5. From the time when the 1991 Act came into force until the family allowance was replaced by family payment on 1 January 1993, section 853 of the 1991 Act contained the following provisions:-

"853. (1) Subject to subsections (2), (3) and (4), a determination

under section 852 (granting a claim for family allowance) takes

effect on the day on which the determination is made or on such

later day or earlier day as is specified in the determination.

Notified decision - review sought within 3 months

(2) If:

(a) a decision (in this subsection called the 'previous

decision') is made rejecting a person's or

organisation's claim for family allowance; and

(b) a notice is given to the person or organisation advising

the person or organisation of the making of the previous

decision; and

(c) the person or organisation applies to the Secretary under

section 1240 (providing for application for internal

review), within 3 months after the notice is given, for

review of the previous decision; and

(d) a determination granting the claim is made as a result of

the application for review;

the determination takes effect on the day on which the previous

decision took effect.

Notified decision - review sought after 3 months

(3) If:

(a) a decision (in this subsection called the 'previous

decision') is made rejecting a person's or

organisation's claim for family allowance; and

(b) a notice is given to the person or organisation advising

the person or organisation of the making of the previous

decision; and

(c) the person or organisation applies to the Secretary under

section 1240, more than 3 months after the notice is

given, for review of the previous decision; and

(d) a determination granting the claim is made as a result of

the application for review;

the determination takes effect on the day on which the person or

organisation sought the review.

Decision not notified

(4) If:

(a) a decision (in this subsection called the 'previous

decision') is made rejecting a person's or

organisation's claim for family allowance; and

(b) no notice is given to the person or organisation advising

the person or organisation of the making of the previous

decision; and

(c) the person or organisation applies to the Secretary under

section 1240 for review of the previous decision; and

(d) a determination granting the claim is made as a result of

the application for review;

the determination takes effect on the day on which the previous

decision took effect."

6. Only if the decision made in 1989 not to pay family allowance can be changed can family allowance be payable for the period between the applicant's initial claim for it and the date in December 1991 when payment was commenced after she had lodged her new claim. The letter which the applicant wrote to the respondent's delegate on 19 December 1991 is couched in such terms that it clearly should be treated as an application under section 1240 for review of that decision. Notice of the decision rejecting the initial claim was given to the applicant by a letter, a copy of which is included in the T documents. As she did not apply for review of the decision within three months after that notice was given, section 853(3) prevented the authorized review officer who dealt with the applicant's application for internal review from doing otherwise than to determine that, although the applicant had been qualified for family allowance when she made her initial claim, the determination was to take effect only on the day on which she had sought the review, that is to say 19 December 1991, by which date family allowance was already being paid to her as a result of her second claim lodged earlier in December 1991.

7. The powers of the Administrative Appeals Tribunal in dealing with applications made to it are the same as the powers of the person or body which made the decision which is under review (Administrative Appeals Tribunal Act 1975, section 43(1)). For reasons which are stated below I am satisfied that the decision under review in these proceedings is that made by the SSAT.

8. So far as is relevant in these proceedings, at the time when the applicant made her application to the SSAT section 1247(1) provided as follows:-

"1247. (1) Subject to section 1250, a person whose interests are

affected by:

(a) a decision of an officer under this Act; or

. . .

may apply to the Social Security Appeals Tribunal for review of

the decision."

9. Section 1247(1) and (1A) of the 1991 Act now provides as follows:-

"1247. (1) . . . if:

(a) a decision has been reviewed by the Secretary or an

authorised review officer under section 1243; and

(b) the decision has been affirmed, varied or set aside;

. . .

a person whose interests are affected by the decision of the

Secretary or the authorised review officer may apply to the Social

Security Appeals Tribunal for review of that decision.

(1A) For the purposes of subsection (1), the decision made by the

Secretary or the authorised review officer is taken to be:

(a) if the Secretary or the authorised review officer

affirms a decision - the decision as affirmed; and

(b) if the Secretary or the authorised review officer

varies a decision - the decision as varied; and

(c) if the Secretary or the authorised review officer sets

a decision aside and substitutes a new decision - the

new decision."

Sub-section (1) was substituted for the earlier provision and sub-section (1A) was added to section 1247 with effect from 1 January 1993.

10. Section 1255 of the 1991 Act, so far as is relevant in these proceedings, provides as follows:-

"1255. (1) Subject to subsections (2) and (3), a decision by the

Social Security Appeals Tribunal (SSAT) comes into operation

immediately on the giving of the decision.

(2) The SSAT may specify in a decision that the decision is not

to come into operation until a later day specified in the decision

and if it does so the decision comes into operation on that later

day.

(3) Subject to subsections (4) and (5), if the SSAT:

(a) varies the decision under review; or

(b) sets aside the decision under review and substitutes a

new decision for the decision under review;

the decision as varied or the new decision (as the case may be)

has effect, or is to be taken to have had effect, on and from the

day on which the decision under review has or had effect.

(4) If:

(a) a person is given written notice of a decision under

this Act; and

(b) the person applies to the SSAT more than 3 months after

the notice was given, for review of the decision; and

(c) the SSAT varies the decision or sets the decision aside

and substitutes a new decision; and

(d) the effect of the SSAT's decision is:

(i) to grant the person's claim for a pension, benefit

or allowance; or

(ii) to direct the making of a payment of pension,

benefit or allowance to the person; or

(iii) to increase the rate of the person's pension,

benefit or allowance;

subsection (3) applies as if references in that subsection to the

day on which the decision under review had effect were references

to the day on which the application was made to the SSAT for

review of the decision under review.

(5) The SSAT may order:

(a) that subsection (3) not apply to a decision by the SSAT

on a review; and

(b) that subsections (1) and (2) apply instead."

11. It is to be noted that from 1 July 1991 until 31 December 1992 section 1247(1) referred to review of "a decision of an officer" and paragraph (a) of section 1255(4) included after the word "decision" and before the words "under this Act" the following: "(including a decision of the Secretary or an authorized review officer made under section 1243)". Before 1 January 1993 application could be made to the SSAT without any prior review by the Secretary or an authorized review officer.

12. Before the substitution of sub-section (1) and the addition of sub-section (1A) to section 1247 and the deletion of the words from paragraph (a) of section 1255(4), the effect of section 1255(4) was tolerably clear. I have no doubt that in May 1992 when the SSAT made its decision, the SSAT had no power to make a decision which had the effect that family allowance was payable to the applicant before the date on which her second claim was lodged. The decision which the applicant applied to have reviewed was the decision of the authorized review officer of which she was notified by a letter dated 22 April 1992. Although the application for review of that decision was made within three months of that notice, sub-section (3) of section 1255 prevented the SSAT from setting as the date on which its determination would have effect a date earlier than that which section 853 permitted the authorized review officer, whose decision was under review, to set.

13. Now, however, it is by no means clear whether the reference in section 1255(3) to "the decision under review" is to the same decision as the decision referred to in sub-section (4)(a), (b) and (c). Section 1247(1) appears to provide quite clearly that the decision which a person may apply to have reviewed by the SSAT is the decision of the Secretary or the authorized review officer made under Part 6.1 of the Act. However, doubt whether that is so is raised by the provisions of section 1247(1A)(a) and (b). What is meant by "the decision as affirmed" and "the decision as varied"? Are those phrases to be interpreted as meaning the same as "the decision affirmed" and "the decision varied", in the present case the decision made in 1989 rejecting the initial claim? If so, why were the latter phrases not used? On the other hand, since affirmation of a decision does not alter it, is not the decision which was reviewed and affirmed left extant? Similarly, is not a decision that is reviewed and varied left extant, albeit in its amended form? But, if Parliament intended to refer to that decision, why was the phrase "the decision as affirmed" used instead of the simpler and clearer phrase "the decision affirmed"?

14. It would be anomalous if section 853(3) prevented a determination made upon internal review to grant the claim from taking effect on a day before such review was sought (as it undoubtedly did in the present case) but on further review the SSAT had power to make a decision effectively granting the claim from an earlier date. That could be the result if the reference to "the decision under review" in section 1255(3) were taken to be a reference to the decision affirmed on internal review and at the same time the references to a decision in sub-section (4) were taken to include reference to a decision made on internal review.

15. Because of the harsh effect of the provisions of section 853, and because the 1991 Act is supposed to be social welfare legislation, such a construction of section 1255 might be regarded as possible. However, when the provisions of Chapter 6 of the Act are read in the context of the 1991 Act as a whole, with particular reference to provisions such as those of section 853, I have little doubt that the words of section 1255(3) and (4) were not chosen with the intention of giving either the SSAT or the Administrative Appeals Tribunal the opportunity to mitigate that harshness. In view of the ambiguity, section 15AB of the Acts Interpretation Act 1901 authorizes reference to travaux preparatoires to assist in the interpretation of the provision. The Explanatory Memorandum presented to the Parliament with the Bill for the Social Security Legislation Amendment Act (No. 3) 1992, which introduced section 1247(1A) into the 1991 Act contains the statement that:-

"New subsection 1247(1A) makes it clear that the decision which is

the subject of the application to the SSAT for review is the

decision as affirmed, varied or substituted by the Secretary or

the authorised review officer and not the original decision.

(Emphasis added)

16. I have come to the conclusion that the references to "the decision under review" in section 1255(3) is intended to be a reference to the decision made on internal review and that the inclusion of the word "as" in the phrases "the decision as affirmed" and "the decision as varied" in section 1247(1A) was intended to achieve that result. I find, therefore, that the Tribunal in these proceedings does not have power to grant the applicant's initial claim with effect from any date earlier than 19 December 1991, by which date she was already receiving family allowance. I am satisfied that the decision under review in these proceedings is that of the SSAT because of the use of the phrase "the decision as affirmed" in section 1283(2)(a) of the 1991 Act. In that regard I am in agreement with the conclusion reached by Senior Member Lewis in Re Hawat and Secretary to the Department of Social Security [1992] AATA 354; (1992) 28 ALD 805.

17. The 1991 Act was supposed to be the first piece of Commonwealth legislation drafted expressly with the intention that it should be expressed in "plain English". If any other legislation (particularly that relating to taxation, as some have proposed) is drafted in such "plain English", it will provide lawyers with a feast of litigation]

18. The SSAT did not make its decision on the basis that it had no power to grant the claim from a date earlier than 19 December 1991. It took the view that it had that power but that it also had a discretion in the matter. It decided that it should not exercise that discretion in the applicant's favour because there were no special circumstances in the applicant's case which justified it doing so. If, contrary to the conclusion which I have reached, the reference in section 1255(3) to "the decision under review" were a reference to the decision made in 1989 to reject the applicant's original claim, and if the reference to a decision in sub-section (4) included the decision on internal review, then, subject to sub-section (5), the claim should have been granted with effect from the date on which the decision rejecting it had effect, that is to say from the date on which the claim was made, unless sub-section (5) were applied. Sub-section (5) confers on the SSAT a discretion to order that sub-section (3) is not to apply to a decision made by it; but clearly sub-section (3) provides for what should normally be the date of effect of a decision made and the discretion conferred by sub-section (5) should be exercised only if there are special circumstances why that would not be appropriate.

19. There are, in my view, no such special circumstances in the present case. The applicant did not understand the meaning of "taxable income" when she read it in the claim form; she thought that it meant all income subject to taxation, i.e. the gross income before deductions were made. Nothing happened for two years to cause her to believe otherwise. As soon as her misunderstanding of the phrase was brought to her attention in December 1991, she applied afresh for grant of family allowance and for grant of family allowance supplement and she sought payment of arrears of family allowance back to the date of her initial claim. She and her husband have been operating a dairy farm. Their taxable income has been very small and it has been necessary for their bank overdraft limit to be increased from $15,000 to $40,000 during the period from the end of 1987 until the present; the family has had need of the family allowance at all times since the initial claim. If I had come to the conclusion that payment of family allowance from the date of the applicant's original claim depended upon the exercise of a discretion by the Tribunal in these proceedings, I should certainly not have exercised it so as to exclude the operation of section 1255(3).

20. However, for the reasons which I have stated above, I am satisfied that the Tribunal has no power to do anything but affirm the decision of the SSAT, although it does so for reasons entirely different from those stated by the SSAT.