Laurent Quenin and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 893
[2012] AATA 893
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3098
Re
Laurent Quenin
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 19 December 2012 Place Sydney Decision
The decision of the Social Security Appeals Tribunal made on 19 June 2012 is set aside and in substitution the Tribunal decides that the Applicant’s absence from Australia between 14 March 2012 to 15 May 2012 constitutes an “allowable absence” within the meaning of s 1217 of the Social Security Act 1991 (Cth).
........................[SGD]................................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY — portability period — allowable absence — whether an acute family crisis — whether a purpose relating to death of a family member
LEGISLATION
Acts Interpretation Act 1901 (Cth) s15A
Social Security Act 1991 (Cth) ss 23(14), 1212A, 1214, 1217
CASES
Lesic and Secretary, Department of Family and Community Services 69 ALD 683
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
SECONDARY MATERIALS
Macquarie Dictionary (Macmillan, 5th ed, 2009)
REASONS FOR DECISION
Senior Member A K Britton
Mr Laurent Quenin challenges the decision made by the Social Security Appeals Tribunal to suspend payment of Newstart Allowance (“NSA”) for the period 14 March 2012 to 15 May 2012. During that period he was absent from Australia having travelled to France to attend a memorial service for his father who had died the previous year.
Under the Social Security Act 1991 (Cth) NSA is generally not payable if the recipient is absent from Australia. However where the absence is an “allowable absence” the recipient may continue to receive NSA for the “maximum portability period” namely 13 weeks (s 1217(4)). The central question to be decided in this matter is whether Mr Quenin’s absence from Australia was an “allowable absence”.
After the close of the hearing, Mr Quenin provided the Tribunal with a report from his treating doctor who confirmed that Mr Quenin had been seriously ill and hospitalised around the time of his father’s death. The doctor also confirmed that Mr Quenin had been unfit to travel until March of this year. At the invitation of the Tribunal the Secretary made further written submissions. In reaching my decision I have taken those submissions and report into account.
Was Mr Quenin’s absence an “allowable absence”
By the combined operation of ss 1214 and 1217 of the Act, a recipient’s right to continue to be paid NSA is not affected merely by an absence from Australia of up to 13 weeks (maximum portability period), where that absence is an “allowable absence”. Item 15 of the Table to s 1217 provides that an allowable absence in respect of the NSA is:
A temporary absence for any of the following purposes:
(a) to seek eligible medical treatment;
(b) to attend to an acute family crisis;
(c) for a humanitarian purpose.
The phrase “acute family crisis” is defined by s 1212A to mean:
Meaning of acute family crisis
For the purposes of this Part, a person's absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:
(a) for the purpose of visiting a family member who is critically ill; or
(b) for the purpose of visiting a family member who is hospitalised with a serious illness; or
(c) for a purpose relating to the death of a family member; or
(d) for a purpose relating to a life-threatening situation (other than an illness referred to in paragraph (a) or (b)) that:
(i) is facing a family member; and
(ii) is beyond the control of the family member.
Section 23(14) defines a “family member” to include the parent of the relevant person.
Mr Quenin claims that the sole reason he visited France was to attend a memorial service for his late father who had died 10 months earlier and provide comfort and solace to his mother who was distressed following the loss of her husband of 40 years. Mr Quenin claims, and I accept, that he had been unable to return to France at the time of his father’s death because of his ill health. That claim is supported by the opinion of his treating doctor.
The proper construction of s 1212A
The Secretary contends that s 1212A of the Act requires the decision-maker to not only be satisfied that the person was absent from Australia for one of the four purposes listed in para (a) to (d) but in addition that the event relied upon be an “acute family event”. She contends that the words “for a purpose relating to the death of a family member” are to be read in context with the provision as a whole which is concerned with “acute family event[s]” Pointing to the definition of “acute” offered by the Macquarie Dictionary (Macmillan, 5th ed, 2009) — “severe; crucial; brief or severe” — she contends that there must be some “immediacy” or urgency associated with the purpose of the visit. She contends that in this case the purpose of the travel must have some immediacy to the death of the family member and in this case there was none because Mr Quenin did not travel to France until nine months after his father’s death.
As authority for this proposition the Secretary cites the following passage from the decision in Lesic and Secretary, Department of Family and Community Services (2002) 69 ALD 683 at [9]:
However, it is clear that the definition of acute family crisis relates to critical family events which are unexpected and are of such urgency that they require immediate action or attention. Although the Tribunal accepts that the taking of the ashes to the United Kingdom was a significant family event, it cannot constitute an acute family crisis when one reads section 1212A of the Act in its entirety.
In construing s 1212A, regard must be had to the entirety of the provision and the provision must be read in the context of the Act as a whole. Section 15AA of the Acts Interpretation Act 1901 (Cth) requires that:
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.
In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 the High Court stated at 381:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed [references omitted].
The context, general purpose and policy of the Social Security Act1991 (Cth), and s 1212A in particular, is humanitarian and beneficial. Although some parts of the Act are penal or constrictive, the policy underlying the Act and s 1212A is remedial. It follows that the classical rule of statutory interpretation — that remedial provisions ought be interpreted liberally — applies to the construction. Although, in my opinion, this needs no spelling out, the provision itself is further evidence for liberal interpretation because it makes absence for a humanitarian purpose an “allowable absence”.
The provision deems four events or occurrences “acute family [crises]”. The plain reading of the provision is that the subject absence is deemed to be for the purpose of attending to an “acute family crisis” providing the Secretary is satisfied that the person’s absence at the time is for the purpose of one (or more) of the qualifying events listed in para (a) to (d). There is no warrant for an interpretation that, once satisfied the absence is for one of those purposes, the decision-maker must also be satisfied the person needed to travel because of some immediacy or urgency associated with the subject event.
The Secretary’s approach would, if adopted, read into the provision an additional restrictive test, or limb of the test, which is neither expressed nor implied by s 1212A. By inserting a statutory definition of the phrase “acute family crisis” that goes well beyond a narrow dictionary definition relating to urgency or emergencies, it is self-evident Parliament intended to refer to the acuteness of the effect of the event in question (a death in the family) on the NSA recipient. It is that, rather than the urgency of the recipient’s departure from Australia, which is being addressed by the legislature.
Attendance at a family memorial service, especially when the NSA recipient was too ill to attend the funeral, by definition constitutes “a purpose relating to the death of a family member” and therefore falls squarely within the statutory definition of “acute family crisis”.
Where the NSA recipient claims to be temporarily absent from Australia because of an acute family crisis at a particular time the task of the decision-maker is to decide whether the NSA recipient has produced satisfactory evidence that his or her absence was “for a purpose relating to the death of a family member” or one of the other occurrences listed at s 1212A at the particular time — no more, no less. I am satisfied in this case the purpose of Mr Quenin’s travel related to the death of his father. It follows his absence for the period 14 March 2012 to 15 May 2012 is an allowable absence.
For these reasons the decision of the SSAT must be set aside.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ................[SGD]........................................................
Associate to Senior Member Britton
Dated 19 December 2012
Date(s) of hearing 3 December 2012 Date final submissions received 11 December 2012 Advocate for the Applicant Michael Squire Solicitors for the Respondent Program Litigation and Review Branch, Department of Human Services
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