Secretary, Department of Family and Community Services v Rolley
[2000] FCA 806
•20 JUNE 2000
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Family & Community Services v Rolley [2000] FCA 806
SOCIAL SECURITY - appeal from decision of Administrative Appeals Tribunal – pension – income earned from casual employment – whether income free area limit exceeded – calculation of income – distinction between annual amount and annual rate of income – question of fact – character of income received.
Social Security Act 1991 (Cth)
Harris v Director-General of Social Security (1985) 57 ALR 729 discussed, followed
Haldane-Stevenson v Director-General of Social Security (1985) 60 ALR 621 citedSECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v JANET ROLLEY
Q3 OF 2000FRENCH, KIEFEL AND DOWSETT JJ
20 JUNE 2000
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q3 OF 2000
On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Ms S A Forgie (Deputy President)
BETWEEN:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
APPLICANTAND:
JANET ROLLEY
RESPONDENTJUDGE:
FRENCH, KIEFEL AND DOWSETT JJ
DATE OF ORDER:
20 JUNE 2000
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. There will be no order as to costs.
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
Q3 OF 2000
On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Ms S A Forgie (Deputy President)
BETWEEN:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
APPLICANTAND:
JANET ROLLEY
RESPONDENT
JUDGE:
FRENCH, KIEFEL AND DOWSETT JJ
DATE:
20 JUNE 2000
PLACE:
BRISBANE
REASONS FOR JUDGMENT
The Court:
Introduction
Janet Rolley is an age pensioner. On 15 September 1998 a delegate of the Secretary of the Department of Social Security decided that there had been an overpayment of her pension in the sum of $542.92 for the period 30 April 1998 to 6 August 1998. Repayment of that amount was requested from Mrs Rolley. She sought a review of the decision. Upon internal review, the decision was varied there having been an error made in the original calculation. The amount of overpayment was reduced to $490.67. Mrs Rolley lodged an appeal with the Social Security Appeals Tribunal (“SSAT”) on 16 February 1999.
Before the SSAT it was contended by the Department that Mrs Rolley had informed it, on 4 August 1998, that she had undertaken employment with Education Queensland from 13 April 1998 to 31 July 1998. Her notification was said to have been more than fourteen days after she had started work and because of this she was said to have received age pension in excess of her entitlement. Mrs Rolley contended however that she was allowed to earn $100 per fortnight or $2,600 per year before her pension was affected. She said she had not earned sufficient income in 1998 to affect the rate of age pension payable to her and that the way her earnings had been converted to an annual rate by the Department was unfair as her actual income for the year was only $1,503.25. The employment in question was as a relief cleaner covering the duties of two cleaners while they were away on holidays. The SSAT found that in 1998 Mrs Rolley had worked on a casual basis as a school cleaner during the period 13 April 1998 to 31 July 1998 and received gross income totalling $1,503.25, that she notified the Department of that employment on 4 August 1998 and that this was the only income she earned in that calendar year. The SSAT identified as the question for determination by it whether Mrs Rolley’s ordinary income on a yearly basis was the amount of $1,503.25 earned by her in 1998 or whether that amount was to be treated as equivalent to an annual rate $4,885.65 as contended by the Department. The SSAT decided that the income she had received should not be so treated and that there had been no overpayment of age pension as the amount of her earnings for the whole year had not exceeded her ordinary income free area limit of $1,800.
The Appeal
On 6 May 1999, the Secretary of the Department of Family and Community Services applied to the Administrative Appeals Tribunal (“AAT”) for review of the decision of the SSAT. The AAT affirmed the decision of the SSAT by a decision given on 17 December 1999. The Secretary of the Department now appeals from that decision. The appeal raises questions of law which are expressed in the notice of appeal thus:
“(a)the proper construction of ‘ordinary income on a yearly basis’ within the provisions of section 1064-E1 of the Social Security Act 1991 (‘the Act’);
(b)whether, in circumstances where a person has obtained discrete short term employment which is not expected to continue, that person’s ‘ordinary income on a yearly basis’ without the provisions of section 1064-E1 of the Act should, during the period of employment, be calculated:
(i)by annualising the rate of income received during that period of employment; or
(ii)by treating the total income received from such employment as the ordinary rate of income on a yearly basis.
(c)whether on a true construction of section 1064-E1 the Tribunal was correct in law in calculating the Respondent’s ordinary income on a yearly basis in the relevant period at $1,503.25.”
Statutory Framework
The qualifications for the payment of an age pension are set out in s 43. Section 46 identifies the provisional commencement date for payment as the day upon which the claim for pension is made. Pension is not payable before that day (s 45). The Secretary determines the claim (s 52) based upon qualification and payability (s 53). Section 55 provides:
“A person’s age pension rate is worked out:
(a)if the person is not permanently blind – using Pension Rate Calculator A at the end of section 1064 (see Part 3.2); or
(b)if the person is permanently blind – using Pension Rate Calculator B at the end of section 1065 (see Part 3.3).”
Payment of the age pension is by instalments on each pension payday on which the person is qualified for the pension. A “pension payday” is defined in s 23(1) thus:
“pension payday” means:
(a)the Thursday that falls on 4 July 1991; and
(b)each succeeding alternate Thursday.”
The amount of instalments payable on each pension payday is calculated pursuant to s 59 which provides, in s 59(1):
“The amount of an instalment of age pension is the amount worked out by dividing the amount of the annual rate of the pension by 26.”
This appeal turns upon the way in which the means test for the age pension is to be applied to the intermittent or occasional receipt of income. That test is to be found in Module E of the Pension Rate Calculator A which is set out in s 1064. Section 1064 relevantly provides:
“1064(1) The rate of:
(a) age pension;
.
.
.is, subject to subsection (2), to be calculated in accordance with the Rate Calculator at the end of this section.”
Pension Rate Calculator A is divided into six modules designated Module A to Module G inclusive (Module F having been repealed in 1992). Module A sets out the overall rate calculation process. Each of the other modules sets out a component of the calculation of the age pension rate payable. Not all components will be applicable to all cases. Each module is divided into points numbered 1064 followed by the alphabetical designation of the module and a numerical designation for the relevant point. Module A has two points, 1064-A1 and 1064-A2. Only 1064-A1 is relevant for present purposes. It sets out an overview of the method of calculating the rate of age pension using the various modules. It is in the following terms:
“1064-A1 The rate of pension is an annual rate (fortnightly amounts are provided for information only).
Method statement
Step 1Work out the person’s maximum basic rate using MODULE B below.
Step 2Work out the amount per year (if any) of pharmaceutical allowance using MODULE C below.
Step 3Work out the amount per year (if any) for rent assistance (using MODULE D).
Step 4Add up the amounts obtained in Steps 1, 2 and 3: the result is called the maximum payment rate.
Step 5Apply the ordinary income test using MODULE E below to work out the income reduction.
Step 6(Omitted)
Step 7(Omitted)
Step 8Take the income reduction away from the maximum payment rate: the result is called the income reduced rate.
Step 9Apply the assets test using MODULE G below to work out the reduction for assets.
Step 10Take the reduction for assets away from the maximum payment rate; the result is called the assets reduced rate.
Step 11Compare the income reduced rate and the assets reduced rate: the lower of the 2 rates, or the income reduced rate if the rates are equal, is the provisional payment rate.
Step 12The rate of pension is the difference between:
(a)the provisional payment rate; and
(b)any advance payment deduction (see Part 3.16A):
plus any amount payable by way of remote area allowance (see MODULE H).”
The relevant module for present purposes is Module E which deals with the ordinary income test. The parts of Module E applicable to the present case are as follows:
“1064-E1 This is how to work out the effect of a person’s ordinary income on the person’s maximum payment rate:
Method Statement
Step 1Work out the amount of the person’s ordinary income on a yearly basis.
Step 2Work out the person’s ordinary income free area (see points 1064-E4 to 1064-E9 below).
Note: a person’s ordinary income free area is the amount of ordinary income that the person can have without any deduction being made from the person’s maximum payment rate.
Step 3Work out whether the person’s ordinary income exceeds the person’s ordinary income free area.
Step 4If the person’s ordinary income does not exceed the person’s ordinary income free area, the person’s ordinary income excess is nil.
Step 5If the person’s ordinary income exceeds the person’s ordinary income free area, the person’s ordinary income excess is the person’s ordinary income less the person’s ordinary income free area.
Step 6Use the person’s ordinary income excess to work out the person’s reduction for ordinary income using points 1064-E10 to 1064-E12 below.
.
.
.
1064-E4 A person’s ordinary income free area is worked out using Table E-1. Work out which family situation in Table E-1 applies to the person. The ordinary income free area is the corresponding amount in column 3 plus an additional corresponding amount in column 5 for each dependent child of the person.
TABLE E-1
ORDINARY FREE AREA LIMITS
Column
1item
1.
2.
3.
4.
Column 2
Category of person
Not member of a couple
Partnered (partner getting neither pension nor benefit)
Partnered (partner getting benefit)
Partnered (partner getting pension)
Column
3
basic free area per year$2,080
$1,820
$1,820
$1,820
Column
4
basic free area per fortnight$80
$70
$70
$70
Column 5
Additional free area per year
$624
$624
$624
$312
Column 6
Additional free area per fortnight
$24
$24
$24
$12
.
.
.
1064-E10 A person’s reduction for ordinary income is worked out by dividing the person’s ordinary income excess by 2.1064-E11 A person’s ordinary income excess is the person’s ordinary income less the person’s ordinary income free area.”
Legislative Ancestry
Before turning to the decision of the AAT it is helpful to have regard to the way in which the High Court in Harris v Director-General of Social Security (1985) 57 ALR 729 construed and applied the predecessor provision in that Act relating to the income test applicable to age pensions. The relevant provision was s 28. Subsection 28(1) provided:
“28(1) Subject to this Part, the rate of an age or invalid pension shall in each case be a rate determined by the Director-General as being reasonable and sufficient, having regard to all the circumstances of the case, but shall not exceed the maximum rate fixed by or in accordance with the next eight succeeding subsections.”
The next eight succeeding subsections, beginning with subs (1A), fixed maximum rates which were in practice the rates determined. Those subsections appeared before s 28(2) which provided:
The annual rate at which an age or invalid pension is determined shall, subject to subsection 2(AA), be reduced by one-half of the amount (if any) per annum by which the annual rate of the income of the claimant or pensioner exceeds –
(a)in the case of an unmarried person - $1,040 per annum; or
(b)in the case of a married person - $897 per annum.”
The pensioner in the Harris case had obtained casual employment as a nursing aide. In most fortnights between 9 September 1977 and 2 September 1979 she received some pay, the amounts of which varied from fortnight to fortnight. She also received some amounts of income by way of interest on bank deposits and other investments. She did not notify the Director of Social Services of her earnings. An overpayment of $1,177.90 was assessed as overpaid for the period from pension payday 13 October 1977 to pension payday 30 August 1979. The issue before the High Court was the manner in which the overpayment had been calculated. The Act as it then stood provided for the pension to be paid in fortnightly instalments and under s 41(2) the amount of a fortnightly instalment of a pension was to be ascertained by dividing “the annual rate of the pension by 26”. Reference was also made in the case to s 46(1) which authorised the Director-General, having regard to the income of a pensioner, inter alia, to cancel or suspend the pension or to reduce or increase the rate of the pension. The majority of the Court (Gibbs CJ, Brennan, Deane and Dawson JJ) observed at 732:
“Implicit in the duty to make the calculation required by s 28(2) and in the power conferred by s 46(1) is the authority to ascertain administratively what the pensioner’s annual rate of income is and the amount, if any, by which that rate exceeds one or other of the sums per annum specified in s 28(2).”
The Court contrasted the six monthly changes which could be made to the rate of age pensions under s 28(1) with the changeability of the annual rate of income. They observed:
“…the annual rate of income may change at any time: it is not an annual amount, but an annual rate. When there is a change in either the s 28(1) rate or in the excess of the annual rate of income over the relevant specified sum per annum in s 28(2), it is necessary to exercise the powers conferred by s 46(1) in order that the pension which is being paid conforms with the s 28(2) rate. The powers conferred by s 46(1) may be exercised at any time. An occasion for exercising those powers is when the s 28(2) rate so changes that the rate of pension which is being paid is greater or less than it should be.”
The Act provided for notification of significant increases in average weekly rates of income and empowered the Director-General to obtain further information. Upon that information he was to ascertain from time to time the pensioner’s annual rate of income. The Court said:
“That is a question of fact, but the difficulty in this case arises from uncertainty as to what is meant by “the annual rate of income of the claimant or pensioner” in s 28(2).”
The Court identified as critical to an understanding of s 28(2) the distinction between an annual amount of income and an annual rate of income. A rate of income, like a rate of interest, could vary within any annual period though expressed as an annual rate. The Court said, at 733:
“It is a current rate of income, expressed as so much per annum. An annual rate of income may not subsist for a year: an annual rate of income that obtains in one week may change in the week following. Annual income is the sum of the products of each annual rate of income that obtained during any part of the year multiplied by the fraction of the year during which it obtained.”
The Court did require however that regard be had to the character of the income in determining how the annual rate should be calculated. So an annual payment of a dividend on an investment was to be treated as yielding an annual rate of income of $1,000, not an annual rate of $52,000 in the week in which the dividend was received and a nil annual rate of income for the other fifty one weeks of the year. A pensioner in receipt of weekly wages from employment would find the annual rate of income from that source calculated on the assumption that earnings at the current rate would continue for the year. If the pensioner were to retire from work that source of income would be gone and the annual rate of income attributable to that source would be nil.
In relation to intermittent payments their Honours said, at 733:
“In cases where pensioners or claimants are employed intermittently, it may be appropriate in some cases to treat the intermittent work as a continuing source of income and to take an average of earnings over a period as the yield from that source, and in other cases to treat each employment as a separate source of income yielding its particular amount of earnings. The former method would establish a comparatively constant annual rate of income; under the latter method, the annual rate of income would change as the pensioner or claimant went into and out of employment. The circumstances of the particular case would show which method is more appropriate.”
At 734 the Court said:
“An annual rate of income, at whatever time it is ascertained for the purposes of s 28(2), is the aggregate of those income payments which would be received by the pensioner during the ensuing year on the assumption that he retains all his current sources of income for the year and that they continue to yield income at the current level. The annual rate thus ascertained enures until something occurs which falsifies the assumption on which the particular annual rate was ascertained – that is, until a source of income is gained or lost, or the level of income yielded by a source of income changes. Then a new annual rate of income must be ascertained on a new set of assumptions that accord with the then current sources of income and the then current levels of income yielded by those sources. If the s 28(2) rate changes, the pension that is being paid should be changed pursuant to s 46(1).”
The Court rejected a fixed year approach as being productive of “the gravest anomalies if income is received at different times”. The treatment of annual receipts as receipts of a particular week would be equally anomalous:
“But an annual rate of income that is calculated and expressed on the assumption that current sources of income and levels of income – whether annual or not – will continue, being a rate that subsists only until the assumption is changed, removes the anomalies which the Full Court and the Administrative Appeals Tribunal referred.” (at 735)
It is important to bear in mind that the focus of the reasoning of the High Court in Harris related to intermittent payments and the ways in which such payments could be annualised on either an averaged or varying basis. The judgment makes clear by reference to the example of a one off dividend payment that there are some payments which can, as a matter of fact, be treated as isolated without the need to go through the fiction of annualising them. Applied to the present statutory framework, the judgment does not require that in calculating a person’s ordinary income on a yearly basis for the purposes of Module E it must be assumed that the actual income for any period will be received throughout the notional annual period.
In Haldane-Stevenson v Director-General of Social Security (1985) 60 ALR 621, a decision of the Full Court, Davies J, in a separate judgment, after referring to various passages from Harris said, at 626:
“From the above, several principles can be derived. First, it is necessary to calculate not the annual amount of income but the current rate of income of the pensioner and to express that current rate of income as so much per annum. Secondly, in calculating the annual rate of income, one has regard to all the pensioner’s sources of income at that time and finds what each of those sources would yield over the period of a year assuming the current yields from those sources were to continue. Thirdly, the annual rate of income is the aggregate of the income payments that would be received by the pensioner during the ensuing year on the assumption that he retains all his current sources of income for the year and that they continue to yield income at the current level.”
The principles to be derived from Harris as expressed in Haldane-Stevenson are not inconsistent with the possibility, recognised in Harris, that a receipt may be isolated and that the annual rate for that purpose is the amount of the payment itself.
The Social Security Act 1991 replaced the Social Security Act 1947. The 1991 Act was the result of a legislative review instituted by the Minister for Social Security and carried out by the Department. Its enactment followed release of an exposure draft for public comment. It is apparent from the Second Reading Speech that it was not the object of the new Act to substantially change the old. Rather it was said:
“The rewrite of the Act does not involve any major policy initiatives and it does not have any financial impact. The new legislation is intended to reflect existing policy which is, in turn, reflected by the existing legislation. The primary purpose of the rewrite is to overcome readability problems that had developed mainly as a result of the volume of changes made to the current Act since 1947. Another important object of the rewrite is to make the Act easier to change in the future as the need arises. Those purposes will be fulfilled by this Bill.” (Parl Deb H of R 6/12/1990, pp 4643-4644)
The Decision of the Administrative Appeals Tribunal
It was contended before the AAT that the correct approach to the application of Step 1 in the ordinary income test in Module E and in particular “working out the amount of the person’s ordinary income on a yearly basis” required the following steps :
1.There be a calculation of the amount of Mrs Rolley’s income earned (ie $1,503.25);
2.Work out the period of Mrs Rolley’s employment (ie 30 April to 31 July 1998);
3.Average the income earned during the period by the length of the period of employment to reach an average weekly amount of income earned over the period (ie $1,503.25 ¸ 16);
4.Multiply that figure by 52 to obtain the annual rate of income (ie $4,885.65);
5.Add that amount to any other amount of income expected to be earned, derived or received by Mrs Rolley in the following twelve months…to reach “the amount of…[her] ordinary income on a yearly basis” (ie $4,885.95).
The additional sum of 0.30 cents apparently referred to interest income.
The Secretary submitted, in the AAT, that this approach was consistent with Harris v Director-General (Social Security) (1985) 57 ALR 729 and the decision of the Full Court of the Federal Court in Haldane-Stevensonv Director-General of Social Security (1985) 60 ALR 621. After referring to Harris and the provisions of the Act as they stood at the time when that case was decided, the AAT concluded that:
“While drawing a distinction between an amount of income and an annual rate of income and determining that it is the latter that must be applied, it is apparent…that the High Court did not adopt a fixed view as to the manner in which that rate was to be determined.” (at par 31)
And further at par 33 of the reasons:
“What is clear from the judgement of the majority in the Harris case is that the 1947 Act required an assessment to be made of a person’s annual rate of income, that the particular circumstances of each case would determine the method of determining that annual rate and that the method must be a fair method of ascertaining a person’s current rate of income at any particular time.”
The AAT accepted that the words in Step 1 of Module E: “…the person’s ordinary income on a yearly basis” conveyed the same test for assessment of income as that previously conveyed by the words “the annual rate of income of the claimant or pensioner” which had appeared in s 28 and which were the subject of consideration in Harris. So the AAT said:
“The Ordinary Income Test in the 1991 Act has preserved the Ordinary Income Test in the 1947 Act as that test had been interpreted by the majority of the High Court in Harris.”
On the AAT’s view of the Harris judgment there were two notions which underpinned it. The first was that there was no single method of ascertaining a person’s annual rate of income and that it was a question of fact in each case. The second was that, whatever method was adopted it must be a “fair method of ascertaining the current rate of income at a particular time” – the latter quotation being taken from the judgment. These two notions were said to continue to underlie the Ordinary Income Test in the 1991 Act. The relevant year was to be taken from the time of any particular termination. On this basis the AAT did not accept Mrs Rolley’s submission that a financial year should be selected and said that there was no need to identify any particular year such as a calendar year, financial year or a pension year or any other year.
Turning back to the case in hand the AAT observed that to take a snapshot in time and to project income at that time over the whole year without regard to the period for which that particular item of income had been received was contrary to Harris. It failed to take account of the age pension being a pension paid at an annual rate with an annual ordinary income free area also set on an annual basis. A snapshot approach might well be appropriate in the case of an ongoing source of income. To take that approach in every case might be to deny an age pensioner the measure of social security which Parliament had envisaged that he or she should receive. In relation to Mrs Rolley the Tribunal found that between 13 April 1998 and 31 July 1998 she was engaged in casual employment as a relief cleaner and that she was paid $1,503.25 and:
“…that was the only work and the only income she earned in addition to that which was already shown in the notice…”
And further:
“…I am satisfied that she earned income for one period of sixteen weeks. It was a closed period. On the basis of her evidence, I am satisfied that she had no expectation of the work continuing. She did it only while one cleaner was on recreation leave and another was on sick leave. There has been no work before or since. In view of those findings, I am satisfied that it is appropriate in this case to treat Mrs Rolley’s ordinary income on a yearly basis as including the particular amount of earnings she received from this one source of short term employment i.e. $1,503.25. Taking into account the $0.30 income she otherwise expected to receive from another source of income, her ordinary rate of income on a yearly basis did not exceed her ordinary income free area. Therefore, she did not have any ordinary income excess and there was no overpayment of age pension to her and so no debt is owed by her to the Commonwealth.” (par 57)
It might be that the above passage taken in isolation could be said to suggest an attempt to calculate the “annual amount of income” in the way deprecated by the High Court in Harris rather than to fix the annual rate of income at a particular point in time. However the Tribunal had expressly eschewed that approach in a way which indicated a clear understanding of the distinction drawn by the High Court in that regard.
The Ordinary Income Test for Age Pensions
This appeal depends upon the proper construction of Step 1 in Module E of the Social Security Act 1991. It is necessary to have regard to the statutory context of that provision and, in particular, the place of the calculation in Module E as one of the steps involved in the calculation under Module A of the rate of pension which is said in Part 1064-A1 of that Module to be “an annual rate”. While point 1064-A1 states in parenthesis that “fortnightly amounts are provided for information only”, instalments of age pension are payable on alternate Thursdays (s 23(1)) in instalments “worked out by dividing the amount of the annual rate of the pension by 26” (s 59(1)). So payment of the pension is done in fortnightly instalments calculated according to an annual rate. The fortnightly instalments so paid may vary as the annual rate varies according to fluctuations in the amount of a person’s ordinary income calculated under Module E.
The first step in Module E requires the working out of the amount of the pensioner’s income on a yearly basis. That is to be offset under Module A against the annual rate of pension payable. But the annual rate is payable by fortnightly instalments and may be varied according to changes in ordinary income from time to time albeit that ordinary income is calculated on a yearly basis. Despite the different language the basic conceptual framework remains the same as it was under the 1947 Act. This reflects the legislative intention expressed in the Second Reading Speech that the new Act is a “rewrite” not involving any major policy initiatives and not having any financial impact. So ordinary income on a yearly basis reflects the concept of annual rate of income referred to in s 28(2) of the 1947 Act.
On that basis it is appropriate in calculating ordinary income on a yearly basis to consider the character of the payments which have been received. So, as in the Harris case, an annual dividend payment of $1,000 would be treated under Module E as ordinary income of $1,000 on a yearly basis. The characterisation of some income by reference to its sources may require evaluative judgments as to whether or not it is to be treated as recurring income from which an annual rate may be extrapolated. The range of cases requiring such judgments is illustrated by reference to income derived from employment. So a person in regular employment, albeit it may be part-time, could expect to have income received from that employment dealt with on the assumption that earnings at the current rate would continue and be extrapolated by multiplication to an annual rate. On the other hand a one off payment for work unlikely to be repeated could be dealt with on the basis that it reflected the total income from employment likely to be derived in any period of twelve months. The Act having been properly construed, the judgment is evaluative and is to be treated as a judgment of fact. In the present case this would seem to have been the approach taken by the AAT.
What then is the error of law which the AAT is said to have committed? The Secretary accepts that the AAT correctly concluded that “ordinary income on a yearly basis” should be construed in the same way as “annual rate of income” in the 1947 Act. It was submitted however that “the whole tenor” of the judgment in Harris “makes it very clear that the annualising approach is imperative in relation to ordinary income derived from employment including casual and intermittent employment”. But with respect to the Secretary’s submission, that is not an exhaustive coverage of what the High Court said. In particular the court made it clear that some payments can be treated as isolated and one off payments. Even in the case of intermittent employment there are different approaches possible.
It may be appropriate “in some cases” as the court said in its joint judgment at 737, to treat such work as a continuing source of income and to take an average of earnings over a period as the yield from that source and “in other cases to treat such employment as a separate source of income yielding its particular amount of earnings”. The circumstances of the particular case would show which method is more appropriate. Similarly the circumstances of the particular case will determine whether or not a payment is to be treated as isolated. It is said that the Deputy President conceived her ultimate task to be an assessment or prediction of an annual amount of income. She had, however, proper regard to the nature of the income in taking the approach that she did. That being a finding of fact, not informed by any demonstrated error in her construction of the relevant provisions of the Act, the appeal must be dismissed.
Conclusion
For the preceding reasons the appeal is dismissed.
I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 20 June 2000
Counsel for the Applicant: Mr G D O’Sullivan Solicitor for the Applicant: Australian Government Solicitor No Appearance for the Respondent
Date of Hearing: 16 May 2000 Date of Judgment: 20 June 2000
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