Lowe, Charles Crawford Wilson v Secretary, Department of Social Security

[1998] FCA 1492

FEDERAL COURT OF AUSTRALIA

SOCIAL SECURITY - sole parent pension - parents share equally in custody and care of child on alternating weekly basis - as pension can only be paid in fortnightly intervals entitlement exists only if parent meets qualification criteria throughout the whole of the period in respect of which one full instalment of pension can be paid.

Social Security Act 1991 (Cth), Part 2.6 Divs 1, 2, 3, 4 and 5, Pension Rate Calculator C, Part 5.4, ss 23, 42, 249, 250, 251, 252, 269, 270, 271, 273, 869, 1066, 1363
Family Law Act 1975 (Cth), ss 63E(2), 63F(1)
Health Insurance Act 1973 (Cth)
Status of Children Act 1978 (Qld), s 3

Vidler v Secretary, Department of Social Security (1995) 61 FCR 370, referred to
Youngman v Lawson [1981] 1 NSWLR 439, referred to
Secretary, Department of Social Security v Field (1989) 25 FCR 425, discussed
Secretary, Department of Social Security v Wetter (1993) 40 FCR 22, discussed

Health Insurance Commission v Peverill (1994) 179 CLR 266, followed

CHARLES CRAWFORD WILSON LOWE v SECRETARY, DEPARTMENT OF SOCIAL SECURITY
NG 440 of 1997

DRUMMOND J
13 NOVEMBER 1998
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NG 440 of  1997

BETWEEN:	CHARLES CRAWFORD WILSON LOWE APPLICANT
AND:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	13/11/98
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NG 440 of 1997

BETWEEN:	CHARLES CRAWFORD WILSON LOWE APPLICANT
AND:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY RESPONDENT

JUDGE:	DRUMMOND J
DATE:	13/11/98
PLACE:	BRISBANE

REASONS FOR JUDGMENT

This is an appeal under s 44 the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Tribunal affirming the decision of the Social Security Appeals Tribunal, which in turn affirmed the decision of an authorised review officer to cancel payment to Mr Lowe of a sole parent pension. The appeal raises a question of the construction of certain provisions of Subdivision A of Division 1 of Part 2.6 the Social Security Act 1991 (Cth) and also a question as to whether there was a breach of the rules of natural justice constituted by the Tribunal’s alleged prejudgment of these questions of construction.

The facts found by the SSAT are not in contention.  Mr Lowe and Ms Schembri are the parents of a child, Sarina, who was born in January 1986.  Mr Lowe and Ms Schembri separated in January 1991 and were divorced in 1992.  They managed to agree to share the care of Sarina without recourse to the courts and have, as the SSAT observed:  “managed this very well in the intervening years”.  Under this agreement, and save for minor and immaterial variations, Sarina has lived week about from Friday to Friday with each parent, that parent managing “day-to-day responsibilities” in respect of Sarina with “larger issues” being discussed by both and joint decisions made; financial responsibilities for Sarina are equally shared.  As the AAT put it, Mr Lowe and Ms Schembri share equally all parenting rights, duties, responsibilities, care, concern, contact time, love, affection, hopes and ambitions.  This regime has been in place since the parents separated.

From May 1993 until its cancellation in October 1996, Mr Lowe was in receipt of a sole parent pension in respect of Sarina.  In August 1996, Ms Schembri gave up full-time work and lodged a claim for sole parent pension in respect of the child.  In October 1996, the respondent’s authorised review officer determined that she was entitled to this pension and, at the same time, also determined to cancel payment of the pension to Mr Lowe.

The SSAT affirmed the decision to cancel the pension previously paid to Mr Lowe for the following reasons:

7.3      Section 251(1) however provides that a young person can be the SPP child of only [one] person at a time.

7.4      Subsection 251(2) states that if the Secretary is satisfied that, but for this section a young person would be an SPP child of two or more persons, the Secretary is to

(i)make a written determination that the Secretary is satisfied that that is the case; and

(ii)specify in the determination the person whose SPP child the young person is to be; and

(iii)give each person a copy of the determination.

7.5      The Tribunal is satisfied that such is the present case.  This means that the Tribunal is required to make a determination; it is not open to the Tribunal to refuse pension to both parents on the basis that the situation is too equal to choose between them.  It is also not open to the Tribunal to divide the sole parent pension between two parents as requested by Mr Lowe.  The Tribunal has a statutory obligation under section 251 to make a choice in favour of one of the competing parties to the entire exclusion of the other despite the difficult and sensitive nature of making such a decision.

The Tribunal observed that the Act did not indicate how this discretion was to be exercised, referred to Vidler v Secretary, Department of Social Security (1995) 61 FCR 370 and, in reliance upon that decision, concluded:

All other things being equal, the Tribunal accepts on the evidence before it that Ms Schembri contributes slightly more financial support by way of dress clothing and extra curricular activities.  As well, receipt of sole parent pension has enabled Ms Schembri to spend more personal time with Sarina by way of personal discussion, cooking, etc.

It is apparent that the SSAT had to draw a fine distinction between the care provided by Mr Lowe and the care provided by Ms Schembri to find a basis for preferring one parent over the other as was required by s 251(2) of the Act.  The AAT, in a short judgment, held that the provisions of s 251(1) and (2) of the Act make it clear that Mr Lowe and Ms Schembri could not both be granted a sole parent pension at the same time, so that a choice had to be made between them.  It chose Ms Schembri to be the pension recipient for a different reason from that of the SSAT, viz, because it assessed her financial needs to be greater than those of Mr Lowe.  It might be thought that there is in this case no basis for preferring one parent over the other that carries any real conviction so that the outcome of the case so far, provides another example of arbitrary decision-making required by the structure of the legislation because it prohibits the sharing of the sole parent pension.  Cf Vidler at 380.

Section 249 provides that a person is qualified for a sole parent pension if the person meets certain criteria:

Qualification for sole parent pension

249.     (1)       … a person is qualified for a sole parent pension if:

(a)the person:

(i)is not a member of a couple; or

(ii)…

(iii)is a member of a couple who is living separately and apart from his or her partner; or

(iv)      …

(b)the person has at least one SPP child (see sections 250 and 251); and

(c)at least one of the following conditions is satisfied:

(i)if the person has only one SPP child - that child became an SPP child while the person was an Australian resident;

(ii)       …

(iii)      …

(iv)      …

(v)       …

(vi)      …

Section 250 provides:

(1)A young person is an SPP child of another person (in this section called the ‘adult’) if:

(a)      the young person is:

(i)        a dependent child of the adult; or

(ii)       …; and

(b)      the young person:

(i)        has not turned 16; or

(ii)       …; and

(c)       if the young person:

(i)        is a natural … child of the adult; or

(ii)       is in the adult’s legal custody; or

(iii)if the adult has never been a member of a couple - was being maintained by the adult immediately before the adult becomes a person to whom paragraph 249(1)(a) applies; or

(iv)has been wholly or substantially in the care and control of the adult for a period of at least 12 months immediately before the day on which the adult claims sole parent pension and is, in the Secretary’s opinion, likely to remain wholly or substantially in the adult’s care and control permanently or indefinitely.

The term “dependent child” is defined in s 5 as follows:

(2)      [Circumstances where dependent child]  Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the “adult”) if:

(a)the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult’s care; or

(b)      the young person:

(i)is not a dependent child of someone else under paragraph (a); and

(ii)is wholly or substantially in the adult’s care.

(3)      [Circumstances where cannot be dependent child]  A young person who has not turned 16 cannot be a dependent child if:

(a)the young person is not in full-time education; and

…

(c)…

(6)      [Person receiving pension or benefit]  A young person cannot be a dependent child for the purposes of this Act if:

(a)the young person is receiving a social security pension; or

(b)      …

(ba)     …

(c)      …

(7)      [Residence requirements for all purposes except special benefit]  For the purposes of this Act (other than the provisions dealing with special benefit), a young person is not to be treated as a dependent child of another person (in this subsection called the “adult”) unless:

(a)if the adult is an Australian resident:

(i)the young person is an Australian resident; or

(ii)the young person is living with the adult; or

(b)if the adult is not Australian resident:

(i)the young person is an Australian resident; or

(ii)the young person has been an Australian resident and is living with the adult outside Australia; or

(ii)the young person has been living with the adult in Australia and is living with the adult outside Australia.

(8)      …

The first requirement of s 5(2)(a) for the existence of a relationship of dependency between a child and an adult, that the adult be legally responsible, either alone or jointly with another, “for the day-to-day care, welfare and development of” a child is very similar to the right of joint custody which each parent of a child of their marriage has by force of ss 63F(1) and 63E(2) the Family Law Act 1975 (Cth) as in force at all material times up to May 1998 and with the right of joint custody imported into the relationship between an illegitimate child and its parents by provisions of State law such as s 3 the Status of Children Act 1978 (Qld): see Youngman v Lawson [1981] 1 NSWLR 439 at 444. The second requirement for dependency referred to in s 5(2)(a) that the child is “in the adult’s care” is directed not to the right or responsibility in respect of the day-to-day welfare of the child, but to the factual situation which must exist at any time that is material under the Social Security Act.  Cf Vidler at 374. The “dependent child” definition which, in part, governed entitlements to the sole parent pension under earlier versions of the Social Security Act did not contain this second requirement: dependency was governed by whether the pension claimant had a legal right in respect of the child, viz, “the right to have, and to make decisions concerning, the daily care and control of the child”. See s 3(1)(a)(i) and (2) of the Act in the form the subject of the decision in Secretary, Department of Social Security v Field (1989) 25 FCR 425. This case and Secretary, Department of Social Security v Wetter (1993) 40 FCR 22 to which reference was made in argument, were both concerned with whether particular access entitlements conferred by Family Court orders were sufficient to amount to this particular legal right. They are of little relevance to the construction of the significantly different provisions governing who is a “dependent child” that are of present concern. Section 5(2) must be read subject to, among other provisions, s 5(7); this cannot be read as a requirement that the child be living permanently or indefinitely with the particular adult in order to be a dependent child of the adult. Since the state of being “in the adult’s care” within s 5(2)(a) does not involve being in that care permanently or indefinitely, I would regard this requirement as satisfied whenever the child is, as a matter of fact, under the immediate care of the particular adult for any period of time other than a de minimus period.

Section 251 provides:

(1)      A young person can be an SPP child of only one person at a time.

(2)       If the Secretary is satisfied that, but for this section, a young person would be an SPP child of 2 or more persons, the Secretary is to:

(a)make a written determination that the Secretary is satisfied that that is the case; and

(b)specify in the determination the person whose SPP child the young person is to be; and

(c)give each person a copy of the determination.

It is apparent that more than one person can satisfy one or other of the s 249(1) qualification criteria at the one time.  It is also apparent that a child can, at the one time, be the “dependent child” in terms of s 5(2) and the “SPP child” in terms of s 250 of more than one person.  So much is assumed by s 251(2).

The respondent submits that the expression “at a time” in s 251 connotes a period required in the circumstances of the particular case to enable the child to be categorised as a dependent child and that, in practical terms, this will have to be a recent period of sufficient duration to enable the statutory test of dependency to be applied in a realistic way.  But, in my opinion, there is no justification for finding in s 251 such a requirement.  “At a time” in s 251(1) is synonymous with “at the one time”.  Section 251(1) is not directed to marking out, as an element of a person’s entitlement to a sole parent pension, the minimum period for which the person must have charge of the child, only to ensuring that no more than one such pension is payable in respect of a particular child at any one time.  Where, but for the restriction contained in s 251(1), two persons would be qualified for and so entitled to payment of a sole parent pension in respect of a particular child, s 251(2) provides the mechanism for making the choice between which one of them is to receive the sole parent pension in respect of the particular child in any given period.

It is the requirement that a child be “in the adult’s care”, which permits the child to be characterised as a “dependent child” and thus an SPP child of the pension claimant, not s 251(1), that creates the difficulties thrown up by this case.

There being no court order altering the position, it follows, in my opinion, from ss 63F(1) and 63E(1) the Family Law Act as in force at the material time that both Mr Lowe and Ms Schembri had joint custody of Sarina at all relevant times and so had joint legal responsibility for the daily care and control of Sarina throughout the whole of each day of each year. The findings of the SSAT and the AAT show that, in relation to Sarina, the factual position is the same in these respects as the legal position. These findings also show that Sarina was “in the … care” of each parent to the exclusion of the other within the meaning of that term in s 5(2)(a) the Social Security Act during the whole of every alternate week and that this has been the position since the parents separated in early 1991.  I reject the submission made by the respondent in supplementary submissions that both the SSAT and AAT made factual findings that the parents’ arrangements for the care of Sarina were such as to show that she was “in the … care” of both throughout the whole period.  In my view, the SSAT and AAT made findings of fact to the opposite effect on this particular issue, but misinterpreted the statutory definition to reach the result they did.  In Vidler, O’Loughlin J, who, correctly, in my respectful opinion, considered that the words in s 5(2)(a), “and the young person is in the adult’s care”, were directed to the factual circumstances that had to exist at any relevant time for a child to be “a dependent child”, held that the phrase was wide enough to cover a situation in which there was a consistent pattern of care and control alternating between the parents every few days, with the consequence that it was open to the Tribunal to find that the child was in the care of both parents at all material times. See 374 and 378. However, his Honour, at 379, observed:

On those occasions when Jullie might, as a matter of fact, be in the care and control of one or other of her parents, she could, subject to the temporal restrictions that were imposed in Field’s case, be the dependent child of that parent.  That parent, assuming that he or she had met all other tests, would then qualify for the pension because he or she has ‘at least one SPP child’, such a child being by definition, a ‘dependent child’.  In Field’s case the Full Court nominated a period of not less than 14 consecutive days, saying of the father that if, pursuant to an order of the Family Court, he had the right of access to his child in his own house for at least that period, he ‘should be regarded, ordinarily, as having the right to have, and to make decisions concerning, the daily care and control of the child during that period’.  Neither Mr Vidler nor Ms Ashford had such an entitlement to access.

I agree with his Honour in so far as he says that the child was the dependent child of each parent during each limited period - there, a few days at a time - that the child was in the care of the particular parent.  I respectfully disagree with his Honour’s use of Field to import into the current definition of “dependent child” in the Act an additional requirement that such care be for a minimum period of fourteen days before dependency can exist.

It follows that on the perhaps unusual facts of this case, s 251 has no impact on the entitlements of either Mr Lowe or Ms Schembri to a sole parent pension in respect of Sarina because the factual position is that Sarina is only a “dependent child” of each and thus an SPP child of each, to the exclusion of the other, in alternate weeks.  Here, there has been no period since the parents separated in 1991 when, but for s 251, Sarina would have been an SPP child of both at the same time.  The circumstances of this case were therefore never such as to enliven the discretion conferred by s 251(2) on the Secretary and which the SSAT and AAT exercised against Mr Lowe.

It also follows that the decision-maker has, by misinterpreting the relevant provisions of Part 2.6, wrongly caused Ms Schembri to be paid a sole parent pension in respect of each week when the child was in her father’s care and wrongly denied Mr Lowe the pension to which he, to the exclusion of the mother, is prima facie entitled in respect of each week since October 1996 when he has had Sarina in his care.

I say that Mr Lowe is “prima facie” entitled to the sole parent pension in respect of the weeks he has had Sarina in his care because the respective entitlements of the father and the mother each to be paid a sole parent pension, but only in respect of the particular weeks when Sarina was a dependent child and thus an SPP child of that parent, also depend on certain other provisions of the Act being satisfied.

It is a fundamental principle of constitutional law that moneys can only be disbursed from Consolidated Revenue strictly in accordance with an authorisation by the Parliament.  In Health Insurance Commission v Peverill (1994) 179 CLR 266, Brennan J said, at 243, of the Health Insurance Act 1973 (Cth):

The scheme of that Act is to appropriate Consolidated Revenue to the extent necessary to allow the Commission, after acceptance of claims made to it within the times prescribed, to pay out to claimants the amounts prescribed by the Principal Act.

His Honour also there described the right in a person to the payment of a particular benefit provided for by the Health Insurance Act as a statutory right enforceable by public law remedies (although it did not create a debt), saying, at 242:

Once it is appreciated that the right conferred by the Principal Act upon an assignee practitioner is to be discharged by a statutory authority when certain statutory criteria are fulfilled, it is clear that the Act does not create a debt enforceable by action.  The Principal Act is a code prescribing the benefits to be paid and the manner of paying them.  The only way in which a medicare benefit can be paid to a claimant is by acceptance of a claim made within time followed by a payment by the Commission in an amount prescribed by the statutory Tables out of Consolidated Revenue in such a manner as the General Manager of the Commission determines.  The money thus to be paid is the only money appropriated for the purposes of paying medical benefits.

Section 1363 and the provisions governing entitlements to sole parent pensions (which are typical of the provisions of the Act governing entitlements to other benefits payable under the Act) show that the Social Security Act also establishes a scheme authorised by the Parliament which regulates the payment of moneys from Consolidated Revenue by way of designated benefits.  It is for this reason that a person can only have a right to be paid moneys in respect of a particular benefit on the terms and in the amount fixed by the Act and then only in the manner prescribed by the Act for its payment.

Consistently with this, s 40(1) shows the interdependence of the provisions which together identify a person’s statutory right to payment of a particular pension.  For a sole parent pension there are the provisions governing, inter alia, qualification for a benefit (with which ss 249 to 258 deal), those governing the claims that must be made and the supporting information that must be provided (with which ss 259 to 265C deal), the making of determinations on claims (ss 266 to 268), those governing the quantum of the pension that is determined to be payable (s 269) and those governing how and when the payment is made (ss 270 - 279).

Sole parent pension becomes payable in accordance with s 270 to a person on the first day on which that person is qualified for the pension, provided no provision of the Act makes the pension not payable to that person.  The rate at which a sole parent pension is payable is calculated in accordance with the pension rate calculator C at the end of s 1066:  s 269(b).  This provides for the calculation of the pension as an annual rate:  see para 1066-A1 in the Calculator.  The pension so calculated is payable in accordance with s 271(1), ie, by payment to the pensioner of a full instalment of the relevant annual rate:

on each pension payday on which:

(a)      the person is qualified for the pension; and

(b)      the pension is payable to the person.

The amount of each such instalment is determined in accordance with s 273, the basic rule being that the amount of each such instalment is that worked out by dividing the amount of the annual rate of the pension by twenty six.  “Pension payday” means each alternate Thursday after Thursday, 4 July 1991 (s 23(1)).  Section 42(2) provides that if a payday based payment is payable to a person (as is the case with a sole parent pension), the person will be paid “a full instalment of the payment on each payday during the period during which the payment is payable to the person and will be paid nothing on a payday outside that period”.

Looked at in isolation, s 271 might suggest that a full instalment of sole parent pension is payable to a person qualified for it on each pension payday, although not qualified for sole parent pension on any of the other thirteen days preceding each payday (because, eg, the person did not have the child in his or her actual care on any of those thirteen days).  But the rate of sole parent pension is fixed as an annual, not a daily, rate and the only way it can be paid is by fortnightly instalments, each equal to 1/26 of the annual rate.  Moreover, s 270 assumes that the entitlement to payment of the sole parent pension continues throughout a period, viz, the period that starts with the first day on which the pension claimant is qualified for that pension.  This assumption is also reflected in s 42(2), which refers to a person’s right to receive a full instalment of a payday based payment (including a sole parent pension) on each fortnightly payday “during the period during which the payment [ie, the sole parent pension calculated at an annual rate] is payable to the person”.  Like the legislation considered in Wetter, at 30, the scheme of this Act “is for a continuous entitlement to pension”. I would therefore read the references in s 270(a) and s 271(1)(a) to a person being qualified for the pension as requiring the person to satisfy the qualification criteria fixed (in the case of sole parent pension) by s 249 and s 250 throughout the whole of any period during which that pension can be paid in the manner fixed by s 271(1).

It follows that, since a sole parent pension can only be paid at fortnightly intervals and then only if the pension claimant is qualified for that pension throughout the whole of each fortnightly period, in a case such as this, each parent will only be entitled to an SPP in respect of their child if each, in addition to having joint legal responsibility for the child, has the actual care of the child for a minimum period equal to that in respect of which one full instalment of pension can be paid in accordance with ss 271 and 273.  While Field cannot govern the construction of the provision of the Act of central importance here, it is noteworthy that the Full Court there did not see any absurdity in an interpretation of legislation then in force that resulted in each parent having a separate entitlement to sole parent pension arising from intermittent periods of possession of a child by the particular parent, so long as each period was of at least fourteen days’ duration.

Since neither Mr Lowe nor Ms Schembri can, on the facts of this case, show that either was ever entitled to receive payment of a sole parent pension in the only manner prescribed by the Act in which such a pension can lawfully be paid - fortnightly instalments equal to 1/26 of the appropriate annual rate - neither has any entitlement to that pension.

It is with regret that I reach this conclusion.  It is possible that what may be only a slight, easily made alteration in their arrangements for the care of Sarina is all that is necessary to complete the entitlement of each to be paid fortnightly instalments of sole parent pension.  Mr Lowe and Ms Schembri, despite their own divorce, have been able to implement and continue a consensual arrangement for the welfare of their child on a long-term basis which has worked, as the SSAT observed, “very well”.  By implementing this arrangement, Mr Lowe and Ms Schembri have avoided inflicting on each other the financial burdens suffered by persons whose marriages break down, but who are unable to put in place, without curial imposition, arrangements for the welfare of their children; they have also been able to free the community of the public costs inevitably involved when parties to a failed marriage have to invoke the jurisdiction of the Family Court to devise a scheme for the welfare of their children.  There does not appear to be any insuperable administrative difficulty in the way of introducing into this frequently amended Act a scheme which would provide for the payment of a sole parent pension to each of the carers of a child in circumstances like the present.  At least that appears to be so, when regard is had to the nature of the task s 251(2) imposes on the Secretary and to provisions such as s 869 of the Act.  But unfortunate though this outcome is for Mr Lowe and Ms Schembri, that provides no justification for interpreting the statutory provisions in a way which would circumvent the consequences of the Parliament having enacted a scheme for the disbursement of public money by way of sole parent pension which permits that disbursement only if the requirements of the scheme are met.  Policy objectives said to be discernible in the legislation cannot justify ignoring this principle.

It was submitted that the interpretation which I think should be placed upon the definition of “dependent child” in s 5(2) of the current Act would result in disruption to the scheme provided for by Part 2.17 of the Act for the payment of family allowance.  But other difficulties flowing from the construction of the definition of “dependent child” in the legislation then in force in the working out of the scheme governing the payment of this particular benefit did not, correctly in my respectful opinion, prevent Hill J in Wetter from expressing the conclusion he reached on the question of construction before him.  See pp 28 and 29 of 40 FCR and cf Vidler at 380, where there is the reference to the arbitrary results produced by the current legislation in respect of sole parent pension itself.

That Mr Lowe (to October 1996) and Ms Schembri thereafter may have been paid a sole parent pension when not entitled to it does not automatically mean that each will have to repay the whole of the pension payments received:  the Secretary has the power, under Part 5.4 of the Act, to release Ms Schembri and Mr Lowe from the obligation to repay pension amounts received by each to which neither was lawfully entitled.  In supplementary submissions, it was said for the Secretary that such an outcome as I think is dictated here would cause him to regard the case as likely to attract the application of these provisions.  I also note that there is provision for the payment of special benefits under Part 2.15 of the Act.  It is not clear whether either or both of Mr Lowe and Ms Schembri can qualify for such a benefit; no doubt they will consider that matter.

The other ground of challenge to the AAT decision involves the proposition that Mr Lowe was denied natural justice because the Tribunal had prejudged the case.  The AAT’s decision was given at the end of a very short hearing of ten minutes or so, conducted by telephone link-up which had initially been designated as a preliminary conference only.  In the course of this conference, the Tribunal member indicated that he had reached a firm view of the correctness of the SSAT determination and that if Mr Lowe was agreeable, he would give a decision then and there on Mr Lowe’s challenge to the SSAT determination.  It was no doubt in view of the strong view expressed by the Tribunal member that Mr Lowe acquiesced in this course, saying that the only course open to him was to go to the Federal Court.  Unorthodox though the Tribunal’s approach was, it is apparent, both from the transcript of the hearing recording what the Tribunal member said to Mr Lowe and from the AAT’s brief decision, that prior to the commencement of the hearing, the Tribunal member had not only read the SSAT decision, but Mr Lowe’s quite detailed written submission.  However, in view of the conclusion I have reached on the proper construction and effect of the statutory provisions, it is unnecessary for me to express any conclusion on this second ground of challenge.

The appeal must be dismissed.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:            13/11/98

Counsel for the Applicant:	Mr S Miller
Solicitor for the Applicant:	Paul Denmeade & Co
Counsel for the Respondent:	Mr PD Applegarth
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 October 1998
Date of Judgment:	13 November 1998