Levao and Secretary, Department of Social Services (Social services second review)

[2015] AATA 830

Levao and Secretary, Department of Social Services (Social services second review) [2015] AATA 830 (15 July 2015)

Division	GENERAL DIVISION
File Number	2015/0496
Re	Faafoi Levao
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr P W Taylor SC, Senior Member
Date	15 July 2015
Date of written reasons	27 October 2015
Place	Sydney

The Tribunal affirms the decision under review.

.........................[sgd]...............................................

Mr P W Taylor SC, Senior Member

CATCHWORDS

SOCIAL SECURITY – Age Pension – reduction in rate of payment – effect of New Zealand superannuation – effect of international social security agreement – international agreement overrides social security law – decision affirmed

LEGISLATION

Social Security (International Agreements) Act 1999 ss5, 6

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

27 October 2015

BACKGROUND

1. Mr Levao was born in New Zealand in 1947 and became an Australian citizen in November 2011.

2. He made a claim for and was granted Age Pension in May 2014. He subsequently made a claim for New Zealand superannuation. 

3. In October 2014 the Department of Human Services was advised by the New Zealand Social Security Organisation (WINZ) that Mr Levao was granted New Zealand superannuation from 6 May 2014. Mr Levao was advised that his Age Pension would be affected by the rules contained Social Security Agreement between Australia and New Zealand which governs this situation and that his fortnightly rate of payment would be reduced as a result.

4. Mr Levao requested a review of the decision to reduce his Age Pension and the decision was affirmed by an Authorised Review Officer and on appeal by the Social Security Appeals Tribunal (SSAT). He applied to this Tribunal for review of the SSAT’s decision.

5. On 15 July 2015 I conducted a hearing in this matter and at the conclusion of the hearing I affirmed the SSAT’s decision. I gave my reasons for this decision orally at the time.

6. The following are the written reasons for my decision, as set out in the transcript of these proceedings.

   ISSUES

7. The only issue before this Tribunal is whether the decision to reduce the Applicant’s Age Pension because he receives New Zealand superannuation was correct.

   CONSIDERATION

8. The way the legislation works when where there is an international agreement is normally the Parliament will say in the Act itself that the agreement is attached and the agreement will have some particular effect. Section 5 of the Social Security (International Agreements) Act 1999 states:

   Scheduled international social security agreements

   (1)  For the purposes of a provision of the social security law, an agreement is a scheduled international social security agreement if:

   (a)       the agreement is between Australia and another country; and

   (b)  the agreement relates to reciprocity in social security or superannuation matters; and

   (c)  the text of the agreement is set out in a Schedule to this Act.

   …

9. The text of the Social Security Agreement between Australia and New Zealand is set out in Schedule 3 of the Act. The effect of section 5 is that by virtue of a provision of the legislation, the agreement is a scheduled agreement.

10. Section 6 of the Act states:

    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…

11. Given the effect of this provision, the present situation is one in which the legislation says this agreement with New Zealand has the force of law and it overrides anything in the Social Security Act1991. It doesn’t matter whether Mr Levao agrees with it or disagrees with it. In passing this provision Commonwealth Parliament has said “Here’s an international agreement. It has the force of law. It overrides the Social Security Act”.

12. Mr Levao sought an Age Pension and his Age Pension entitlement is provided for in the Social Security Act 1991.  The agreement overrides this Act and has the force of law.  It is this law which I must apply. I understand Mr Levao’s frustrations.  I note that he does not think the SSAT’s decision is fair.  However, even if I wished to share his view, it would be an irrelevant gesture.  I can only apply the law.

    CONCLUSION

13. For the above reasons, Mr Levao’s Age Pension entitlement is to be calculated under the New Zealand agreement. I am satisfied that the decision to reduce his entitlement pursuant to this agreement is correct.

    DECISION

14. The decision under review is affirmed.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

.........................[sgd]...............................................

Associate

Dated 27 October 2015

Date of hearing	15 July 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services