Secretary, Department of Social Security v Pusnjak

(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2: for Impairment Tables see section 23(1) and Schedule 1B.

94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training - such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a) the availability to the person of educational or vocational training or on-the-job training; or

(b) if subsection (4) does not apply to the person - the availability to the person of work in the person's locally accessible labour market.

94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

(a) that is for at least 30 hours per week at award wages or above; and

(b) that exists in Australia, even if not within the person's locally accessible labour market.

3 Mr Pusnjak is now 56 years old, being born on 4 September 1942. The Tribunal said of him that he had a poor grasp of English, was poorly educated, had no trade skills and had spent all his working life as a labourer. He was granted the invalid pension in 1988 and remained on it and then the disability support pension, which replaced it in 1991, until the latter was cancelled in 1996. It is this decision to cancel Mr Pusnjak's pension that has given rise to the present litigation. 4 As appears from the reasons for the decision of the Social Security Appeals Tribunal, the initial decision to cancel Mr Pusnjak's pension was based on his being reassessed as having an impairment of less than 20 points, ie, as no longer being qualified for this pension because he did not meet the criterion contained in s 94(1)(b) of the Act. The SSAT agreed with this conclusion and affirmed that decision. The AAT, however, took a different view of the medical evidence before it and found that Mr Pusnjak's back problem left him with an impairment rating of 20 points, ie, sufficient by itself to satisfy this particular criterion (which he more than met, if his knee and shoulder problems and his sciatica were also taken into account). There is no challenge to this finding of fact by the Tribunal. 5 It is said, however, that the Tribunal reached its conclusion in favour of Mr Pusnjak on a misunderstanding of the true meaning of the phrase "continuing inability to work" in s 94 because, in holding that he did have such an inability and so met the criterion in s 94(1)(c)(i), it did not confine itself to assessing the impact of his particular impairment on capacity for work in the abstract, but reached its conclusion by taking into account Mr Pusnjak's personal circumstances, including his limited work skills and experience, that I have set out above. 6 It is clear that the Tribunal did resolve the case by applying what the applicant submits is an incorrect interpretation of this phrase in the section. It said:

"The Tribunal takes the view that it is necessary to take the qualities of the specific person into account when assessing the impact of the impairment on that person and not refer to some hypothetical person who may be able to cope with the same impairment. The same impairments would probably have little effect on the employability of a professional person. Mr Pusnjak's impairments render him unemployable. No amount of training will help Mr Pusnjak."

7 In supporting the interpretation of the expression proposed by the Secretary, counsel emphasised the words "of itself" and "any work" in s 94(2). As to the latter, counsel referred to the definition of "work" in s 94(5), which shows that, in determining whether he was satisfied that the applicant satisfied s 94(2)(a), the Secretary was required to ask himself whether there was a work occupation or activity available anywhere in Australia that a person would be able to engage in despite his having an impairment of the kind afflicting the particular claimant. Section 94(3)(b) also supports this interpretation. 8 It was also said that s 94(4), which permits (but which does not compel) the Secretary to have regard to one circumstance peculiar to the particular claimant, provided he is 55 years or older, does not detract from the proposed interpretation: that is but a narrow qualification to what the Secretary says is the general operation of s 94(2). 9 If the construction contended for by the Secretary is correct, very few persons would satisfy the criterion in s 94(1)(c), as defined in s 94(2). They would appear to be limited to persons in a completely vegetative state or in a state of idiocy and perhaps also to persons psychiatrically disabled to the requisite 20 point minimum level of impairment in Table 7 of the Impairment Tables, provided that psychiatric condition took the form of an implacable aversion to engaging in any form of work at all. 10 That this is the way the section would operate if the applicant's interpretation is correct can be demonstrated by applying it to a middle aged, unskilled former labourer like Mr Pusnjak. (The section must, I think, be applied in the following way: for a person to have "a continuing inability to work" because of an impairment within the meaning of that expression in the sub-section, he must satisfy the requirement in s 94(2)(a) and, in addition, he must also satisfy the requirement in s 94(2)(b)(i). If he satisfies this second requirement, he will, in consequence, meet the criterion in s 94(1)(c)(i), ie, he will have a continuing inability to work. If, however, he meets the requirement of s 94(2)(a) but not the requirement of s 94(2)(b)(i), it is still open for him to show that he satisfies the criterion of having a continuing inability to work by showing that he can meet the requirement of s 94(2)(b)(ii).) 11 It can safely be assumed that there is work available in Australia for a surgeon. Mr Pusnjak's impairment is not of itself sufficient to prevent him from doing the work of a surgeon within the next two years: he only has a bad back and perhaps some other problems with his knee and shoulder. He could not, on the Secretary's argument, satisfy s 94(2)(a). 12 Nor could he satisfy s 94(2)(b)(i): his age and poor educational background would prevent him from ever acquiring the skills necessary for that particular job. Even if he had the necessary intellectual capacity, he would still need a lot more than two years' training to qualify as a surgeon. But his impairment is not of itself sufficient to prevent him undertaking educational training during the next two years to be a surgeon. 13 It remains to consider s 94(2)(b)(ii). Since it sets out the test where s 94(2)(b)(i) has first been applied, but with an outcome that does not resolve the issue of the applicant's continuing inability to work, it is necessary to read the opening words of s 94(2)(b)(ii) - "If the impairment does not prevent …" - as if they provided: "If the impairment does not of itself prevent …". On the Secretary's interpretation, an impairment like that suffered by Mr Pusnjak (as distinct from his lack of education etc) could not prevent him from undertaking educational training to be a surgeon, and any training he undertook could never enable a person in his situation to do the work of a surgeon within the next two years. So he might hope to satisfy s 94(2)(b)(ii). But his hope would be dashed, because the insufficiency of the training to fit him to do the work of a surgeon must be "because of the impairment" and not due to any other factors, such as the fact that the training course for a surgeon cannot be completed, even by a university entrant, in under a decade. 14 In support of the interpretation proposed, counsel for the Secretary pointed out that Pt 2.3 of Ch 2 providing for disability support pensions was contained in an Act making provision for a range of other welfare benefits, such as newstart allowance and sickness benefit. However, counsel was unable to direct me to any provision dealing with conditions of eligibility for other welfare benefits that might suggest that a person with an impairment for work of the kind relevant to eligibility for the disability support pension could rely on that same impairment in qualifying for one of the other welfare benefits provided for by the Act. I therefore see no reason for finding in the existence of other welfare benefits a ground for adopting the extremely restrictive test of eligibility for the disability support pension which the Secretary urges upon me. 15 But on the approach proposed by the Secretary, if the expression "any work" in s 94(2) means any one of the myriad occupations or activities that can, in the abstract, be accepted as falling within the ambit of that phrase and if the expression "of itself" prevents the decision-maker from taking into account any of the personal circumstances of the particular pension claimant in considering whether he meets the requirements of s 94(2)(a) and (b), it is plain that the disability support pension would only be available to a handful of the most severely disabled people. I would expect there to be many tens of thousands of people, each significantly less severely disabled than that but each of whom is accepted by the Secretary as fully entitled to the disability support pension they are now receiving. The Secretary did not, however, shy away from this draconic interpretation of the provision. 16 Section 15AB the Acts Interpretation Act 1901 (Cth) permits the Court to have regard to material extraneous to the text of a statute, including an Explanatory Memorandum accompanying the Bill for the Act and the second reading speech on that Bill to determine the meaning of a provision of an Act 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."

17 See s 15AB(1)(b) and (2)(e) and (f). I consider it clear from s 15AB(1) and (2) that the legislative history of s 94 is also material to which the Court can have regard in such circumstances. 18 If s 94(2) has the operation suggested by the Secretary, it would appear to conflict with the policy of the legislation governing the availability of the disability support pension reflected in s 94(1)(b): it cannot have been the legislative intent to restrict this pension to a relative handful of the most grossly disabled people when the Parliament has identified a quite low 20 point impairment as that criterion for pension eligibility that is specifically directed to the minimum necessary degree of impairment that must exist for eligibility. This suggests that s 94(2) is, at the very least, obscure within the meaning of that term in s 15AB(1)(b)(i) of the Acts Interpretation Act. For the reasons given, I would also regard the interpretation urged by the Secretary as requiring s 94(2) to be given a meaning that is absurd or unreasonable within s 15AB(1)(b)(ii) the Acts Interpretation Act. 19 Reference to relevant extraneous material reveals, clearly enough, the legislative intent or purpose of s 94(2). 20 Prior to the amendments made by the Social Security (Disability and Sickness Support) Amendment Act 1991, No 141 of 1991, Pt 2.3 the Social Security Act 1991 (Cth) made provision for an invalid pensions; the eligibility criteria for that pension were quite different from those for the disability support pension. Those provisions were repealed and replaced by Act No 141 of 1991, which introduced the disability support pension in place of the invalid pension and which, by s 94(1), prescribed the eligibility requirements. In addition to age and residence requirements, a person was qualified for the disability support pension if:

"(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20% or more under the Impairment Tables; and

21 Although those particular criteria were framed in terms similar to the corresponding criteria in s 94(1)(a), (b) and (c)(i) in the form in which s 94 now takes, s 94(2) of the 1991 provisions contained a definition of "continuing inability to work" materially different from that found in the current s 94(2). The earlier provision provided:

"(2) A person has a continuing inability to work if the Secretary is satisfied that:

(a) the person's impairment is of itself sufficient to prevent the person from doing:

(ii) work for which the person is currently skilled;

(i) the person's impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next 2 years; or

(ii) the person's impairment does not prevent the person from undertaking educational or vocational training but such training is not likely to equip the person, within the next 2 years, to do work for which the person is currently unskilled."

22 Section 94(3), (4) and (5) in the 1991 Act were similar to but not identical with the corresponding sub-sections in the current s 94. 23 It might be thought obvious enough that the 1991 version of s 94(2), read with s 94(3) and (5), required the Secretary, in determining whether a pension claimant had a continuing inability to work, to ask whether there was any category of work available in Australia which that particular claimant could perform, being work for which he was fitted by his existing work experience and skills. This is confirmed by the Explanatory Memorandum that accompanied the Bill for Act No 141 of 1991. The section dealing with s 94 concluded:

"The operation of these provisions will be in accord with several principles:

. First, paragraph 94(2)(a) will have the result that where a person could, despite the impairment, do work for which he or she is currently skilled he or she will not qualify for disability support pension. There will then be no need to test the person against paragraph 94(2)(b).

. Second paragraph 94(2)(b) is then applied to test the person's capacity to do work for which he or she could become skilled if trained."

24 Section 94 as it appeared in the 1991 Act was replaced by the current form of that provision in 1995. 25 In the Explanatory Memorandum to the Bill for the Social Security Legislation Amendment Act (No 1) 1995 (Cth), the following appears in relation to what is now s 94:

"Several recent Social Security Appeals Tribunal (SSAT) cases and an Administrative Appeals Tribunal (AAT) case have provided a more liberal interpretation of the words in subsection 94(2) than was intended when the provision was originally inserted.

(a) The requirement in sub-paragraph 94(2)(a)(ii) that the person's impairment is of itself sufficient to prevent the person from doing work for which the person is currently skilled.

In the case of Loknar (No 92/101), the AAT concluded that the fact that subparagraph 94(2)(a)(ii) refers to work for which the person is 'currently skilled' rather than 'any other work' implied that a person's skill levels are relevant when determining a continuing inability to work and that it was not appropriate to consider unskilled work. The AAT concluded that it was not relevant to consider whether Mr Loknar's impairment prevented Mr Loknar from performing work of a light nature as long as it precluded him from performing his skilled job (as a carpenter).

Amendments are made that ensure that a person will not qualify for DSP under paragraph 94(2)(a) if the person is fit for any work (whether skilled or unskilled) that the person could do without the need for preparatory education or training.

Secondly, and as a consequence of the above amendment, paragraph 94(2)(b) is amended to ensure that a person will not qualify for DSP if the person's impairment does not prevent the person from undertaking educational, vocational or on the job training unless such training would be unlikely (because of the impairment) to enable the person to do any work within 2 years.

(b) The person's continuing inability to work must result from the person's physical, intellectual or psychiatric impairment.

When DSP was introduced in November 1991, it was the intention that DSP be restricted to only those people whose medical condition or illness by itself prevented the person from working.

Several recent SSAT and AAT decisions have shown a trend to take factors into account that are a consequence of the person's impairment such as the person's attitude and lack of motivation when determining whether the person has a continuing inability to work.

Accordingly, amendments are made to the DSP qualification provisions to ensure that the Secretary must be satisfied that a person's continuing inability to work is directly caused by a person's impairment that has been assigned a rating of 20% or more under paragraph 94(1)(b). Conversely, factors that are consequential upon the person's impairment, such as attitude and lack of motivation to work, are not to be taken into account in determining a person's continuing inability to work under subsection 94(2)."

26 It is difficult to accept that the decision in Re Loknar (1993) 30 ALD 412 was correct in placing the interpretation it did on s 94(2). But it can be seen clearly enough that the intention of the current s 94(2) is that the question of a disability support pension applicant's continuing inability to work because of his impairment is to be determined by reference, firstly, to whether his impairment is sufficient to prevent him engaging in any of the necessarily limited range of work for which he has the requisite skills and experience and then by reference to whether there is training available to him of a kind that should fit him, within a two year period, for work which he cannot now do, but would be able to do, given his actual capacities. In making his decision on the second of these issues, the only circumstance peculiar to the particular claimant that the Secretary can take into account is whether the claimant's impairment itself may prevent him from completing what would ordinarily be no more than a two year retraining course in that time. 27 It is also clear from the extraneous material that the Legislature intended that the Secretary, in applying this test, should disregard attitudinal factors peculiar to the applicant, such as a lack of motivation to work. Hence the "of itself" qualification to "impairment" in s 94(2). But this does not mean that the term "impairment" in s 94(1)(a) is a narrow concept: a psychiatric condition caused by a physical injury can be as much part of "the impairment" within s 94(2)(a) as is the physical injury itself. Section 94(1)(a) prevents the Secretary in applying s 94(2) to disregard such a disabling psychiatric consequence of physical injury. 28 But s 94(2) involves no departure from the intent of the 1991 version of the section: the necessarily limited range of work activities for which the particular claimant is fitted by his actual skills and experience is not to be ignored, in determining his eligibility for this pension. 29 Section 94(3), properly understood, shows that this is the way it was intended s 94(2)(a) would operate. The expression "any work" in s 94(2)(a) is not accompanied by any words of qualification. So, prima facie, the Secretary is required to have regard to work of any kind that may be available anywhere in making the determination required by s 94(2)(a). The definition of "work" in s 94(5) requires the expression "any work" to be read as limited, but only to any work that exists anywhere in Australia. Section 94(3)(b) reinforces the Secretary's obligation, in applying s 94(2)(a) to a particular pension claimant, to have regard to any work available anywhere in Australia. 30 However, s 94(3)(a) imposes a significant qualification on the scope of the inquiry the Secretary is to make in determining whether an applicant meets the requirements of s 94(2)(a). It directs the Secretary to ignore the availability to the pension applicant of occupational retraining. If the expression "any work" in s 94(2) has the unqualified meaning urged by the Secretary, the direction in s 94(3)(a) would be entirely unnecessary. Section 94(3)(a) suggests that the draftsman, sensibly enough, intended s 94(2)(a) to focus the decision-maker's attention on whether the impairment by itself might prevent the particular pension applicant from doing any kind of work for which that person was already fitted by reason of his actual work skills and work experience, ie, work of the kind he was (the impairment apart) capable of doing without the need for any retraining. 31 If, as I think it should be, s 94(2)(a) directs the Secretary to confine his determination to whether the impairment of itself is sufficient to prevent the person from doing any work that may be available anywhere in Australia, being work for which that particular person is already fitted without first requiring some form of occupational retraining, s 94(2)(b) then, logically enough, moves on to identifying what impact the availability of occupational retraining is to have on the eligibility of the particular applicant for a disability support pension who surmounts the first hurdle of s 94(2)(a). 32 Effect will be given to the intention of legislation if the Secretary asks the following questions as he works his way through the various paragraphs of s 94(2):

As to s 94(2)(a) Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? If so:

As to s 94(2)(b)(i) Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?

If so, the applicant will satisfy the Secretary that he has the requisite continuing inability to work. If not, the Secretary must proceed to consider s 94(2)(b)(ii) and ask:

As to s 94(2)(b)(ii) If there is available training of a kind capable of fitting the claimant within a two year period for work which he cannot now perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete that training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within two years?

If so, the applicant will not be eligible for the pension. But if there is a two year retraining course available to the claimant but his impairment is sufficient by itself to prevent him completing that course within that two year period, he will qualify for the pension. Training that necessarily takes an able bodied person longer than two years to complete is not training of the kind covered by this provision.

33 The question is whether it is permissible to read s 94(2) in this way. 34 If the Court concludes that the literal meaning of a statutory provision does not conform to the legislative purpose, as ascertained from the statute as a whole, including the policy that may be discerned from its provisions, the Court is entitled to give effect to that purpose by addition to, omission from, or clarification of the particular provision. See s 15AA and Saraswati v The Queen (1991) 172 CLR 1 at 22 and Whittaker v Comcare (1998) 28 AAR 55 at 67. On this basis, the Court can read s 94(2) in the way suggested, by way of clarification, particularly in view of the support for this reading provided by s 94(1)(b) and (3)(a). 35 Moreover, where the statutory text is obscure or where the ordinary meaning conveyed by the text, taking into account its context in the Act and the purpose underlying the Act, leads to an absurd or unreasonable result, ss 15AA and 15AB permit the Court, by resort to extraneous material of the kinds to which I have referred, to give the provision the meaning which it considers reflects the legislative intent or purpose, even though this may depart from the ordinary meaning of the text. See Saraswati at 22 - 23; Hospital Benefit Fund of Western Australia Inc v Minister for Health (1992) 111 ALR 1 at 6 - 7. The only limitation on the Court's power conferred by ss 15AA and 15AB to do this is that the Court must be able to identify the legislative intent or purpose of the troublesome text. See Whittaker v Comcare at 67. On this basis also, s 94(2) can be read as suggested. 36 In my opinion, the applicant has failed to demonstrate any error of law on the part of the Tribunal in taking into account Mr Pusnjak's actual work skills and experience and capacity to be retrained for any work that he could thereafter do when it determined that Mr Pusnjak had "a continuing inability to work because of an impairment" within the meaning of that expression in s 94(2). The Tribunal, I think, applied the correct interpretation of that provision to the relevant facts found by it in arriving at its decision. 37 The Secretary also submitted that the Tribunal was in error in taking into account the fact that Mr Pusnjak was 55 years of age at the time of the hearing before it because he was under that age when the initial decision was made; it was said that, because that initial decision was one to cancel his pension, the Tribunal's review function was limited to determining whether that cancellation decision was correct at the time it was made. Reference was made to Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345. By force of s 1283, the decision which the AAT was here reviewing was the decision of the authorised review officer of 21 August 1996 to cancel Mr Pusnjak's disability support pension, as affirmed by the decision of the SSAT on 10 April 1997. 38 Section 94(4) permits, but does not oblige the Secretary to take into account the likely availability of work for a particular claimant in his locally accessible labour market provided he is at least 55 years old at the time a decision has to be made. But s 94(4) does not make the age of a claimant, be it greater or less than 55 years, irrelevant in determining whether the person has a continuing inability to work. Section 94(4) directs the decision-maker to the availability of work in the whole Australian labour market and prevents him from having regard to the availability of work for the pension claimant in his locally accessible labour market unless the claimant is 55 or older. But subject only to that restriction, a claimant's age, whatever it be, is a consideration which the decision-maker can, I think, properly take into account in determining whether the particular claimant meets the various requirements of s 94(2) and thus has a continuing inability to work, ie, whether a class or classes of work which the decision-maker has identified as in fact available somewhere in Australia is work which the particular claimant has the existing capacity to perform and (if appropriate) whether the claimant can or cannot be retrained as envisaged by s 94(2)(b). 39 It is not at all apparent that, in holding that Mr Pusnjak had a continuing inability to work for the purpose of s 94(1)(c)(i), the Tribunal relied on the fact that he was, at the time of its decision, 55 years of age and called in aid s 94(4) in his favour. Counsel for the Secretary ultimately conceded as much. Even if the Tribunal was disentitled to call in aid of Mr Pusnjak's claim s 94(4) because he was under 55 years of age when the original cancellation decision of 21 August 1996 was made, in view of the absence of any reference by the Tribunal to this provision as to Mr Pusnjak's locally accessible labour market, the applicant has not satisfied me that the Tribunal, by referring to Mr Pusnjak's age of 55 years, showed it did rely on s 94(4) in concluding that Mr Pusnjak was entitled to the disability support pension. It is therefore unnecessary for me to consider the correctness of the decision in Freeman. 40 The appeal is dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Solicitor for the Applicant: Australian Government Solicitor