Appellants' Submissions
32 The appellants' submissions are somewhat prolix and repetitive. In substance, they argue that, as they have each reached the "pensionable age" of 65, they are entitled to claim an age pension under article 12(5). They say it is "outside working age limitation", and that is logical; people between ages 20 and 64 should not be able to claim an age pension, they should be working and earning a wage. They claim that the definition of "working age residence" in article 5(5) does not affect pensionable age because of the express terms of article 12(5) which, they contend, imposes no restriction on the period of residence after the entitlement to make the claim has been established by reaching the age of 65. They say that another reason why no period of working age residence is required is because it would make no sense in light of article 12(3)(b).
33 The appellants rely on the highlighted parts of Mahrous (FC) at [48] and [51] (appellants' emphasis):
48 We are fortified in this conclusion by two further matters. First, like Art 12(4), Art 12(5) is similarly directed to one class of benefit (the age pension). Secondly, by virtue of Art 5(5), the working age residence provisions of Arts 12(1) to (3) do not in terms apply to a person under 20 years of age. Under the social security law of Australia, a person need only be 16 to qualify for a disability support pension: see Social Security Act, s 94(1)(d). Article 12(1) to (3) would not therefore apply to benefit any claimant for a disability support pension aged 16 and less than 20. There is nothing in the Agreement that would justify an inference that persons in this younger class were intended to be disadvantaged, as the Secretary's argument would have it. Such an outcome is also inconsistent with the preamble to the Agreement stating that the State parties made the Agreement to "enhance the equitable access by people covered by this agreement to specified social security benefits provided for under the laws of both countries". A disability support pension is a specified social security benefit: see Art 2(1)(a)(ii).
…
51 For the following reasons, we consider that, as Senior Counsel for the respondent argued, Art 12(4) of the Agreement both describes the category of persons who are "entitled to claim a disability support pension" and identifies those who would satisfy the residence qualification for such a benefit once a claim can be made. Put another way, we would construe Art 12(4) to provide that, if a person "has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand", then that person can not only claim a disability support pension but has also satisfied the residence criterion for that pension. This interpretation is also, we note, further consistent with the language and assumptions in other parts of the Agreement. Article 11, for example, expressly contemplates that a person could qualify for a benefit under the social security law or the Agreement. The result is that, by virtue of s 6 of the International Agreements Act, Art 12(4), read with certain other Articles (see [57]-[64] below), overrides s 94(1)(e)(ii) of the Social Security Act. As noted already, ss 11 and 29 of the Administration Act are, in consequence, also affected by Art 12(4) of the Agreement.
34 They also rely on the highlighted parts of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) (2012) 131 ALR 450; [2012] FCA 1275 (Mahrous (No 2)) per Logan J at [24] and [35]-[37]:
24 Whilst I respectfully differ from the tribunal, for the reasons just given, as to the approach to be taken to construction, it does not necessarily follow from this that the tribunal's decision, and the construction it came to adopt, is in error. The tribunal stated, (at [34]), and by reference to a submission which the Secretary had made:
I accept that clauses 1 to 3 of article 12 can operate as restriction in clause 4. However, to argue it is not applicable to Mr Mahrous because he is 16 years old seem to me to unsustainable for a number of reasons. Firstly, the heading of article 12 is "Totalisation in Australia". That is the subject matter which is the purpose of article 12 (working age residence) is merely one issue which provides a specific formula for calculating working age residence if relevant. Here it is not relevant to the applicant, Mr Mahrous. Secondly, clause 4, dealing with DSP - Disability Support Pension, and clause 5, Age Pension, are given special treatment and special restrictions also, but those restrictions do not include any reference to "working age residence".
…
35 Recalling the recital and the "legislative scope" of the agreement is of assistance in the construction of Art 12. That is because Art 12(1), is directed to an "Australian benefit," not to one type of benefit alone. That is in contrast to Art 12(4) and (5) Art 12, para 4 and para 5, which are specifically directed to Disability Support Pension and Age Pension respectively. Further, the language of Art 12, para 2 and para 3, is such that, either by necessary implication from the language employed (Art 12(2)) or expressly (Art 12(3)) they qualify Art 12(1). That is not so in respect of either Art 12(4), or Art 12(5). Each, as I have said, is directed to particular types of benefit rather than just to the generic, "Australian benefit".
36 Yet further and as the tribunal appreciated, Art 12 is directed to the general subject of, "totalisation for Australia," and forms part of provisions in Pt E of the international agreement expressly relating to Australian benefits. The use of the word "totalisation" is unusual according to Australian idiom. It is not a word in general use, in my experience, but it is not one without meaning. That meaning, as found in the Oxford Dictionary (online edition), is:
… the action or process of totalising or the condition of being totalised, calculation of the total.
As found in the Macquarie Dictionary, 5th ed, p 1739, it is a noun which bears a meaning derived from the verb "totalise," defined there to mean:
… to make total, combine into a total
37 Article 12 to me therefore, when read in the context of the international agreement is an article directed to how, in respect of particular benefits, periods of Australian or New Zealand residence are to be combined "or totalised" or exceptionally, in the case of the Age Pension, how an overriding age qualification is imposed. In other words, when, as the International Agreements Act requires, one reads the terms of that Act, including its incorporated international agreement, with the Social Security Act where there is, in the case of, materially, a disability support pension, a need to look to a period of Australian residence Art 12(4), provides an answer in respect of persons who have both Australian and New Zealand residence.
35 The appellants also submit that they satisfy article 12(1)(a) because of the definition of "Australian resident" in article 5(1) which, they claim, is wider than the definition of "Australian resident" in s 7(2) of the Social Security Act, and article 5(1) overrides s 7(2) because of s 6 of the International Agreements Act. The appellants say that, because they are lawfully in Australia, they are "Australian residents" and their period of residence in both Australia and New Zealand must be taken into account under "totalisation" as residence in Australia. In their written submissions before Flick J at [7.5], they explained (as written):
The Applicants contend that Article 12(1)(a) clearly requires:
(a) Working age residence under Article 12(1)(c) of the Agreement can only be considered if the period of Australian residence is less than period required to qualify under Article 12(1)(a);
(b) Article 12(1)(a) does not define or specify period of Australian residents required to qualify; and;
(c) Qualification required for age pension under 12(1)(a) is defined under s. 7(5) of the Social Security Act 1991 which required 10 years of Australian residence "any time";
(d) To qualify for age pension under Article 12(1)(a) s.6 of International Agreement Act override s.7(5) to include New Zealand residents as part of the law of Australia. Working age residence can only be applied if there was any discrepancy under article 12(1)(a) of the Agreement.
The Applicants had met the required period to qualify.
But the Tribunal had failed to consider whether anyone of those applies.
36 For this submission they rely on Mahrous (No 2) at [24] (excerpted above) and the highlighted parts of Mahrous (FC) at [45(3)], [57], [59] and [63]:
45(3) Other provisions of the Agreement expressly identify the circumstances in which a period of residence in one State party may be included in the calculation of residence in another State party, or specifically vary the requirements for the acquisition of resident status. For example, Art 12(1) to (3) specifically provide for circumstances in which a "period of working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident … for the purposes of meeting any minimum qualifying periods for [a] benefit set out in the social security law of Australia". Another example is Art 5(1), which provides for an extended meaning of "Australian resident" beyond that in s 7(2) of the Social Security Act, with the effect that the expression not only has the meaning given by the social security law of Australia "but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia", having regard to six enumerated factors. That is, for the purposes of the Agreement, there is no need to fall within s 7(2)(b) of the Social Security Act.
…
57 We turn first to the text of Art 12(4) and to related articles. Article 12(4) provides "[n]o person shall be entitled to claim a disability support pension under this Agreement unless" he or she satisfies the residence criterion stipulated in it. Accordingly, if he or she satisfies that criterion because he or she has "accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand", then he or she is, by virtue of Art 12(4), "entitled to claim a disability support pension under this Agreement". This residence criterion refers to a person who has accumulated a period of 10 years residence in either Australia or in New Zealand or an aggregate of more than 10 years derived from a combination of residence in Australia and residence in New Zealand. This is signified by the word "aggregate" and the words "and/or". Our preferred construction also permits the provision to fall comfortably within the description "Totalisation for Australia", which is the heading borne by the whole of Art 12.
…
59 Whilst the use of the word "unless" would in some other contexts indicate a limitation, in the case of Art 12(4), we consider that it does no more than set out the boundaries of, or limit, the extent to which s 94(1)(e)(ii) is "overridden". The effect of Art 12(4) is that, where a person has "accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand" in the sense discussed above, he or she is "entitled to claim a disability support pension". To say a person is entitled to claim a benefit would ordinarily and naturally mean that that person has acquired some entitlement to the benefit, as opposed to having acquired merely a right to claim, in the sense of "request", the benefit. Indeed, reference to the Macquarie Dictionary on-line and in print (Macquarie, 2008) p 317 indicates that this is in fact the ordinary and natural meaning of the expression "entitled to claim". Thus, this Dictionary gives the verb "to claim" the primarily meaning of "to demand by or as by virtue of a right; demand as a right or as due" (emphasis added). [Emphasis in judgment]
…
63 In conformity with Art 31 of the Vienna Convention, Art 12(4) should be construed so far as appropriate (having regard to the text and other contextual factors) in conformity with the preamble, "to enhance the equitable access by people" covered by the Agreement to disability support pensions. We have already referred to other provisions that are clearly designed to enhance this "equitable access". Thus, for example, Art 5(1) broadens the definition of "Australian resident" for the purposes of the Agreement. Other provisions enable periods of residence in both countries to be combined, with the effect that the total period of residence is deemed to be residence in the country in which the benefit is sought: see Art 12(1)-(3). If Art 12(4) is construed in the manner we have indicated (see [51] above), then Art 12(4) will enhance the equitable access to disability support pensions, as the preamble contemplates, because Art 12(4) will ensure that, providing Art 2(2)(c) is satisfied, whether a person's residence was in Australia or in New Zealand is immaterial: all that will matter is that that person has accumulated an aggregate of more than 10 years residence, whether in Australia, in New Zealand or in both countries.
37 The appellants contend that, by concluding that the appellants could not satisfy s 43 of the Social Security Act, Flick J failed to consider that their claims arose under the International Agreements Act. They also complain that Flick J did not afford them a fair hearing because he did not permit Mr Charan to continue with his oral submissions and he did not consider their written submissions dated 22 March 2016 because he did not consider Mr Mahrous's position in Mahrous (FC).