Pedel and Secretary, Department of Social Services (Social services second review)
[2024] AATA 2182
•2 July 2024
Pedel and Secretary, Department of Social Services (Social services second review) [2024] AATA 2182 (2 July 2024)
Division:General Division
File Number:2023/4994
Re:Major Caitlin Pedel
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:2 July 2024
Place:Sydney
The decision of the AAT1 dated 28 June 2023 is set aside, and the matter remitted to the Respondent for further processing with a finding that the Applicant satisfies paragraph 46(4)(a) of the Paid Parental Leave Act 2010 (Cth).
.................................[SGD].......................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
SOCIAL SECURITY - paid parental leave – eligibility – Australian residency test – effect of absence from Australia on Australian residency test – whether discretionary extension can be exercised for defence force member overseas for longer than 56 weeks and no more than 3 years –– decision set aside and remitted
STATUTORY INTERPRETATION – meaning of ‘deployment’ – whether to adopt a textual or purposive approach – where primary statutes do not define ‘deployment’ – whether to adopt meaning of ‘deployment’ from subordinate legislation – where subordinate legislation conflicts with purpose of statute – purposive approach adopted – ‘deployment’ defined in its ordinary meaning
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Paid Parental Leave Act 2010 (Cth)
Defence Act 1903 (Cth)
Social Security Act 1991 (Cth)Defence Determination 2016/19, Conditions of service, No. 110 (Cth)
CASES
N/A
SECONDARY MATERIALS
Australian Government Department of Defence, ‘ADF Pay and conditions manual – PACMAN’ (6 June 2024) < Government Department of Social Services, ‘Guides to Social Policy Law, Paid Parental Leave Guide’ (6 May 2023) < FOR DECISION
Emeritus Professor P A Fairall, Senior Member
2 July 2024
INTRODUCTION
The Applicant is an Australian citizen and has served as an officer in the Australian Defence Forces (ADF) since 2007. She holds the rank of major.[1] On 28 May 2021, she departed Australia on military service orders to assume a posting in the United States of America.[2] On 16 March 2022, she gave birth while residing there.[3] On 27 July 2022, she lodged an application with Services Australia (the Agency) seeking paid parental leave (PPL) from 2 September 2022.[4] On 13 December 2023, her application was refused, on the basis that she did not satisfy the residency test contained in Paid Parental Leave Act 2010 (Cth) (PPL Act). This decision was confirmed by an authorised review officer within the Agency and, on 28 June 2023, by the first tier of this Tribunal (AAT1). The Applicant has applied for a second-tier review of the refusal decision.
[1] T3, 40.
[2] See letter from Lieutenant Colonel AG McGuinness, Acting Military Attaché, Embassy of Australia: T8,40; T4, 26.
[3] T5,33; T6, 35.
[4] T4, 25-29.
One of the eligibility requirements for PPL is satisfaction of the Australian residency test.[5] An Australian citizen who lives in Australia is an Australian resident.[6] An Australian citizen who lives outside Australia for more than 56 weeks from the relevant date does not satisfy the residency test.
[5] Chapter 2, Part 2-3 of the Paid Parental Leave Act 2010 (Cth) (‘PPL Act’) sets out the eligibility requirements.
[6] Section 6 of the PPL Act provides that “Australian resident” has the same meaning as in the Social Security Act. See Social Security Act 1991 (Cth), subsection 7(2).
The Applicant departed Australia on 28 May 2021, and apart from a short 24-day visit over the summer of 2022,[7] did not return until November 2023.[8] Her period of absence was greater than 56 weeks.
[7] T14, 108. The Applicant’s return to Australia did not engage s 46(3) of the Act.
[8] Transcript, 2 May 2024, 2.
However, paragraph 46(4)(a) of the PPL Act provides that the Secretary may extend the 56-week period by up to three years in some cases. One such case applies to serving military personnel. The Secretary must be satisfied that the person is unable to return to Australia within the 56-week period because the person is deployed outside Australia as a defence force member, under conditions specified in a determination made under the Defence Act 1903 (Cth) (Defence Act) that relates to such deployment. The words ‘deployed’ and ‘deployment’ are not defined in the PPL Act.
The Defence Determination 2016/19, Conditions of service (the Determination) is the main determination authorising ADF conditions of service within Australia and overseas. It deals with a wide range of ADF conditions of service.[9] The Determination is made under section 58B of the Defence Act. It has the force of law and must be complied with. For ADF members, the overseas conditions of service are authorised by Chapters 12 to 17 of the Determination. These Chapters are reproduced as Chapters 12 to 17 of the ADF Pay and Conditions Manual (PACMAN).[10]
[9] Part 2: Defence Determination on conditions of service | Pay and Conditions
[10] Chapter 12: Overseas conditions of service – overview | Pay and Conditions (defence.gov.au)
The Respondent’s argument is that the words ‘deployed’ and ‘deployment’ are used in a particular way in the Determination. In short, unless a person is engaged in one of the specific deployments identified in the Determination, then they are not ‘deployed’.[11] The Respondent contends that this restricted meaning should govern the meaning of the words in the PPL Act.
[11] For a comprehensive list of deployments: see PACMAN Annexure 17.1.A. Deployments approved by the Minister since 1982.
I note in passing that the Commonwealth Paid Parental Leave Scheme (CPPL Scheme) supplements entitlements to paid parental leave enjoyed by defence members, as set out in the PACMAN).[12] The relevant Chapter dealing with paid parental leave is set out in Chapter 5, Part 7, Division 2. A member is eligible for up to 20 days of paid parental leave if they are not eligible for paid maternity leave.[13]
[12] PACMAN | Pay and Conditions (defence.gov.au)
[13] Division 2: Paid parental leave | Pay and Conditions (defence.gov.au)
The Applicant does not dispute that she was outside of the country for more than 56 weeks. The issue for the Tribunal is therefore whether she is eligible for the extension of time provided for under subsection 46(4) of the PPL Act.
The Applicant gave evidence that she was unable to return to Australia because the standard of care available to expectant mothers in the United States was sufficiently high and repatriation was not standard practice or indeed possible. This was unlike the situation pertaining to some overseas postings, where the local facilities might be deemed inadequate. She said that she was therefore unable to return to Australia. I am prepared to accept at face value the evidence given by the Applicant on this point. As a serving member of the ADF, she was not simply at liberty to return to Australia without the approval of the chain of command. Her pregnancy was not an automatic trigger for repatriation.
The words ‘deploy’ or ‘deployment’ are not used in the Defence Act. They are however used in the Determination, and they have a defined meaning.[14] Section 1.3.18 states that deployment means warlike or non-warlike service overseas by members assigned for duty with a UN mission or a similar force.
[14] The word ‘deployment’ has 35 occurrences in the Determination. The word ‘deployed’ appears six times.
The Respondent contends that, irrespective of whether the Applicant was ‘unable’ to return to Australia, the extension of time permitted under paragraph 46(4)(a) cannot lawfully be granted in this case because the Applicant was not ‘deployed’ outside Australia within the meaning of the Determination.
In response to inquiries made by the Respondent, a policy officer within the Department of Defence stated that the Applicant was not considered to have been deployed, as defined under the Determination.[15]
[15] Policy Officer – Overseas Conditions of Service, Directorate of Overseas and Housing Policy, People Policy and Employment Conditions Branch, Department of Defence: Member’s File, item 7.
The Applicant made various arguments to support her claim for an extension of time under paragraph 46(4)(a). She relied upon the ordinary dictionary meaning of the words ‘deployed’ and ‘deployment’. She also pointed to what she said were anomalies flowing from the Respondent’s interpretation. She pointed out that under army rules a pregnant defence member could not be deployed overseas in the restrictive sense suggested by the Respondent, and therefore the class of defence members to whom the benefit of the CPPL Scheme could apply would be zero. She provided supporting letters from senior officers in support of this view.[16]
[16] See Letter dated 20 May 2024 from Colonel Peake, Headquarters Forces Command: Member’s File, item 9; Letter dated 6 February 2023 from Lieutenant Colonel J. Richards, JI Head of Defence Staff, Deputy Chief of Staff: Member’s File, item 3.
The Respondent counters that even this assumption would not leave paragraph 46(4)(a) with no work to do. If a defence member fell pregnant while on a deployment, as that term is defined in the Determination, and was unable to return after the expiration of 56 weeks, due to some impediment, the three-year extension would then become available.
To summarise the Respondent’s argument, the words in question are used but not defined in the PPL Act. They are not used at all in the Defence Act, to which the PPL Act refers in paragraph 46(4)(a). They are however used in a very specific way in subordinate legislation made under the Defence Act (i.e., the Determination). Therefore, it must be inferred that the restrictive meaning in that subordinate legislation governs the meaning of those words in the PPL.
The exercise of statutory interpretation pressed upon the Tribunal involves the transfer of meaning ascribed to words used in a technical context to ordinary words of the English language used in another. It assumes that the reference to ‘a determination’ in paragraph 46(4)(a) is a reference to the Determination (2016/19) in which the terms are defined.
The Tribunal is cognisant of the approach to statutory interpretation which focuses upon the purpose of the legislation, rather than narrowly focussing on the specific words in question. The ordinary meaning of words may yield to some other meaning discerned in the statute as a whole, taking account of not just the language used but extrinsic aids which illuminate the meaning of particular phrases or words.
The PPL Act is beneficial legislation. Section 3A of the PPL Act states that the objects of the CPPL Scheme are to:
(a) signal that taking time out of the paid workforce to care for a child is part of the usual course of life and work for both parents; and
(b) promote equality between men and women and balance between work and family life; and
(c) provide financial support to parents caring for children, in order to:
(i) allow those parents to take time off work to care for the child after the child's birth or adoption; and
(ii) enhance the health and development of birth mothers and children; and
(iii) encourage women to continue to participate in the workforce; and
(iv) provide those parents with flexibility to balance work and family life; and
(v) increase the time that fathers and partners take off work around the time of birth or adoption; and
(vi) create further opportunities for fathers and partners to bond with their child; and
(vii) allow fathers and partners to take a greater share of caring responsibilities and to support mothers and partners from the beginning.
(3) The financial support provided by this Act is intended to complement and supplement existing entitlements to paid or unpaid leave in connection with the birth or adoption of a child.
I consider that the construction pressed by the Respondent would defeat many of the purposes articulated in section 3A. I note especially paragraph (c)(iii) namely, to
(iii) encourage women to continue to participate in the workforce;
The Respondent states:
Whilst the objects of the Act set out in s 3A include supporting primary carers to take leave from work, no legislation pursues its purposes at all costs and it may frustrate rather than effectuate legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law.[17]
[17] RSFIC, para 5.36.
In the present case, the Respondent’s interpretation means that any defence member on overseas duties extending beyond 56 weeks and unable to return would not be eligible for the 3-year extension. Such a person would be singularly disadvantaged. I do not think that this was the intention of Parliament, given the ease with which the matter might have been put beyond any doubt. It may well be simplistic to impute some artificial meaning merely to further the stated statutory objectives, another thing entirely to attribute a technical meaning that will destroy a major objective.
The Respondent states:
3.3 It follows from the above that the applicant was not deployed. In reality, there is no dispute between the parties on that issue. The applicant’s case is better understood as being that people who are not deployed in the relevant sense, but who are in circumstances where they are serving overseas as part of the ADF, should receive the benefit of s 46(4) of the Act. Whilst that is an understandable submission, it does not grapple with the clear terms of s 46(4) of the Act, which do not capture the applicant’s circumstances.
Leaving aside the question whether the Applicant concedes that she was not ‘deployed (she does not), it cannot be doubted that there is an ambiguity of expression in the relevant provision, and a leeway of choice. It is, with respect, not correct to assert that paragraph 46(3)(a) speaks in ‘clear terms’.
I note the Paid Parental Leave Guide (Guide), which forms part of a collection of publications written by the Department of Social Services designed to assist decision makers administering social policy law. The Guide illuminates the proper approach to take to interpreting the PPL Act.[18]
1.3.1 Beneficial administration of the legislation
What is beneficial legislation?
Legislation is characterised as 'beneficial' when its purpose is to provide benefits to those affected. The PPL Act is regarded as beneficial legislation because it provides assistance to parents with newborn or recently adopted children. This means where legislative ambiguities arise, the legislation should be interpreted in a way that is most beneficial to claimants/recipients as a whole.
When is the beneficial approach applied?
A beneficial approach can only be applied where the legislation is unclear and there are no policy directives on how the relevant section of the legislation should be interpreted. Consideration must be given as to whether a particular interpretation would be beneficial to most claimants/recipients. Once a favourable interpretation of a section has been made, that approach is to be adopted in all cases. Therefore, it is not possible to apply different interpretations on a case-by-case basis once a beneficial interpretation has been determined for that piece of legislation.
[18] 1.3.1 Beneficial administration of the legislation | Paid Parental Leave Guide (dss.gov.au)
I consider that there is a lack of clarity in the relevant provision and that the interpretation which supports and furthers the objectives of the legislation should be preferred.
The words ‘deployed’ and ‘deployment’ are not terms of art. Their usage in paragraph 46(4)(a) is not explicitly governed by their usage in the Determination made under the Defence Act. They are ordinary words of the English language. For present purposes, they should be interpreted as such.
I find that at the relevant time the Applicant was deployed under conditions specified in a determination made under the Defence Act that relates to such deployment. I therefore conclude that the terms of paragraph 46(4)(a) of the PPL Act apply to the Applicant.
If this decision is wrong in point of law, it will of course be corrected by higher authority. It would be most unfortunate if an incorrect decision arising from a lack of precision in the relevant statutory provision were to be left standing on such an important matter as the entitlement of defence members to the CPPL Scheme.
DECISION
The decision of the AAT1 dated 28 June 2023 is set aside, and the matter remitted to the Respondent for further processing with a finding that the Applicant satisfies paragraph 46(4)(a) of the Paid Parental Leave Act 2010 (Cth).
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of
..................................[SGD]......................................
Associate
Dated: 2 July 2024
Date(s) of hearing: 2 May, 20 June 2024 Applicant: In person Counsel for the Respondent: Mr T Hillyard, Sparke Helmore Lawyers
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