Wendy Williams and Secretary, Department of Social Services
[2015] AATA 262
•28 April 2015
[2015] AATA 262
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5437
Re
Wendy Williams
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 28 April 2015 Place Brisbane (heard in Darwin) The decision under review is affirmed.
.......................[Sgd].................................................
Deputy President P E Hack SC
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – carer payment – whether applicant required to serve newly arrived resident’s waiting period – whether applicant should be treated as “family member” of Australian citizen – daughter of Australian citizen – not “dependent child” or “partner” – discretion confined to relationships analogous to “dependent child” or “partner” – applicant not a family member for exercise of discretion – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 7(6AA), 7(6D), 201AA, 201AB
Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997 (Cth), s 3
CASES
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
REASONS FOR DECISION
Deputy President P E Hack SC
28 April 2015
The applicant, Ms Wendy Williams, is a New Zealand citizen who has been a permanent resident of Australia since March 2014. Ms Williams is, for all practical purposes, the full-time carer of her 79-year-old father. In August 2014 Ms Williams lodged a claim for carer payment. Her claim was rejected on the grounds that she was obliged to satisfy a 104-week waiting period.
Ms Williams seeks a review of that decision. She does not suggest that she satisfies the waiting period requirement; her case is that a statutory discretion, obviating the need to satisfy that requirement, should be exercised in her favour.
The issue arises because, in 1997, amendments were made to the Social Security Act 1991 (Cth) to introduce a two-year waiting period for newly arrived residents for most benefits payable under that Act.
Despite the arguments of Ms Eder, the solicitor for Ms Williams, it seems to me that the starting point must be that part of the Act that deals with payability[1] of carer payment. Those matters are set out in Subdivision B of Division 1 of Part 2.5 of the Act. Relevantly, s 201AA of the Act, within that Subdivision, provides:
(1)A person is subject to a newly arrived resident’s waiting period if the person:
(a)enters Australia on or after 4 March 1997; and
(b)has not been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks.
The waiting period starts on the day the person first becomes an Australian resident and ends when the person has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks.[2]
[1]Given the way in which the matter has proceeded to date, questions of qualification, set out in Subdivision A of Division 1 of Part 2.5, need not be considered.
[2]See s 201AB, Social Security Act 1991.
It is common ground that Ms Williams first became an Australian resident in March 2014 when she became the holder of a permanent visa.
But the Act, by s 201AA(2), also creates the notion of a “qualifying residence exemption”, in circumstances where an applicant need not serve the 104-week waiting period. One of those circumstances is set out in s 7(6AA) of the Act. It is in these terms:
(6AA)A person also has a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance, a seniors health card or a health care card if, and only if, the person:
(b)was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or
(f)holds or was the former holder of a visa that is in a class of visas determined, by legislative instrument, by the Minister for the purposes of this paragraph.
The expression “family member” is definedfor the purposes of s 7(6AA) of the Act to mean, in relation to a person, [3]
(a)a partner of the person; or
(b)a dependent child of the person; or
(c)another person who, in the opinion of the Secretary, should be treated for the purposes of this definition as a person described in paragraph (a) or (b).
The Act allows the Minister to set guidelines, by legislative instrument, for the exercise of the Secretary’s power but none have yet been determined.
[3]By s 7(6D) of the Act.
It seems plain that Ms Williams cannot obtain an exemption under that subsection. Her father is an Australian citizen; he is not and has never been a refugee or a former refugee. On the face of it, Ms Williams does not meet one of the payability criteria for carer payment and will not do so unless and until she has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks. Ms Williams’ argument is not that she satisfies the criteria in Subdivision B of Division 1 of Part 2.5 of the Act. She contends that the amending Act, the Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997, creates its own exemption. That, it is said, is the operation of s 3 of the Amending Act which is in these terms:
(1)To avoid doubt, any provision in this Act imposing a waiting period does not apply to:
(a)a person who arrives in Australia under the refugee and humanitarian programs; or
(b)a person who is a family member of a refugee or humanitarian migrant; or
(c)a person who was a family member of a former refugee or humanitarian migrant at the time the former refugee or humanitarian migrant arrived in Australia; or
(d)a person who is an Australian citizen; or
(e)a person who is a family member of an Australian citizen; or
(f)a person who has lawfully been a permanent resident of Australia at any time for a continuous period of not less than two years; or
(g)a person who is a family member of a person who has lawfully been a permanent resident of Australia at any time for a continuous period of not less than two years.
(2)For the purposes of subsection (1), family member has the same meaning as in subsection 7(6D) of the Social Security Act 1991.
Ms Williams says that this section, of its own force, creates another exemption from the requirement for a period of qualifying residence. And, she says, by reference to paragraph (e), she is a family member of an Australian citizen within the definition in s 7(6D) of the Act, not because she is the partner or dependent child of an Australian citizen, but by the exercise of the discretion in paragraph (c) of that definition to treat a person as a person described in paragraphs (a) (partner) or (b) (dependent child). Her argument is that class of persons encompassed by paragraph (c) of the definition ought be defined broadly, not narrowly, and that her circumstances warrant the exercise of the discretion favourably to her.
The Secretary accepts part of Ms Williams’ argument. It is accepted, both for the purposes of these proceedings and in the Departmental Guide, that s 3 of the Amending Act creates a substantive exemption to the newly arrived resident’s waiting period. The Secretary contends that the discretion in paragraph (c) ought be construed narrowly and cannot be exercised favourably to Ms Williams.
For my part I have very grave doubts about the correctness of the Secretary’s concession. In Re Hussein & Secretary, Department of Employment and Workplace Relations,[4] Deputy President Forgie considered that s 3 of the Amending Act could not be read as incorporating a further qualification to the waiting period provisions and as ameliorating them in some way. Were it necessary to decide the question I would have had similar reservations having regard to the language of s 201AA of the Act, however I am able to decide the issue in the present case by assuming, rather than deciding, the correctness of the Secretary’s concession.
[4][2007] AATA 17 at [28].
The discretion conferred by paragraph (c) of s 7(6D) of the Act on the Secretary, and thus on the Tribunal on review, is, in its terms, unfettered; the matters the decision-maker is obliged to take into consideration are not expressly stated. Accordingly, the matters relevant to the exercise of the discretion must be determined by implication from the subject matter, scope and purpose of the Act.[5]
[5]See eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [39] – [40].
The ordinary operation of the legislation and the assumed exemption is that newly arrived residents are required to wait two years before becoming qualified to receive a carer payment but the partner or dependent child of an Australian citizen is not required to do so. The nature of the exception provided by paragraphs (a) and (b) informs the manner in which the discretion in paragraph (c) is to be exercised. It seems to me to be of significance that paragraph (c) is worded in a manner that requires the Secretary to determine that a person should be treated as a partner or dependent child, not, as Ms Brazier, for the Secretary, points out, that the person should be treated as a family member. The narrowing of scope that is implicit in that choice of language rather suggests that the legislature intended paragraph (c) to be confined to relationships not only within a family but, as well, confined to relationships that are analogous to those of a partner or dependent child. I accept, as the Secretary submits, that paragraph (c) requires some significant similarity between the specified relationships of partner or dependent child and that of the person who is the object of paragraph (c).
What is common to the relationship of partner and dependent child is the duty of the other person towards the partner or dependent child. It is not difficult to envisage relationships that are analogous to those of partner or dependent child in the present context, all the more so where, ordinarily, the exemption operates in the case of a family member of a refugee or former refugee. A person engaged to be married to an Australian citizen and newly arrived from overseas might not be regarded as the partner of the Australian citizen so far as the Act was concerned but it might be appropriate to treat that person as the partner of the Australian citizen for the purposes of the exemption. Similarly a dependent descendent, to whom the Australian citizen stands in the role of a parent, even if not the parent in fact, provides a ready example of one who might be treated as though they were the dependent child of the Australian citizen.
Ms Williams’ relationship with her father is quite different to that of the relationship between partners and between parent and dependent child. I am not satisfied that it is proper to treat her as a person described in paragraph (a) or (b) of s 7(6D) of the Act. It follows that I am not satisfied that Ms Williams was a family member, as that term is used in this section of the Act, of her father with the result that the decision under review ought be affirmed.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ..........................[Sgd]..............................................
Associate
Dated 28 April 2015
Date of hearing 8 April 2015 Solicitors for the Applicant Ms S Eder, Darwin Community Legal Aid Solicitors for the Respondent Ms M Brazier, Program Litigation and Review Branch, Department of Human Services
1
3
0