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: