Gemma Misrachi and Secretary, Department of Social Services
[2014] AATA 727
•7 October 2014
[2014] AATA727
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0566
Re
Gemma Misrachi
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Date 7 October 2014 Place Hobart The decision under review is affirmed.
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Ms A F Cunningham (Senior Member)
CATCHWORDS
Social Security - parental leave pay - work test - adopted child - no referable provision in Act to accommodate applicant's circumstances - decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Paid Parental Leave Act 2010
CASES
Marshall and Watson (1972) 124 CLR 640 at 649
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
The applicant, Gemma Misrachi’s application for parental leave pay for her adopted son, Simon was refused on the basis that she did not meet the qualification requirements regarding “the work test”. Centrelink’s decision was affirmed by an Authorised Review Officer and by the Social Security Appeals Tribunal on 9 January 2014. Ms Misrachi has appealed to the AAT for a review of the decision.
Ms Misrachi was represented by Mr Pill and gave oral evidence at the hearing. Received into evidence was a witness statement of Timothy Vaatstra, Manager, Adoptions and Permanency Services with the Tasmanian Department of Health and Human Services. Mr Sparkes appeared on behalf of the respondent Secretary and tendered the T documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
EVIDENCE
Ms Misrachi married in January 2007. The application of Ms Misrachi and her husband for an overseas adoption was successful and in 2010 they adopted their first son from South Korea.
After making a second application to adopt, Ms Misrachi and her husband were contacted by the Tasmanian Department of Health and Human Services Adoption Permanency Service (the Department) in 2012 and advised that there was a Tasmanian baby in need of placement with an adoptive family. They adopted their second son, E on or about 22 August 2012 after meeting the baby’s birth mother. From 27 November 2012 until 1 April 2013, Ms Misrachi received paid parental leave payments in respect of E.
It was Ms Misrachi’s evidence that following E’s adoption, it was not her intention to adopt further children. However on 30 August 2012 she received an unexpected telephone call from a social worker who asked her to attend at their offices. Ms Misrachi said that she was informed that E’s birthmother had given birth to another baby and wanted him adopted by Ms Misrachi and her husband. At the time E was 14 months of age. Ms Misrachi and her husband were given the weekend to contemplate the adoption and decided that they would proceed with the adoption of S.
When she was contacted by the Department Ms Misrachi had only been back at work for two months working two days per week and it had been her intention to continue to work. Her husband was casually employed at the time.
Ms Misrachi’s evidence regarding S’s adoption was confirmed by the contents of Mr Vaatstra’s witness statement. Mr Vaatstra stated that Ms Misrachi and her husband were not applicants for adoption at the time they were approached by the Department and were not planning to adopt another child. He stated that Adoptions and Permanency Services would not normally approach families who were not approved applicants unless special circumstances existed. At paragraph 11 Mr Vaatstra stated:
“the placement of S… was not planned but rather a response to the request of his birthmother, with the best interest of both S… and E… in mind.”
On 20 September 2013 Ms Misrachi lodged a claim for parental leave payment with Centrelink which was refused on 1 October 2013 on the basis that she did not meet the work test.
LEGISLATION
The Legislation relevant to parental leave pay is contained in the Paid Parental Leave Act2010 (the Act). Division 2 contains the eligibility provisions and specifically those contained in section 31, one of which is that the person satisfies the work test as provided for in Division 3. Section 32 contains a Method Statement for working out whether a person satisfies the work test. Step 5 requires that the person has performed at least 330 hours of qualifying work in a qualifying period.
The notes accompanying section 32 refer to circumstances where a person may also satisfy the work test requirement for 330 hours of qualifying work where the child was born prematurely or while the person pregnant with the child had complications or illnesses related to the pregnancy which prevent the person from performing paid work.
Section 36A provides:
“Premature birth or pregnancy‑related complications or illness
A person also satisfies the work test on a day if:
(a) the person is the birth mother of the child; and
(b) the Secretary is satisfied that either or both of the following circumstances existed:
(i) the child was born prematurely;
(ii) while the person was pregnant with the child, the person had complications or illness related to the pregnancy which prevented the person from performing paid work; and
(c) the Secretary is satisfied that the person would have satisfied the work test on the day in accordance with section 32 if that circumstance, or those circumstances, had not existed.”
There are a number of miscellaneous provisions contained in Chapter 6 Division 2 which contain provisions as to how the Act applies to an adopted child. The Guide to the provisions contained in chapter 6 is set out in section 274 as follows:
“This Part has rules that modify this Act so that it applies correctly in 3 limited kinds of cases—adoption, claims made in exceptional circumstances etc. and Commonwealth employment.
Division 2 modifies this Act so that it applies correctly for adopted children aged under 16. For example, where a provision of this Act refers to the day a child was born, Division 2 modifies that provision so that, when applying that provision to the adopted child, the provision has the effect of referring to the day the adopted child becomes entrusted to care (instead of the day the adopted child was born).
Division 3 modifies this Act so that it applies correctly for claims that are made in exceptional circumstances and other special cases. For example, where a provision of this Act refers to the day a child was born, Division 3 modifies that provision so that, when applying that provision in relation to a claim that is made in exceptional circumstance, the provision has the effect of referring to the day the claimant became the child’s primary carer (instead of the day the child was born).
Division 4 modifies this Act so that it applies correctly to Commonwealth employment.”
Section 275 (1) provides:
“(1) This Act applies in relation to an adopted child that satisfies the requirements of subsection (2) as if:
(a) a reference to the birth of a child were a reference to the placement of the child; and
(b) a reference to the day the child was born were a reference to the day the child becomes entrusted to the care of a person as mentioned in subsection (2); and
(c) a reference to the expected date of birth of the child were a reference to the day expected to be the day the child will become entrusted to the care of a person as mentioned in subsection (2); and
(d) a reference to a child’s first birthday were a reference to the first anniversary of the day the child became entrusted to the care of a person as mentioned in subsection (2); and
(e) a reference to a completed birth verification form for a child were a reference to information required by the Secretary about the adoption of the child; and
(f) a reference to a child being born during the same multiple birth were a reference to the child being adopted during the same multiple adoption.”
SUBMISSIONS
Mr Pill submitted that 36A, when read in a manner consistent with section 275 of the Act extends the circumstances considered in section 36A to that of adopting parents. He submitted that although section 36A does not explicitly contemplate the circumstances of adoptive parents, section 275 deems the other provisions of the Act to apply in cases of adoptions as if they did. He contends that such an interpretation reflects the clear intention of Parliament for the Act to apply equally to birth and adoptive parents and that both be entitled to paid parental leave.
Mr Pill maintained that section 36A which refers to circumstances where a child is born prematurely or where there were complications or illness related to the pregnancy, when read consistently with section 275 must also contemplate a circumstance where a child is adopted. He said that the intention of section 36A is to permit payments to be made to parents who do not fulfil the work test in circumstances where they would have had it not been for the intervening unforeseen circumstances of premature birth, complications or illness related to the pregnancy.
In the current case, the evidence was that Ms Misrachi would have continued to work had it not been for the intervening unforeseen circumstances of S’s adoption. Mr Pill contended that this circumstance, when considered in the context of section 275, could be seen as consistent with those circumstances referred to in section 36A.
Mr Pill explained that in the ordinary course of events the assessment process for adoption generally takes approximately 6 months and that there is a policy at the Adoption Permanency Service that the youngest child in the family needs to be aged two before an application to adopt can be made. In Ms Misrachi’s circumstances she would not have been eligible to apply to adopt until 28 May 2014 when she would have well and truly met the work test under the Act.
Mr Pill also referred the Tribunal to Article 3 of the United Nations Convention on the Rights of the Child which provides:
“in all actions concerning children, were undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Mr Pill submitted that it is in the best interests of the child that adoptive parents be afforded equal treatment with natural parents which is consistent with the intention of Parliament in section 275 of the Act.
Mr Sparkes submitted that none of Ms Misrachi’s circumstances are provided for in section 275 of the Act. Nor he contended does section 275 provide in any way for the modification of section 36A (a) of the Act.
Mr Sparkes submitted that section 36A of the Act contemplates a situation where there is a known birth date by which time, in the normal course the work test would be satisfied, but where premature birth and complications or illness due to pregnancy prevent completion of the work test. He submitted that none of these conjunctive requirements can be satisfied by an adoptive parent. Nor, Mr Sparkes contended, is there any basis upon which section 275 could be read as a deeming provision.
Where an Act does not provide for an applicant’s particular circumstances, the situation cannot be remedied Mr Sparkes contended, by a reference to beneficial legislation. Mr Sparkes referred the Tribunal to a Statement by Stephen J in Marshall and Watson (1972) 124 CLR 640 at 649:
“Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no (part) of the judicial function to fill gaps so disclosed in legislation.”
CONSIDERATION AND FINDINGS
It was not in dispute that Ms Misrachi met the qualification provisions for paid parental leave other than the work test. Nor was there any dispute that Ms Misrachi had not worked the required number of hours as specified in section 32 of the Act in order to satisfy the work test prior to adopting S.
The question for the Tribunal to determine is whether the exception provisions of section 36A which provide for premature birth or complications or illness related to pregnancy which prevent a person from working, can be applied in Ms Misrachi’s circumstances. There do not appear to be any other relevant provisions in the Act that can exempt a person from the qualifying number of hours in order to satisfy the work test.
Mr Pill argued that 36A should be read in a manner consistent with section 275 to extend the circumstances considered in section 36A to that of adopting parents.
The provisions of section 36A however, specifically refer to the birth mother of the child and circumstances that relate to the birth of the child. The six circumstances set out in sub-section 275 (1) do not refer to birth or pregnancy related issues.
The Tribunal was referred to the Explanatory Memorandum for the Paid Parental Leave Bill 2010 and specifically to clause 275. The Memorandum states that:
“Sub-clause 275 (2) sets out the circumstances in which an adopted child will be covered. It is modelled closely on the provision which makes adoptive parents eligible for baby bonus for their adopted child. It provides that child satisfies the requirements if, as part of the process of the adoption of the child by a person, the child is, or is to be, entrusted to the care of the person by an authorised party and the child is, or will be, under 16 on the day of placement of the child.”
The Guide to the Miscellaneous Provisions contained in Chapter 6 states that with respect to Division 2 which includes section 275, that:
“Division 2 modifies this Act so that it applies correctly for adopted children aged under 16. For example, where a provision of this Act refers to the day a child was born, Division 2 modifies that provision so that, when applying that provision to the adopted child, the provision has the effect of referring to the day the adopted child becomes entrusted to care (instead of the day the adopted child was born).”
Section 275 sets out six circumstances where the modification provisions for the application of the Act to an adopted child apply. None of those circumstances are referable to Ms Misrachi’s circumstances.
It is clear from the wording of section 275 that the intention of Parliament is to extend the payment of parental leave to parents of an adopted child from the date of placement of the child provided the child is under the age of 16 when the child becomes entrusted to the care of the person. In other words, the parents of an adopted child are eligible for parental leave payments in the same manner as the parents of a birth child.
There is no reference in section 275 to the eligibility provisions relating to the work test contained in Division 3. Section 36A is a specific exemption provision that sets out the circumstances of either a premature birth or pregnancy related complications or illness where a person can still satisfy the work test. It is simply not appropriate to characterise section 275 as a deeming provision for the purposes of section 36A which contains very specific wording with respect to the birth mother and circumstances associated with the birth of the child.
Nor does the Tribunal accept that the provisions referred to by Mr Pill in the Convention on the Rights of the Child are relevant as the rights of the child are not in issue in this application for review. Mr Pill further contended that the Act is beneficial legislation and should be interpreted broadly. However as stated above, it is not for the Tribunal to vary or extend the express provisions enacted in legislation to suit a person’s particular circumstances in order to avoid an unjust result.
Whilst the Tribunal is sympathetic, there simply is no provision in the Paid Parental Leave Act 2010 that accommodates Ms Misrachi’s particular circumstances such as to qualify her for the work test and thus eligible for paid parental leave for her son S. It is indeed an unfortunate outcome and one presumably not contemplated by the legislature when it included the provisions in Chapter 6 with respect to adopted children.
In light of the Tribunal’s finding that the Act does not contain provisions referable to Ms Misrachi’s circumstances and is incapable of an interpretation that would deem satisfaction with the provisions of the required work test, the decision under review must accordingly be affirmed.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) ........................................................................
Administrative Assistant
Dated
Date(s) of hearing 25 August 2014 Advocate for the Applicant Mr Henry Pill, Hobart Community Legal Service Solicitors for the Respondent Mr Brian Sparkes, Program Litigation and Review Branch
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