Smeets and Secretary, Department of Industry

[2013] AATA 807

[2013] AATA 807 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2069
Re	Nicolas Smeets
APPLICANT
And	Secretary, Department of Industry
RESPONDENT

REASONS FOR DECISION

Tribunal	Ms K Hogan, Member
Date	16 October 2013
Date of written reasons	8 November 2013
Place	Perth

1.At the conclusion of the hearing of this application on 16 October 2013, the terms of the decision intended to be made and the reasons for that decision were stated orally by the Tribunal.

2.On 17 October 2013, the respondent requested the Tribunal to furnish to it a statement in writing of the Tribunal’s reasons for its decision.

3.The oral reasons for decision have been transcribed by Merrill Corporation.

4.An edited copy of the transcript of those reasons is attached and is forwarded to the applicant and to the respondent as the reasons for the Tribunal’s decision. 

…(Sgd) K Hogan……………
Ms K Hogan, Member

REASONS FOR DECISION

Ms K Hogan, Member

8 November 2013

1. The facts in this case are not in dispute.  It is not in dispute that Mr Smeets is a full-time student and insofar as it may be necessary for the Tribunal to make a formal finding in that regard I do find that he is a full-time student.  Mr Smeets is undertaking full-time study and undertaking a full-time apprenticeship.  The issue is whether he is entitled to youth allowance as a full-time student.

2. Section 541(3) of the Social Security Act 1991 provides as follows:

   …

   (3) A person cannot be taken to satisfy the activity test if:

   (a) the person is a new apprentice;

3. Whilst ss 541(3)(b) and (c) explicitly provide exceptions to this, s 541(3)(a) does not. The respondent argued in its statement of facts, issues and contentions that it was clearly Parliament's intention that a new apprentice would not satisfy the activity test and not be qualified for youth allowance as a full-time student.

4. The respondent is correct that it is important to look at the intention of Parliament.  I have reviewed the Bill and Explanatory Memorandum (Social Security Amendment (Extension of Youth Allowance and Austudy Eligibility to New Apprentices) Bill 2005) which inserted sections 540AA and section 541(3)(a) and other provisions allowing new apprentices to receive youth allowance:

   Item 2  After section 540A

   Inserts a new section 540AA which sets out the specific requirements new apprentices must meet to qualify for youth allowance. 

   Items 3 and 4  Paragraph 541(3)(a) and subsection 541(4)

   Repeal paragraph 541(3)(a) and subsection 541(4)and substitute a new paragraph 541(3)(a) to have the effect of removing activity test impediments to new apprentices qualifying for youth allowance and to complement the insertion of section 540AA by item 2.

5. My reading of the memorandum is that the purpose of items (3) and (4) was to remove the activity test requirement for new apprentices; it was not to limit the eligibility of full-time students.

6. Arguably, the purpose of section 541(3)(a) may merely to have been to make it clear that new apprentices do not automatically qualify for the same benefits as full-time students.

7. The words of a statute should be given their clear ordinary meaning absent of a clear parliamentary intention otherwise. A plain reading of section 541(3) is that new apprentices cannot satisfy the requirements or the activity test to qualify for youth allowance as students or otherwise; however, if one looks at the following provisions of the Commonwealth Act's Interpretation Act:

   Section 15AA provides that in interpreting a provision of an Act the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation. 

   Section 15AB provides that subject to section (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision consideration may be given to that material.

   and in 15AB(b):

   To determine the meaning of the provision when:

   (ii) the ordinary meaning conveying by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

   excluding people who are both full-time students and new apprentices from obtaining the benefits available to only full-time students produces a result that is unreasonable.

8. In these circumstances it is appropriate to look at the Explanatory Memorandum and Second Reading Speeches of the Bill which inserted those provisions.  The overall purpose of the Bill was clearly to encourage more people to enter apprenticeships.  Specifically section 541(3)(a) was enacted to remove the activity test impediments for new apprentices applying for youth allowance.  The purpose of the Bill was not to exclude full-time students from obtaining greater benefits merely because they are also a full-time apprentice.

9. My understanding and reading of the purpose of the Bill leads me to the conclusion that the decision that has been made in this case should be set aside and, therefore,

   The Tribunal sets aside the decision under review and determines:

   (a)That the applicant is qualified for youth allowance as a full-time student.

   (b)That the applicant's maximum student income bank credit should be set as a full-time student.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member

.....(Sgd) T Freeman...............

Associate

Dated          8 November 2013

Date(s) of hearing	16 October 2013
Applicant	In person
Representative for the Respondent	Ms S Vahala
Solicitors for the Respondent	Australian Government Solicitor