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

This matter concerned an appeal by Mr Mack against a decision of the Secretary of the Department of Social Services regarding his eligibility for a disability support pension (DSP). The core of the dispute revolved around whether Mr Mack, a New Zealand citizen, met the residency requirements for the DSP, either under the *Social Security Act 1991* (Cth) or the relevant international agreement between Australia and New Zealand.

The Tribunal was required to determine two primary legal issues. Firstly, whether Mr Mack satisfied the residency requirements stipulated in section 94(1)(e)(i) of the *Social Security Act 1991* (Cth), which necessitates being an "Australian resident" as defined by section 7(2) of the Act. Secondly, and crucially, the Tribunal had to consider whether the definition of "Australian resident" under Article 5(1) of the Australia-New Zealand Social Security Agreement could operate as an "extension" or substitution for the definition in the Act, thereby allowing Mr Mack to qualify for the DSP.

The Tribunal's reasoning was guided by established case law concerning the interaction between the *Social Security Act 1991* (Cth) and the international agreement. It noted that the agreement does not displace the general operation of Australian social security law, but rather modifies its application in specific circumstances, as confirmed by Article 2(1) of the Agreement. Drawing on decisions such as *Pillai*, *Stretch*, *Al-Janabi*, and particularly the Full Federal Court's judgment in *Mahrous*, the Tribunal considered the overriding effect of section 6 of the *Social Security (International Agreements) Act 1999* (Cth). This section provides that the provisions of a scheduled international agreement have effect despite anything in the social security law. The Tribunal found that the *Mahrous* decision established that the language of the Agreement should not be read as limiting the rights of applicants unless expressly stated, and that its object is to enhance equitable access to benefits.

Ultimately, the Tribunal set aside the decision under review. It concluded that Mr Mack could satisfy the residency requirements for DSP by meeting the definition of "Australian resident" under Article 5(1) of the Agreement, which, by virtue of section 6 of the *Social Security (International Agreements) Act 1999* (Cth), prevailed over the definition in section 7(2) of the *Social Security Act 1991* (Cth). This allowed Mr Mack to qualify for the DSP.