FEDERAL COURT OF AUSTRALIA Secretary, Department of Family and Community Services v Reid [2000] FCA 1874 Social Security – loss of earning capacity compensation payment – application for disability support pension – compensation affected payment – whether capital loss payments under s 42A of the Workers Rehabilitation and Compensation Act 1986 (SA) attract a preclusion period under s 1165 of the Social Security Act 1991 (Cth) or are to be treated as though they were received as periodic payments under ss 1163A and 1168 of the Social Security Act 1991 (Cth). Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB Administrative Appeals Tribunal Act 1975 (Cth), s 44 Social Security Act 1991 (Cth), ss 17, 1163, 1163A, 1165, 1168 Workers Rehabilitation and Compensation Act 1986 (SA), ss 35, 42A Vlouhakis v WorkCover Corporation (1996) 185 LSJS 473 referred to Hill v Workers Rehabilitation and Compensation Corporation (1997) 191 LSJS 300 referred to Secretary, Department of Family and Community Services v Edwards [2000] FCA 1645 referred to Secretary, Department of Social Security v Banks (1990) 20 ALD 19 cited Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation and Others (1980) 29 ALR 333 cited Re Bolton Ex parte Beane (1987) 162 CLR 514 cited Matter No S 85 of 2000 SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v KEVIN REID von DOUSSA J ADELAIDE 20 DECEMBER 2000 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 85 OF 2000 BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPLICANT AND: KEVIN REID RESPONDENT JUDGE: von DOUSSA J DATE OF ORDER: 20 DECEMBER 2000 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal made on 5 July 2000 be set aside. 3. The decision of the Social Security Appeals Tribunal dated 15 July 1998 which affirmed a decision of the delegate of the then Secretary, Department of Family and Community Services, made on 6 March 1998 be restored. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 85 OF 2000 BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPLICANT AND: KEVIN REID RESPONDENT JUDGE: von DOUSSA J DATE: 20 DECEMBER 2000 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This appeal from the Administrative Appeals Tribunal (the Tribunal) on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) concerns the provisions of ss 1163A and 1165 of the Social Security Act 1991 (Cth) (the Act). These are provisions designed to prevent "double dipping" where an applicant for specified pensions, benefits and allowances under the Act is also in receipt of compensation in respect of lost earnings or lost earning capacity from another source. 2 The respondent, Mr Reid, applied for a disability support pension on 30 January 1998. At this time Mr Reid was entitled to compensation under the provisions of the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRCA). On 6 March 1998 a delegate of the Secretary, Department of Family and Community Services (the Secretary) decided that the pension claimed by Mr Reid attracted the provisions of s 1163A and in the result the disability support pension to which Mr Reid would otherwise have been entitled was reduced to nil. 3 Mr Reid challenged this decision on the ground that s 1163A had no application in the circumstances of his case. The delegate's decision was reconsidered and upheld, upheld again by a Review Officer and then upheld by the Social Security Appeals Tribunal. Mr Reid then sought review by the Tribunal. The parties presented argument on the construction of s 1163A. However the Tribunal considered that the case was covered by s 1165 with the consequence that s 1163A had no application. The Tribunal set aside the decision under review and remitted the matter to the Secretary for calculation of new and old lump sum preclusion periods in accordance with the requirements of s 1165. The Secretary now appeals against the Tribunal's decision, contending that Mr Reid's situation is covered by s 1163A, and that the delegate's original decision was correct. 4 Mr Reid sustained a compensable disability in the nature of an anxiety disorder arising out of or in the course of his employment, and made a claim for compensation on 6 November 1990 under the WRCA. The claim was accepted and Mr Reid became entitled under s 35 of the WRCA to weekly payments. Those payments commenced on 6 November 1990 and continued through until 29 March 1995. 5 On 15 March 1995 The WorkCover Corporation of South Australia (the Corporation), which administers the WRCA, exercised its power under s 42A(1) of the WRCA to assess Mr Reid's loss of future earning capacity as a capital loss. That subsection provides: 42A.(1) Where a worker suffers a compensable disability that results in incapacity for work for a period exceeding two years, the Corporation may assess the worker's loss of future earning capacity as a capital loss." 6 Decisions of the Full Court of the Supreme Court of South Australia in Vlouhakis v WorkCover Corporation (1996) 185 LSJS 473 and Hill v Workers Rehabilitation and Compensation Corporation (1997) 191 LSJS 300 establish that once the Corporation pays or commences to pay compensation under s 42A, the worker ceases to be entitled to weekly payments. This follows from s 42A(6). 7 Section 42A of the WRCA in sub-ss 42A(2) and (3) lay down principles for the assessment of the capital loss payment. The worker's notional weekly earnings, less an estimation of income tax, is to be projected forward over the remainder of the worker's notional working life. In appropriate cases adjustment is to be made in the case of a partially incapacitated worker for earnings which the worker could earn in suitable employment. The capital loss is taken to be 80 per cent of the present value of the loss indicated by these projections, the present value being determined according to a prescribed discount rate. 8 Section 42A(3) provides: "(3) For the purposes of subsection (2)- … (b) the worker's notional working life is the period over which the worker would have worked assuming that he or she had not been incapacitated and that period will be assessed having regard to the contingencies and vicissitudes of life that might in any event have prevented the worker from continuing in employment but the period will not, in any event, be taken to extend beyond the date on which weekly payments would (assuming no assessment of capital loss were made under this section) cease to be payable (see section 35(5)). …" 9 Section 42A(4) provides: "(4) The Corporation may make one or more interim assessments of loss as to nominated portions of the worker's notional working life before making a final assessment of loss under this section." In Mr Reid's case a number of interim assessments and payments have been made, each one being on the basis that at the relevant time Mr Reid was totally incapacitated for work. 10 Section 42A(5), which has not been applied in Mr Reid's case, provides that an amount assessed under s 42A becomes due at the date of the assessment but may be paid, at the discretion of the Corporation, in a single lump sum or in instalments that are actuarially equivalent to the lump sum. Under this power, the Corporation could assess a worker's capital loss, and then at its discretion pay that sum in, say, monthly instalments that are actuarially equivalent to the lump sum. This possibility becomes relevant in considering the legislative purpose which lies behind s 1163A of the Act. 11 Having notified Mr Reid of its decision to proceed under s 42A, the Corporation then made four interim payments to him as follows: · on or about 15 March 1995 an interim payment of $18,636.69 for the period 30 March 1995 to 27 March 1996; · on or about 26 March 1996 an interim payment of $18,876.53 for the period 28 March 1996 to 26 March 1997; · on or about 19 March 1997 an interim payment of $19,056.46 for the period 27 March 1997 to 25 March 1998. [It was during this period, on 30 January 1998, that Mr Reid applied for a disability support pension.]; · on or about 4 March 1998 an interim payment of $19,329 for the period 26 March 1998 to 24 March 1999. 12 Sections 1163A and 1165 appear in Part 3.14 of the Act entitled "Compensation Recovery". The general effect of Part 3.14 is stated in s 1163. The following provisions are of relevance in the circumstances of this case: "1163(1) If a person is or may be entitled to or receives compensation, payments of a compensation affected payment to the person or the person's partner might be affected under this Part. Note: For compensation affected payment see subsection 17(1). … 1163(3) If the compensation is a lump sum compensation payment, the compensation affected payment might cease to be payable for a period (based on the amount of the lump sum) and some or all of the payments of the compensation affected payment might be repayable. Note1: Under section 1163A, certain lump sum payments may be treated as though they were received as periodic payments. Note 2: Under section 1163B, a person may be treated as having received compensation that the person would have received but for the effect of a State or Territory law. 1163(4) If the compensation is in the form of a series of periodic payments, the rate of the compensation affected payment might be reduced for the period for which the payments are received. Note 1: Under section 1163A, certain lump sum payments may be treated as though they were received as periodic payments. Note 2: Under section 1163B, a person may be treated as having received compensation that the person would have received but for the effect of a State or Territory law." 13 Section 17(1) contains "compensation recovery" definitions. A "compensation affected payment" is defined to include eleven different forms of pension, benefit or allowance, including a disability support pension. For the purposes of the Act "compensation" means a payment of damages, a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law or a payment in settlement of a claim for damages or a claim under an insurance scheme, whether the payment is in the form of a lump sum or in the form of a series of periodic payments, provided that the payment is made wholly or partly in respect of lost earnings or lost capacity to earn (as to which see Secretary, Department of Family and Community Services v Edwards [2000] FCA 1645). 14 The expression "compensation part of a lump sum" is defined in s 17(3) of the Act which provides: "17(3)For the purposes of this Act, the compensation part of a lump sum compensation payment is: (a) 50% of the payment if the following circumstances apply: (i) the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and (ii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise, on or after 9 February 1988; or (ab) 50% of the payment if the following circumstances apply: (i) the payment represents that part of a person's entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and (ii) the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and (iii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise, on or after 9 February 1988; or (b) if those circumstances do not apply – so much of the payment as it, in the Secretary's opinion, in respect of lost earnings or lost capacity to earn." 15 Section 17(4A) provides that for the purposes of the Act a payment of arrears of periodic compensation payments is not a lump sum compensation payment. However the expressions "lump sum" and "lump sum compensation payment" are not otherwise defined in the Act. 16 Section 1163A was first introduced into the Act by the Social Security (Budget and Other Measures) Legislation Amendment Act No 121 of 1993, but has since been amended by the Social Security Legislation Amendment (Carer Pension and Other Measures) Act No 143 of 1995. The section now provides, and provided in January 1998, that: "1163A Certain lump sums to be treated as though they were received as periodic payments 1163A(1) If: (a) a person is entitled to periodic payments under a law of a State or Territory; and (b) the person's entitlement to the periodic payments is converted under the law of the State or Territory into an entitlement to a lump sum; and (c) the lump sum is calculated by reference to a period; this Part applies to the person as if: (e) that person had not received: (i) the lump sum; or (ii) if the lump sum is to be paid in instalments – any of the instalments; and (f) the person had received in each fortnight during the period a periodic compensation payment equal to: lump sum amount______ number of fortnights in the period where: lump sum amount is the amount of the lump sum referred to in paragraph (b). number of fortnights in the period is the number of whole fortnights in the period referred to in paragraph (c). 1163A(2) This section does not apply in respect of a lump sum to which a person is entitled if section 1165 applies in respect of the lump sum." 17 Section 1165 provides now and provided in January 1998 that: "1165 Compensation affected payment not payable during lump sum preclusion period Persons not member of a couple – payment received before 20 March 1997 1165(1) Where: (a) a person receives or claims a compensation affected payment; and (b) the person is not a member of a couple; and (c) the person receives a lump sum compensation payment (whether before or after the person receives or claims the compensation affected payment) before 20 March 1997; a compensation affected payment referred to in paragraph (a) is not payable to the person for the old lump sum preclusion period. Note 1: For old lump sum preclusion period see subsections (3) to (4). Note 2: A series of lump sum payments can be taken to be one lump sum compensation payment under subsection 17(2B). … 1165(3) If periodic compensation payments are made in respect of the lost earnings or lost earning capacity, the old lump sum preclusion period is the period that: (a) begins on the day after the last day of the periodic payments period; and (b) ends after the number of weeks specified in subsection (4). Note: for periodic payments period see section 17. 1165(3A) If a person chooses to receive part of an entitlement to periodic compensation payments in the form of a lump sum, the old lump sum preclusion period is the period that: (a) begins on the first day on which the person's periodic compensation payment is a reduced payment because of that choice; and (b) ends after the number of weeks specified in subsection (4). … 1165(4) The number of weeks in the old lump sum preclusion period is the number worked out under the following formula: compensation part of lump sum average weekly earnings Note 1: for compensation part of lump sum see section 17. Note 2: for average weekly earnings see section 17." 18 Sections 1165(1A), (5), (6), (7) and (8) make provision in respect of payments received on or after 20 March 1997 leading to the calculation of a "new lump sum preclusion period". Section 1165 in other subsections also makes provision for payments received by a person who is a member of a couple. 19 The effect of s 1163A, where it applies, is to attract the operation of s 1168 which provides for a rate reduction of the compensation affected payments where periodic compensation payments have been received. In Mr Reid's case the application of s 1168 had the effect of requiring a reduction from his entitlement to a disability pension on a dollar for dollar basis to reflect the amount of the notional receipt of a periodic compensation payment calculated under s 1163A(1)(f), with the result that his entitlement became nil. In other cases, a person in receipt of benefits in the contemplation of s 1163A may still be entitled to receive certain at least of the compensation affected payments, depending on the amount of the notional periodic compensation payments calculated under s 1163A(1)(f). 20 Mr Reid's argument before the Tribunal, repeated before this Court, is that s 1163A can have no application because by s 1163A(1) a pre-requisite to the application of the section is that "a person is entitled to periodic payments under a law of a State …". He contends that as his entitlement to weekly payments under the WRCA had been converted to a capital loss before he applied for a disability support pension, and before s 1163A was amended (in the manner set out below) in 1995, it cannot be said that when he applied for that pension he "is entitled to period payments under a law of a State". It is contended that the Secretary's argument impermissibly involves reading "is" to mean either "was" or "has been". It is said that to so construe the Act would be to give s 1163A a retrospective operation for which there is no warrant. 21 The Secretary contends that Mr Reid's entitlement depends on the Act as it was in force at the time he applied for the disability support pension, viz 30 January 1998. It is contended that the delegate's decision did not involve any retrospective application of the law. Rather, it applied the law as it stood in 1998 to Mr Reid's claim for a pension in 1998. Further it is contended that s 1163A(1)(a) should not be construed so as to limit the operation of that section to a case where there is a continuing entitlement to periodic payments under a law of a State. The Secretary contended before the Tribunal, and before this Court, that the construction of s 1163A, and its operational relationship to s 1165 is aided by reference to the Explanatory Memoranda which accompanied the introduction and later the amendment of s 1163A. 22 The reasoning of the Tribunal in deciding that Mr Reid's claim fell under s 1165 centred on s 1163A(2) which provides that s 1163A does not apply in respect of a lump sum to which a person is entitled if s 1165 applies in respect of the lump sum. The Tribunal held that each of the interim payments received by Mr Reid was a lump sum compensation payment for the purposes of s 1165. The Tribunal applied the following observation made by me in Secretary, Department of Social Security v Banks (1990) 20 ALD 19 at 24 with respect to the expression "lump sum" in the compensation recovery provisions of the Social Security Act 1947 (Cth): "Where a payment by way of compensation consists of the aggregate of several amounts which could have been paid separately or at different times the payment is one of a lump sum." Plainly, Mr Reid, within the meaning of pars (a) and (b) of s 1165(1) was a person who had claimed a compensation affected payment, and was not a member of a couple. As each interim payment was a lump sum, the Tribunal concluded that s 1165(1) applied in respect of the interim payment made on 19 March 1997, and s 1165(1A) applied in respect of the interim payment made on 4 March 1998. As the Tribunal considered s 1165 applied the Tribunal held that by force of s 1163A(2), s 1163A did not apply. It followed that Mr Reid's entitlement to a disability support pension would be subject to a preclusion period to be calculated in accordance with s 1165(4). The use in that formula of the "compensation part of a lump sum" attracted the definition of that expression in s 17(3) of the Act. Paragraphs (a) and (ab) of that definition apply what has been termed the "50 per cent rule". However the Tribunal considered that neither of those paragraphs applied, and accordingly that it was necessary to determine under s 17(3)(b) how much of the payment was in respect of lost earnings or lost earning capacity. The Tribunal held that the whole of the lump sum fell into that category. 23 The Tribunal added that had it been necessary to decide Mr Reid's case upon the terms of s 1163A, the Tribunal would have upheld his argument that the section had no application because at all relevant times after Mr Reid made his claim he did not meet the description of a person who "is entitled to periodic payments under a law of a State". The Tribunal considered it was useful to look at the language of subs 1165(1) where Parliament had shown an intention to draw on past events by using the expression "(whether before or after the person receives or claims the compensation affected payment)". The absence of similar language in s 1163A was considered by the Tribunal to be significant. 24 Before this Court the Secretary again laid emphasis upon the history of the legislation. However before turning to that history I deal first with Mr Reid's argument based on the use of the present tense in s 1163A(1)(a). Whilst pars (a), (b) and (c) of s 1163A(1) are each expressed in the present tense, the subsection is describing events in the past. This must be so as an entitlement to a lump sum only arises when and where an earlier entitlement to periodic payments has been extinguished by conversion into an entitlement to a lump sum. That the paragraphs are referring to events in the past is also clear from pars (e) and (f) which provide that the Part applies as if the person "had not received" the lump sum and the person "had received" periodic compensation payments. Section 1163A (1) (a), (b) and (c) lay down sequential events that have occurred in the past as the criteria for the application of s 1163A. Those events are first that at some earlier point in time the person "is entitled to periodic payments …", and then that the person's entitlement thereto "is converted … into an entitlement to a lump sum", and the lump sum "is calculated by reference to a period". Each of those criterion was fulfilled when Mr Reid claimed a disability support pension on 30 January 1998. 25 Section 1163A operates by deeming events which did not happen to have occurred in place of events which did happen for the purpose of assessing each fortnight the pension, benefit or allowance payable to a claimant under the Act. In this context, the section operates at a point in time after a person qualifies for the pension, benefit or allowance. In contrast however s 1165 can have application in respect of a period before the person becomes qualified, and the preclusion period may commence to run on a date before the person becomes qualified. In these circumstances it is understandable that s 1165 is expressed to cover the receipt by a person of compensation in the form of a lump sum "whether before or after the person became qualified for the pension, benefit or allowance". I do not think the language of s 1165 assists in the construction of s 1163A. 26 If the construction of s 1163A contended for by Mr Reid is correct I think it would follow that the section could never have application. In other words, the construction contended for would defeat the operation of the section. To avoid this consequence, an alternative argument was put on Mr Reid's behalf, namely that the expression "is entitled" means is entitled when s 1163A came into operation in its present form, following amendments in December 1995, but the conversion of periodic payments under the WRCA relevantly occurred in Mr Reid's case on 15 March 1995 when the Corporation made its decision under s 42A of the WRCA to assess a capital loss. In my opinion this argument is without substance. The Secretary is correct in contending that Mr Reid's entitlement to the disability support pension must be determined according to the Act in force at that time when he claimed the pension, and his ongoing entitlement each fortnight must also be determined according to the Act in force from time to time thereafter. Section 1163A in cases where it applies, affects payments each fortnight during the specified period in respect of which the lump sum is paid. In this respect it is immaterial when the decision to assess a capital loss occurred. Even if the decision were made before s 1163A was enacted, to apply it in the assessment of current fortnightly payments of a pension, benefit or allowance is not to give it retrospective operation. 27 I return to the Secretary's argument based on the history of s 1163A. Section 42A of the WRCA was enacted by the Workers Rehabilitation and Compensation (Miscellaneous) Amendment Act 1992 (SA) and came into operation on 1 July 1993. The Bill to enact the Social Security (Budget and Other Measures) Legislation Amendment Act was introduced into Parliament on 29 September 1993. The Explanatory Memorandum says that the proposed amendments will clarify the situation when a person's entitlement to periodic compensation payments under a law of a State or Territory is converted into a lump sum and the lump sum is calculated by reference to a period. Under the proposed amendment the person will be considered to have received in each fortnight during the period, a periodic compensation payment equal to the lump sum amount divided by the number of fortnights in the period. 28 The Explanatory Memorandum goes on to give the following explanation for the introduction of s 1163A: "2. Background Part 3.14, among other things, provides for the treatment of periodic compensation payments (by way of a $1 for $1 reduction from the rate of compensation affected payment otherwise payable) and lump sums (by the so-called 50% rule). A recent change to the South Australian Workers Rehabilitation and Compensation Act 1987 allows compensation to be paid by way of instalments of a 'lump sum'. It is considered appropriate to treat payments under such a scheme as periodic payments rather than as a series of lump sums. Sub-section 1165(3B) already provides for the treatment of cases where there are two lump sums; those lump sums are not paid by instalments. 3. Clauses involved in the changes Clause 2(5): specifies the commencement date as 1 January 1994. Clause 3(7) and (8): provide that the amendments made by Division 8 of Part 2 apply to compensation payments made on or after 1 January 1994. Clause 77: inserts a new section 1163A which will provide for the treatment of compensation 'lump sums' paid by instalments. 4. Explanation of changes Payments such as those possible under the South Australian legislation referred to above are not currently accommodated in the provisions of the Act. Due to changes to the various State and Territory compensation systems, changes are required to the Principal Act to keep pace with developments. It is considered that the payments which the current amendment is intended to address are more in the nature of periodic compensation payments especially if they were to be paid by way of regular instalments (relating presumably to particular periods of time). It is not considered appropriate to attempt to treat each instalment as a separate lump sum as this would lead to absurd results insofar as, for example, the commencement of lump sum preclusion periods. Furthermore, in the South Australian context, an assessment is required to determine the total amount payable (under section 42A of the South Australian Act) with the payment of that amount able to be made by instalments. The new section 1163A will effectively spread the total amount of the compensation over the full period covered by it, ie. the amount calculated by the formula in section 1163A will be treated as periodic compensation." 29 The explanation makes it plain that the purpose of the proposed amendment was to ensure that payment by instalments of the kind contemplated under s 42A would be treated as periodic compensation payments attracting a $1 for $1 reduction in pensions, benefits or allowances otherwise payable under the Act, and not be subject to the 50 per cent rule. Moreover, the explanation points to "absurd results" which could follow if each instalment under a scheme for payments such as that established by s 42A was to be treated as a separate lump sum. It will be remembered that under s 42A(5) the Corporation has a discretion to pay an assessed capital loss by instalments. If payments were made, say, monthly, there would be obvious administrative difficulties in making repeated calculations, and the result could arise where a person would be subject to numerous exclusion periods interspersed with short periods of pension entitlement. As the Explanatory Memorandum said, if payments under s 42A were treated as periodic payments, the new s 1163A would spread the total amount of the compensation over the full period in respect of which it was paid. 30 It is permissible under s 15AB of the Acts Interpretation Act 1901 (Cth) to have regard to an Explanatory Memorandum to discover the purpose or object of the legislation: Pearce and Geddes, "Statutory Interpretation in Australia", Butterworths, 4th ed at par 3.6. 31 As originally enacted s 1163A has three significant differences from the present section brought about by the 1995 amendments. 32 First, the original section included a paragraph (d) which read: "(d) the lump sum is to be paid to the person in 2 or more instalments." Thus, in its original form s 1163A, applied only where the lump sum was calculated by reference to a period (s 1163A(c)) and where the lump sum was to be paid in two or more instalments. If a capital loss were assessed and paid as one lump sum, s 1165 and not s 1163A would have applied. It is this situation that is changed by the 1995 amendments. 33 Secondly, s 1163A(e) read: "This part applies to the person as if: (e) The person had not received the instalments; and …" The 1995 amendment was merely consequential upon removing the requirement that the lump sum be paid in two or more instalments. 34 Thirdly, there was no s 1163A(2). Section 1163A in its original form contained no statement regarding the operation of s 1165. Presumably such a statement was not seen as necessary as s 1163A, being applicable only in the special circumstance where a lump sum was paid in two or more instalments, and was calculated by reference to a period, would apply in those circumstances to the exclusion of the more general provisions of s 1165. Although ss 1163A and 1165 read literally and separately would each appear to apply with inconsistent consequences in a case where two or more lump sum payments of compensation were made under s 24A of the WRCA, when the sections are read together in the context of the Act as a whole the legislative intention is clear that the general provision should give way to the particular provision. The relevant rule of construction was described in the following way by Deane J, then a judge of this Court, in Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation and Others (1980) 29 ALR 333 at 347: "As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. 'The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative …' (per Romilly MR: Pretty v Solly (1859) 26 Beav 606 at 610). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter." 35 The Explanatory Memorandum which accompanied the Social Security Legislation Amendment (Carer Pension and Other Measures) Bill 1995 amendments to s 1163A gave the following background and explanation for the 1995 amendments to s 1163A: "2. Background … Section 1163A of the Principal Act provides that when a person's entitlement to periodic compensation payments under a law or a State or Territory is converted into an entitlement to a lump sum, that is calculated by reference to a period and is to be paid in 2 or more instalments, the person is deemed to have received in each fortnight during the period, a periodic compensation payment equal to the lump sum amount divided by the number of fortnights in the period. However, in most cases when a person's entitlement to periodic compensation payments is converted into an entitlement to a lump sum, that is calculated by reference to a period, only a single payment is made. In other words, the lump sum is not paid in 2 or more instalments as is currently required by paragraph 1163A(d) of the Principal Act. … 4. Explanation of the changes The amendments made to section 1163A of the Principal Act will ensure that when a person's entitlement to periodic compensation payments is converted into an entitlement to a lump sum payment, that is calculated by reference to a period, the person is considered to have received in each fortnight during the period, a periodic compensation payment equal to the lump sum amount divided by the number of fortnights in the period, irrespective of whether the lump sum is paid by a single payment or in instalments. This will close a loophole in the current law whereby a lump sum paid by a single payment, in the situation described, is not subject to the provisions contained in section 1163A." 36 In introducing the Bill for the 1995 amendments into the House of Representatives on 25 October 1995 the Parliamentary Secretary to the Minister for Social Security said: "The bill makes some minor amendments relating to compensation recovery. In this regard, it clarifies the situation that, when a person's entitlement to periodic compensation payments under a law of a state or territory is converted into an entitlement to a lump sum and it is calculated by reference to a period, the person is considered to have received in each fortnight during the period a periodic compensation payment equal to the lump sum divided by the number of fortnights in the period." 37 The purpose of the removal of the former s 1163A(d) was intended to have the effect of applying s 1163A, and not s 1165 to a single payment lump sum made under a legislative scheme like that established under s 42A of the WCRA where the lump sum is calculated by reference to a period (in s 42A, by reference to the "worker's notional working life"). 38 The background and explanation clearly states the purpose of the amendments to s 1163A(1), but does not explain the intent of the new s 1163A(2). 39 Prior to the amendment the application of s 1163A was conditioned upon (a) the lump sum being calculated by reference to a period, and (b) the lump sum being paid in two or more instalments. With the removal of the second of these conditions, unless there was some other provision indicating the respective fields of operation of s 1163A and s 1165, it is not difficult to envisage cases where there could be argument as to which section should apply. This is so as most assessments of damage or compensation assume a loss over a span of time, and there could be uncertainty whether in a particular case a lump sum payment was calculated "by reference to a period". The requirement of s 1163A that the lump sum be calculated by reference to a period would not in itself be sufficient to save the day as s 1165 by its terms does not exclude a lump sum payment of compensation that is calculated by reference to a period. Indeed prior to the 1995 amendment, the Act contemplated that s 1165 would cover a lump sum calculated by reference to a period if that lump sum were paid in one payment. Presumably the new s 1163A(2) was intended to clarify the fields of operation of the two sections. Clarity would have been provided in a manner consistent with the Explanatory Memorandum and the Second Reading Speech if a provision were inserted into the principal Act to the effect that s 1165 would not apply in respect of a lump sum to which a person is entitled if s 1163A applies in respect of the lump sum. However the new s 1163A(2) states the reverse situation. In light of the history, I cannot help wondering whether s 1163A reflects a drafting mistake. Be that as it may, the task of the Court is to construe the Act, as it is, and not to rewrite the provision in terms that the Court thinks would better express the intended purpose or object of the Act. As Mason CJ, Wilson and Dawson JJ pointed out in Re Bolton Ex parte Beane (1987) 162 CLR 514 at 518: "It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to translate into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of a court is to give effect to the will of Parliament as expressed in the law." 40 I agree with the conclusion of the Tribunal that in the circumstances of this case the interim payments under s 42A of the WRCA each constitutes the receipt of "compensation in the form of a lump sum" within the meaning of s 1165(1)(c) and s 1165(2)(c), and that s 1165 by its terms could apply to the interim payments received by Mr Reid on 19 March 1997 and 4 March 1998. However if payments of this kind for that reason attract the operation of s 1165, the new s 1163A(2) would render s 1163A superfluous as s 1165 would apply in every case to which s 1163A would otherwise apply. 41 I have already referred to the Explanatory Memorandum as an aid to ascertaining the purpose or object of the enactment of s 1163A, and of the 1995 amendment. Reference may also be had to the Explanatory Memorandum, and to the Second Reading Speech, to determine the meaning of a provision when (i) the provision is ambiguous or obscure or (ii) the ordinary meaning conveyed by the text of the provision taking into account the context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or unreasonable: s 15AB(1)(b) of the Acts Interpretation Act. 42 Section 15AA of the Acts Interpretation Act also directs that a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object. 43 If s 1163A(2) were to be applied literally, an absurd result that frustrates the object and purpose of s 1163A would occur. This cannot have been the intention of Parliament. To avoid this, and to give s 1163A a continuing operation in relation to lump sum compensation payments that meet the requirements of s 1163A(1)(a), (b) and (c), I consider s 1163A(2) should be construed merely on a legislative exercise of abundant caution in stating the obvious, namely that ss 1163A and 1165 each have their own fields of operation, and where s 1165 applies, s 1163A does not apply. What is not said, but which must be understood, is that where s 1163A applies, s 1165 does not apply. This was the unstated position before the 1995 amendments, and remains the unstated position. 44 It follows that as the lump sum payments received by Mr Reid in March 1997 and March 1998 were each lump sum payments calculated by reference to a period, and as the other requirements of s 1163A in pars (1)(a) and (1)(b) are fulfilled, it is s 1163A which governs Mr Reid's application of a disability support pension, not s 1165. 45 In my opinion the decision of the Social Security Appeals Tribunal was correct to decide Mr Reid's pension claim by applying s 1163A, and the Tribunal erred in concluding that s 1165 was the applicable section. In my opinion the appeal should be allowed, the decision of the Tribunal should be set aside, and the decision of the Social Security Appeals Tribunal which affirmed the delegate's decision should be restored. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa. Associate: Dated: 20 December 2000 Counsel for the Applicant: Mr T McRae with Ms K Bean Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr S Cole with Mr M DeRohan Solicitor for the Respondent: Legal Services Commission of South Australia Date of Hearing: 11 December 2000 Date of Judgment: 20 December 2000