Fokas v Secretary, Department of Family & Community Services

WHITLAM J: 1 I agree with Emmett J. EMMETT J: 2 This is an appeal from an order made by a judge of the Court dismissing an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of the Social Security Appeals Tribunal. That tribunal affirmed a decision by an authorised review officer in respect of an application made by the appellant for a widow B pension under the Social Security Act 1991 ("the Act"). 3 The appellant, Mrs Maria Fokas, made a valiant and sterling effort to find the way through the maze of the Act in order to justify an entitlement to a widow B pension. Mrs Fokas bases her claim on s 362(1)(a)(i) of the Act. Section 362(1)(a) provides that a woman is qualified for a widow B pension if the woman satisfies one of three criteria and satisfies the other criteria set out in s 362(1). Section 362(1)(a)(i) provides that, in order to be qualified, she must demonstrate that, immediately before 1 July 1987, she was receiving a widow's pension as a class B widow under the Social Security Act 1947 ("the 1947 Act"). 4 Mrs Fokas was, in fact, receiving a widow's pension before 1 July 1987. The question, however, is whether she was receiving a widow's pension "as a class B widow under the 1947 Act". The term "class B widow"was defined in s 59(1) of the 1947 Act as a widow specified in s 60(1)(b) of that Act. Up until the passing of the Social Security and Veterans' Entitlement Amendment Act 1987 ("the 1987 Act"), s 60(1)(b) provided for: "a widow who has not the custody, care and control of any child and - (i) is not less than fifty years of age; or (ii) having been in receipt of a pension as a widow referred to in the preceding paragraph, has, after having attained the age of forty-five years, ceased to receive that pension by reason of the fact that she no longer has the custody, care and control of a child …" 5 As at the commencement of the 1987 Act, Mrs Fokas did not satisfy that requirement. Following the passing of that Act, the definition in s 60(1)(b) of the 1947 Act was amended so as to resemble the language of s 362(1)(a) of the Act. In particular, s 60(1)(b)(i) required that in order to qualify the widow must show that she was, immediately before 1 July 1987, receiving a widow's pension and was a class B widow. 6 The determination of the Tribunal was that Mrs Fokas was not entitled to a pension by reason of the operation of s 362(1)(a)(i) for the reasons that I have just indicated. That is to say, she was not, immediately before 1 July 1987, receiving a widow's pension as a class B widow. The other requirements in s 362(1)(a) were also not satisfied in the sense that in order to qualify, Mrs Fokas would have needed to establish that she had turned forty-five years old by 1 July 1987. However, she had not, having been born on 12 December 1946. 7 Mrs Fokas also relied on s 362A(1) of the Act which provides that, in spite of anything else in the relevant part of the Act, "… a widow B pension must not be granted to a woman unless: