from 27 December 2011; s 2, Item 2. Its text was re-enacted as s 7(2) of the AI Act.
Only s 8(1)(c) is relevant. Applying the principles referred to by Kirby J, an analysis of the relevant legislation will lead to an answer to whether any right or entitlement has accrued to a person and so is not affected by the repeal of the legislation. I have already analysed the SSAI Act and the AUK Agreement set out in Schedule 1 to that legislation as well as s 12A. For the reasons I have given, the AUK Agreement is quite clear in providing for the period for which it remains in force and in providing for the preservation of rights under it. Section 12A extends those rights by creating a third category of persons who are entitled to benefit under the AUK Agreement. They include persons who last become resident in Australia after 1 March 2000 but who could not have lodged a claim for an age pension before the cessation of the AUK Agreement because they had not yet become of pension age. In the face of such clear statements of intention regarding persons entitlements on the cessation of the AUK Agreement, there is no room to read into the AUK Agreement or the SSIA Act any intention that any other rights accrued following its cessation.
DECISION
For the reasons I have given, I affirm the decision of the former Social Security Appeals Tribunal dated 5 June 2015 that Mrs Bakelmun is not qualified to receive age pension.
I certify that the forty two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ………........[sgd]...............................................
Associate
Date of Hearing on the Papers 23 November 2015
Date of Decision 16 December 2015
For the Applicant Mr Ronald Bakelmun
Advocate for the Respondent Mr Tim de Uray
“If:
(a) subject to paragraph (b), any social security payment, other than a social security benefit, is a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not die sooner, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within 13 weeks after the day on which the claim was made; and
(d) the person becomes so qualified in that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.”
“(1) In this section—
Act includes a provision of an Act.
repeal includes expiry.
(2) The repeal or amendment of an Act does not—
(a) …; or
(b) ; or
(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; or
(d) affect a penalty incurred in relation to an offence arising under the Act; or
(e) affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).
(3) The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.
(4) Without limiting subsections (2) and (3), the repeal or amendment of an Act does not affect—
(a) …; or
(b)any right, privilege or liability saved by the operation of the Act; or
(c) any repeal or amendment made by the Act; or
(d) any savings, transitional or validating effect of the Act.
(5) …”
0
13
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