FEDERAL COURT OF AUSTRALIA Secretary Department of Family & Community Services v Haagar [2001] FCA 1284 SOCIAL SECURITY - Retirement assistance for farmers - meaning of the phrase "make a request" - whether the meaning of the phrase "make a request" in s 1185G of the Social Security Act 1991 (Cth), necessitates actual receipt of the request before an application is complete. WORDS AND PHRASES - "make a request". Acts Interpretation Act 1901 (Cth) s 29 Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 68 Social Security Act 1991 (Cth) ss 1185A, 1185F, 1185G, 1185H, 1185I, 1185J Veterans' Entitlements Act 1986 (Cth) s 175, s 177 Re Kiss and Donohoe and Repatriation Commission (1995) 38 ALD 443 Distinguished Roberts v Repatriation Commission (1992) 111 ALR 436 Distinguished North West Traffic Area Licensing Authority v Brady [1981] RTR 265 Distinguished Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 Cited Re Bowen v Repatriation Commission (1994) 32 ALD 700 Distinguished Re Purnell and Repatriation Commission (1990) 14 AAR 63 Distinguished Roberts v Repatriation Commission (1992) 27 ALD 408 (FC) Distinguished Lenlyn Ltd v Secretary of State of the Environment [1985] 50 P & CR 129 Cited Camden London Borough Council v ADC Estates Ltd (1990) 88 LGR 956 (CA) Applied Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272 Applied SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v KEITH AND MARGARET HAAGAR Q29 of 2000 COOPER J BRISBANE 11 SEPTEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q29 OF 2000 On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr K L Beddoe (Senior Member) BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPLICANT AND: KEITH AND MARGARET HAAGAR RESPONDENT JUDGE: COOPER J DATE OF ORDER: 11 SEPTEMBER 2001 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The order of the Administrative Appeals Tribunal made on 23 March 2000 be set aside. 2. The matter be remitted to the Administrative Appeals Tribunal to be determined according to law. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q29 OF 2000 On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr K L Beddoe (Senior Member) BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPLICANT AND: KEITH AND MARGARET HAAGAR RESPONDENT JUDGE: COOPER J DATE: 11 SEPTEMBER 2001 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is an appeal by the Secretary, Department of Family and Community Services ("the Secretary") from a decision of the Administrative Appeals Tribunal constituted by Senior Member Beddoe ("the AAT"). 2 The AAT determined that a request under s 1185G of the Social Security Act 1991 (Cth) ("the Act") for a social security payment to be paid at an increased rate, was made by Keith and Margaret Haagar when the written request in the proper form was posted at the Murgon Port Office on 14 September 1998 addressed to the Centrelink Office in Gympie, Queensland. 3 The Secretary contends that the proper construction of s 1185G of the Act requires that until receipt by the Secretary of a written notice in proper form no request is made for the purpose of the section. On the construction contended for by the Secretary, the request of Mr and Mrs Haagar was not made until receipt of the written request by the Gympie office of Centrelink on 15 September 1998 in the ordinary course of post. 4 In the present case determination of when the request was made, being either 14 or 15 September 1998, determines the date from which the Secretary's decision to pay the social security payment at the higher rate operates: s 1185J(2). 5 Part 3.14A of the Act is headed "Retirement Assistance for farmers". The purpose of the Part is contained in s 1185A which states : "1185A This Part deals with the transfer of farming interests to family members of a younger generation. The purpose of the Part is to provide that, if the conditions set out in the Part are met, the value of any such interests transferred by a qualifying farmer, his or her partner, or a former partner of the qualifying farmer, will be disregarded in determining: (a) whether a social security payment is payable; or (b) at what rate a social security payment is payable." The Part gives effect to the Retirement Assistance for Farmers Scheme and is beneficial legislation designed to assist farmers who retire from farming, and satisfy the criteria contained in the Part, to obtain social security benefits under the Act. 6 Division 4 of Pt 3.14A is headed "Requests for increase in rate of social security payment". The Division provides as follows : "1185F(1) This Division applies if: (a) a person, or a person's partner, has reached pension age; and (b) this Part applies because of a transfer of qualifying interests by the person or the person's partner; and (c) the person is receiving a social security payment under this Act; and (d) the value of the qualifying interests has been included in the value of the person's assets, or the partner's assets, when calculating the rate of the person's social security payment. 1185G If: (a) the rate at which a social security payment is being, or has been, paid to a person is less than the rate (the increased rate) at which it would be, or would have been, paid if the value of the qualifying interests transferred by the person or the person's partner had not been included in the value of the person's assets, or of the partner's assets, in calculating the rate of the person's social security payment; and (b) the person wants the social security payment to be paid at the increased rate; the person must make a request to that effect. 1185H A request under section 1185G must be made in writing and must be in accordance with a form approved by the Secretary. 1185J(1) If: (a) a person makes a request under section 1185G in respect of a social security payment; and (b) the Secretary is satisfied that the rate at which the social security payment is being, or has been, paid to the person is less than the rate at which it would be, or would have been, paid if the value of the qualifying interests transferred by the person or the person's partner had not been included in the value of the person's assets, or the partner's assets, when calculating the rate of the person's social security payment; the Secretary must determine that the request is to be granted. 1185J(2) The determination takes effect: (a) if the transfer was completed before 15 September 1998 and the person makes the request before that day - on 15 September 1997 or the day on which the transfer was completed, whichever is later; or (b) if the transfer was completed after 14 September 1998 but before 15 September 2000 and the person makes the request during the period of 3 months that starts on the day on which the transfer is completed - on the day on which the transfer was completed; or (c) in any other case - on the day on which the request is made." 7 The Secretary submits that the AAT erred because : (a) it incorrectly distinguished relevant case authority which held that an application was only made when received eg Re Kiss and Donohoe and the Repatriation Commission (1995) 38 ALD 443; Roberts v Repatriation Commission (1992) 111 ALR 436. (b) the efficiency of administration, having regard to the presence of s 1885J(1)(b) of the Act, favours the requirement that the request be received before it is made for the purpose of the division; (c) the natural and ordinary meaning of the phrase "making a request" involves, and is not complete until actual communication of that request is made to the recipient of the request; (d) the statutory requirement that the request be in writing, and, the absence of express statutory authority to make the request by post, coupled with the appellant's obligation to act and determine the request when made, are compelling circumstances in favour of a requirement of receipt; (f) section 29 of the Acts Interpretation Act 1901 (Cth) operates so as to deem service of the letter to have been effected at the time at which the letter would be delivered in the ordinary course of post. 8 The respondents submit that the AAT made no error of law and that the decision was correct as a matter of construction, having regard to the decision of the English Court of Appeal in North West Traffic Area Licensing Authority v Brady [1981] RTR 256. 9 The meaning of the phrase "make a request" in s 1185G of the Act is to be determined by the application of the ordinary principles of statutory construction which require that the words be given their ordinary meaning in the context where they appear having regard to the statutory objects sought to be achieved by the words in that context: Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 401 - 402. The use of cases as to the meaning of the same or similar words in another statutory context is of little, if any, assistance and is wont to mislead where the statutory contexts are different. 10 In the present case, the AAT correctly distinguished cases which dealt with the requirements for making an application for review under s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") and ss 175 and 177 of the Veterans' Entitlements Act 1986 (Cth) ("the VE Act"). Section 29(1)(d) of the AAT Act specifically provides that an application must be lodged within a prescribed time. Section 68 of the AAT Act specifically provides where and in what manner a document is to be lodged for the purposes of the AAT Act. Further, lodgment of the application for review in the manner required by the AAT Act is the act which enlivens the jurisdiction of the AAT to review the decision. An application for review under s 175 of the VE Act, when it is made, is made under s 29 of the AAT Act. Therefore, it is made for the purposes of ss 175 and 177 of the VE Act when it is lodged as expressly required by s 29 of the AAT Act. 11 The decisions in Kiss and Donohoe and the Repatriation Commission (1995) 38 ALD 443; Re Bowen v Repatriation Commission (1994) 32 ALD 700; Re Purnell and Repatriation Commission (1990) 14 AAR 63 and Roberts v Repatriation Commission (1992) 27 ALD 408 (on appeal before Full Court of Federal Court: 111 ALR 436) are concerned with, and are limited to, the question of when an application is "made" within the meaning of s 29 of the AAT Act and/or ss 175 and 177 of the VE Act. 12 The respondents submit that North West Traffic Area Licensing Authority v Brady stands as authority for the proposition that once an applicant has done everything within his or her power to make an application, the process of making the application is complete unless the relevant statute requires something more before the application is "made" for the purpose of the statute. They submit that they did everything within their power when they posted the written request in the approved form. They further submit that the Act did not require anything further before the request was made for the purposes of Div 4 of Pt 3.14A of the Act. 13 The circumstances which were before the English Court of Appeal in Brady's Case were summarised by Griffiths LJ (at 268) : "In the ordinary course of events, if a driver requires a heavy goods vehicle driver's licence, he has to submit himself to a test to show that he is competent to drive a heavy goods vehicle. Unless he received a certificate of competence, section 114 of the Road Traffic Act 1972 prohibits the licensing authority from issuing such a licence. But, in order to mitigate the hardship which this would inflict on men who throughout 1975 had been regularly driving a vehicle, which had been reclassified during that year, without a heavy goods vehicle driver's licence, a provision was made which enabled the authority to issue those men with a heavy goods vehicle driver's licence if they applied for a licence before the end of 1976 and they could show that they had been regularly driving that particular vehicle. The point which is raised in this appeal is this: is it sufficient that the lorry driver should have posted his application before the end of 1976, or do the licensing authority only obtain jurisdiction to grant a heavy goods vehicle licence to him if they receive his application before the end of 1976." The relevant wording in Schedule 2 of the Road Traffic (Drivers' Ages and Hours of Work) Act 1976 (Cth) provided : "… 3(1) This paragraph applies to - (a) a goods vehicle which has by virtue of this Act become classified as a heavy goods vehicle … (b) a person who, immediately before the passing of this Act … (I) … held a driving licence … authorising him to drive a goods vehicle to which this paragraph applies … (3) Nothing in section 114(1) [of the Road Traffic Act 1972] … shall prevent the licensing authority from granting a full licence to drive a heavy goods vehicle if - (a) the application for the grant of the licence is made during 1976 by a person to whom this paragraph applies …" Griffiths LJ said in respect of the statutory provision (at 268) : "What is meant by those words? It is really a point of construction of first impression. As I would read them, a lorry driver, wishing to take advantage of the provision, complies with it if he posts his application for a licence before the end of 1976. I see no warrant for construing the words 'is made' as equivalent to 'has been received by' as is the contention of the licensing authority". His Lordship continued (at 270) : "I think that the choice really is between construing this provision so as to do justice to lorry drivers and construing it for the administrative convenience of the authority. I choose to adopt the former construction. Accordingly, for my part, I would hold that this application was made in time, having been made before the end of 1976; it was made at the time it was posted, and there was no requirement that it should be received by the authority before the end of 1976." 14 Purchas J characterised the legislation as beneficial legislation; the purpose of which was to protect existing holders of licences and similar persons from the prohibition which was binding on the licensing authority and which would oblige it to withhold a licence in the absence of a Certificate of Competence. His Lordship continued (at 271) : "… Mr Mackay submits that in the case of ambiguity the section ought to be construed broadly in favour of the applicant and not narrowly in favour of restricting the licensing authority from carrying out their function of issuing licences. I agree with this submission. However, I doubt whether there is an ambiguity at all. In the context of making an application of this sort the words 'the application … is made during 1976' given their ordinary meaning, mean that when the documents are prepared, the medical certificate obtained, and all are put together and posted to the authority, the process of making the application is complete. In this case that process had been completed before the end of 1976; …" 15 Ormrod LJ agreed with the other members of the Court and said : "I agree. The phrase 'is made during 1976' could be ambiguous. It is a question therefore of first looking at the statutory provision and applying the ordinary test of asking what in ordinary English does it mean. I agree with Purchas J that the ordinary English meaning of the phrase is that some step has been taken by the applicant to make his application. As to what step, I would draw the line at the moment of posting or delivering it through the letter box of the authority as the case may be. I do not think that it would cross my mind that in order to make an application one has to be certain that it has been received. But in any event these phrases as to times when applications, notices, or other acts have to be done must be construed in their context; and one has to ask, what is the object of this particular provision. …" 16 The decision in North West Traffic Area Licensing Authority v Brady has not been applied in the United Kingdom and has been distinguished on the basis of the particular statutory context with which it dealt: Lenlyn Ltd v Secretary of State of the Environment [1985] 50 P & CR 129 at 134; Camden London Borough Council v ADC Estates Ltd (1990) 88 LGR 956 (CA) at 964 - 965; 966 - 967. 17 Purchas LJ was a member of the Court of Appeal bench which heard the appeal in Camden London Borough Council v ADC Estates Ltd. His Lordship was also a member of the earlier Court of Appeal bench in North West Traffic Area Licensing Authority v Brady. His Lordship sought to reconcile the two decisions on the following basis (at 967) : " … In Brady's case (supra) the application was under a different class of legislation and must be considered in an entirely different context. Each case must be decided within its own statutory provisions and purposes. The basis of the decision in Brady's case (supra) was that, in order to qualify as a member of a class, the applicant had to make his application within a certain period of time. This was a matter entirely personal to the applicant and did not affect the position of the authority as recipient of the application, only in determining in which class the applicant should be when that authority came to deal with the application. Thus the court was able to reach the conclusion which it did reach and which, in the words from the judgment of Griffiths LJ the court clearly felt it should in all reasonableness reach if it could. However, that case should be considered as having been decided on its own special facts and, in my judgment, is not of assistance in construing the meaning of the phrase 'made to' when used in the planning legislation." 18 The purpose of Pt 3.14A as appears from s 1185A, is to allow the value of farming interests transferred by a qualifying farmer to be disregarded when social security payment entitlements are assessed under the Act. 19 Division 4 of Pt 3.14A applies to persons who are receiving a social security payment under the Act and the value of the qualifying interests has been included in the value of assets when calculating the rate of the person's social security payment. 20 Section 1185G is facultative. It enables a person to whom the Division applies to request that the person be paid social security at the increased rate (as defined in s 1185G(a)). 21 The means by which that request is to be made is contained in s 1185H; it is to be made in writing and must be in accordance with a form approved by the Secretary. 22 Section 1185J is important in two respects. Firstly, it identifies the person empowered to grant the request as the Secretary. Secondly, it identifies the Secretary as the person who must be satisfied of the existence of the circumstances in s 1185G(a) and s 1185J(1)(b) which give rise to an entitlement to be paid at the increased rate. 23 In the context of Division 4, the written request in a form approved by the Secretary is intended as the mechanism whereby the person making the request communicates information to the Secretary for the purpose of the Secretary acting upon that information to discharge the statutory function cast upon the Secretary by s 1185J(1) of the Act. The communication is intended to be made by the written request with the purpose of conveying the information contained in it for the consideration of the Secretary. 24 It is apparent that the written request in the approved form is not made in a vacuum. It is a request ultimately made to or of the Secretary to be acted upon by the Secretary in terms of s 1185J(1). Section 1185J(1), in its ordinary sense, contemplates that at the time when the Secretary is required to consider the matters in s 1185J(1)(b), he or she has available the written request in the form required by s 1185J(1)(a). That is, s 1185J(1) does not contemplate a situation where a request can be made to or of the Secretary without the Secretary having received a request in the statutory form. 25 Once it appears that the statutory scheme contemplates the giving of notice of the request, including the contents of the request, to the Secretary and for it to be acted upon by the Secretary, it is difficult to avoid the conclusion that the legislature intended that the request would be made for the purpose of s 1185G when a request in the statutory form was at the latest received by Centrelink for consideration by the Secretary and that no request was made, in the sense of being complete, until it was received by or on behalf of the Secretary as the person empowered to grant the request. 26 In Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272, I said as to the giving of notice in a statutory context (at 284) : "A notice is a notification, a making known, a communication of some matter from one person to another. In the statutory context, the statute identifies the matter to be notified by the notice. Notice is given when it is received by the person to whom the notice is to be given: the giving and receiving of the notice are two aspects of the same action and are simultaneous. Consequently, the giving of notice ordinarily will require that the person to be given notice actually receives notification of the matter to be communicated. Of course, whether by statute or contract, this two-sided act of giving and receiving of notice may be deemed to be done by some act other than actual receipt of the notification by the recipient: Sun Alliance and London Assurance Co Ltd v Hayman [1975] 1 WLR 177 (CA) at 183, 184, 185." 27 These observations are applicable to the present case once it appears that the giving of notice of the written request and its contents is part of the statutory scheme for making a request for increase in the rate of social security payment. 28 In Camden London Borough Council v ADC Estates Nourse LJ, after observing that an application for planning permission is not made in a vacuum but is made to a local planning authority, continued (at 965 - 966) : "… In that context the ordinary meaning of the word 'made' was well stated by the Lord Justice-Clerk, Lord Wheatley, in Elliot, Applicant [1984 S.L.T. 294] at p295: 'Generally speaking when it is provided that an application shall be made with a timetable in view, the application is not made, in that it is not completed, until it is in the hands of the person to whom it is addressed'. That statement was quoted with approval by the Lord Ordinary, Lord Jauncey, in Adam v Secretary of State of Scotland [1988 S.L.T. 300], where the provision under consideration was section 85(2) of the Town and Country Planning (Scotland) Act 1972, which prescribed how an appeal against an enforcement notice should be made: 'An appeal under this section shall be made by notice in writing to the Secretary of State …'. Following two English decisions at first instance, Lord Jauncey held that an appeal was made, not when it was put into the post by the intending appellant, but when it was received by the Secretary of State. That decision, which was not referred to in the Lands Tribunal, would seem to be directly in point, there being no distinction of consequence between an appeal to the Secretary of State against an enforcement notice and an application to a local planning authority for planning permission. Mr Barnes submits that the decision is distinguishable because there the appeal was required to be made 'by notice' in writing to the Secretary of State. He says that if section 85(2) had read: 'An appeal under this section shall be made in writing to the Secretary of State', the decision would have been to the contrary. To put it that way is to recognise that if there is a requirement that the person to whom it is made shall have notice of it, the application is not made when it is put into the post. But it is very difficult to see how an application can ever be made by A to B without B having notice of it. As Lord Jauncey himself said in Adam v Secretary of State for Scotland (supra), at p 302 : 'As a matter of plain language I consider that there cannot be an appeal to someone until that person has knowledge of what is being brought before him'. Doubtless B's role will be a passive one. He may have to do no more than hold out his hand to receive the application. But the transaction must to that extent be bilateral. The application is not made by A unless and until it impinges on B in some effective way. Whether you prefer to say that that requirement is satisfied by the application's being received by or coming into the hands of B or, if that is something different, by its being communicated to him or coming to his knowledge may not matter very much. …" 29 I have difficulty in drawing any distinction between an application and a request in the present context. To adopt the language of Nourse LJ, a request is not made by the social security recipient of the Secretary unless and until it impinges on the Secretary in some effective way. 30 The making of a request under s 1185G cannot be characterised as a personal unilateral act to bring the requestor into a select class to avoid the operation of a prohibition which would otherwise operate to prevent the exercise of a statutory power in favour of the requestor as was the case in North West Traffic Area Licensing Authority v Brady. The making of a request in the written statutory form has important consequences for the administration of the scheme as a whole. 31 The making of the request is the formal step required by the Act to authorise the Secretary to make a determination under s 1185J(1); it is also the step which places the Secretary under a statutory obligation to act under s 1185(1) and to make the determination if satisfied that the requisite statutory conditions are made out to his or her satisfaction. The Secretary has a real interest in knowing with certainty that a request in writing has been made because the making of it sources both the obligation and the authority to act under s 1185J(1). The making of the request, in terms of the date on which it is made, also has financial consequences for the administration of the scheme and with respect to the payment of public monies. This follows from the operation of s 1185J(2) in determining the date upon which the Secretary's determination shall take effect. Finally, the making of a request protects the social security recipient from the consequences of any delay in the Secretary making a favourable determination under s 1185J(1) by preserving the date of making the application as the date for the purpose of the operation of any of the provisions of s 1185J(2)(a), (b) or (c). That is, once the Secretary has been put on notice of a request under s 1185G, the requestor's rights under the scheme which flow from a favourable determination are fixed and preserved, and irrespective of the delay thereafter, the administration of the scheme will be subject to the rights of the requestor to be paid at the increased rate. In this context, the risks of delay in making the request due to loss or delay in the post with the consequence that rights or benefits are not preserved for the purposes of s 1185G(2) until receipt to the written request are borne by the requestor who uses the postal service to communicate the request. 32 No question as to the possible operation of s 29 of the Acts Interpretation Act 1901 (Cth) with respect to deemed service in the ordinary course of post arises for determination in the present case. 33 For the above reasons, I am satisfied that a request is not made for the purposes of s 1185G of the Act, until receipt of the written request in statutory form by, or on behalf of, the Secretary and that in this respect the AAT erred in law. 34 The decision of the AAT given at Brisbane on 23 March 2000 will be set aside and the matter remitted to be determined according to law and these reasons. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate: Dated: 11 September 2001 Counsel for the Applicant: Mr G E O'Sullivan Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr J Linklater-Steele Solicitor for the Respondent: Roberts & Kuskie Date of Hearing: 27 April 2001 Date of Judgment: 11 September 2001