for pension at the special rate on each day during the period
commencing on the date from which the Tribunal was authorized to
approve payment of pension or payment of pension at an increased
rate, as the case may be, and concluding on the date of its decision, and
also authorized decision by the Tribunal that pension be paid at the
special rate for the period in respect of which it had ascertained that
eligibility existed. I respectfully accept his Honour's opinion,
substantially for the reasons which he states. If that were the authority
the Tribunal had, the period during which Mr. Reid's eligibility for
pension at the special rate was to be ascertained was the period
commencing on 9 March 1972 and ending on the date of the Tribunal's
decision, 27 June 1988.
Section 24A of the Veterans' Entitlements Act 1986 was inserted into
that Act by the Social Security and Veterans' Entitlements Amendment
Act (No.2) 1987, s.65, which was, like ss.63 and 64, deemed to have
come into operation on 22 May 1986. Section 24A provides:
'Where the Commonwealth is or becomes liable to pay a pension
to a veteran at the rate applicable under section 23 or 24, that
rate continues, while a pension continues to be payable to the
veteran, to apply to the veteran unless:
(a) the decision to apply that rate of pension to the veteran
would not have been made but for a false statement or
misrepresentation made by a person;
(b) in the case of a veteran to whom section 23 applies:
(i) the veteran is undertaking or is capable of
undertaking remunerative work of a particular kind
for 50% or more of the time (excluding overtime)
ordinarily worked by persons engaged in work of
that kind on a full time basis; or
(ii) in a case where subparagraph (i) is inapplicable to
the work which the veteran is undertaking or is
capable of undertaking - the veteran is undertaking
or is capable of undertaking that work for 20 or
more hours per week; or
(c) in the case of a veteran to whom section 24 applies - the
veteran is undertaking or is capable of undertaking
remunerative work for periods aggregating more than 8
hours per week.'
Davies J. held, in Jebb v. Repatriation Commission, supra, that s.19(2A)
should be understood as giving a direction only in respect of a
determining authority's consideration of the question whether on the
date on which a claim or an application was made eligibility for pension
at the special rate (or, in relation to s.23, at what is called 'the
intermediate rate') existed, and understood as directing such an
authority which has answered that question in the affirmative to eschew
enquiry, except such an enquiry as paragraphs 24A(b) and 24A(c)
authorize, concerning eligibility after that date. His Honour said (80
ALR at 341): 'I read the new s.19(2A) as dealing solely with the
question of entitlement as at the date of application . . . I do not read
s.19(2A) as dealing with the question of entitlement during the period
prior to the date during which the decision may be backdated or during
the period from that date to the date of the decision'. (It may be that
the sense of the passage quoted is clearer if the phrase 'prior to the
date' is understood as 'prior to that date'.)
It was submitted by Dr. Jessup QC that s.19(2A) did not fall within
sub-paragraph 15AB(1)(i) or 15AB(1)(ii) of the Acts Interpretation Act
1901 and that therefore the recourse Davies J. had, in construing
s.19(2A), to the second reading speech of the Minister of State for
Veterans' Affairs on the bill for the Social Security and Veterans'
Entitlements Amendment Act (No.2) 1987 was not justified. The plain
meaning of s.19(2A) should in Dr. Jessup's submission be accepted as
affording its proper construction and I should decline to accept the
construction Davies J. had adopted. If that were done, the only dates to
which the Tribunal might have given consideration were dates on which
Mr. Reid's eligibility for pension at the special rate could not have