Louise Bidenko and Secretary, Department of Social Services
[2015] AATA 291
•1 May 2015
[2015] AATA 291
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/6540
Re
Louise Bidenko
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A C Cotter
Date 1 May 2015 Place Brisbane The Tribunal affirms the decision under review.
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Senior Member A C Cotter
CATCHWORDS
SOCIAL SECURITY – Benefits – Paid Parental Leave – Child placed into care of applicant by Child Safety Services – Whether “exceptional circumstances” exist to entitle applicant to Paid Parental Leave– Carers appointed pursuant to child protection legislation expressly excluded from “exceptional circumstances” by the Paid Parental Leave Rules 2010 – Decision under review affirmed
LEGISLATION
Child Protection Act 1999 (Qld)
Paid Parental Leave Act 2010 (Cth) s 54
Paid Parental Leave Rules 2010 Subdivision 2.4.1.1Acts Interpretation Act 1901 (Cth) s 15AA
CASES
Mills v Meeking (1990) 169 CLR 214
R v L (1994) 49 FCR 534
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85REASONS FOR DECISION
Senior Member A C Cotter
1 May 2015
INTRODUCTION
Four days after his premature birth, baby John[1] was placed into care by Queensland’s Child Safety Services. That placement was under an ‘Authority to Care for Child’ issued to Louise Bidenko and John Simpson under the State’s Child Protection Act 1999 (Qld). The document, and the authorities that have been issued since, authorised Ms Bidenko and Mr Simpson to care for John, and entitled them to undertake the duties and make the decisions associated with his daily care.[2] After being given little notice, Ms Bidenko collected tiny baby John from the hospital a few days after his birth.
[1] Not his real name; a pseudonym has been used for privacy reasons.
[2] Exhibit 1, p 94-97.
For the two years preceding John’s birth, Ms Bidenko had worked as a relief teacher. At about the same time as John came into Ms Bidenko’s and Mr Simpson’s care, their other foster child, then 10 years old, commenced living with them full-time (she having previously stayed with them only for respite). On assuming care for John, Ms Bidenko stopped work immediately, intending to gradually return to work at some stage after John’s first birthday.[3]
[3] Exhibit 1, p 4, paras [4] and [5].
The following month, Ms Bidenko made inquiries of Centrelink about making a claim for Paid Parental Leave (“PPL”) as John’s primary carer. She was later told that she did not meet the criteria. Despite reviews by both a departmental Authorised Review Officer and the Social Security Appeals Tribunal, that decision remained. Essentially, the reason given was that since she was neither John’s birth mother nor adoptive parent, the only basis on which she could make a primary claim for PPL was if there were “exceptional circumstances” (as prescribed by the legislation) present in her case. Because John had been entrusted to her care by a State Government Department acting under child protection legislation, her claim was denied as that circumstance is expressly excluded from what constitutes “exceptional circumstances” by the legislation.
There being no dispute that Ms Bidenko satisfies all other requirements to be paid PPL, the issue to be determined here is whether the prescribed “exceptional circumstances” exist in this case. In considering that question, I have to decide whether the expressly excluded circumstance to which I referred earlier can be discounted or read down for some reason in this instance. Regrettably, I do not think it can be, with the result that Ms Bidenko is unable to satisfy the exceptional circumstances prescribed by the legislation. My reasons follow.
CONSIDERATION
To address the issue, it is necessary to refer to a number of interrelated provisions in the Paid Parental Leave Act 2010 (Cth) (“the Act”) and the Paid Parental Leave Rules 2010 (Cth) (“the Rules”) made under it.
Who can claim for PPL?
The starting point is s 54 of the Act, which provides that only a child’s birth mother, adoptive parent or a person “who satisfies the circumstances prescribed by the (Rules) as being exceptional circumstances”, can make a primary claim for PPL.[4] As Ms Bidenko falls into neither of the first two categories, she has to bring herself within the last category, contained in s 54(1)(c), if she is to be able to make a claim. That leads to a consideration of the Rules.
[4] The Act distinguishes between primary, secondary and tertiary claims. As Ms Bidenko made a primary claim, it is not necessary to consider the provisions concerning secondary or tertiary claims.
“Exceptional circumstances”
Exceptional circumstances for primary claims are dealt with in Subdivision 2.4.1.1 of the Rules. The opening provision in that subdivision, rule 2.27, reiterates that the subdivision is made for s 54(1)(c) of the Act and “prescribes the circumstances that are exceptional circumstances in which a primary claim can be made for a child”. Paragraph (2) of that rule goes on to provide that a person who satisfies the circumstances prescribed by the subdivision can make a primary claim. The converse is implicit; that if the person cannot satisfy the prescribed circumstances, they cannot claim, at least under s 54(1)(c) of the Act.
Subrule 2.28(1) sets out the general conditions for exceptional circumstances before later provisions address specific categories of circumstances. Apart from the condition in paragraph (d), the satisfaction of those conditions is not in dispute. Paragraph (d) states that if rule 2.29 applies, then the circumstances in paragraph (2) of that rule must be met in order to satisfy the exceptional circumstances requirements.
Rule 2.29 is expressed to be made for paragraph 2.28(1)(d). There is no doubt that the rule applies to Ms Bidenko.[5] Therefore, she must satisfy the circumstances prescribed in subrule 2.29(2) in order for her circumstances to be considered exceptional. Those circumstances are:
(a)the partner of the birth mother, or of the adoptive parent, is incapable of caring for the child;
(b)the child was not entrusted to the care of the person or to the care of the person’s partner, under a decision by a State or Territory child protection agency under legislation dealing with child protection in the State or Territory;
(c)the Secretary is satisfied on reasonable grounds that:
(i) the person became the primary carer of the child in special circumstances; and
(ii) it would be unreasonable for the partner of the child’s birth mother or the partner of the child’s adoptive parent to care for the child; and
(iii) it is in the interests of the child for the person to care for the child.
[5] It applies to a person who is not the partner of the birth mother or adoptive parent, or in the case of divorced or separated parents, the other legal parent or the partner of the other legal parent. Ms Bidenko is none of these and therefore falls within this rule.
Do “exceptional circumstances” exist?
While Ms Bidenko might be able to satisfy the requirements in paragraphs (a) and (c) above,[6] paragraph (b) presents an obstacle for her. There is no doubt that Ms Bidenko only has care of John by reason of the actions of Child Safety Services Queensland, the State’s child protection agency, acting under the legislation by which it is charged. It clearly excludes Ms Bidenko’s circumstances, such that subrule 2.29(2) is not satisfied.
[6] The application and the hearing proceeded on the assumption that paragraphs (a) and (c) of subrule 2.29(2) could be otherwise satisfied.
As a consequence, she is unable to establish that there are exceptional circumstances as prescribed by the subdivision and she is unable to make a primary claim for PPL pursuant to s 54(1)(c) of the Act in respect of John. The express and tightly drafted provisions of the Act and the Rules, and the way in which they interact, leave little or no room for discretion in the decision-maker. Section 54(1)(c) of the Act makes it clear that a person relying on that paragraph needs to satisfy the circumstances prescribed by the Rules. The Rules in turn describe strictly and with precision the circumstances in paragraph (2) of rule 2.29. If that paragraph is satisfied (and assuming the other conditions are satisfied), the circumstances are considered “exceptional circumstances” by reason of rule 2.28, which then means that the person is able to make a primary claim under subrule 2.27(2). On the face of that express wording, I do not consider that Ms Bidenko can satisfy the prescribed circumstances.
Ms Bidenko argued that the result is an anomaly and unfair. She highlighted the object of the Act as providing financial support to primary carers (mainly birth mothers, but not exclusively) of newborn and newly adopted children in order to allow them to take time off work to care for the child, and enhance the health and development of the child. She contends that, by reason of the authority issued to her by Child Safety Services Queensland, she is in fact the primary care giver for John. She gave up work specifically to care for him. While I empathise with Ms Bidenko’s contentions, I am nevertheless obliged to construe the legislation according to established principles.
Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that in the interpretation of a provision of an Act, an interpretation that would promote the purpose or object of the Act is to be preferred to each other interpretation. That section requires an Act’s purpose to be taken into account in construing its provisions, “not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open.”[7] It is not, however, “a warrant for redrafting legislation nearer to an assumed desire of the legislature.”[8]
[7] See Mills v Meeking (1990) 169 CLR 214, [235] (Dawson J).
[8] R v L (1994) 49 FCR 534, [538] (Burchett,,Miles and Ryan JJ), citing Trevisan v Commissioner of Taxation (1991) 29 FCR 157, [162] (Burchett J).
No alternative construction of paragraph (b) of subrule 2.29(2) was contended. The question therefore arises as to whether, having regard to the Act’s purpose, an alternative construction may be open for consideration. I do not think so.
It is clear from a reading of Subdivision 2.4.1.1 of the Rules that there is no general impediment to a person who is a primary carer but not the birth mother or an adoptive parent seeking to rely on exceptional circumstances in order to be able to make a PPL claim. On the contrary, there is specific reference to prospective claimants being primary carers.[9] Indeed, the fact that subrule 2.29(2)(b) was considered necessary is an implicit acknowledgement that primary care givers other than birth mothers are not generally excluded from the PPL scheme.
[9] See, for example, subrule 2.29 (2)(c)(i).
Rather, the restriction under consideration here is quite specific – in effect, it seeks to exclude from “exceptional circumstances” those cases where the child is entrusted to the care of a person by a state or territory department or agency pursuant to that jurisdiction’s child protection laws. That is clear and deliberate drafting, designed to achieve a particular objective. Although the intent behind it is not clear, it may well have been prompted by nothing more than a desire to avoid unintended duplication or overlap between the PPL scheme and the presumably diverse range of arrangements which may be made by the different states and territories when entrusting children to the care of others.
Having regard to those matters, I do not believe that an alternative construction to subrule 2.29(2)(b) is open. The language is clear and there is no justification in attempting to restrict it or read it down. As McHugh J observed in Newcastle City Council v GIO General Ltd:[10]
If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.
[10] (1997) 191 CLR 85, [113].
For those reasons, I do not consider there is any basis to restrict or read down the words of subrule 2.29(2)(b). It therefore follows that Ms Bidenko is unable to satisfy the exceptional circumstances criteria prescribed by the Rules and as a result, she is not able to make a primary claim for PPL. I appreciate that this will be disappointing for Ms Bidenko, but the Tribunal is required to consider the legislation according to established principles.
DECISION
The decision under review is affirmed.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter ..................................SGD..................................
Associate
Dated 1 May 2015
Date of hearing 8 April 2015 Applicant In person Solicitors for the Respondent Mr R McQuinlan, Department of Human Services
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