Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

AND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Introduction 1 This case concerns the proper method of calculation of income deemed to have been derived from financial assets for the purpose of working out a person's rate of payment of the disability support pension under the Social Security Act 1991 (Cth)(Social Security Act). More particularly, as Thomas Fischer, the applicant's father (who appeared with the leave of the Court on her behalf) put it, the dispute turns on the manner in which financial assets subject to an encumbrance affect the calculation of the rate of payment of the disability support pension (pension). The applicant's case is that the total (or gross) value of the shares should be offset by the loan they secure. The respondent's argument is that the gross value is determinative. The respondent's argument prevailed before the Social Security Appeals Tribunal (SSAT) and, then again, on an appeal to the Administrative Appeals Tribunal (AAT). For the reasons given below it prevails here, too. 2 The appeal is also concerned with the approach the AAT took to the question whether, in the event of the applicant being indebted to the Commonwealth, there were special circumstances that could enliven the respondent's discretion to waive the debt.

Background 3 The applicant, Jennifer Fischer, has been in receipt of a disability support pension since September 2002, later backdated to 1999. The information before me does not disclose the reason the applicant became entitled to the pension, but it is immaterial to the resolution of the issues in this appeal. 4 The Social Security Act imposes an income and assets test on the amount paid to a disability support pensioner who is over 21 and is not permanently blind: ss 117(a) and 1064. The rate of the disability support pension payable in such a case is the lower of the rate resulting from the application of the income or assets tests. At all relevant times the applicant's rate was calculated by reference to the income test. 5 The Social Security Act provides (among other things) that, for the purpose of working out a recipient's rate of payment, income is to be calculated on the basis of a recipient's financial assets, irrespective of the actual income earned or whether the pensioner even derives income from the assets 6 The applicant's assets consist of shares in companies listed on the Australian Stock Exchange. The shares are subject to a margin loan scheme. Simply put, this means that she borrowed money to purchase those shares and the shares secured the loan. 7 Pursuant to s 68(2) of the Social Security (Administration) Act 1999 (Cth),the Secretary (in reality Centrelink, the Secretary's delegate), may issue a notice to a social security recipient obliging him or her to notify the Department of a specified event or change of circumstances, including, relevantly, if his or her assets or financial investments exceed a certain amount. 8 The amount of the debt now in contention relates to the period from 30 June 2004 to 18 March 2008. 9 From time to time during this period Centrelink wrote to the applicant requiring her to notify it of changes in the value of her assets or financial investments. 10 On 20 April 2004 Centrelink received a CommSec margin loan statement in the applicant's name for the period 1 January 2004 to 31 March 2004. That statement included a list of shares with an estimated market value of $79,843.82. The statement also showed the balance of a margin loan secured over those shares with a value of $47,656.94. 11 Consequently, on 31 May 2004 Centrelink issued the applicant with a new rate notice and informed her of the requirement to notify it if her financial investments exceeded $80,843, if she started new accounts or if her assets changed substantially. She was reminded of those requirements from time to time. 12 Although the applicant notified Centrelink about her earnings from employment between 2004 and 2006, she did not provide any further declarations about her financial investments until 2007. 13 In May 2007 the applicant wrote to Centrelink advising that the "net worth" of her shares was $200,856 and indicating that she no longer needed rent assistance. After an exchange of correspondence during December 2007 and February 2008 on 20 February 2008 the applicant advised that on "December 20th", the "net value" of her shares was $145,361 and explained that her shares were "worth more" but subject to a margin loan. 14 After a number of requests for more detailed information, which was not forthcoming, Centrelink suspended the applicant's pension. It was restored only after the applicant sent Centrelink margin loan statements disclosing the value of her shares and the margin loan balance for the period from 1 January 2004 to 31 December 2007. 15 On 18 June 2008 Centrelink calculated a debt for the period from 13 April 2004 to 21 April 2008 of $16,164, required the applicant to pay it and cancelled her pension. 16 On 21 August 2008 following an internal review an authorised review officer varied that decision. She found that the decision to cancel Ms Fischer's pension was incorrect, a debt should only have been raised for the period 30 June 2004 to 18 March 2008 (as after that time, any overpayment was the result solely of Centrelink's error) and that the debt should be recalculated on the basis of the information in the relevant margin loan statements. 17 The applicant then appealed to the SSAT. It appears from the SSAT decision that following this internal review, Centrelink recalculated Ms Fischer's debt as $16,062.20. The SSAT reviewed this decision and affirmed it, determining that the debt was recoverable in respect of the period from 30 June 2004 to 18 March 2008. The SSAT also found that the applicant was in a reasonable financial position to repay the debt, her circumstances were not "special" within the meaning of s 1237AAD of the Social Security Act and the exercise of the discretion in s 1237AAD to waive the debt was unwarranted.

The legislation 18 Generally speaking, s 1083 of the Social Security Act provides that actual returns on financial assets are not to be taken as ordinary income. 19 Instead, Division 1B of Part 3.10 of the Social Security Act provides for the calculation of deemed income from financial assets. Relevantly, it includes s 1076, which provides that a person who is not a member of a couple and who has financial assets is taken, for the purposes of the Social Security Act, to receive ordinary income on those assets and prescribes a formula for calculating the person's deemed ordinary income based on the "total value" of the person's financial assets. 20 Section 1072 of the Social Security Act provides that a reference in the Social Security Act to a person's ordinary income is a reference to the person's gross ordinary income from all sources for the relevant period without any reduction save for certain circumstances which do not apply in this case. 21 "Financial assets" is defined in s 9 of the Social Security Act to include "financial investments". "Financial investments", in turn, is defined to include a "listed security". "Listed security" is defined to mean a share in a company or another security listed on a stock exchange. 22 Division 1 of Part 3.12 of the Social Security Act deals generally with the calculation of the value of a person's assets. Section 1118 provides that for most purposes under the Social Security Act certain assets (including the value of a right or interest in the principal home) are to be disregarded in calculating the value of a person's assets. Section 1121 appears in this Division. 23 At the relevant time s 1121(1) of the Social Security Act provided: Effect of charge or encumbrance on value of assets If there is a charge or encumbrance over a particular asset of the person, the value of the asset, for the purposes of calculating the value of the person's assets for the purposes of this Act (other than Division 1B of Part 3.10), is to be reduced by the value of that charge or encumbrance. (Emphasis added) 24 The words in bold - other than Division 1B of Part 3.10 - were inserted in the section by Clause 28 of Schedule 2 of the Social Security Amendment (Further Simplification) Act 2004 (Cth). The amendment to s 1121 came into force on 25 March 2004.

The AAT decision 25 The AAT varied the decision under review by reducing the debt to $9,005.56 because the respondent conceded that there was a further period from 25 May 2007 to 21 April 2008 when the overpayments of the applicant's pension were attributable solely to Centrelink's administrative error, the applicant received the overpayments in that period in good faith, and thus the debt from that period must be waived under s 1237A of the Social Security Act. But it confirmed the respondent's method of calculating the rate of payment and the amount of overpayment for the remaining period from 30 June 2004 to 24 May 2007. 26 The respondent's approach to calculating the applicant's debt can be summarised as follows. During the period to which the debt relates, the applicant's rate of payment was calculated under the income test, not the assets test. Under the income test, a pension recipient's rate of payment is reduced if he or she receives "ordinary income", as defined in the Social Security Act, above a set threshold. Relevantly, under Division 1B of Part 3.10, ordinary income is deemed to include an amount calculated by reference to the value of any financial assets he or she has. Section 1076, which is the operative provision in Division 1B for people like the applicant who are not members of a couple, provides that this deemed income should be calculated by reference to the "total value" of the financial assets. Therefore the applicant's rate of payment should have been calculated by reference, among other things, to the value of her shares, which are listed securities and are defined as a financial asset by s 9(1) of the Social Security Act. As she had not informed Centrelink of the increase in the value of those shares over the relevant period, the applicant had been overpaid and therefore owed a debt to the Commonwealth. 27 Crucially, after it was amended on 25 March 2004 s 1121 of the Social Security Act provided that the value of an asset is to be reduced by the value of any charge or encumbrance over the asset, except for the purpose of Division 1B of Part 3.10. As I explained above, this is the division that includes the rules for deeming income from a recipient's financial assets. Thus, although the applicant held her shares subject to a security interest securing the loan with which she purchased the shares, the respondent and the AAT held that the value of that security interest should not be deducted from the value of the shares for the purpose of calculating deemed income. 28 In the course of her reasons the Senior Member adopted the respondent's argument that such a construction was supported by the decision of Tamberlin J in Repatriation Commission v Harrison (1997) 78 FCR 442, which concerned the corresponding provisions of the Veterans' Entitlements Act 1986 (Cth). There, his Honour held that it unduly strained the statutory language to treat the reference to assets as "all assets less all liabilities", especially where there were references to the making of specific limited deductions from the value of assets. 29 The Senior Member considered that there were no special circumstances within the meaning of s 1237AAD of the Social Security Act and thus declined to exercise the discretion in that provision to waive some or all of the remaining debt of approximately $9,000.

The grounds of appeal 30 The applicant's notice of appeal identified only one ground of appeal: My income has been calculated incorrectly. 31 However, in a document attached to her notice of appeal and entitled "Reasons" she expanded on her grievance. To summarise her position (but to use different language) she identified the following areas where she said the AAT fell into error: (1) Failure to have regard to s 11(3) of the Social Security Act; (2) Incorrectly relying on the decision of this Court in Repatriation Commission v Harrison; (3) Failing to give reasons for the conclusion reached in paragraph 14, where the Tribunal upheld the respondent's approach to calculating the applicant's debt; (4) Misconstruing s 1121 of the Social Security Act (although the applicant's document incorrectly refers to s 1112); (5) Absent a statutory definition of "special circumstances", there was no basis for deciding that the reason the applicant raised in support of waiving the debt under s 1237AD did not qualify. 32 In the submissions filed in support of the appeal, which Mr Fisher said were written by his wife, the applicant argued (in substance) that the AAT had: (1) misconstrued s 1121 and; (2) too narrowly construed the expression "special circumstances" in s 1237AAD. 33 At the hearing of the appeal Mr Fisher told the Court that the appeal was concerned with only two questions: whether the reference to "total value of assets" in s 1076 meant the gross, rather than the net (or real) value, and whether the AAT erred in its treatment of "special circumstances". He asserted that s 1121 had nothing to do with the first question. However, the first question necessarily involves deciding whether the AAT misconstrued s 1121. 34 I therefore propose to consider the appeal on the two bases set out in the applicant's written submissions.

The scope of the appeal 35 The appeal is confined to a question of law: Administrative Appeals Tribunal Act 1975 (Cth), s 44. 36 Order 53 r 3(2) of the Federal Court Rules requires that the applicant state the question or questions of law to be raised on the appeal. The "reasons" attached to the applicant's notice of appeal purport to set out the questions of law with which the appeal is concerned. The document is discursive in nature and does not clearly identify them. Nevertheless, as Sundberg and Kenny JJ said in Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125; (2006) 153 FCR 551 at [51] of a notice of appeal drafted for the Commissioner of Taxation which their Honours described as "inelegant", the purport of the document may be "tolerably clear" so that the Court may readily conclude that the applicant intended to raise a question or questions of law. 37 This appeal undeniably raises questions of law. As Basten JA explained in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [46]: Once it is accepted that construction of a statutory provision will usually involve a consideration of words in their context, and that this will involve a question of law, it can readily be seen that most questions of construction will involve questions of law. That approach gains support from the obligation imposed by s 33 of the Interpretation Act 1987 (NSW) (which has its equivalents in most jurisdictions) [compare Acts Interpretation Act 1901 (Cth), s 15AA] to adopt a construction that will promote the purpose or object underlying an Act or statutory rule. The identification of that purpose or object is itself likely to involve a question of law.

The applicant's argument 38 The applicant pointed to the ordinary English meaning of the word "value" and argues that the total value of her assets (the shares) is the amount of money which would be realised if the shares were sold, that is, the gross value of the shares less the amount borrowed to purchase them. She submitted that her case was indistinguishable from the case of Secretary, Department of Family and Community Services v Draper [2003] FCA 1409;(2003) 79 ALD 394 (Draper), which concerned the interpretation of s 1121 as it stood before the amendment in March 2004. There, Stone J decided that s 1121 required the decision-maker to reduce the value of an asset by any charge or encumbrance there may be over it. The applicant asserted that the March 2004 amendment to s 1121(1) does not affect s 1076. She argued, too, that "there can be no difference between two different kinds of assets". She stated that if an investment property was sold the value of it would be the gross value minus the value of any mortgage. She submitted that the value of an encumbered financial asset should not be treated any differently. In argument Mr Fisher emphasised this point, insisting that it was neither fair nor logical that different assets should be treated differently. 39 The applicant also submitted that if the interpretation for which the Department was contending were correct it would defeat the purpose of the Act which amended the text of s 1121.

Draper 40 Mr Draperwas an applicant for a Newstart allowance. His assets included some shares and managed fund investments that were also subject to margin loans. For the purpose of calculating his deemed income under s 1076 the Department totalled the value of the shares and managed investments but disregarded the values of the margin loans. The AAT found that s 1121(1) was "plainly applicable" and the value of the margin loans had to be taken into account in determining the value of the investments over which the loans were secured. The Department appealed. It submitted that s 1121(1) (which is in Part 3.12) had nothing to do with the income test in Part 3.10 where s 1076 appears. It further argued that the calculation of deemed income under s 1076 was concerned with "financial assets" as defined in s 9(1) whereas s 1121 was concerned with "assets" as defined in s 11(1). 41 Stone J rejected the Department's submissions. She held that "financial assets" constitute a sub-category of "assets" and that the submission that Part 3.12 does not apply to financial assets was inconsistent with the provisions in ss 1118A (now repealed) and 1118B in respect of superannuation investments. Her Honour noted that, apart from the exceptions and qualifications in s 1121 itself, there was no limit on the assets to which it might apply and the reference in the section to the purposes of the Social Security Act was unqualified - restricted neither to the Part in which it appears, nor to the application of the assets test. She went on to say that there was nothing in the words of the section or its location in Part 3.12 to suggest otherwise than that the purposes of the Social Security Act referred to in the section were those purposes that require the valuation of any asset, financial or otherwise, that is subject to a charge or encumbrance. 42 In that case the Department relied on the terms of s 1072, submitting that the reference to the "gross ordinary income" being "calculated without any reduction" does not allow for any reduction for charges or encumbrances. Her Honour rejected that submission too, holding that the section was not pertinent. Section 1072, she said, dealt with the general meaning of ordinary income and did not apply to the calculation of the value of an asset with a view to deeming a rate of "ordinary income" and the question whether s 1121 is relevant to that calculation. 43 She concluded that a valuation of assets that applied s 1121(1) would be more likely to reflect the true value of a person's interest than one which ignored it and was consistent with the approach reflected elsewhere in the Social Security Act, for example, in s 1075(1), which allows a person's ordinary income from a business to be reduced by losses and outgoings that relate to the business and s 1075(3), which allows non-business rental income to be reduced by the expenses relating to the property. 44 The judgment was delivered on 4 December 2003.

The extrinsic material 45 The applicant in her written submissions referred to the terms of the explanatory memorandum for the Social Security Amendment (Further Simplification) Bill 2003 (Bill) which stated that the Bill: forms a part of the measures being undertaken to give effect to the Government's commitment to implement a simpler and more coherent social security system that more effectively meets its objectives of adequacy, equity, incentives for self provision, customer service and administrative and financial sustainability. 46 He submitted that the approach taken by the Department discriminated against those people whose assets consisted of shares rather than property because Division 1B did not affect them and a system could not be simpler, more coherent, equitable or provide incentives for self-provision if it imposed different rules for different classes of investments. He argued that such a result counted against the respondent's position. 47 The respondent also relied on extrinsic material. It referred to a speech of the then Minister for Family and Community Services, Senator Kay Patterson, on 10 March 2004 during the second reading debate on the Bill. Senator Patterson referred to the judgment of Stone J and noted that: Justice Stone's decision relates to the interpretation of legislation for which technical amendments have been proposed in the bill, namely in items 25 to 28 of schedule 2 of the bill. Justice Stone held that loans secured against listed shares should be used to reduce the value of the shares in calculating deemed income under the income test. This is contrary to government policy, which is that the gross value of the shares should have been used to calculate deemed income. I am advised that the department has lodged an appeal to the full Federal Court against Justice Stone's decision. The government's longstanding policy is that, when deemed income is calculated on the income test in relation to financial assets, the gross value of the financial assets is to be used, as income is derived from the full amount of the asset. On the other hand, when assets are valued under the assets test, the net value of assets is used where there is a charge or encumbrance in relation to an asset, as this is what would be received if the asset was realised. Items 25 to 28 of schedule 2 of the bill make the necessary amendments to ensure that the policy intention is stated unambiguously in the legislation. 48 Although Ms Patterson was the relevant Minister, she did not move the motion that the bill be read a second time. The motion was moved in the House of Representatives by the then Minister for Children and Youth Affairs, Larry Anthony, on 16 October 2003. In his speech the Minister explained that: The primary purpose of this bill is to consolidate the rules relating to rent assistance in the current rate calculators in Chapter 3 of the Social Security Act 1991 in a proposed new part 3.7 of that Act. 49 The only possible reference to the change in question came at the end of the speech when the Minister referred to "amendments being made to clarify the operation of the income and assets test provisions of Chapter 3 of the Social Security Act". 50 At this stage, of course, Stone J had not handed down her judgment. 51 Section 15AB of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) provides that subject to subsection (3) consideration may be given to any material that does not form part of an Act if it is capable of assisting in the ascertainment of the meaning of the provision. However, the use to which the material can be put is circumscribed. Section 15AB(1) provides that the material may be considered: (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:

(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. 52 Such material includes any explanatory memorandum relating to the Bill containing the provision and any speech made to a House of the Parliament by a Minster on the occasion of the moving by the Minister of a motion that the Bill containing the provision be read a second time in that House (the Second Reading speech): s 15AB(2)(e) and (f). It also permits recourse to be had to any relevant material in the official record of debates in either House of Parliament: s 15AB(2)(h). Thus, the Court may have regard to both the explanatory memorandum and the remarks of Senator Patterson to interpret the amendment, provided that the meaning of the provision is ambiguous or obscure or its ordinary meaning would lead to a manifestly absurd or unreasonable result. The common law also permits reference to an explanatory memorandum where it can assist in ascertaining the problem the legislation is seeking to address: Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 99, citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. 53 However, it is rare for an explanatory memorandum to provide much assistance in construing a statute: Telstra Corporation Ltd v Hurstville City Council [2002] FCAFC 92; (2002) 118 FCR 198 at 216-7 (although in that case it did). 54 Equally, a court may have regard to a second reading speech to assist it in identifying the purpose of legislation and, in that indirect way, understanding the meaning of legislation: Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529 at 538 per Gleeson CJ, Gummow, Hayne and Heydon JJ; Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 at [13] per Spigelman CJ and [162]-[173] per Mason P. But it is equally clear that what is said in a second reading speech cannot be used to give the legislative text a meaning it cannot reasonably bear: Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113 per McHugh J.

The proper construction of the legislation 55 The Court is required to prefer a construction that promotes the purpose of the legislation (Acts Interpretation Act, s 15AA). But before s 15AA can do any work the words of a provision must be capable of bearing more than one construction. In this case I am of the view that there is only one available construction. 56 There are a number of problems with the applicant's argument. 57 For one thing, Draper is plainly distinguishable. The phrase "other than Division 1B of Part 3.10" (the additional phrase) did not appear in the section at the time the case was decided. The applicant contended that the amendment to s 1121(1) does not affect s 1076. I reject that argument. Section 1076 appears in Division 1B of Part 3.10. 58 Another difficulty with the applicant's argument on this point is that it gives the additional phrase no work to do. On its face the section now provides that the value of an asset is to be reduced by the value of any charge or encumbrance over it for the purposes of calculating the value of a person's assets for the purposes of the Social Security Act - except for the purpose of deeming income from financial assets with which Division 1B is concerned. Thus, in the context of this case, for the purpose of deeming income from the applicant's shares, the value of those shares is determined without reducing it by the value of the margin loan. 59 The words of the section do not admit of any alternative construction, let alone the one the applicant contends for. Senator Patterson's remarks clarify that the purpose of the amendment was to put it beyond doubt that it was the gross value of an asset which was to be used for the purpose of deeming income from financial assets and there was to be no set off for any charge or encumbrance upon it. They do not support the applicant's position. 60 To the extent that the explanatory memorandum provides any assistance in working out the purpose of the legislative amendment, it only further bolsters the plain meaning of the provision. The applicant's argument overlooks the part that relates to the amendment in question: Items 25 to 28 clarify that the scope of operation of subsections 1118(1), 1118(2), 1118B(1) and 1121(1) does not extend to the deemed income provisions of Division 1B of Part 3.10. 61 Item 28 contained the amendment to s 1121(1) which inserted the additional phrase. 62 That part of the explanatory memorandum upon which the applicant relied does not assist the applicant. In my opinion it is entirely neutral and far too abstract to provide any assistance in discerning the meaning of the provision. 63 Finally, the applicant's argument does not take into account the fact that the Social Security Act expressly discriminates between certain kinds of assets for the purpose of determining income under the assets test, quarantining some from consideration altogether. The additional phrase creates a special case for assets of the kind in question in this case. Whether there is merit in the different approach to different assets is a matter for the Parliament, not the Court. 64 I agree with Stone J in Draper at [24] when her Honour said: The Act is notoriously complex and difficult to interpret: Blunn v Cleaver (1993) 47 FCR 111 at 127-8; 119 ALR 65; 31 ALD 28. In considering such legislation it is especially important to have regard to the "ordinary grammatical sense of the words used except for the purpose of avoiding some obscurity or some inconsistency with other parts of the statute": Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 371; [1937] ALR 221 per Dixon J. While the context of a statutory provision, the consequences of such a construction and the purpose of the statute may sometimes point the other way (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384; 153 ALR 490) in this case all of these factors point the same way. 65 As I indicated above, the reason we reach different conclusions is that the statute has been amended since the date of her Honour's decision. 66 The ordinary English meaning of value in the context in which it appears in the section is "the material or monetary worth of a thing" (Oxford English Dictionary and Macquarie Dictionary). It might well be said that the worth of shares to a shareholder is their net worth, that is, their worth after any loan is set off. But that is not necessarily so. The respondent argued that "total value of the person's financial assets" in s 1076 means the aggregate value of all assets without reduction for any charge or encumbrance. Whilst there may be some ambiguity in the meaning of "total value" s 1076, it is impossible to read s 1121(1) (as amended) with s 1076 and conclude that the value of the financial assets should be reduced by the value of any charge or encumbrance secured over it. That would fly in the face of the exception contained in the additional phrase. Properly construed, s 1121 (as amended) required the decision-maker to assess the gross value of the financial assets without regard for the margin loan. The AAT was correct in this respect. 67 But this conclusion does not dispose of the applicant's case.

The power to waive the debt 68 The Social Security Act gives the respondent the power to waive a debt in whole or in part in two situations: where there has been administrative error (s 1237A) or where there are special circumstances (s 1237AAD). 69 As I explained above, the AAT found that the sole reason for the applicant's debt had been administrative error during the period from 25 May 2007 to 21 April 2008 and waived that part of the debt. 70 But before 25 May 2007 the Senior Member held that the debt could not be waived under s 1237A as the overpayment could not be attributed solely to an administrative error but was also attributable to the applicant's failure to update Centrelink about the value of her shares. 71 The debt for this earlier period (between 30 June 2004 and 24 May 2007) could only be waived if the respondent was satisfied that there were special circumstances under s 1237AAD. 72 Section 1237AAD provides that the Secretary may waive the right to recover all or part of a debt if he or she is satisfied that: (a) the debt did not result wholly or partly from the debtor or another person knowingly: (i) making a false statement or false representation; or (ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and (b) there are special circumstances (other than financial hardship alone) that make it desirable to waive: and (c) it is more appropriate to waive than to write off the debt or part of the debt.

Special circumstances 73 The Senior Member's reasons on the subject were sparse. This is what she said: 21. The only circumstance raised by Mr Fischer on Ms Fischer's behalf was the effect of the share market crash in 2008 on the value of Ms Fischer's financial investment. He added that she has never had the benefit of the value of her investment at its peak at the time of the overpayments of DSP. 22. I consider that all shareholders have been affected to varying degrees by the global economic crisis and that it is therefore not an extraordinary or special circumstance within the meaning of the Act. None other of Ms Fischer's circumstances is extraordinary or special. 74 Mr Fischer argued that the AAT misinterpreted the section by requiring the existence of unique circumstances. Counsel for the respondent argued that the AAT's reasons do not disclose any error of law because no general principle was articulated; rather, the Senior Member was just expressing a view on the facts. He submitted that the applicant has not shown that the AAT misunderstood the meaning of the expression "special circumstances" in such a way as would give rise to appellable error. 75 What may amount to "special circumstances" in the context of s 1237AAD has been considered in a number of cases both in this Court and in the AAT. The Senior Member adverted to none of them. 76 In Beadle v Director-General of Social Security (1985) 60 ALR 225 - a case concerned with s 102 of the 1947 Social Security Act - the Full Court did not think it was possible to lay down precise limits or rules to circumscribe the discretion of the decision-maker. Rather, the Court said that what constitutes special circumstances in any particular case is a matter for the Departmental head having regard to the purpose for which the power is given. However, because no precise limits or rules can be set, whether or not a particular kind of circumstance could (not should)be considered special is not merely a matter for the administrative decision maker. 77 In Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 155D French J (as his Honour then was) noted that there was a tension on the one hand between the need for certainty in the application of the provision and on the other the desirability for a flexible response to situations that may arise from time to time. At 162C-G, after exploring the history of the waiver provisions in the Social Security Act and referring to the decision in Beadle, his Honour explained that: [t]he concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special... The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words…But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose. 78 The applicant argues, in effect, that the AAT sought to impose such a fetter by excluding from consideration any circumstance that was shared by others. In her written submissions she wrote: The term 'special circumstances' is not defined in the Act, but it does not mean unique circumstances as the Tribunal implies in paragraph 3. 79 Counsel for the respondent conceded that circumstances did not have to be unique to be special. He also conceded that the global financial crisis could be a special circumstance within the meaning of s 1237AAD. He maintained, however, that the Senior Member was not stating a legal principle, merely making a factual finding. He said that one member of the Tribunal might legitimately find that the global financial crisis was a special circumstance and another might not. 80 It seems to me to be implicit in the Senior Member's statement that she took the view that, because all shareholders were affected by the global financial crisis, the adverse effect of the crisis on a pensioner shareholder could never be a special circumstance within the meaning of the section. There is no other sensible way to read the first sentence in paragraph 22 of her decision. In so doing, the Senior Member misdirected herself, that is, she defined otherwise than in accordance with the law the question of fact she had to answer, and in so doing, committed an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 per Glass JA. By reasoning that the applicant was excluded because all shareholders were affected by the global economic crisis, the Senior Member imposed a narrow or artificial construction upon the words "special circumstances" contrary to the authorities. "Special" denotes something different from the usual or ordinary (Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545per Kiefel J and compare Dranichnikov v Centrelink [2003] FCAFC 133; (2003) 75 ALD 134, which deals with the same expression in s 101(1) of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), a section in relevantly the same terms as s 1237AAD). But it is the circumstances that must be special, not the individual's experience of them. Circumstances might be special though they apply to more than one person or to a class of persons, provided they are not of universal application. The section does not require the circumstances to be unique to the individual. What if the pensioner failed to declare the value of her investments because the necessary paperwork was destroyed and she was dispossessed of her home as a result of the Victorian bushfires. Thousands of people suffered similar fates. Her situation would not be unique, but it could be "special". Although all shareholders suffered in the global financial crisis, some suffered more than others. Not all who suffered were pensioners and fewer still were in receipt of a disability support pension. If, as a result of the collapse of global markets, a pensioner's shares were so reduced in value that once the margin loan was brought into account they were worthless to her, surely that circumstance could be considered "special" within the meaning of the section. Whether the applicant falls into this category or her circumstances are special for another reason pertaining to the impact of the global financial crisis is another question. But it is a question the Senior Member never asked herself. By excluding from consideration anyone who suffered in the global financial crisis, the Senior Member fell into error. 81 The result of this error is that the AAT failed to properly consider whether the erosion of the value of the applicant's shares brought about by the stock market crash amounted to special circumstances under the section. 82 There having been a misdirection, the matter should be remitted to the AAT for determination according to law.

Conclusion 83 The applicant fails on the first question, that is, whether the Social Security Act requires the value of the margin loan to be set off against the gross value of her shares, but succeeds on the second because there was error of law in the AAT's approach to the interpretation of "special circumstances" in the waiver provision of the Social Security Act.

Costs 84 As the applicant ultimately succeeds in her appeal, the respondent should pay her costs (if any).

Orders 85 The appeal is allowed. The decision made by the Administrative Appeals Tribunal on 7 August 2009 in proceeding 2008/5247 is set aside and the matter is remitted to the Tribunal to be determined according to law. 86 The respondent is to pay the applicant's costs. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.