Blunn v Cleaver

REASONS FOR JUDGMENT This is an "appeal" pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 by Mr Gidaro, who appeared in person, from a decision of the Administrative Appeals Tribunal affirming a decision, made under s 78AA of the Social Security Act 1991, to suspend Mr Gidaro's age pension. Mr Gidaro was born in Calabria on 6 October 1925. He left school at the age of thirteen or fourteen, spent some years doing farm work, served in the Italian Army for a period variously stated as twelve months or eighteen months, and migrated to Australia in 1953. In Australia he worked for some time as a cleaner. It is not clear what other occupations he may have followed. In 1966, he became a naturalized Australian citizen, and he has never revisited Italy. In about 1980, Mr Gidaro was granted an invalid pension for a depressive illness, and in 1990 he was granted an age pension. On 20 March 1994, there came into effect certain amendments to the Social Security Act made by the Social Security (Budget and Other Measures) Legislation Amendment Act 1993. The explanatory memorandum in respect of the bill which became that Act explains (at 94) certain provisions centring upon ss 69A and 78AA (in respect of age pensions) and upon various other sections added to the Social Security Act at the same time (in respect of various other forms of pensions) as "intended to make people claim and pursue their full entitlement from a 'comparable foreign payment country' before the person ... is granted or paid an Australian pension". The explanatory memorandum continued: "This proposal applies to the following payments: age, disability support, wife, carer, sole parent, special needs and widow B pensions and widowed person allowance. The Secretary will have a power to suspend or cancel such a payment if: • the Secretary is satisfied that a person ... is (or would be, if the person ... made a claim,) entitled to a payment from a 'comparable foreign payment country'; and • that payment is 'similar' to any of the payments mentioned in the definition of 'social security pension' in s 23 of the Act ('comparable foreign payment'); and • the Secretary has notified the person ... that reasonable action must be taken to obtain the maximum amount of comparable foreign payment; and • the Secretary thinks reasonable steps have not been taken to obtain the maximum amount of comparable foreign payment in the time specified in the notice." The definition of "social security pension" in s 23, referred to in the explanatory memorandum, is framed as a list of a number of forms of pension, each alternative to each of the others, as follows: "'social security pension' means: (a) an age pension; or (b) a disability support pension; or (c) a wife pension; or (d) a carer pension; or (e) a sole parent pension; or (f) a bereavement allowance; or (g) a widow B pension; or (ga) disability wage supplement; or (h) a mature age allowance; or (i) a mature age partner allowance; or (k) a special needs pension". The 1993 Act inserted in the Social Security Act a number of provisions to which I shall now refer. It inserted in s 23 a definition of "CFP (comparable foreign payment) country" as meaning various foreign countries including the Republic of Italy, and a definition of "comparable foreign payment" as meaning: "a payment-type that is: (a) available from a foreign country; and (b) similar to a social security pension". It inserted s 69A which, so far as is relevant, reads: "(1) If the Secretary is satisfied that an age pension recipient would be entitled to a comparable foreign payment from a CFP country if the recipient applied for the payment, the Secretary may give the recipient a notice that requires the recipient to take reasonable action to obtain the payment. ... (3) A notice under subsection (1) ...: (a) must be in writing; and (b) must be given personally or by post; and (c) must specify the period within which the reasonable action is to be taken. (4) The period specified under paragraph (3)(c) must end at least 14 days after the day on which the notice is given. ..." And it inserted s 78AA, which, so far as is relevant provides: "(1) If: (a) an age pension recipient has been given a notice under sub-section 69A(1); and (b) the Secretary is satisfied that the recipient has not taken reasonable action to obtain the comparable foreign payment within the period specified in the notice; the Secretary may determine that the pension is to be cancelled or suspended. ..." On 30 November 1994, a Mr Paul Davies, an authorized review officer of the Department of Social Security, made the following note: "I spoke with the Patronato INAS [sic] (252 1611) to determine whether or not Mr Gidaro might be entitled to an Italian Pension. I was told that a person who had spent more than 52 weeks in the Army before 1953 would probably be entitled to some amount of Italian Pension." It may be accepted that Mr Davies had spoken in 1994 to an official representing the National Institute for Social Security of Italy, which is referred to by the acronym INPS, the Italian name being Istituto Nazionale della Previdenza Sociale. (The "Italian pension fund known as INPS" is mentioned in Secretary, Department of Social Security v Ferlat (1997) 47 ALD 631 at 632.) The decision under appeal does not, nor do the departmental papers in evidence, suggest that the Secretary had access to any other information than this note to enable him to make a decision under s 69A(1) in the present case. Curiously, although that is so, the original decision which was made, and has been the subject of a series of reviews, came some two and a half years later. It was expressed in a letter dated 26 June 1997, addressed to Mr Antonio Gidaro in the following terms: "Dear Mr Gidaro I am writing about your Australian pension eligibility, and your potential eligibility for a foreign pension from Italy. In order to be paid an Australian pension, Australia's social security law requires you to claim any payments to which you may be entitled from countries with which Australia has a Social Security Agreement. Australia and Italy have a social security agreement and, under Australian law, you are required to claim that payment. If reasonable action to claim that payment is not taken, Australian pension eligibility may be rejected, suspended, or cancelled. Authority for the request to claim the foreign pension is contained in Section 69A of the Social Security Act 1991. After considering the information you have given about the periods you spent outside Australia [there was, in fact, no suggestion that Mr Gidaro had ever left Australia after his migration here], I am satisfied that there is a possibility that you are entitled to a payment from Italy. I am sending you the application forms you need to claim the payment separately. You will receive them in a few days. These forms will include detailed instructions on how to fill them in and where to return them. When we receive the completed forms we will check that they are correct and send them to the social security authority in Italy. Please return the forms within 42 days. If you have any queries about this letter, please contact the Department at the above number or address. Yours sincerely L McGinness Regional Manager Your reference number is .....". It is not clear when the forms referred to in this letter were sent to Mr Gidaro, or when he received them. But he did not forward any completed forms to the department. On 28 August 1997, Mr McGinness sent him a further letter which included the following advice: "Your Age Pension payment has been suspended because you have failed to take reasonable action to claim a comparable foreign payment." On 26 September 1997, Mr Gidaro signed a document requesting a review of the suspension of his age pension, stating that he was "a naturalized Australian". There followed a further letter from the department, now using the name "Centrelink" and the slogan "Linking Australian Government services", dated 30 September 1997, signed by one R C Spucys as Delegate of the Secretary. In this letter it was stated: "I am writing about the decision to suspend your Age Pension. I have had a fresh look at this decision and I have decided not to change it. This is because you have failed to take reasonable action to to [sic] apply for an Italian Pension which you may qualify for. You have previously been advised of your obligations to apply for a comparable foreign payment; and the consequences of failure to do so have been explained to you. I have referred this case to the Authorised Review Officer as requested by you; and you will be contacted shortly in relation to your appeal. I have made this decision as a delegate of the Secretary under the Social Security Act. ..." On 13 October 1997, a further letter was written to Mr Gidaro, signed by one M Scott, an authorized review officer, stating: "I have decided not to change the decision." The letter explained that the decision was based on ss 69A and 78AA of the Act, and referred to the letter of 28 August 1997 advising Mr Gidaro of the suspension of his age pension. It did not refer to the letter of 26 June 1997, or to any finding under s 69A that Mr Gidaro "would be entitled to a comparable foreign payment". It did refer generally to "file information and letters sent to you"; asserted the proposition that "the law states that a recipient of Age Pension can be asked to apply for a comparable foreign payment"; and stated that in this case "the correct decision was made to ask [Mr Gidaro] to apply for the Italian Pension." From this decision, Mr Gidaro appealed to the Social Security Appeals Tribunal. The Social Security Appeals Tribunal described the decision under review as that "made by a delegate of the Secretary to the Department of Social Security, in Centrelink, made on 28 August 1997 and affirmed by an authorized review officer on 13 October 1997 that Mr Gidaro's age pension is not payable". Perhaps the expression "not payable" was intended as a euphemism for "suspended". Perhaps the expression used reflected the fact that none of the decisions had put any term on the suspension, and indeed no consideration seems to have been given by any of the officers involved to the question whether an indefinite suspension would be in any way commensurate with the saving to the Australian Treasury the department was seeking. The Social Security Appeals Tribunal did not consider this question either, when it decided, as it did, "to affirm the decision". It referred to ss 69A and 78AA of the Act, under which it stated the decision had been made. It found that "Mr Gidaro has not taken any steps to apply for an Italian Pension, for which he may have some entitlement according to the information the department received from a representative of the Italian government." It also noted that "Mr Gidaro previously received [an] invalid pension before transferring to age pension because of a history of psychiatric illness, including depression and paranoid ideation. However, there is no evidence before the tribunal, submitted either by Centrelink or Mr Gidaro, that Mr Gidaro is incapable of taking steps to obtain a foreign pension." So far as appears, the question was never asked whether Mr Gidaro's psychiatric condition, while not affecting his capacity to take the steps required, might have raised an insuperable mental barrier, or at least a difficulty, impeding his making a decision to take them. Mr Gidaro, it was quite clear, had consistently insisted that he had severed all connection with Italy when in his twenties, and he regarded himself only as an Australian citizen. Whether his psychiatric condition dictated or contributed to the rigidity of this stand could hardly be determined by a layman. Nor was it to be expected that Mr Gidaro, if he was suffering from some relevant paranoid ideation, would himself call psychiatric evidence to contradict his own convictions. It was the department which had granted him an invalid pension on psychiatric grounds; then substituted an age pension; and then exercised a discretion to suspend that pension indefinitely for his failure to take action he was adamantly opposed to taking. One might have expected, in the circumstances, that the department would have called psychiatric evidence that he had a real choice in the matter. However, the Social Security Appeals Tribunal contented itself with finding "that he would be capable physically and mentally of taking the steps required by Centrelink to lodge a claim for an Italian Pension" (emphasis added). The Social Security Appeals Tribunal referred to the letter of 26 June 1997 as the relevant "notice" sent to Mr Gidaro under s 69A. It held that the letter complied with that section; that "Mr Gidaro had 42 days from the date of the letter to take reasonable steps to lodge a claim for the Italian Pension"; and that upon his failure to do so the Secretary had power to suspend the pension under s 78AA. Mr Gidaro then appealed to the Administrative Appeals Tribunal. The Tribunal's reasons begin by repeating the Social Security Appeals Tribunal's characterization of the decision as one "that the Applicant's age pension was not payable". The Tribunal referred to the file note of 30 November 1994 concerning the information obtained by telephone from an Italian authority "that a person who served more than 52 weeks in the Army before 1953 would probably be entitled to some Italian pension". It continued: "Presumably it is this information from the Patronato which has satisfied the Respondent [the Secretary] that the Applicant would be entitled 'to a comparable foreign payment' if the recipient applied for payment. The Applicant had been advised earlier by the Respondent on 25 November 1994 ... that if he claimed and was granted a foreign pension the combined income which he received both from the Australian and the foreign pension would be more than the amount of the Australian pension which he received hitherto. The Tribunal is reasonably satisfied, on the basis of this information, that the Applicant would be entitled to a comparable foreign payment from Italy if he applied for it." The tribunal went on to refer to the letter of 26 June 1997, saying Mr Gidaro "was instructed to provide certain information and to complete certain forms within 42 days for the purpose of obtaining a foreign pension", and commenting that he "apparently did not respond". The tribunal then referred to ss 69A, 69, 78A and 78AA, and concluded in the following three numbered paragraphs: "9. Throughout the history of this matter the Applicant has insisted that because he has citizenship in Australia and is a resident of Australia he is entitled to an Australian age pension and he does not wish to receive a pension from Italy. In his submissions to the Tribunal he considered that the law which required him to do so was invalid. He also considered that he did not need the money from the Italian pension. 10. The Tribunal is satisfied that the notice to the Applicant dated 26 June 1997 ... met the requirements of ss 69 and 69A. The Applicant failed to take any action pursuant to that notice, and indeed his submission was that he does not propose to do so as he is now an Australian citizen and has lived and worked in Australia for many years and he considers that the legislation is invalid. 11. Pursuant to s 69(5) a person must not, without reasonable excuse, refuse or fail to comply with a notice under s 69(1). The legislation to which the Applicant refers is not invalid, and it is necessary for the Respondent, and the Tribunal ultimately, to apply that legislation as it has been enacted. The Tribunal does not consider that the Applicant's excuse is reasonable, and therefore the Tribunal affirms the decision to cancel the Applicant's age pension." There are many problems raised by this decision. As it was not possible for Mr Gidaro, who was without legal assistance, to formulate the issues himself, I sought submissions on the following questions from the solicitor appearing for the Secretary: 1. Whether the reference in the decision to s 69, rather than s 69A, provides the basis of the affirmation of the decision, or is made in support of it, and whether in either case it vitiates the decision. 2. Whether the discretion under s 78AA was vitiated by a failure to consider: (a) whether to suspend the applicant's pension for a fixed period only rather than indefinitely; (b) whether the applicant's mental health (and in particular any "paranoid ideation") made it difficult or impossible for him to comply; (c) whether the amount and nature of any Italian pension justified or required the suspension. 3. Whether the Secretary or his delegate failed to make an essential finding under s 69A that Mr Gidaro would be entitled to a comparable foreign payment. 4. Whether it was open to the Secretary or the Tribunal to find that Mr Gidaro would be entitled (a) to a payment, (b) being a comparable foreign payment. 5. Whether the letter of 26 June 1997 was in law "a notice that require[d] [Mr Gidaro] to take reasonable action to obtain [a comparable foreign payment]". 6. Whether the letter "specif[ied] the period within which the reasonable action [was] to be taken". Mr Peek, who appeared for the respondent, did not contest the proposition that these issues were properly before the court. Cases brought by litigants in person are very likely to involve difficulties of identification and definition of the legal questions raised by a dispute. Such a litigant may find it impossible to reduce the dispute to the concepts and language of the law. But, because the system of pleading is designed, in skilled hands, to refine the issues to be decided by the court in a particular case, it does not follow that a litigant who is incapable of applying that system must be denied a hearing. A court, in a case of that kind, will endeavour, as best it can, to ascertain the issues which really arise between the parties. Of course, in doing so, the court must be vigilant to ensure that showing fairness to the unrepresented litigant does not degenerate into favouring that litigant. But the dominant principle is that the court's duty is to decide the dispute brought before it in accordance with the justice of the case. If possible, the matter should not be decided otherwise because of deficiencies in the formulation of a claim by a technically unskilled litigant. "[I]t ought always to be borne in mind," Dawson, Gaudron and McHugh JJ said in The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 at 154, "... that the ultimate aim of a court is the attainment of justice". In the same judgment, they referred with approval to the famous statement of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710, which commences: "Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the court of appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party." Professor P H Winfield (in 59 LQR 327) called Bowen LJ "as great a master of the Common Law as Jessel was of Equity". The passage I have cited has been repeatedly endorsed, both in the High Court and in other courts. In Gale v Superdrug Stores Plc [1996] 1 WLR 1089 at 1098-1099, Millett LJ referred to "the overriding need to ensure that justice is not sacrificed". He said: "It is easy to dispense injustice quickly and cheaply, but it is better to do justice even if it takes a little longer and costs a little more." He commented on the principles laid down by Bowen LJ in Cropper v Smith: "I do not believe that these principles can be brushed aside on the ground that they were laid down a century ago or that they fail to recognise the exigencies of the modern civil justice system. On the contrary, I believe that they represent a fundamental assessment of the functions of a court of justice which has a universal and timeless validity." These statements, of course, apply whether a litigant is represented or unrepresented. However, the problems raised by pleadings which do not adequately reflect, in terms of legal principle, the issues belonging to a party's case is particularly acute in relation to unrepresented litigants. Judges have frequently adverted to such a litigant's need of assistance, and to the peculiar problem of providing it without either the appearance or the actual risk of partiality: Titan v Babic (1994) 49 FCR 546 at 554-555; Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 513-514; Tardy v The Secretary of the Department of Community Services and Health (Supreme Court of New South Wales, McLelland J, unreported, 9 October 1990); Re Hunter; Ex parte Webb (Federal Court of Australia, Sheppard J, unreported, 19 July 1996). But I think the situation is much easier in the case of a so-called appeal from the Administrative Appeals Tribunal, where the issues are confined to questions of law raised by the decision, and in other matters involving issues similarly confined. In these cases, the judge may perceive an issue, to which the attention of the parties may be directed so as to enable them to make submissions on it. If the judge does perceive that the unrepresented litigant has missed the point, Bowen LJ's principle will generally demand, as a duty owed to justice, that attention be drawn to the matter. The special difficulties which, in cases where witnesses are called, a litigant in person may encounter in marshalling facts, and adducing evidence of them, while keeping in view the essential or ultimate facts, will not arise. It may be that time will be required if the other party has not previously seen some point made apparent by remarks from the bench. In the present case, I had the matter relisted for further argument after allowing time for the preparation of submissions. It was not suggested that any formal amendment of the grounds of the application was required. If it were required, I would allow it. As Davies J said, in National Australia Bank Ltd v Nobile (1988) 100 ALR 227 at 235, in a passage relied on in the joint judgment of the full court in Londish v Gulf Pacific Pty Limited (1993) 45 FCR 128 at 141, "Pleadings are intended to enhance the achievement of justice, not to hinder it." Turning to the problems raised by the decision of the Administrative Appeals Tribunal, it seems to me that the final conclusion in paragraph 11 of its reasons is based on the provisions of s 69, a section which had nothing to do with the decision under review. The decision of the Social Security Appeals Tribunal, which the Administrative Appeals Tribunal was reviewing, had been made under ss 69A and 78AA, affirming earlier decisions within the Department of Social Security based on those sections. Section 69(1) authorizes the Secretary to "give a person to whom an age pension is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the pension to the person". Section 69(2) requires such a notice (inter alia) to "specify that the notice is a recipient statement notice given under this Act" (para (e)), although sub-s 2A provides that the notice "is not invalid merely because it fails to comply" with that requirement. Nevertheless, if a question arises whether a document is a notice under s 69, plainly its failure to contain a specification imperatively required by the legislation (s 69(2)(e) uses the word "must") will be very significant. That it should be significant receives emphasis from the fact that a failure to comply with s 69 may amount to a criminal offence carrying a penalty of imprisonment for six months: s 69(5). The letter of 26 June 1997 neither specifies that it is "a recipient statement notice" given under the Act, nor requires Mr Gidaro to give the Department a statement about any matter; it makes a request for the return of "application forms". Furthermore, in the case of a notice under s 69 which is not complied with, provision is made conferring on the Secretary a discretion to cancel or suspend an age pension under s 78A, not under 78AA. The decision the subject of the review by the Administrative Appeals Tribunal was made under s 78AA. I conclude that, plainly, the tribunal erred in law when it affirmed a decision made only under the one section on the basis that it was justified by the other. The Secretary and the Social Security Appeals Tribunal had not made any decision under s 78A, but under s 78AA. Had the decision been made under the former section, different matters of fact would have had to have been taken into account in the exercise of the discretion involved. Very importantly, the documents in the departmental file which were before the tribunal showed that much of the information the department had sought had been obtained from Mr Gidaro orally, notwithstanding his unwillingness to fill out forms. A statement in the Tribunal's reasons that Mr Gidaro had "failed to comply" with the request made of him for information thus represents less than the full truth of the matter. Suspension of his pension might have been thought a harsh penalty for failure to put in writing information he had in fact given by word of mouth, particularly having regard to his age, health and limited literacy. Indeed, it may be this was the view taken in 1994 when, after an initial invalid notice seeking information, the whole matter was dropped for over two years. Despite these considerations, there is a possibility the tribunal looked to s 69, and not to s 69A, because it appreciated, as the previous decision-makers seem not to have appreciated, the existence of a very real difficulty about the department's reliance on ss 69A and 78AA. I refer to the tribunal's hesitant treatment of the issue of the Secretary's satisfaction (required by the terms of s 69A(1)) that Mr Gidaro "would be entitled to a comparable foreign payment". The tribunal says, with reference to the brief note in the file about the obtaining of information by telephone some two and a half years previously, that "[p]resumably it is this information from the Patronato which has satisfied the Respondent [ie the Secretary] that the Applicant would be entitled". In fact, the terms of the letter of 26 June 1997 lend no support to this presumption. The letter, it will be remembered, refers to "any payments to which you may be entitled", and states the Secretary's satisfaction in the following terms: "I am satisfied that there is a possibility that you are entitled to a payment from Italy." This plainly falls short of what s 69A requires. It is only "[i]f the Secretary is satisfied that an age pension recipient would be entitled to a comparable foreign payment" that the section authorizes the Secretary to require the taking of reasonable action to obtain the payment. On the face of the letter of 26 June 1997, the Secretary's satisfaction had not risen high enough. He thought there was only a possibility. And when his delegate followed up the letter, and the Regional Manager's decision to suspend Mr Gidaro's pension on the basis of it, by affirming that suspension by the letter of 30 September 1997, it will be recalled he referred to Mr Gidaro's failure to take reasonable action "to apply for an Italian Pension which you may qualify for". The tribunal, in a passage I have quoted, asserted its own satisfaction, on the basis of the note of 30 November 1994; but the validity of the notice under s 69A could not be established ex post facto in that way. It was only valid if, at the time it was given, the Secretary had reached the statutory state of satisfaction. In the present case, it cannot be said that the language of the letter of 26 June 1997 raises a merely verbal or technical issue. It is not a case where the true statutory state of satisfaction could be inferred in fact, so that the form of the letter could be regarded as involving no more than a slip of the pen. On the contrary, any support for the tribunal's willingness several years later to be satisfied by the note of the telephone conversation is quite exiguous; the Secretary's satisfaction, that there was a possibility only, seems a much more appropriate response to the information he had, and in any case it was his response. In the face of the terms of the letter, it was not open to the tribunal to find that the stronger satisfaction which was an essential pre-condition of a notice under s 69A had been achieved. Nor did it make such a finding. What it did was simply to presume it. Its further finding of its own satisfaction could not mend the matter, even if it had been otherwise justified. What has been said so far would be sufficient to dispose of this appeal. Fundamental errors of law affected the decision of the tribunal accepting as valid a notice the very terms of which proclaimed it not authorized by s 69A, the section in fact relied on by the department, and then affirming the decision under a section never even relied on and, in any case, inapplicable to the circumstances. However, ss 69A and 78AA are important provisions, the implementation of which may severely affect vulnerable individuals, and the facts of this case suggest that there may be official misconceptions about them. Also, a decision upon this appeal in favour of Mr Gidaro may not end the matter. Some further notice may follow. In those circumstances, I should comment on other aspects of the case. The letter of 26 June 1997 is actually full of inaccuracies. It starts out by informing the recipient: "In order to be paid an Australian pension, Australia's social security law requires you to claim any payments to which you may be entitled from countries with which Australia has a Social Security Agreement." But the only authority cited is s 69A of the Act. That section does not require a pensioner "to claim any payments to which [he] may be entitled". The only payments it embraces are those falling within the definition of "a comparable foreign payment". Nor does the section require even a comparable foreign payment to be claimed, except where the Secretary is satisfied that the pensioner would be entitled to it if application were made, and gives to the pensioner a notice under the section accordingly. When ss 69A and 78AA were inserted into the Act, by the Social Security (Budget and Other Measures) Legislation Amendment Act 1993, ss 30 and 31, other amendments were also made to which I have already referred, and in addition, similar provisions were inserted in respect of disability support pensions, wife pensions, carer pensions, et cetera, in each case authorizing the issue of notices requiring comparable foreign payments to be sought. Each form of pension is dealt with separately. In this context, it seems plain that a comparable foreign payment is a payment comparable to the particular form of pension in question. The definition in s 23 ("unless the contrary intention appears") of "comparable foreign payment", as meaning "a payment-type that is ... similar to a social security pension", does not say "similar to any social security pension", but "a social security pension", that is, the one with which the comparison is to be made. The expression "social security pension" is itself, as I have earlier indicated, a defined expression (though subject to the same qualification). It is defined, not as one composite thing, but as eleven alternatives - each being a different type of payment. If a question arises as to one of these pensions in relation to which Parliament has separately conferred a power to issue a notice in respect of a comparable foreign payment, for instance a disability support pension (as to which see s 133A, which corresponds to s 69A), the foreign "payment-type" that will be "similar" to such a pension will not be something in the nature of a "carer pension" or a "sole parent pension", but something in the nature of a disability pension. Reading each of the separate provisions, such as ss 69A and 133A, any normal reader would understand the word "comparable", and, if he turned to the definition section, the word "similar", in this way. Although I would have reached the same conclusion upon general principles of construction, it is relevant in the case of the Social Security Act to consider the ordinary reader. That is because, as was pointed out in the joint judgment of the Court in Blunn v Cleaver (1993) 47 FCR 111 at 127, the "professed aim of the drafting of the Act is to make it more accessible to persons without legal training". See also the same judgment at 120-121. It follows that, in the application of s 69A, one looks for a foreign payment which is comparable to an Australian age pension. A military pension would not be comparable to an age pension, any more than an invalid pension would be. Nor, having regard to the nature and purposes of an age pension in Australia, would it be easy to see as comparable some small allowance bearing no relation to a person's living requirements. Yet, in the present case, the note of 30 November 1994 refers only to Mr Gidaro's army service as a source of entitlement "to some amount of Italian pension". The language of this note does not suggest that the least attention was given to the possibility that any such amount might not constitute, either by reason of its nature or by reason of its quantum, "a comparable foreign payment" to an Australian age pension. The letter of 26 June 1997 is even vaguer in its assertion of a legal requirement "to claim any payments to which you may be entitled". That is clearly far too wide, and might embrace payments which could not fall within the definition of comparable foreign payments. In the foregoing analysis of the relevant provisions, I have referred to the statutory context as casting light on the meaning and application of a defined expression. Even a defined expression, or one with a technical legal meaning, may on occasion have to yield to context. But here it is the definition itself which needs to be understood in the context of the provisions to which it must be applied. So to understand it is in keeping with the trend of authority: Short v F W Hercus Pty Limited (1993) 40 FCR 511 at 517-520, 523; Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 772, per Lord Steyn, 774-777, per Lord Hoffmann; Jaga v Dönges, N.O. (1950) 4 SA 653 at 662-664 (in a dissenting judgment of Schreiner, JA which has commanded strong approval from Lord Hoffmann: "The Intolerable Wrestle with Words and Meanings" (1997) 114 S Af L J 656 at 673-674); McWaters v Day (1989) 168 CLR 289 at 297; CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408. As these cases show, the courts now accept that advertence to the context is an integral part of the apprehension of the meaning of statutes and other documents. It is not a device held in reserve to resolve some doubt or ambiguity. This principle was made explicit, so far as concerns statutes, in CIC Insurance Limited. The next thing which should be noted about s 69A is that it authorizes the Secretary to give a notice that requires the recipient "to take reasonable action to obtain the payment". In this case, the notice told the recipient that "there is a possibility that you are entitled to a payment from Italy". It seems to me that one of the reasons why the legislation requires the Secretary to be satisfied, before he gives such a notice, that an age pension recipient "would be entitled" to the comparable foreign payment is that it would be incongruous to talk about taking reasonable action to obtain a payment unless there was a probability of getting it. Also, the reasonableness of suggested action would be related to the amount that would probably be obtained. Neither the note of 30 November 1994 nor the letter of 26 June 1997 gave any indication that the payment in question was expected to be of some significant amount. In the proceedings before the tribunal, Mr Gidaro gave evidence, on which he was not cross-examined, to the effect that pension payments in Italy may be as small as $5-00. He asked rhetorically: "[Why] apply there for $5-00, why do I have to thank them for nothing?" Of course, where it is able to be said that there is a probability of the obtaining of a comparable foreign payment of more than an insignificant sum, it would normally be easy to reach the conclusion that reasonable action would not stop short of the completion and forwarding of appropriate forms made available to the pensioner. But even in such a case, further questions might arise when the discretion conferred by s 78AA came to be exercised, a matter to which I shall return. Before I go to s 78AA, however, I should examine further the words in s 69A, "a notice that requires the recipient to take reasonable action to obtain the payment". On the face of them, these words authorize the imposition of a mandatory requirement. That requirement is "to take reasonable action to obtain the payment". Provided any action taken is reasonable, that is sufficient; it does not have to be some particular action chosen by the Secretary. The provision does not authorize the Secretary to require the taking of some particular action, but only that the age pension recipient take reasonable action. That this is indeed the meaning of s 69A(1) is confirmed by the terms of s 78AA(1)(b), which does not refer to a recipient who has not taken some particular action required by a notice under s 69A, but to a recipient who "has not taken reasonable action to obtain the comparable foreign payment within the period specified in the notice". In fact, although this aspect of s 69A seems to have been misunderstood when the letter of 26 June 1997 was written, Mr McGinness himself recognized it when he wrote his later letter of 28 August 1997, where he stated: "[Y]ou have failed to take reasonable action to claim a comparable foreign payment." But his purported notice of 26 June 1997 had stated no such requirement. Of course, the sending of appropriate forms to Mr Gidaro was a sensible procedure, but the essential statutory demand authorized by the section could not be changed from what Parliament decreed because a different demand appeared sensible. On the other hand, had the statutory demand been made, the forms could have been proffered as a means of compliance. The letter of 26 June 1997 nowhere describes itself as a "notice" under s 69A. In the last paragraph, it refers to itself as "this letter". It contains an incorrect statement, as I have already pointed out, about the legal obligations imposed by s 69A, a statement of the Secretary's satisfaction of a matter falling short of what would be a precondition of his right to issue a notice under the section, and then a politely couched request to return certain forms after they will have been received: "Please return the forms within 42 days." That is not a requirement to do so. Politeness is, certainly, a virtue. But not if it masks the intended effect of an official document, rendering it ambiguous and misleading. At the least, the recipient of the letter could not properly have any confidence that it purported to be a notice under s 69A. If he looked at s 69A(3)(c), he might be even more uncertain. Section 69A(3)(c) requires the notice to "specify the period within which the reasonable action is to be taken", which by s 69A(4) "must end at least 14 days after the day on which the notice is given". If the letter had been a notice in the statutory terms requiring the recipient "to take reasonable action to obtain payment", the reference to "42 days" might have fulfilled s 69A(3)(c). But the request being to return particular forms, what is the period specified? The forms had not been received when the letter was received. Indeed, the evidence and findings of the Administrative Appeals Tribunal leave the date of receipt of the forms unknown. If that date were known, there would be a question whether the 42 days should be measured from it or from the date of the letter of 26 June 1997, or from the date of receipt of that letter. In my opinion, the letter of 26 June 1997 simply does not comply with the requirements laid down in s 69A. Where a valid notice is given under s 69A, and the recipient of an age pension to whom it is given fails to take action to obtain the comparable foreign payment in question, the legislation does not provide for automatic cancellation of the age pension. A moment's thought indicates why this is so. The concept of a failure to take reasonable action raises immediately the question whether and what action was open to the pensioner in the circumstances. If some action was open, there are further questions as to what might have been gained by it, whether it was reasonable to take that action, what were the reasons why it was not taken, and whether, in the circumstances, the appropriate response from the Secretary is cancellation or suspension of the age pension. Since s 78AA expressly distinguishes between cancellation and suspension, providing that the Secretary "may determine" to take either step, and provides these measures, not only for the case where a pensioner has personally failed to take the required action, but also where the pensioner's "partner" has so failed (see s 69A(2) and s 78AA(2)), there can be no doubt about the discretionary nature of the statutory power. It would, as an example, not necessarily be reasonable to exercise it in every case where a partner had failed, perhaps against the pensioner's will, to respond to a notice. In this context, I think suspension is intended to be a genuinely lesser thing than cancellation, and that the Secretary's discretion extends to suspension for an appropriate period. If, for instance, the comparable foreign payment would be quite small in comparison with the age pension, it would be both absurd and wrong to cancel the pension or to suspend it indefinitely; a suspension for long enough to recoup the Commonwealth's losses for a significant period would generally fulfil all the purposes of the legislation. The aged people at whom this legislation is directed are notoriously vulnerable. They may be suffering from disease or debility rendering it difficult for them to comply with even apparently straightforward requirements. Mr Gidaro is a case in point. Unless his sincerity is to be doubted, and neither the Social Security Appeals Tribunal nor the Administrative Appeals Tribunal has done that, he is strongly influenced by a deeply ingrained attitude which it might be thought he could not himself readily overcome. Indeed, having regard to his past medical history, there is a question whether he could overcome it. While the Secretary is concerned with the financial implications of his decision, his statutory discretion cannot be understood as leaving out of account the very human needs the statute was enacted to meet. Unfortunately, there is no indication in the reasons of the Administrative Appeals Tribunal that the discretionary nature of the decision to be made under s 78AA received any consideration at all. The Tribunal did not advert to the distinction between cancellation and suspension. Having started by describing the matter as concerning a decision "that the applicant's age pension was not payable", it concluded its reasons by saying it "affirm[ed] the decision to cancel the Applicant's age pension", although, in fact, the decision it affirmed had involved suspension only. Whether by reason of failure to focus on the actual decision reached, or of confusion about it, or for some other reason, the Tribunal took no account of the possibility of substituting, for indefinite suspension, a suspension for a limited period. As I have pointed out, the tribunal looked at the wrong section. But even had it been looking at s 78AA, its failure to recognize that this section conferred on the decision-maker a discretion whether to make a determination under the section and, if making a determination, as to its nature, would in itself have vitiated the decision. For all these reasons, the decision of the Administrative Appeals Tribunal must be set aside. Since, on the true construction of the legislation, it was not open to the tribunal to find that the letter of 26 June 1997 was a notice within the meaning of s 69A, the order, in lieu of that made by the tribunal, which is "appropriate" under s 44(4) of the Administrative Appeals Tribunal Act 1975 is an order that the decision to suspend the applicant's age pension be set aside ab initio. The Secretary must pay the applicant's costs. I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett