Secretary, Department of Social Security v Rurak

[1990] FCA 688

JUDGMENT NO ..... &g -.......-. /.~%L."

C A T C H W O R D S

S I A L SECURITY - invalid pension - permanently blind pensioner - dependent children's and guardian's allowances - application of means test - statutory history - unintelligible provision - reduction not authorised.

Kewley, Australian Social Securitv Todav (1980)

1975, s.44

Social Securitv Act 1947, s.33

Jnvalid and Old-aae Pensions Act 1908 ss.20, 20A

S o c i a l t 1947, s.24

Spcial Services Act 1956

So ' t a

1985

Social Securitv Amendment Act 1987, 8.50

0

2  1987

Social Securitv Leaislation Amendment Act 1988

S ecu it and Vet ra

Test) Amendment Act 1988

child S U D D O ~ ~ Act 1988

Busbv v. Telecom (1988) 83 ALR 67

c e f o r v. INSW)ianos (1955) 92 CLR 390

THE	V. OFBERTA R U ~
PO. WAG 17 of 1990
FRENCH J. PERTH 7 DECEMBER 1990

REQlsTnV

11 DEC 1990

AUSTRAUA PRlNUPAl

IN THE FEDERAL COURT	)
OF AUSTRALIA
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1 No. WAG 17 of 1990

ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by Deputy President G.L. McDonald, Mr M. Allen and Dr. J. Billings.

B E T W E E N :  THE SECRETARY, DEPARTMENT OF

SOCIAL SECURITY

Appellant

(Respondent)

and

ALBERTA RURAK

Respondent

(Applicant )

MINUTE OF ORDER

JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	7 December 1990
WHERE MADE:	PERTH
THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant to pay the respondent's costs of the appeal.

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

IN THE FEDERAL COURT	)
OF AUSTRALIA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	) No. WAG 17 of 1990
GENERAL DIVISION	1

ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by Deputy President G.L. McDonald, Mr M. Allen and Dr. J. Billings

B E T W E E N :  THE SECRETARY, DEPARTMENT OF
SOCIAL SECURITY

Appellant

(Respondent)

and

ALBERTA RURAK

Respondent

(Applicant )

CORAM:	FRENCH J. 7 December 1990
Alberta Rurak is the 41 year old mother of two dependent children aged 13 and 16 years.	She is permanently
blind and by reason of certain other medical conditions is	also permanently incapacitated from work. She receives an
invalid pension under the provisions of the Social Securitv
m 1947. The pension, first granted to her on 24 August
1981, includes additional allowances for her children. She is divorced and receives $35 each week from her former husband by way of maintenance for their support. She has no other income.
Following the introduction of certain income and maintenance test provisions to the Social Security Act in June 1988, Mrs Rurak was required to complete a questionnaire from the Department of Social Security concerning her maintenance income. On 27 June she completed the form and disclosed the maintenance payments. On 13 July a Departmental Officer determined that her pension payment should be reduced to the rate applicable to an unmarried person with one dependent child. On 21 July she was sent a written advice in the
following  terms :

"The rate of your invalid pension has been reduced because your income and/or maintenance has changed. Your fortnightly rate has been varied from $318.10 to $284.10 from 4 August 1984.

Your rate is based on your income. The income, including maintenance, held is bank interest $0.26 pf, cash maintenance of $140.00 pf, in-kind maintenance of $911.38 pf."

The reference to maintenance of $140 was an error, presumably based on the assumption that Mrs Rurak was	receiving $35 per week for each child. A Departmental file
note indicates that she rang to correct the error on 4 August. The correction was confirmed by written notice from the Department on 23 August which said:

"Due to a change in circumstances your invalid pension has been reviewed and altered as follows. Your fortnightly rate has been varied from $284.10 to $303.10 from 18 August 1988."

This rate was said to be based on maintenance being "bank interest $0.26 p£, cash maintenance of $70 p£".

On 1 February 1989 Mrs Rurak lodged an appeal with the Social Security Appeals Tribunal expressed to be "...against the decision to decrease my Blind pension according to the amount of maintenance received...".

The decision was reconsidered by a Departmental Review Officer before going to the SSAT. As set out in a letter to Mrs Rurak dated 23 February 1989, the review officer applied what she described as "government policy" in a Departmental Pensions Manual which provides in part:

"...a blind pensioner who has a dependent child or dependent children receives additional pension free of the income or assets test for one child only. Additional pension for any other dependent children is subject to the income or assets test. Payment of any mother's or guardian's allowance is also subject to the income or assets test."

This was not however a statement of policy but rather an	interpretation of certain provisions of the Act. This
decision was based upon a finding that Mrs Rurak was in receipt of maintenance of $35 per week which under the maintenance income test would offset the pension by $15 per fortnight. In her letter to Mrs Rurak the Review Officer
observed :

"Under the maintenance income test you have $15 per fortnight affecting income. As the mothers/guardians allowance is subject to the income test, this allowance has been reduced by $15 pf making your rate $305.50 pf."

On Wednesday 26 April the SSAT affirmed the Departmental decision. Mrs Rurak then appealed to the Administrative Appeals Tribunal and on 12 February 1990 the Tribunal upheld her appeal with a decision in the following

terms :

"The decision of the Tribunal is to set aside the decision under review and to substitute a decision that the applicant qualifies for the receipt of guardian and other allowances pursuant to the provisions of s33(3) and (4) of the Social Securitv Act 1947 and that pursuant to the provisions of s33(12) those guardian and other allowances are not subject to reduction."

On 12 March 1990 the Secretary of the Department of decision of the Tribunal seeking that it be set aside and in	Social Security instituted an appeal to this Court against the
lieu thereof an order made that the decision under review be affirmed. The appeal, which is brought under s.44 of the administrative A ~ ~ e a l s Tribunal Act 1975, relates primarily to the proper construction of 6.33 of the Social Securitv Act.

Statutory Framework

The relevant statutory framework for present purposes relates to the Act as it stood at the time of the determination, i.e. as at August 1988. There have been a number of changes to the applicable provisions since that time.

Eligibility for the invalid pension is established by s.28 of the Act which provides:

"28. Subject to this Act, a person above the age of 16 years who is not receiving an age pension and -

(a)	is permanently incapacitated for work or is permanently blind; and
(b)	is an Australian resident and is in Australia on the day on which he lodges his claim for an invalid pension,

shall be qualified to receive an invalid

pens ion. "

Various residency considerations are addressed in 88.29 and 30

which are not relevant for present purposes. Section 31 provides for the payment of incentive allowances to persons undertaking certain kinds of activity therapy or independent living training. Section 32 relates to medical examinations and certification of permanent blindness or incapacity. The critical section for this appeal is 8.33. Sub-section 33(1) establishes the maximum rate of pension payable in the

following

terms :

"33(1) Subject to this Part, the maximum
rate of pension under this Part is -

(a)	in the case of an unmarried person or a married person whose spouse is not in receipt of a prescribed pension - $5,309.20 per annum; and
(b)	in any other case - $4,427.80 per annum."

Mrs Rurak qualifies as an unmarried person entitled to the rate specified in para.(a). Sub-section 33(2) is not relevant for present purposes as it relates to the maximum rate payable to married persons who are unable to live together because of illness or infirmity. Sub-section 33(3) however provides an allowance known as the guardian's allowance, for a person with a dependent child or children:

"33(3) Where -

(a) an unmarried person; or
(b)	a married person in relation to whom a direction under subsection (2) is in force,

has a dependent child or dependent children, the maximum rate of pension applicable to that person under paragraph (l)(a) shall, subject to subsection ( 6 ) , be increased by $624 per annum."

The amount is a flat rate regardless of the number of children.

A further payment, the dependent child's allowance, is provided by sub-s.33(4) for each child under 13 or between 13 and 16 or answering the description of a prescribed student child. The sub-section as at August 1988 was in the following

terms :

"33(4) Where a person has a dependent child or dependent children, the maximum rate of pension applicable to that person under subsection (1) shall, subject to subsections ( 5) and ( 6 ) , be increased or, if subsection (3) applies to the person, be further increased by -

(a) $1,144 per annum in respect of each dependent child who has not attained the age of 13 years;

(ad) $1,456 per annum in respect of each dependent child who has attained the age of 13 years but has not attained the age of 16 years ;

(ab) $884 per annum in respect of each dependent child who is not a prescribed student child of the person and who has attained the age of 16 years and;

(b)

[not material for present purposes]

(c)

$884 per annum in respect of each dependent child:

(i)	who is a prescribed student child of the person;
(ii)	who is a person to whom or in respect of whom payments under the Aboriginal Study Assistance Scheme are being made ;
(iii)	who was, immediately before 1 January 1988, a student child to whom or in respect of whom payments under that Scheme were being made; and
(iv)	who was, immediately before that day, a person in respect of whom an increase in the maximum rate of a prescribed pension was applicable."

Sub-section 33(5) excludes the operation of s.33(4) where the maximum rate of a service pension under the Veterans' Entitlements Act 1986 is increased in respect of the child under s.47(3)(b) of that Act. Sub-section 33(6) appears to qualify the rates otherwise payable under sub-ss.3 and 4 by reference to the means test imported in sub-s.(l2). This sub- section will be further considered below. Its terms are as

follows :

"33(6) In the case of a permanently blind

person -

(a)	the maximum rate of an age
pension or invalid pension shall not be increased by virtue of

sub-section (3) or (4) or section 36 unless he would be eligible to receive an invalid pension under the provisions of this Part (including sub- sections (3) and (4) and section 36) if -

(i)	he were not a permanently blind person; and
(ii)	he were permanently incapacitated for work; and

(b)

if the person would be so eligible to receive an invalid pension, the maximum rate of age or invalid pension that is applicable to the person shall not be increased by an amount under sub-section (3), or by an amount under sub-section ( 4 ) , or by an amount under section 36 that exceeds the amount that would, if the person were not permanently blind, be the amount (if any) of the increase by virtue of sub-section ( 3 ) , or sub-section (4) or section 36 as the case may be, that comprises the annual rate of the person's

age or invalid pension as reduced in accordance with sub- section (12)."

Sub-sections ( 7 ) , (8) and (9) are not material but sub-S. (lO), which applies to the case of a permanently blind person with a dependent child or dependent children, is as follows:

"33(10) In the case of a permanently blind person who has a dependent child or dependent children -

(a)	if, by reason of the operation of sub-section (6), the maximum rate of an age pension or
the person is not increased by invalid pension applicable to

virtue of sub-section (4) - the maximum rate of age pension or invalid pension applicable to the person under the preceding sub-sections shall be increased by the greater or greatest amount per annum that could be applicable to the person under a paragraph of subsection (4) if subsection (6) did not apply to the person; or

(b) if, by reason of the operation of sub-section ( 6 ) , the amount per annum of an increase in the maximum rate of an age pension

or invalid pension applicable to the person that is effected by subsection (4) is less than the greater or greatest amount per annum that could be applicable to the person under a paragraph of subsection (4) if subsection (6) did not apply to the person - the rate of pension applicable to the person shall be increased by the amount per annum by which that increase in the maximum rate is less than that greater or greatest amount

per annum. "

The means test generally applicable to age and invalid pensions is set out in sub-s.(l2):

"33(12) The annual rate at which a pension under this Part payable to a person (other than a person who is permanently blind and who is qualified to receive an age or invalid pension) is determined shall be reduced by -

(a)	50% of the aggregate of:
(i) the amount (if any) per annum by which the annual rate of income of the person exceeds :
(A) if the person is an

unmarried person

- $2,080; or

(B) if the person is a

married person

- $1,820; and

(ii) the amount (if any) per annum by which the annual rate of maintenance income o f the person exceeds the annual maintenance free area of the person; or

(b) an amount per annum equal to 26 times the pension reduction amount (if any) applicable to the person divided by 250,

whichever is the greater or, if the amounts per annum of the reductions calculated under paragraphs (a) and (b) are the same, by the amount calculated under paragraph (a)."

The term "annual maintenance free area" is defined in 6.3 of the Act, the relevant part of the definition being:

"'annual maintenance free area' means:

(a) in relation to an unmarried person or a married person whose spouse is not in receipt of a prescribed pension - an amount equal to the aggregate of:

(i) $780; and

(ii) $260 for each dependent child (other than the first) o f the

person; "

Paragraphs (b) and (c) are not relevant. The term

to note that the payment of $35 per fortnight from Mrs Rurak's	"maintenance income" is separately defined. It is sufficient
former husband falls within that definition.

The Tribunal's Reasons for Decision

The appeal to the Tribunal sought review of the SSAT's affirmation on 26 April 1989, of the Departmental decision to reduce the rate of pension payable. Strictly speaking the operative decision was that notified on 23 August correcting the earlier decrease on a reassessment of maintenance income. The Tribunal treated the decision under appeal as that of 4 August, but nothing really turns on that discrepancy. It also mis-stated the reduced rate of pension as $284.10 per week when it was in fact $303.10 per fortnight. After reviewing the facts, the Tribunal calculated that under the provisions of s.33 of the Act without means test limitation, Mrs Rurak would qualify for an annual benefit of $8,429. This comprised the sum of $5,309 payable as the basic pension under sub-s.33(1), $624 being the dependent child allowance under sub-s.33(3), $1,612 being the allowance for dependent children between 13 and 16 years payable under sub- s.33(4)(aa) and $884 the prescribed student allowance under sub-~.33(4)(c)(i). The Department, it was said, contended that "pursuant to the provisions of subsection 33(6)(b) the annual rate at which Mrs Rurak's pension was paid should be reduced in accordance with subsection 33(12) to reflect the

maintenance paid by her former husband".

The Tribunal held that the Act recognised the special position of permanently blind people and that they had always been entitled to receive a pension paid at the same rate as an invalid pension whether or not they were able to obtain work. Sub-section 33(12) expressly excepted such people from the application of the means test. On this basis sub-s.33(6)(b) was inconsistent with the provisions of sub- s.33(12). The exception contained in the latter sub-section was later in time than the limiting provision of sub- s.33(6)(b). It was, so the Tribunal held, to be construed as prevailing in cases where a person is both blind and otherwise entitled to an age or invalid pension. Mrs Rurak was therefore entitled to her pension with guardian and other allowances not subject to reduction.

The Contentions

It was common ground on the appeal that Mrs Rurak is permanently blind and otherwise qualified to receive the invalid pension. The Department's contentions may be reduced to the following propositions:

1.    W s Rurak is eligible for the invalid pension and the additional benefits under sub-ss.33(3) and (4).

2.   The rate of each additional benefit is

calculated in accordance with para.33(6)(b) of the Act, which section limits the amount of additional payment to that which would be payable to the pensioner after the income test in sub-s.33(12) as if the pensioner were not permanently blind. In fact the Departmental decision simply applied sub-s.33(12) to the aggregate of the pension and allowances, reducing it by the amount referred to in sub- para.33(12)(a)(ii), i.e. "the amount per annum

. . . by which the annual rate of maintenance

income of the person exceeds the annual
maintenance free area of the person".

3.   Sub-section 33(10) allows a blind pensioner

with a dependent child or children one amount
of additional pension income test free.

4.   Sub-section 33(12) is a general provision

exempting blind invalid pensioners from the application of the means test. That exception however is qualified by the specific provisions of sub-ss.33(6) and (10).

Mrs Rurak's counsel submitted in reply that the purpose of sub-s.33(6)(b) is to align the additional payments received by

blind pensioners under sub-ss.33(3) and (4) with the rate

received by other eligible pensioners. The deduction of $15

per fortnight was calculated on a general application of sub- s.33(12) reducing the pension rate payable by half the difference between Mrs Rurak's maintenance income, $1,820, and the maintenance free area which, in her case, was $1,040 ($780 plus $260 for one dependent child). The difference, which is $780 per annum, works out at $15 per fortnight. Sub-section 33(6)(b) controls the increase under sub-ss.33(3) and (4) and does not purport to regulate the application of sub-s.33(12). Payments made under sub-ss.33(3) and (4) are not relevant to the computation of income for the purposes of sub-s.33(12). The legislative scheme distinguishes the blind invalid pensioner. And if sub-s.33(6) operates to reduce the pension receivable in this case, it is repugnant to sub-s.33(12) and the latter sub-section, being later in time, should apply.

Statutorv History

The first Commonwealth statutory provision for

invalid pensions was made by the Invalid and Old-acre PensieDg

1908. Section 20 provided:

"20. Subject to this Act, every person above the age of 16 years who is permanently incapacitated for work, by reason of an accident or by reason of his being an invalid, and who is not receiving an old-age pension, shall, whilst in Australia, be qualified to receive an invalid pension."

The rate of pension payable was subject to an income and

assets based means test set out in 8.24. Section 26 laid down rules for computing income for the purposes of that test. No special entitlement was created for the blind. It was apparently the policy of the Government that invalid pensions would be payable to blind people who could not maintain themselves. However, according to Kewley's Australian Social Securitv Today (1980) at pp.17-18, medical practitioners were reluctant to certify the blind as permanently incapacitated for work and it was therefore decided to enact a specific section authorising payment to such persons with no qualifying requirement of incapacity. The relevant amending provision was enacted as part of the Jnvalid and Old-aae Pensions Act; 1912 which introduced a new s.20A into the 1908 Act in the

following	terms :
"2OA. Subject to this Act, every permanently blind person above the age of 16 years who is not qualified under section 20 to receive an invalid pension and who is not receiving an old-age pension shall, whilst in Australia, be qualified to receive an invalid pension."

The term "permanently blind" was not defined then or subsequently. Although entitled to invalid pensions by this provision, it was the policy of the legislation that blind people were not to be treated as invalids. The same amending Act altered s.26 relating to computation of income for the purposes of the means test so that:

"Every blind male person under the age of

65 years and every blind female person under the age of 60 years shall be deemed to be earning wages equal to the amount which he or she could earn by reasonable

effort. "

The purpose of this provision was "to discourage those already at work from leaving it with a view to obtaining a pension, and to encourage others to undertake training for some

occupation" - Kewley (supra) at p.18. In 1920 the means test

for the permanently blind was varied by the insertion of two provisoes in s.24(1) which, inter alia, allowed such sum to be earned as, together with the pension, would amount to the basic wage.

Various changes to pension entitlements were made over the next two decades which it is not necessary to detail here. In 1943 the Act was amended to provide for an allowance for the first or unendowed child under 16 to be paid to the wife of an invalid pensioner if she was in receipt of or, but for the means test, would be qualified for a wife's allowance or was herself an invalid pensioner. She had to be living with her husband and have custody, care and control of more than one child. A male invalid pensioner if widowed or separated was eligible for the allowance if he had custody, care or control of one or more children under the age of 16. No means test applied to this allowance which was provided for in s.23C.

1947 saw the enactment of the Social Services Consolidation Act 1947 repealing the predecessor legislation	relating to invalid and old age pensions, widows pensions,
maternity allowance and child endowment. It went through successive name changes to become the Social Services Act and, in 1982, the Social Securitv Act, which is the title it bears today. Section 24 of the original 1947 Act set out the qualifications for entitlement to the invalid pension:

"24. Subject to this Part, a person above the age of 16 years who is not receiving

an age pension and -

(a)	is permanently incapacitated for work or is permanently blind; and
(b)	is residing in Australia on the date on which he lodges his claim for a pension and has been continuously so resident for a period of not less than five years,

shall be qualified to receive an invalid
pens ion. "

The primary rate of pension payable was set out in s.28. These two sections defined the basic qualifications and rate payable until 1987 when, as part of a renumbering of the whole Act, they became ss.28 and 33 respectively. The income

component of the means test was set out in S. 28 (2 ) (a) of the

1947 Act and reduced the rate of invalid pension payable "except in the case of a permanently blind claimant or pensioner" by the excess of non-pension income over 52 pounds per annum. The assets test established under s.28(2)(b) applied to all pensioners. Special provision for the rate of

pension payable to permanently blind persons was made by s.36.

That rate was reduced by the excess of the income of the pensioner and pensioner's spouse over 279 pounds 10 shillings per annum. Section 34 provided for the child allowance in substantially the same terms as s.23C of the 1943 amendment. In 1948 sub-s.(3) was introduced into s.28 to limit the aggregate benefit payable to invalid pensioners also in receipt of a war pension. Sub-section (2) was replaced by new sub-ss. (2), (2A) and (2B) in 1951. The exemption of

permanently blind pensioners from the income test was
maintained in the new sub-s.(2).

Payment of additional benefits at the annual rate of 26 pounds for second and later children of invalid pensioners was introduced in 1956. The Social Services Act 1956 (No. 67 of 1956) amended S. 28 accordingly. Sub-section 28(1A) specified the maximum rate of the age and invalid pensions generally. The new allowance was provided for in sub- s.28(1B). Sub-section (1C) deemed dependent children to be in the custody, care and control of the husband, where husband and wife were separated. Sub-section (ID) limited the benefit of the allowance in the case of the permanently blind, to those who would, if not permanently blind but permanently incapacitated for work, be eligible to receive an invalid pension. The quantum of the allowance was to be limited to that which would be included in the pension in those circumstances. The means test provision in sub-s.28(2) continued. In 1960 sub-ss.28(2) and (2A) were replaced by new

means test for age or invalid pensions, but again excluded the	sub-sections (1E) and (2). The new sub-s.28(2) restated the
permanently blind. In 1963 the rate of the dependent children's allowance under sub-s.28(1B) was increased to 39 pounds per annum per child.
A payment for the children of unmarried old age and invalid pensioners, called the "Guardian's Allowance", was introduced in 1965. It applied to those persons a principle that had been applied to widow pensioners in 1963. Section 28 was amended by the insertion of sub-s.(lAA) to provide payment
to an unmarried pensioner of a guardian's allowance at a flat
rate of 104 pounds per annum where the pensioner had custody, care and control of a child under the age of 16. This sub- section may be seen as the forerunner of s.33(3). Sub-section (18) continued the dependent child's allowance at 39 pounds
per annum per child under 16. This may be regarded as the forerunner of s.33(4). A new sub-s.(lD) then provided specifically for the permanently blind along lines similar to its predecessor but taking account of the new allowance:

"(ID) In the case of a permanently blind

person -

(a)	the maximum rate of an age pension or invalid pension shall not be increased by virtue of sub-section (1AA) or sub-section (1B) of this section unless he would be eligible to receive an invalid pension under the provisions o f this Part (including sub-sections (1AA) and (18) of this section) if he were not a permanently blind
person but were permanently incapacitated for work; and
(b)	if he would be so eligible to receive an invalid pension the amount of any increase under sub-section (1AA) or sub-section (1B) of this section, or, if both those sub-sections apply in relation to him, the total of the increases under those sub- sections shall not exceed the maximum amount that could be included in the invalid pension by virtue of sub-section (1AA) or sub-section (1B) of this section, or of both those sub- sections as the case may be."

This sub-S. evolved into s.33(6) of the Act as it stands today. Sub-section (1E) disqualified from the benefit under (18) any person whose property exceeded a specified maximum. There was no exemption for the permanently blind. Sub-section (2) continued to apply a means test exempting the permanently blind. Sub-sections (1E) and (2) were both replaced by new sub-sections in 1967, but these also dealt with the property and income means tests and followed the same general lines as their predecessors.

In 1968 a further sub-s.(lF) was inserted to the effect that, if under (ID) or (1E) the maximum rate of pension payable to a permanently blind person were not increased under sub-s.(lB) or increased by less than the full amount of the allowance for one child, then the maximum rate was to be increased by that amount. This seems to have been the forerunner of sub-s.33(10). And the closest ancestor of para.33(6)(b) was para.28(1D)(b) enacted by the

e 1985, No.

95 of 1985, to replace the previous paragraph 28(1D)(b)	introduced in 1965. By s.50 of the Social Securitv Amendment
&& 1987, No. 77 of 1987, the sections of the Social Security
1947 were renumbered as were their sub-sections, paragraphs and sub-paragraphs. Section 28 thus became 6.33.
At 1 October 1987, sub-s.33(1) was in the same terms as at the time of the determination except that the words "age pension or invalid pension" appeared in the opening line
instead of "pension under this Part" which was inserted with effect from 24 December 1987 by virtue of s.18(2) of the Social Securitv and V e t ~ n s Entitlements Amendment Act (No,
2, No. 130 of 1987. This amendment was one of a number to
simplify the pension rates provisions by extending them beyond age and invalid pensions to cover age, invalid, wife's and carer's pensions generally (see Explanatory Memorandum). Sub- section 33(3) was in the same terms then as at the time of the detenninati~n. Sub-section 33(4) however was in a somewhat simpler form which it is unnecessary to set out here. It was amended by No. 130 of 1987 with effect from 13 December 1987 to read as it did at the time of the determination, save for para.4(b). The amendment was described in the Explanatory Memorandum as a restructuring of the rules of additional pension for a dependent child. By the Social Securitv Leaislation Amendment Act 1988, No. 133 of 1988, the additional benefits in 4(a) and 4(aa) were increased to $1,248 and $1,612 respectively with effect from 22 December 1988.
The latter figure was applied by the Tribunal but no point was
which had been amended since 1 October 1987, was repealed with made of that in argument. By the same Act para.33(4)(b), effect from 1 January 1989.
And by No. 130 of 1987 sub-S. 33(12) was also amended with effect from 24 December 1987 to introduce the words "and who is qualified to receive an age or invalid pension" after the word "blind" in parentheses. As appears from the Explanatory Memorandum this was part of the process of simplifying the legislation by extension of 8.33 beyond age and invalid pensions. The effect of the amendment seems to have been to maintain the width of the exemption from the means test given that 8.33 now applied to a wider range of provisions than previously. A further amendment to sub- s.33(12), enacted by the Social Securitv and Veterans .Entitlements (Maintenance Income Test) Amendment Act 1988, No. 13 of 1988, introduced the reference to maintenance income which was in the sub-section at the time of the determination. In the Explanatory Memorandum to the Social Securitv an4 Veterans Entitlements (Maintenance Income Test) Amendment B i U the amendment to sub-s.33(12) was said to allow for the additional reduction in annual rate of pension which results from the receipt of maintenance income. The Bill as a whole was said to provide for an income test on maintenance income applicable to pension benefits and certain allowances. The purpose of the legislation, which was complementary to the m i l d S u ~ ~ o r t Act 1988, was to bring to account a wide range of maintenance income not taken into account for all benefits
and pensions at that time (H.R.D. Second Reading Speech 17.3.88 Hansard 1064-1068). It was the introduction of this
measure that led to the determination from which Mrs Rurak appeals.

Promr Construction of Section 33

To qualify for the invalid pension, a person must be either permanently incapacitated for work or permanently blind. So much is evident from s.28 of the Act. And a person qualified to receive the pension may also receive additional payments in respect of dependent children as set out in sub- ss.33(3) and (4). The additional payments are available to any person qualified to receive the invalid pension whether by reason of permanent blindness or otherwise by permanent incapacity for work. The means test provision, sub-s.33(12), in its terms, applies to reduce the maximum rate of pension payable to an invalid pensioner whether or not that maximum includes either or both of the additional allowances for which sub-ss. 33(3) and (4) provide. An invalid pensioner in receipt of those allowances will still have the same reduction in payment where he or she is in receipt of income to which sub-s.(l2) applies. But sub-s.(l2) is limited by the express exclusion from its operation of persons who are both permanently blind and qualified to receive an age or invalid pension. It has no application to a person in that category. Such income-based means test as is applicable to permanently blind invalid pensioners in receipt of additional allowances

under sub-ss.(3) and (4) must be found in para.(6)(b). The

language of that paragraph makes clear that it is applied, not to the basic pension, but to the additional allowances that may be paid under sub-ss.(3) and (4). It limits them severally by requiring that neither should exceed:

". . .the amount that would, if the person

were not permanently blind, be the amount (if any) of the increase by virtue of sub- section (3) or sub-section (4) or section 36, as the case may be, that comprises the annual rate of the person's age or invalid pension as reduced in accordance with sub- section (12)."

Whatever this provision means, it is not inconsistent with sub-s.33(12) in the sense contemplated by the Tribunal. That sub-section relates to the means test applicable to Part IV pensions generally. As the statutory history shows, the 1987 amendment introducing the words "and who is qualified to receive an age or invalid pension" was not intended to affect the then existing scope of the exemption in favour of the permanently blind. And to the extent that the Tribunal came to a different conclusion and regarded the amendment as post- dating, and therefore impliedly repealing para.33(6)(b), it was in error.

Having concluded that much, the question remains, how is para.33(6)(b) to be construed? The syntax of the paragraph and its opening words signal unequivocally that its intended function is to limit the additional benefits payable under sub-ss.33(3) and (4). And the limit is defined by reference

to the hypothesis that the recipient is not permanently blind,	that is that the recipient is subject to the means test under
sub-s.33(12). The limit on the additional benefits is the increase under sub-ss.(3) or (4) which on that hypothesis "comprises the annual rate of the person's age or invalid pension reduced in accordance with sub-section (12)". The word "comprise" is a transitive verb meaning relevantly:

"To include, embrace, to comprehend

compendiously, ... to contain, consist of, to extend to, to cover [and rarely] to constitute..." Shorter Oxford English Dictionary.

At this point the paragraph becomes impervious to logical analysis. The limiting hypothetical increase cannot "comprise", in the dictionary sense, the reduced rate of the pension. That would be a case of the lesser including, comprehending, consisting of, extending to or covering the greater. The statutory history suggests that para.33(6)(b) was not intended to involve a departure from the long standing principle that the permanently blind should not be means tested on their basic pensions. No doubt it was intended simply to apply the means test to the additional benefits by reducing them on the formula provided in sub-s.33(12). The Department appears to have applied that approach to reducing the benefit paid to Mrs Rurak. But in my opinion, the language of para.33(6)(b), if it has any intelligible meaning, does not authorise such a deduction. In so concluding I am conscious of the remarks of the Full Court in v. Telecoq

of Dixon CJ. in ~ommissioner for Railwavs (NSW1 v. Aaalianos

(1988) 83 ALR 67 at 71, where the Court quoted the observation

(1955) 92 CLR 390 at 397 that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Unfortunately, in my opinion, neither context, purpose nor policy can rescue para.33(6)(b) from the realms of unintelligibility. Nor can it be saved by reference to the complex statutory history to which I have given consideration. It did not authorise the reduction, and although I am satisfied that the Tribunal's approach was erroneous, the appeal will be dismissed.

I certify that this and the preceding twenty six

(26) pages are a true copy of the Reasons

for Judgment of His Honour Justice French.

Associate: /1I/LCILw

Date:  7 1990

Counsel for the Appellant: Ms. C. Francas

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr R. Lindsay

Solicitors for the Respondent: Gibson & Gibson

Date of Hearing:	2 August 1990
Date of Judgment: 7 December 1990