Re Pietro Galati and Director-General of Social Security [1984] AATA 343 (10 August 1984)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: PIETRO GALATI
And: DIRECTOR-GENERAL OF SOCIAL SECURITY
No. V83/366
Social Security

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
Mrs. Rosemary Balmford (Senior Member)
Mrs. H.E. Hallowes (Member)
Dr. A.H. Marsh (Member)

CATCHWORDS

Social Security - age pension - portability - whether applicant satisfied residence requirements - purpose or object of legislation - Minister's second reading speech and other relevant material in official record of debates referred to

Words and Phrases: "residing", "resident", "residence", "resided"

Social Security Act 1947 ss. 20, 21, 60(1)(d), 83AB, 83AD

Acts Interpretation Act 1901 ss. 13, 15AA, 15AB

Scott v Commercial Hotel Merbein Pty. Ltd. [1930] VicLawRp 4; (1930) VLR 25

Craig, Williamson Pty. Ltd. v. Barrowclift [1915] VicLawRp 66; (1915) VLR 450

Gregory v Federal Commissioner of Taxation [1937] HCA 57; (1937) 57 CLR 774

Matalon v Matalon (1952) 1 All ER 1025

Ex. p. Breull Re Bowie (1880) 16 ChD 484

Re Taylor & Director-General of Social Security (delivered on 5 July, 1984)

Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93

Levene v Inland Revenue Commissioners [1928] UKHL 1; (1928) AC 217

Re Kyvelos & Director-General of Social Services (1981) 3 ALN N120

Shah v Barnet London Borough Council (1983) 1 All ER 226

HEARING

CANBERRA
10:8:1984

ORDER

1. The Tribunal sets aside the decision under review and remits the matter to the Director-General of Social Security for reconsideration in accordance with the direction that the applicant be granted an age pension from the first pension payday after 11 January, 1983, the date of his application for age pension.

2. Liberty to apply is reserved should there be any disagreement between the parties as to the consequential adjustments to be made, the applicant having, in the meantime, been in receipt of other benefits under the Social Security Act 1947.

DECISION

Introduction

1. This is an application for review of a decision of a delegate of the Director-General of Social Security made on 18 July, 1983, affirming a decision of an officer of the Department of Social Security made in March, 1983, rejecting the applicant's claim for age pension. The original decision was reviewed by a Social Security Appeals Tribunal which recommended that the appeal be dismissed. Mr. Galati has since lodged a second claim for age pension, which claim was not before us, but which we note has been rejected.

2. The Tribunal had before it the documents lodged by the respondent pursuant to Section 37 Administrative Appeals Tribunal Act 1975, and numbered T1 to T25, together with other documents, including copies of Mr. and Mrs. Galati's tickets with Qantas Airways Ltd. from Rome to Melbourne issued on January 26, 1982, a medical certificate from Dr. Vohra of the Preston and Northcote Community Hospital and certificates from the Italian Consul-General in Melbourne. Evidence was given at the hearing by the applicant, who gave his evidence through an interpreter, and by Mr. Vittelone and Mr. Ward of the Department of Social Security.

3. On 25 March, 1983, a letter was sent from the Department to Mr. Galati which read:

"Reference is made to your application for an

Australian age pension. Your claim has been
rejected as you are not regarded as residing
in Australia. This decision has been made
under Section 21(b) (sic) of the Social
Security Act 1947."

The legislation

4. Section 21 of the Social Security Act 1947 ("the Act") provides:

"21.(1) Subject to this Part, a person who is
not receiving an invalid pension and -

(a) being a man, has attained the age of 65
years, or, being a woman, has attained
the age of 60 years; and

(b) is residing in, and is physically
present in, Australia on the date on
which he lodges his claim for a pension
and has at any time been continuously
resident in Australia for a period of
not less than 10 years,

shall be qualified to receive an age pension.

(2) Where

(a) a claimant has had more than one period
of residence in Australia;

(b) the longest of those periods is less
than 10 years but is not less than 5
years; and

(c) the aggregate of those periods exceeds
10 years,

the period specified in paragraph (1)(b)
shall, in relation to that claimant, be
deemed to be reduced by the excess."

This section must, for present purposes, be read with Section 83AB and sub-section 83AD(1) which read (at all relevant times):

"83AB Except as provided by this Part, the
right of a person to commence, or to
continue, to be paid a pension granted to him
is not affected by the fact that he leaves
Australia after the commencement of this
Part.

83AD(1) Subject to this section, where -

(a) a person who formerly resided in
Australia has returned to Australia or a
person who formerly resided in an area
that was, at the time of the residence,
an external Territory but has never
resided in Australia has arrived in
Australia;

(b) before the expiration of the period of 12
months that commenced on the date of his
return to, or his arrival in, Australia,
that person has lodged a claim for a
pension; and

(c) that person leaves Australia (whether
before or after his claim is determined)
before the expiration of that period,

any pension granted as a result of that claim
is not payable in respect of any period
during which the pensioner is outside
Australia."

The remainder of Section 83AD is not relevant to this matter.
"Continuously resident": the facts

5. We set out first the facts relevant to the question of whether Mr. Galati has been at any time "continuously resident" in Australia for a sufficient period to satisfy the second requirement in paragraph 21(1)(b). Mr. Galati was born in Italy on 9 February, 1918, and married in 1946. He has a brother who came to Australia in 1930 and has since lived on a dairy farm at Korumburra; the brother "called" Mr. Galati to Australia in 1949. Since then half the village have followed Mr. Galati to Australia and he "called" his brother-in-law, Mrs. Galati's brother, to Australia after his arrival. Mr. Galati remained until June, 1954, when he returned to Italy for eight months. He came back to Australia in April, 1955, and was naturalised as an Australian citizen in 1959. In that year, he returned to Italy and remained there for some three years; he came back to Australia in 1962 and stayed approximately six years, returned to Italy in 1968 and remained in that country until he came back to Australia on 2 March, 1982, when he was accompanied by his wife, who had never been to Australia before. Thus, he spent in Australia fifteen or so of the nineteen years between 1949 and 1968.

6. From 1962 to 1968, Mr. Galati lived with his brother-in-law in Melbourne. The brother-in-law brought his children out to Australia some years ago, but Mr. Galati did not do so because his children were older as a family than the children of his brother-in-law and were making plans for their own lives in Italy. While he was in Australia Mr. Galati used to send money to his wife and children in Italy; his wife had no other source of income. She lived in the house described below, and at the times when her husband was in Italy he lived there with her, and worked as a casual labourer on farms in the district. It is a farming community and casual labour, described in the district as "work by the day", is a common form of employment.
"Residing in ... Australia ... on the date": the facts

7. Assuming for the moment that the requirement of ten years' continuous residence is met, as a man who has attained the age of 65 years and is not receiving an invalid pension Mr. Galati would be entitled to an age pension if he could show that he was "residing in and ... physically present in Australia" on 11 January, 1983, the date on which he lodged his claim for a pension. It is not suggested that he was not physically present in Australia at that date; the issue is whether he was "residing" here. We now set out the facts relevant to that question.

8. Mr. Galati had, on 11 January, 1983, spent fourteen consecutive years in Italy since his last return to that country from Australia, and had been back in Australia for just over ten months. He and his wife were living with his brother-in-law, with whom he had lived from 1962 to 1968. They have three children, born in 1947, 1950 and 1955, all of whom still reside in Italy. There are four grandchildren in all. Mr. Galati's only property in Italy is a house which he received as part of his wife's dowry when he and his wife married in 1946, and which he described as dating from "the time of Garibaldi". The house consists of two rooms and a kitchen and a basement to store wood. It has no modern amenities. There is little furniture in the house except one wardrobe and large trunks in which clothes are stored and a table and chairs. Nobody lives there at present, but the younger son who lives in Turin comes down to the south to spend his holidays with his brother and sister and he then lives in the house. The sister looks after the house although she does not live in it.

9. Mr. Galati said in evidence that he and his wife decided two or three years ago to come to Australia to spend their old age here. Approximately a year went by between their making the decision and actually coming. He had at an earlier stage made arrangements for his wife to come to Australia but she was then not well and did not come. On leaving Italy, Mr. Galati had arranged for his Italian pension to be paid to his daughter, Maria Anna Galati, who still resides in Italy. About the middle of last year he applied for that pension to be transferred to Australia, but the advice both from his daughter and from the Italian Consulate in Melbourne has been that the arrangements for that transfer will take about two years.

10. Mr. and Mrs. Galati travelled to Australia on one-way tickets with Qantas. Mr. Galati made enquiries with the Australian Consulate in Messina, Sicily, before returning and as a result of those enquiries arranged to have a job waiting for him in Australia with Visy Board in Reservoir. When he arrived in Australia and went to the Visy Board factory he was told that there was no job there for him because of his age, of which the factory had not been aware when the original arrangement was made. He registered with the Commonwealth Employment Service and received unemployment benefit from 16 March, 1982, to 29 November, 1982. In July, 1982, he was advised at the Preston and Northcote Community Hospital that he had aortic valve disease and in November, 1982, he was transferred from unemployment benefit to sickness benefit, which he received until January, 1983, when he was transferred to special benefit. He was still in Australia, and living with his brother-in-law, when he gave evidence on the first day of the hearing of this matter in February, 1984. Whether he was still present was not mentioned on the day of the adjourned hearing in April. In Gregory's case (paragraph 18 infra) where the question in issue was whether the taxpayer had been "resident" in the Northern Territory so as to make his income exempt for a given financial year, Dixon J said (at p 778):

"the English cases show that events which
occurred before and after a given period may
be considered as throwing light on and
disclosing the significance of habits and
conduct within the period."

11. In January, 1983, Mr. Galati received a letter from the Department of Social Security, the significant portion of which read:

"As from 9 February, 1983, you will no longer
be eligible to receive Unemployment Benefit
as you will be over 65 years of age. You are
invited to test your eligibility for Age
Pension by completing the enclosed form and
returning it to this office within 14 days."

12. Mr. Galati lodged a claim for age pension on 11 January, 1983, and on 26 January, he was interviewed by Mr. Ward, with the assistance of an interpreter, at the Preston office of the Department. He signed a statement in which he said, inter alia, "We are at present undecided as to our future residence in Australia". His wife signed a similar statement. On 7 March, 1983, a questionnaire was sent to Mr. Galati, apparently in connexion with sickness benefit which he was then receiving, in which he replied "No" to the question "Do you intend to reside in Australia permanently?", and "26/3/83" to the question "If not, when do you intend to leave?". Mr. Ward interviewed Mr. Galati again with the assistance of Mr. Vitteloni as interpreter, on 18 March, 1983. The record of interview says "He stated that it was true that he and his wife intended to leave Australia permanently on 26/3/83; he also stated that he had returned to Australia in March, 1982, because a friend had told him that if he did so and remained in Australia for twelve months he would qualify for age pension. I then advised him that this was not necessarily so and that in addition to residing he would have to be intending to remain in Australia. He then became extremely agitated and after some time he stated that he had changed his mind and that he now intended to reside in Australia permanently ... He stated that he would remain as long as was necessary to qualify for age pension. I explained to him that the point of issue was not past residence but his intentions of future residence." The record of interview continues: "Mr. Vitteloni's opinion was that Mr. Galati had been deliberately lying regarding future residence when he realised he might not be granted age pension" and also "that Mr. Galati if granted age pension would immediately attempt to have his pension made portable". Mr. Ward concluded "Taking into account (the evidence set out in this paragraph) I do not regard him to be permanently residing in Australia. I therefore recommend that his claim and his wife's claim be rejected". A note on the page by another officer, who appears to have been at the time Acting OIC Pensions, reads "Sec 3.13 Pension Manual supports this recommendation". On 18 March, 1983, Mr. Galati made a separate statement that he intended to reside in Australia permanently. However, this was followed by the letter of 25 March already cited, rejecting his claim for pension.

13. In his appeal to the Social Security Appeals Tribunal he said: "I accidentally stated that I was not intending to remain in Australia permanently. As I understand little English I had little idea as to what I was doing." The SSAT, having interviewed Mr. Galati with the assistance of an interpreter, concluded that "when he made his application for age pension on 11 January, 1983, he had no intention of remaining in Australia for longer than was necessary for him to qualify to have his pension made portable". "Portable" in that sentence, as elsewhere in these Reasons means "payable to the pensioner during his absence from Australia".

14. Mr. Galati, Mr. Vitteloni and Mr. Ward were examined and cross-examined before the Tribunal as to what was said by Mr. Galati and as to what he actually intended. Like the Social Security Appeals Tribunal, who also had the opportunity of hearing Mr. Galati, we are of the view that his intention on returning to Australia was to remain here only long enough to qualify for a pension which would continue to be paid to him should he return to Italy.
The use of "residing", "resident", "residence", "resided": one word or four?

15. It will be seen that paragraph 21(1)(b), to which the letter of 25 March, 1983, must be taken as intending to refer, in fact contains two similar, but separate requirements. A claimant must have been "residing in, and physically present in, Australia on the date when he lodges his claim for a pension"; and must also have been "continuously resident in Australia for a period of not less than 10 years" (or for a period calculated in accordance with sub-section 21(2)). There is no relevant definition in the Act of "residing" or "resident". It should be noted that two different, although related, words have been used; and that in paragraph (a) of sub-section (2) the phrase "period of residence" adds a third word, albeit related to "residing" and "resident". It would have been relatively simple to draft the section in such a way as to use the same word in each of these three places. "Resided" in the phrase "formerly resided in Australia" in paragraph 83AD(1)(a) is yet a fourth related word which, if the two provisions are read together, must be taken as dependent for its meaning on "resident" in the phrase "continuously resident in Australia" in paragraph 21(1)(b).

16. Accordingly, in considering paragraph 21(1)(b) it is necessary to refer to a concept which is elegantly and concisely described by Professor D.C. Pearce in Statutory Interpretation in Australia at p 32 of the second edition (emphasis added):

"The good writer will generally endeavour to
be consistent in his choice of words.
However, such are the riches of language that
it is considered acceptable in order to avoid
monotony to use synonymous expressions to
describe the one idea or thing. But a
draftsman of legislation cannot take these
liberties. He must be precise in his use of
words and one word can rarely be the exact
substitute for another In addition the
courts have long adopted a twofold approach
to the interpretation of legislation that is
founded on the expectation that words will be
used precisely. First, the view is taken
that where a word is used consistently in
legislation it should be given the same
meaning consistently. Secondly, it is held
that where a legislature could have used the
same word but chose to use a different word,
the intention was to change the meaning."

The two propositions emphasised express the obverse and reverse of the assumption that words have been used consistently. Professor Pearce cites in support of the second proposition the statement of Irvine C J in Scott v Commercial Hotel Merbein Pty Ltd. [1930] VicLawRp 4; (1930) VLR 25 that, "though it is not to be conclusive, the employment of different language in the same Act may show that the legislature had in view different objects". He also cites the following statement of Hodges J in Craig, Williamson Pty. Ltd. v Barrowclift [1915] VicLawRp 66; (1915) VLR 450 at 452:

"I think it is a fundamental rule of
construction that any document should be
construed as far as possible so as to give
the same meaning to the same words wherever
those words occur in that document, and that
that applies especially to an Act of
Parliament, and with special force to words
contained in the same section of an Act.
There ought to be very strong reasons present
before the Court holds that words in one part
of a section have a different meaning from
the same words appearing in another part of
the same section."

That statement, although expressing the obverse proposition, does so in such a way as to emphasise the fact that the assumption, which Irvine CJ was careful not to carry too far in respect of words in the same Act, must apply with far greater force in a case such as the present. Here we are dealing not only with words in the same Act, or even in the same section, but, so far as two of the words are concerned, in the same separated paragraph of a sub-section.

17. Accordingly, it may be assumed that the words "residing" in the phrase "residing in and physically present in Australia" and "resident" in the phrase "continuously resident in Australia" are intended to have different, albeit closely related meanings. Whatever the concept may be which is expressed in words like "resident", "residence", and "residing", it is a concept capable of being considered in terms of a continuum as to the degree of association between a person and a place. In our view, "residing in", which is, where it appears in paragraph 21(1)(b), concerned with a characteristic of a person on a specific date, can be said to be at the end of the continuum which expresses a more temporary association with a place than "resident", particularly as that word appears as part of the phrase "continuously resident"; or than "residence" which by virtue of paragraph (2)(a) must be taken as expressing the same concept as "resident" in paragraph (1)(a). The contrast with the phrase "residing permanently" in the expression "she and her husband ... were, on the occurrence of the event ... residing permanently in Australia" in paragraph 60(1)(d) of the Act, dealing with widow's pension, is also significant as tending to support our view of the meaning of "residing".

18. It should be noted, however, that in Gregory v Federal Commissioner of Taxation [1937] HCA 57; (1937) 57 CLR 774 at 777, Dixon J (as he then was) said, as to the interpretation of "resident" in the then Section 5A of the Income Tax Assessment Act, "I think that the answer is that the word should receive the same meaning and application as 'person residing' and 'ordinary resident' have been given in England". His Honour there drew no distinction between the two words.

19. Having said all this, we are of the view that "residing" and "resident" in paragraph 21(1)(b) and "residence" in paragraph 21(2)(a) are intended to convey essentially the same concept, although with the slight difference in emphasis referred to in paragraph 17 above.
The use of extrinsic materials

20. In Matalon v Matalon (1952) 1 All E.R. 1025 at 1028, Hodson L J, in a judgment in which Bickett and Singleton LJJ concurred, cited with approval the following words of James LJ in Ex p. Breull Re Bowie (1880) 16 Ch. D 484 at 486:

"There are cases in which it has been
judicially decided, and I think rightly, that
the words 'residence' and 'business' have no
actual definite technical meaning, but that
you must construe them in every case in
accordance with the object and intent of the
Act in which they occur."

21. The aims of the Social Security Act as a whole were described by the Tribunal, constituted by the President, Davies J, Mr. Jennings, Deputy President, and Mrs. Dwyer, Senior Member, in Re Taylor & Director-General of Social Security (delivered on 5 July, 1984) as "to achieve adequate social welfare in Australia and the efficient administration thereof". The "object and intent" of Section 21 is more difficult to ascertain. And in the present matter, the "object and intent" of Section 83AD is also relevant, for a reason to which we now turn.

22. The effect of Sections 83AB and 83AD (set out in paragraph 4 supra) is that, generally speaking, pensions are but where the pensioner is a former resident of Australia who has returned to this country and lodged a claim, the pension is not portable unless he remains in Australia for the period of twelve months that commenced on the date of his return. Section 83AD does not require that he should be "resident" (or any similar word) in Australia during that period; although Section 21 requires him to be "residing in ... Australia" at the date of lodging of the claim.

23. A lengthy departmental memorandum among the papers lodged with the Tribunal by the respondent, includes the following paragraph:

"A 'dob-in' letter was received some time
prior to 28/3/83 which claimed that Mr.
Galati is intending to 'swindle' the
Australian Government by coming here to take
his pension back to Italy."

Leaving on one side the fact that the letter referred to was not among the papers lodged with the Tribunal by the respondent, pursuant to Section 37 Administrative Appeals Tribunal Act 1975, we consider that the inclusion of a reference to it in a memorandum recommending rejection of Mr. Galati's second application for a pension is significant. From the whole of the material before us we are led to conclude that the attitude of the Department of Social Security to this matter has been coloured by a view that to act so as to bring oneself within the requirements of an Act of Parliament enabling what we shall refer to as portability of pensions, is, in some way, morally improper. However, in the absence of any specific inhibiting provision (such as, for example, Section 47 of the Act as to depriving oneself of income) it is no way improper to take steps to bring oneself within the provisions of an Act of Parliament in such a way as to enable oneself to receive a benefit in accordance with those provisions. It would not, for example, be improper for a person to undertake the custody, care and control of a child with a view to receiving family allowance in respect of that child, pursuant to Section 95 of the Act. Nor would it be improper for a publisher to arrange to have a book printed in Australia rather than overseas in order, all other requirements being satisfied, to qualify himself for the receipt of a bounty in respect of that book under the Bounty (Books) Act 1969.

24. The view that it is improper to bring oneself deliberately within the requirements for portability leads to an assumption as to the meaning of "residing" in paragraph 21(1)(b). Although Section 83AD does not require "residence" for the twelve months period after the return of a former resident, the requirement in paragraph 21(1)(b) that the applicant be "residing in Australia" when the claim is lodged must require an intention to do more than simply remain in Australia for that twelve months period. Indeed, the material set out in paragraph 12 supra shows a clear departmental view that, to comply with the requirement, an applicant must intend to reside in Australia permanently. There are a very large number of authorities on the meaning of "residence" and its congeners, used for different purposes in different statutory and other provisions. (See Stroud's Judicial Dictionary, 4th edition, at pp 2358-2366, paragraphs (1) to (57).) The only reason which we perceive for the adoption in the context of sub-section 21(1) and Section 83AD of the interpretation that "residing in Australia" means "residing permanently in Australia" is the assumption that a person otherwise entitled to an Australian pension should not be permitted, by returning to Australia for a mere twelve months, to complete the requirements for that entitlement.

25. Section 15AA and the relevant part of Section 15AB of the Acts Interpretation Act 1901 read:

"15AA.(1) In the interpretation of a provision
of an Act, a construction that would promote
the purpose or object underlying the Act
(whether that purpose or object is expressly
stated in the Act or not) shall be preferred
to a construction that would not promote that
purpose or object.

15AB.(1) Subject to sub-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 -

(a) to confirm that the meaning of the
provision is the ordinary meaning
conveyed by the text of the provision
taking into account its context in the
Act and the purpose or object underlying
the Act; or

(b) to determine the meaning of the
provision when -

(i) the provision is ambiguous or
obscure; or

(ii) the ordinary meaning conveyed 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.

(2) Without limiting the generality of
sub-section (1), the material that may be
considered in accordance with that
sub-section in the interpretation of a
provision of an Act includes -

...

(f) the speech made to a House of the
Parliament by a Minister on the occasion
of the moving by that Minister of a
motion that the Bill containing the
provision be read a second time in that
House.

...

(h) any relevant material in the Journals of
the Senate, in the Votes and Proceedings
of the House of Representatives or in
any official record of debates in the
Parliament or either House of the
Parliament.

...

(3) In determining whether consideration
should be given to any material in accordance
with sub-section (1), or in considering the
weight to be given to any such material,
regard shall be had, in addition to any other
relevant matters, to -

(a) the desirability of persons being able
to rely on the ordinary meaning conveyed
by the text of the provision taking into
account its context in the Act and the
purpose or object underlying the Act;
and

(b) the need to avoid prolonging legal or
other proceedings without compensating
advantage."

26. These provisions are not easy to apply. In Section 15AA, by virtue of Section 23 of the Acts Interpretation Act, and in the absence of any apparent contrary intention, the phrase "purpose or object" may be interpreted as "purposes or objects". The question then arises whether, if a particular section (or group of sections) can be seen to have a particular purpose or object distinct from, albeit not inconsistent with, the purpose or object of the Act as a whole, Section 15AA requires, in the interpretation of that section or group of sections, a construction to be preferred which would promote that particular purpose or object.

27. A further difficulty arises from the fact that, while Section 15AB demonstrates, and indeed derives from, an awareness that the meaning of a provision may not always be readily ascertainable from the words of the Act alone, that section appears to assume, as does Section 15AA, that the purpose or object of the Act will always be apparent. It would appear that Section 15AB may be acted upon to elucidate the meaning, but not the purpose or object, of a provision.

28. Bearing these difficulties in mind, we are yet encouraged by the words of James LJ cited in paragraph 20 above to conclude that there is an ambiguity in the words "residing" and "resident" in the circumstances of the present case which empowers us to consider, in accordance with Section 15AB, material not forming part of the Social Security Act which is capable of assisting in the ascertainment of the meaning of paragraph 21(1)(b) and Section 83AD. We have, in reaching this view, had regard to the matters referred to in sub-section 15AB(3).
The purpose or object of paragraph 21(1)(b)

29. As to paragraph 21(1)(b), Mr. Robertson, then Minister for Social Services, said, on the occasion of his moving, in the House of Representatives, of the motion for the second reading of the Social Services Bill 1962, which, when passed, reduced the period of "continuous residence" from twenty years to ten:

"The bill now before the House incorporates
two sets of amendments to the Social Services
Act. The first will relax the residence
qualification for age and invalid pensions
... Honorable members will recall that the
Prime Minister (Mr. Menzies) foreshadowed the
introduction of the first proposal relating
to residence in the joint policy speech on
15th November of last year, when he said that
the Government would legislate to reduce the
present twenty-year period to ten years. Mr.
Speaker, if I may remind the House of the
words used by the Prime Minister on that
occasion, he said -

For 50 years the Australian law has
been that, to qualify for an age
pension, a person, whether Australian-
born or not, must have lived in
Australia continuously for twenty
years.

The right honorable gentleman went on to say-

The great stream of migration since the
war, so valuable to Australia, has
produced its own problems. One of them
has been that it is felt by elderly
migrants, who have worked and paid taxes
in Australia for long periods falling
short of twenty years, that it is
unreasonable that they should not
qualify for age pension. We have
examined this matter. We attach great
importance to family migration, since it
helps assimilation in the new country.
We will legislate to reduce the twenty
years period to ten. Naturalization
will, of course, continue to be a
condition for those coming from foreign
countries.

In fulfilment of this undertaking the bill
before the House provides that the general
residence qualification for age pensions will
be reduced from twenty years' continuous
residence to ten years' continuous residence.
Further, the bill will liberalize certain
existing concessions."

30. This material may be said to be of assistance in ascertaining the purpose or object of paragraph 21(1)(b) rather that directly in ascertaining the meaning of "resident" and "residing" in that paragraph. However, we consider that the ascertainment of the purpose or object of a particular provision is, looking at Sections 15AA and 15AB as a coherent whole, a necessary part of the ascertainment of the meaning of a provision. It would seem therefore that the relaxation of the period from twenty years to ten years was intended to encourage "family migration", and this intention should, to put it at the lowest, be borne in mind in considering the meaning of "resident" and "residence" in Section 21. Further, the meaning of "residing" is bound up with the purpose or object of Section 83AD, which we now turn.
The purpose or object of Section 83AD

31. Section 83AD appears in Part IVAA of the Act. The original Part IVAA, the first legislation providing for portability of pensions, was introduced by the Social Services Act (No. 3) 1972 with the heading "Continuation of Payment of Pensions after Pensioner leaves Australia". Briefly, Part IVAA provided for such continuation by a procedure based on Australia's entering into agreements with other countries to provide portability both to and from those countries. Mr. Wentworth, then Minister for Social Services, said, in his speech in the House of Representatives on 13 April, 1972, on the motion for a Second Reading of the Bill which, when passed, became the Social Services Act (No. 3) 1972:

"This Bill will make it possible to pay
certain Australian pensions overseas. It
applies equally to people who were born in
Australia and to those who have settled in
Australia; in line with our other pension
legislation, it makes no distinction between
those settlers who have formally acquired
Australian citizenship and those who have
not.

...

We wanted to give portability to those who
have worked in the Australian community
irrespective of whether or not they had
become formally naturalised. Indeed, we
realised that the benefits would be of
special concern to those who, although they
had lived and worked in Australia, retained
sufficient ties with their homeland to make
them desire to retain their original
nationality.

...

We do not want the position where a person
can come here for a short time, qualify for
an Australian pension, and take it back home
with him without having really contributed to
the prosperity and progress of Australia.

...

While the provisions of the Bill may result
in more Australian pensioners going overseas,
the agreements to be made will have the
corresponding result of encouraging more
people entitled to overseas pensions to take
up residence in Australia, or to visit us
here. On balance, the net flow may well be
equalised - it is not possible to predict
this with certainty, although it is
reasonably clear that the tourist flow will
be increased in both directions.

32. Difficulties arose in negotiating the reciprocal agreements, and a new government brought in legislation substituting for the provisions introduced by Mr. Wentworth, what was effectively the present Part IVAA, the heading to which is "Payment of Certain Pensions and Benefits to Persons Outside Australia". (Amendments to Part IVAA since 1972 are not relevant for present purposes.) It is to be noted that Section 13 Acts Interpretation Act 1901 provides that the headings of Parts of an Act shall be deemed to be part of the Act. Thus the principle of portability established by the previous government and justified in the extracts above was continued; it was only the machinery for implementing that principle which changed. The change was effected by the Social Services Act (No. 2) 1973. Mr. Hayden, then Minister for Social Services, said, in his speech on the motion for the second reading of the Bill in the House of Representatives on 5 April, 1973:

"Portability will now be provided without any
requirement for reciprocal arrangements with
other countries. That is, a person drawing
Autralian pension can take that pension right
anywhere in the words after 10 years
Australian residence in the case of age
pension.

...

This is truly a substantially generous
improvement on pension portability practices
to the present. It comes in recognition of
the special rights and needs of migrants in
this country - justice too long denied them.

...

Human nature being what it is, cases could
conceivably arise where people who have
previously lived in Australia might aim to
return to Australia for the specific purpose
of receiving a pension, after which they
would again leave this country. As a
deterrent to such action, the Bill provides
that where a person applies for a pension
within 12 months of his return to Australia
any pension which may be granted will not be
payable overseas if he leaves Australia
within a year."

33. In Committee, the Opposition moved the addition to the Bill of a new clause to read in part:

"Where the Director-General is satisfied that
a person has become resident in Australia
solely or mainly for the purpose of
establishing eligibility for a pension, he
may determine that some or all of any pension
for which that person has become eligible
should not be paid while that person is
absent from Australia."

The proposed new clause was negatived and the Bill passed without amendment. The intention of Parliament was clear: that a compliance with the requirements of the Act as it stands, which compliance was effected for the purpose of establishing eligibility for a pension was not to be penalised.

34. Section 20 and Part IVAA of the Act together provide, subject to certain conditions, for portability of pensions granted to people who have not always lived in this country. One purpose of these provisions is to make this country more attractive to people from other countries. For almost forty years, with varying intensity, we have encouraged people from other countries to come here. The extension of social security benefits to these people has been part of that encouragement; as to which, we refer to the last extract from Mr. Wentworth's speech cited in paragraph 31 supra. The conditions on which Parliament has chosen to permit portability are set out in the Act. Those conditions have encouraged many people to come to this country who have subsequently decided to remain here permanently. Others, so encouraged, have come and decided not to remain. It is as legitimate for those people who do not remain to take the benefits which were provided by the Act in order to encourage them to come here as it is for those who do remain. Australia, in effect, as Mr. Wentworth said, took a calculated risk when Parliament enacted these provisions with a view to making this country attractive to migrants. We knew that some people so attracted would stay, and others would not. Having taken that calculated risk when baiting our hook, we cannot reproach or penalise those who, having taken our bait, yet elude capture. If it is considered that portability of pensions is undesirable, that is a matter for Parliament. We would point out that sub-section 96(2) of the Act, relating to family allowance, excludes the operation of the requirements in sub-section 96(1) that the claimant, if not born in Australia, "have his usual place of residence in Australia" and the child, if not born in Australia "has ... been resident in Australia" in cases where "the Director-General is satisfied that the claimant and the child are likely to remain permanently in Australia" (emphasis added). Such a requirement could readily have been inserted in Section 83AD had Parliament so desired.
The meaning of "resident" and its congeners

35. Latham C J in Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93 at p 99, adopted the words of Viscount Cave LC in Levene v Inland Revenue Commissioners [1928] UKHL 1; (1928) AC 217 at p 222, as to the meaning of the word "reside". His Honour said:

"I should have thought that there was no doubt
that a man resided where he lived, and I do
not think that there is any interpretation of
the word 'reside' by the courts which makes
it impossible to apply the ordinary meaning
of the word 'reside' in the present case. In
Levene v Inland Revenue Commissioners,
Viscount Cave L C said:

'... the word "reside" is a familiar English
word and is defined in the Oxford English
Dictionary as meaning "to dwell permanently
or for a considerable time, to have one's
settled or usual abode, to live in or at a
particular place". No doubt this definition
must for present purposes be taken subject
to any modification which may result from
the terms of the Income Tax Act and
Schedules; but, subject to that
observation, it may be accepted as an
accurate indication of the meaning of the
word "reside". In most cases there is no
difficulty in determining where a man has
his settled or usual abode, and if that is
ascertained he is not the less resident
there because from time to time he leaves it
for the purpose of business or pleasure.' "

36. It is well established that one person can be taken as residing in two or more places over the same period. (Gregory v Federal Commissioner for Taxation (paragraph 18 supra).)

37. In relation to Part III of the Act, in which Section 21 appears, the Tribunal, presided over by Mr. Hall, Senior Member (as he then was) said in Re Kyvelos & Director-General of Social Services (1981) 3 ALN N120 at pp N121-2:

"Leaving s 20 of the Act aside for the moment,
there is nothing in Pt III of the Act to
suggest that the words 'resident' 'residing'
and 'residence' have any technical or special
meaning. The words should therefore be given
their ordinary English meaning. In Re
Adoption Application 52/1951 (1952) Ch 16 at
25 'residence' was said to denote 'some
degree of permanence. It does not
necessarily mean the applicant has a home of
his own, but that he has a settled
headquarters in this country'. (See also Re
G (an infant) and Adoption of Children Act
(1968) 3 NSWR 483 at 484, per Myers J; cf
Nygh, P E Conflict of Laws in Australia, 3rd
ed. Butterworths, 1976, pp 144-147.) As
Viscount Sumner pointed out in Commissioners
of Inland Revenue v Lysaght (1928) AC 234 at
244:

'Grammatically the word "resident"
indicates a quality of the person
charged and is not descriptive of his
property, real or personal. To ask
where he has his residence is often a
convenient form of inquiry but only as
leading to the question "then where is
he resident himself?". I think this
distinction, though often pointed out,
has too often been overlooked in the
arguments in the reported cases.'

"Thus, the ownership or renting of property in
Australia is not a necessary ingredient of
being 'resident' here. A homeless vagrant
who moves from place to place and dosses down
where he can is nevertheless 'resident' in
Australia within the ordinary meaning of that
word."

Continuously resident": our conclusion

38. Considering the facts set out in paragraphs 5 and 6 of these Reasons in the light of the authorities above referred to, and bearing in mind the purpose set out in paragraph 30 of the reduction from twenty to ten years of the period of continuous residence required by Section 21 of the Act, we are of the opinion that Mr. Galati has been "continuously resident" in Australia within the meaning of paragraph 21(1)(b), for periods which, in the aggregate exceed 10 years, the longest of those periods being less than 10, but not less than 5 years, in accordance with sub-section 21(2). During those periods when he was in Australia he had a "settled or usual abode" in this country. Whether or not he had a similar relationship with Italy is not relevant to the consideration of his relationship with Australia.
"Residing in ... Australia ... on the date": our conclusion

39. In considering the question of whether Mr. Galati was "residing in Australia" on 11 January, 1983, we have found great assistance in the judgment of the House of Lords in Shah v Barnet London Borough Council (1983) 1 All E.R. 226. In that case, five foreign-born students, all immigrants and none having the right of abode in the United Kingdom, all but one having entered on limited leave with a condition that on completion of their studies they would leave the country, applied for and were refused local authority grants for their further education. The local authority was required to make grants to students who had been "ordinarily resident in the United Kingdom" for the preceding three years; all five students had been living in the United Kingdom for that period, but the authority claimed that they were not "ordinarily resident" in that country. The House of Lords held that the phrase "ordinarily resident" was to be construed according to its natural and ordinary meaning in accordance with the dicta of Viscount Cave LC in Levene v I.R.C. and Viscount Sumner in I.R.C. v Lysaght, some of which are cited above in paragraphs 18 and 21. Lord Scarman, with whose speech the other members of the House of Lords agreed, said:

"'(O)rdinarily resident' refers to a man's
abode in a particular place or country which
he has adopted voluntarily and for settled
purposes as part of the regular order of his
life for the time being, whether of short or
long duration.

...

The residence must be voluntarily adopted.

...

And there must be a degree of settled
purpose. The purpose may be one or there may
be several. It may be specific or general.
All the law requires is that there is a
settled purpose. This is not to say that the
propositus intends to stay where he is
indefinitely; indeed his purpose, while
settled, may be for a limited period.
Education, business or profession,
employment, health, family or merely love of
the place spring to mind as common reasons
for a choice of regular abode. And there may
well be many others. All that is necessary
is that the purpose of living where one does
has a sufficient degree of continuity to be
properly described as settled.

...

An attempt has been made in this case to
suggest that education cannot be a settled
purpose. I have no doubt it can be. A man's
settled purpose will be different at
different ages. Education in adolescence or
early adulthood can be as settled a purpose
as a profession or business in later years.
There will seldom be any difficulty in
determining whether residence is voluntary or
for a settled purpose; nor will inquiry into
such questions call for any deep examination
of the mind of the propositus.

...

The Brent and Barnet borough councils submit
that the words 'ordinarily resident ... in
the United Kingdom', in the context of a
student's eligibility for a mandatory award,
denote the place where he has his home
permanently or indefinitely, ie his permanent
base or centre adopted for general purposes,
eg family or career. This is the 'real home
test'; it necessarily means that a person has
at any one time only one ordinary residence,
viz his 'real home'.

...

The Divisional Court rejected in terms the
'real home' test but attached importance to
the purpose or reason for a person's presence
in the United Kingdom (see (1980) 3 All ER
679. (1982) QB 688). In its view, there must
be shown an intention to live here on a
permanent basis as part of the general
community; if a person's presence here was
for a 'specific or limited purpose only', eg
to pursue a course of study, he would not be
ordinarily resident.

...

The court thought it was confirmed in its
construction of the regulation -

'by the reflection that it is almost
inconvceivable that Parliament could
have intended to bestow major awards for
higher education, out of public funds,
on persons permitted to enter this
country on a temporary basis, solely for
the purpose of engaging in courses of
study at their own expense. Such an
improbable result is not to be accepted
if it can properly be avoided.'

...

My Lords, the basic error of law in the
judgments below was the failure by all the
judges, save Lord Denning MR, to appreciate
the authoritative guidance given by this
House in the Levene and Lysaght cases as to
the natural and ordinary meaning of the words
'ordinarily resident'. They attached too
much importance to the particular purpose of
the residence, and too little to the evidence
of a regular mode of life adopted voluntarily
and for a settled purpose, whatever it be,
whether study, business, work or pleasure.
In so doing, they were influenced by their
own views of policy and by the immigration
status of the students.

The way in which they used policy was, in my
judgment, an impermissible approach to the
interpretation of statutory language. Judges
may not interpret statutes in the light of
their own views as to policy. They may, of
course, adopt a purposive interpretation if
they can find in the statute read as a whole
or in material to which they are permitted by
law to refer as aids to interpretation an
expression of Parliament's purpose or policy.
But that is not this case. The Education
Act's only guidance is the requirement
contained in the regulations that, to be
eligible for a mandatory award, a student
must have been ordinarily resident in the
United Kingdom for three years. There is no
hint of any other restriction, provided, of
course, he has the educational qualifications
and his conduct is satisfactory.

...

(I)n the context with which these appeals are
concerned, ie past residence, intention or
expectations for the future, are not
critical; what matters is the course of
living over the past three years.

A further error was their view that a
specific limited purpose could not be the
settled purpose, which is recognised as an
essential ingredient of ordinary residence.
This was, no doubt, because they discarded
the guidance of the Levene and Lysaght cases.
But it was also a confusion of thought, for
study can be as settled a purpose as business
or pleasure. And the notion of a permanent
or indefinitely enduring purpose as an
element in ordinary residence derives not
from the natural and ordinary meaning of the
words 'ordinarily resident' but from a
confusion of it with domicile."

Before turning to apply this judgment to the question before us it should be noted that the concept "ordinarily resident" must require a higher degree of permanence than the concept of "residing in" a country on a particular date, which appears in sub-section 21(1) and with which we are here concerned; our view of the place of that phrase in the continuum of "residence" and its congeners is set out in paragraph 17 above.

40. In our view, if Mr. Galati's position on 11 January, 1983, is looked at in the light of these considerations, it can be seen that he adopted his abode in Australia voluntarily and for a settled purpose as part of the regular order of his life for the time being. The fact that that settled purpose was to remain in Australia for a sufficient period to bring himself within a legislative provision is irrelevant to the consideration of whether he was "residing in Australia" on 11 January, 1983. We would draw attention to Lord Scarman's remarks as to the use of policy which, in our view, are as relevant to the Department's attitude to portability of pensions in this case, and its effect on the departmental interpretation of "residing in Australia", as they were in Shah v Burnet to the attitude of the Divisional Court and the Court of Appeal to Parliament's intentions as to the payment of grants to foreign students.
The decision to be made

41. For the reasons given, the decision under review will be set aside, and the matter remitted to the Director-General of Social Security for reconsideration in accordance with the recommendation that the applicant be granted an age pension from 11 January, 1983, the date of his application therefor.