Re Secretary, Department of Social Security v Sandra Clemson [1993] FCA 13; (1993) 17 Aar 68 (1993) 40 FCR 9 (29 January 1993)

FEDERAL COURT OF AUSTRALIA

Re: SECRETARY, DEPARTMENT OF SOCIAL SECURITY
And: SANDRA CLEMSON
No. ACT G52 of 1991
FED No. 6
Number of pages - 25
Administrative Law
[1993] FCA 13; (1993) 17 AAR 68
(1993) 40 FCR 9

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Appeal from Administrative Appeals Tribunal - Unemployment benefit - Claim for benefit made shortly following change by claimant of her place of residence for a reason other than a prescribed reason - Twelve week non-payment period applied to claim on the ground that by the change of residence claimant had reduced her employment prospects - Decision set aside by Social Security Appeals Tribunal - That decision affirmed by Administrative Appeals Tribunal - Whether statutory provisions correctly construed - Whether decision of Administrative Appeals Tribunal involved an error of law.

Administrative Appeals Tribunal Act 1975 (Cth), s.44(1)

Social Security Act 1947 (Cth), ss.116, 126

HEARING

CANBERRA
29:1:1993

Counsel for the applicant: Mr A. Robertson

Solicitor for the applicant : Australian Government Solicitor

Counsel for the respondent : Mr P. Hanks

Solicitors for the respondent: Welfare Rights and Legal Centre Limited

ORDER

THE COURT ORDERS THAT:
1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

NEAVES J. On 8 March 1991, Sandra Clemson, the respondent to the present proceeding, lodged a claim for an unemployment benefit under the Social Security Act 1947 (Cth). On 13 March 1991, a delegate of the Secretary to the Department of Social Security decided that a twelve week non-payment period applied to the respondent's claim on the ground that she was considered to have reduced her employment prospects by moving from Sydney to Young without sufficient reason for the move. That decision was affirmed by an Authorised Review Officer on 30 April 1991. The respondent then applied for the review of the decision by the Social Security Appeals Tribunal ("SSAT") which, on 10 May 1991, set aside the decision and substituted a decision that unemployment benefit be paid to the respondent from the first payday following the lodgment of her claim.

2. That decision was affirmed by the Administrative Appeals Tribunal ("the Tribunal") on 2 August 1991. From the latter decision the Secretary to the Department of Social Security ("the applicant") has applied to this Court by way of appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1976 (Cth).

3. The Tribunal made no independent examination of the facts: indeed, the facts were not canvassed before it. As appears from the Tribunal's reasons for decision, the matter proceeded as the hearing of a preliminary legal issue concerning the proper construction of certain provisions of the Social Security Act, namely parts of ss.116 and 126. For the purpose of considering that preliminary question, the facts set forth in the decision of the Social Security Appeals Tribunal were assumed to be correct. The Tribunal summarised those facts as follows:

"a. Ms Clemson worked as a secretary in Sydney until 27 February
1991 when her job ended due to a closure of her section of
the firm;
b. On 28 February 1991 she moved to Young in New South Wales
because, as she contended, she could no longer live with her
parents, and because her boyfriend and his parents live in
Young:
c. Threats from a violent individual in Sydney had influenced
that decision;
d. On 8 March 1991 Ms Clemson lodged a claim for unemployment
benefit at the Orange Regional Office of the Department of
Social Security. She had never been in receipt of
unemployment benefit payments before;
e. Ms Clemson has consistently sought work in Young since her
arrival;
f. The Department determined on the basis of advice from the
Commonwealth Employment Service ('CES') that Ms Clemson has
reduced her employment prospects by moving from Sydney to
Young. On 13 March 1991 the delegate of the Secretary of
the Department of Social Security decided to impose a 12
week non-payment period on her claim for unemployment
benefit which was confirmed by an Authorised Review Officer
('ARO') on 30 April 1991;
g. As reasons for the decision the ARO stated:
'I decided that the decision to impose a twelve week
non-payment period on your claim for unemployment benefit was a
correct decision. Under the provisions of the Act where a
person is considered to have reduced his or her work
prospects by moving to a new place of residence without
sufficient reason a twelve week non-payment period must be
imposed on a new claim for unemployment benefit. Sufficient
reason for moving to an area is limited to moving to live
with, or near, a family member or moving to an area for
medical reasons. In addition "family" is normally defined
as immediate family which is father, mother, brother,
sister, husband, wife or child.'
'The CES is of the opinion that you have lowered your work
prospects by moving from Sydney to Young. In addition, you
did not move to Young to be near a family member, or for
medical reasons. Therefore I am satisfied that you have
reduced your employment prospects by moving to Young ....'."

The Tribunal's reasons for decision continue:

"For the purpose of coming to a concluded decision in this matter,
the Tribunal, in the absence of any contest about the facts,
accepts as its critical findings, the facts set forth in
paragraphs (b) and (d) above, namely that the (respondent's) move
to Young preceded the making of her claim for unemployment benefit
by 8 days".

4. It is to be noted that neither the assumed facts nor the facts accepted by the Tribunal included any material upon which it could be determined whether the respondent did, in fact, reduce her employment prospects by moving from Sydney to Young so that, if that question were to become material, the matter would have to be remitted to the Tribunal for the determination of that issue.

5. Although the Social Security Act 1947 (Cth) was repealed by s.3 of the Social Security (Rewrite) Transition Act 1991 (Cth) which came into operation on 1 July 1991, that is after argument before the Tribunal had concluded and before its decision was announced, the matter proceeded before the Court on the basis that the issue was to be determined by reference to the provisions of the repealed Act, neither party contending that, because of the transitional provisions enacted by s.4 of, and clause 15 in Schedule 1 to, the Social Security (Rewrite) Transition Act, the issue was to be determined by reference to the provisions of the Social Security Act 1991 (Cth). In what follows I refer to the provisions of the Act of 1947 as in force immediately prior to 1 July 1991.

6. Part XIII of the Act (ss.115-138) made provision with respect to, inter alia, unemployment benefit. Part XVIII (ss.158-171) was headed "Claims, Payment Notification, Review, Cancellation and Related Matters".

7. By s.158(1), the grant or payment of a benefit under Part XIII was not to be made except upon the making of a claim for that benefit. Section 158(2) provided, inter alia, that, for the purposes of subs.(1), where a claim for an unemployment benefit was made by or on behalf of a person and at the time the claim was made the claim could not be granted because the person was not qualified or eligible to receive that benefit, the claim was to be deemed not to have been made. By s.159(1), a claim was to be in writing in accordance with a form approved by the Secretary to the Department of Social Security ("the Secretary"). Section 158(4) provided that the Secretary was to determine claims. Section 168(1) conferred on the Secretary a wide power, by determination, to cancel or suspend an unemployment benefit. The power might be exercised if -

(a) having regard to any matter that affected the payment of the
benefit;
(b) by reason of the refusal or failure of any person to comply
with a provision of the Social Security Act; or
(c) for any other reason,

the Secretary determined that a benefit should be cancelled or suspended. Subject to s.168(2), the cancellation or suspension was to take effect from the date of the determination or such later date as was specified in the determination. If the case fell within s.168(2), the determination might specify a date earlier than the date of the determination as the date of effect of the cancellation or suspension.

8. Division 2 of Part XIII (ss.116-117A) was headed "Qualifications for Benefit". Section 116(1) relevantly provided:

"(1) Subject to this Part, a person .... is qualified to
receive an unemployment benefit in respect of a period (in this
section referred to as the 'relevant period') if, and only if -
(a) the person attains or had attained the age of 16 years
on or before the commencement of the relevant period
and, being a man, had not attained the age of 65
years, or, being a woman, had not attained the age of
60 years, before the end of the relevant period;
(b) the person was an Australian resident and in Australia
throughout the relevant period and on the day on which
the person lodged the claim for the benefits;
(c) the person satisfies the Secretary that -
(i) throughout the relevant period he was unemployed
and was capable of undertaking, and was willing
to undertake, paid work that, in the opinion of
the Secretary, was suitable to be undertaken by
the person; and
(ii) he had taken, during the relevant period,
reasonable steps to obtain such work; and
(d) the person was, throughout the relevant period,
registered as being unemployed by the Commonwealth
Employment Service."

9. In the circumstances prescribed by s.116(2), the Secretary might dispense with the requirement set out in par.116(1)(d). In the circumstances prescribed by ss.116A and 116B, the requirements set out in par.116(1)(c), or some of them, need not have been satisfied.

10. Section 116(3) provided:

"(3) Where, by reason of section 125, an unemployment
benefit is payable only after the expiration of a particular
period (in this sub-section referred to as the 'waiting period'),
then, for the purposes of the application of sub-section (1) of
this section in relation to a relevant period that immediately
followed the waiting period, that sub-section has effect as if -
(a) the reference to the commencement of the relevant
period in paragraph (1)(a) were a reference to the
commencement of the waiting period; and
(b) the references to the relevant period in paragraphs
(1)(b) and (c) were references to the period
constituted by the aggregate of the waiting period and
the relevant period."

11. Subsections (6A) and (6B) of s.116 provided:

"(6A) A person is not qualified to receive an unemployment
benefit on a day on which the person reduces his or her employment
prospects by moving to a new place of residence without sufficient
reason for the move.
(6B) For the purposes of subsection (6A), a person has a
sufficient reason for moving to a new place of residence if, and
only if:
(a) the person moves to live with a family member who has
already established his or her residence in that place
of residence; or
(b) the person moves to live near a family member who has
already established residence in the same area; or
(c) the person satisfies the Secretary that the move is
necessary for the purpose of treating or alleviating a
physical disease or illness suffered by the person or
by a family member."

12. Division 5 of Part XIII (ss.125-128) was headed "Payment of Benefits". So far as relevant for present purposes, s.125(1) provided that an unemployment benefit payable to a person was payable from and including the seventh day after the day on which he or she became unemployed or after the day on which he or she made a claim for unemployment benefit, whichever was the later. Subsection (2) of that section provided:

"(2) Where -
(a) a person becomes registered as unemployed by the
Commonwealth Employment Service; and
(b) the person makes a claim for unemployment
benefit within the period of 14 days after the
day on which the person became so registered or
within such further period as the Secretary
considers reasonable,
the day on which the person became so registered shall, for the
purposes of the application of sub-section (1) in relation to the
person, be taken to be the day on which the person made the claim
for unemployment benefit."

13. Section 126 relevantly provided:

"126. (1) Subject to sub-section (2), where -
(a) a person's unemployment is due, either directly
or indirectly, to a voluntary act of the person
which was without sufficient reason;
(aa) a person has reduced his or her employment
prospects by moving to a new place of residence
without sufficient reason for the move;
(b) a person's unemployment is due to the person's
misconduct as a worker;
(c) a person has refused or failed, without
sufficient reason, to accept a suitable offer of
employment;
(ca) a person refuses or fails, without sufficient
reason, to comply with a requirement made of the
person under section 163, 164 or 170;
(d) a person is not taking reasonable steps to
obtain employment;
(e) an unemployed person (not being a person to whom
a determination under sub-section 116(2)
applies) ceases to be registered as being
unemployed by the Commonwealth Employment Service; or
(f) the income of a seasonal or an intermittent
worker is sufficient for the maintenance of the
worker and the persons who are ordinarily
maintained by the worker, notwithstanding that
the worker is temporarily unemployed,
an unemployment benefit is not payable to the person in respect of
such period as is determined by the Secretary in writing (which
may be a period commencing before the day on which the
determination is made).
(2) In a case to which paragraph (1)(a), (b), (c), (ca) or
(d) applies, the period in respect of which an unemployment
benefit is not payable shall, subject to subsection (3), be not
less than 2 weeks.
(3) Where:
(a) paragraph (1)(a), (b), (c), (ca) or (d) applies
to a person at a particular time; and
(b) paragraph (1)(a), (b), (c), (ca) or (d) applied
to the person (on or after 1 July 1987) within
the period of 3 years before that time;
the period in respect of which an unemployment benefit is not
payable is 6 weeks plus 6 weeks for each additional occasion on
which paragraph (1)(a), (b), (c), (ca) or (d) applied to the
person during that period of 3 years.
(4) In a case to which paragraph (1)(aa) applies, the
period in respect of which an unemployment benefit is not payable
is 12 weeks.
(5) For the purposes of paragraph (1)(aa), a person has a
sufficient reason for a move in the circumstances in which he or
she would have a sufficient reason for that move under subsection
116(6B)."

14. Sections 116(6A), 116(6B), 126(1)(aa), 126(4) and 126(5) were inserted in the Act by the Social Security and Veterans' Affairs Legislation Amendment Act (No.3) 1989 (Cth) with effect from 1 November 1989. Section 116(6B) was repealed and substituted by the Social Security and Veterans' Affairs Legislation Amendment Act 1990 (Cth) with effect from 16 June 1990, the effect of the amendment being to insert what appears above as par.(c) of that subsection.

15. The Tribunal expressed its conclusion in the following terms:

"On the basis that Ms Clemson's move to Young preceded her lodging
a claim for unemployment benefit, the Tribunal, in accordance with
its understanding of the operation of the relevant provisions of
the Act set forth above, affirms the decision of the SSAT to set
aside the decision of the delegate of the respondent made on 18
(sic) March 1991 to impose a 12 week non-payment period in
relation to the applicant's claim for that benefit."

The reference to the respondent is a reference to the present applicant and the reference to the applicant a reference to the present respondent. The Tribunal had previously said that the decision of the SSAT was based on the view that ss.116(6A) and 126(1)(aa) and (4) had no relevant application to a person who, like the respondent, had moved to an area of lesser prospects of employment on a date prior to the date on which the relevant claim for unemployment benefit was made. It may be noted, however, that, although the SSAT expressed itself in those terms, a consideration of the reasons given for its decision discloses that it took a somewhat broader view, namely that ss.116(6A) and 126(1)(aa) and (4) applied only to a person who was receiving an unemployment benefit at the time of reducing his or her prospects of employment by moving to a new place of residence without sufficient reason for doing so. Both the SSAT and the Tribunal found support for their respective conclusions in the Explanatory Memorandum prepared in relation to the Bill that became the Social Security and Veterans' Affairs Legislation Amendment Act (No.3) 1989 (Cth) and in the second reading speech of the Minister for Social Security in relation to that Bill. Under the heading "Labour Market Initiatives", the Explanatory Memorandum read:

"Clause 36 : Unemployment benefits
Section 116 of the Principal Act provides the qualification
criteria for payment of unemployment benefit. This clause would
provide for new subsection 116(6A) by which a person would not be
qualified to receive unemployment benefit on a day on which he or
she reduces his or her employment prospects by moving to a new
place of residence without sufficient reason for the move. The
Secretary would cancel the person's benefit pursuant to subsection
168(1) of the Principal Act. The cancellation would take effect
from the day of the person's move.
New subsection 116(6B) would prescribe what amounts to a
sufficient reason for such a move. This would involve the
beneficiary moving to live with or near a family member who is
already an established resident of the area. These provisions are
intended to be a strengthening of the work test to be met by
unemployment beneficiaries.
Clause 36 would commence on 1 November 1989 and would apply in
relation to moves occurring on or after that date.
....
Clause 39 : Unemployment benefit not payable in certain cases
Section 126 of the Principal Act provides for suspension or
deferment of unemployment benefit where certain situations arise.
These all relate to the person's capacity to satisfy the work test
for unemployment benefit. To that list clause 39(a) would add, in
new paragraph 126(1)(aa), the situation where a person has reduced
his or her employment prospects by moving to a new place of
residence without sufficient reason for the move. Clause 39(b)
would provide for a new subsection 126(5) which explains what
would constitute a sufficient reason for the move. This calls in
to aid the reasons set out in new subsection 116(6B), discussed
above in relation to clause 36.
Clause 39(b) would also provide for new subsection 126(4) which
would prescribe a period of suspension or deferment of 12 weeks
where new paragraph 126(1)(aa) applies. This period would end
earlier if the person improves his or her work prospects by a
further move.
Clause 39 would commence on 1 November 1989 and would apply in
relation to moves occurring on or after that date."

In his second reading speech, the Minister said:

"The requirements for payment of unemployment benefit and job
search allowance include the need for the client to be actively
seeking suitable work. It is often difficult to assess this when
that person moved to an area where there are low employment
prospects. At present, once a person has moved to such an area,
it is usually sufficient for benefit purposes if he or she can
demonstrate satisfactory attempts to find work in that area. The
Bill turns this situation around in cases where there are no good
reasons for making such a move. In future, a recipient of
unemployment benefit or job search allowance who moves address and
reduced his or her employment prospects as a result will have his
or her benefit cancelled and, on reapplication, will have to serve
a waiting period of 12 weeks. This rule will not apply when the
move is to live with or near a family member of the beneficiary."

16. Counsel for the applicant submitted that there were two conflicting contentions as to the true meaning and effect of ss.116(6A) and 126(1)(aa) and (4). One contention - that said to have been accepted by the Tribunal - was that the provisions operated to limit the payment of an unemployment benefit only when the change of residence to an area of reduced employment prospects occurred later than the date of the claim for such benefit. According to the submission, the Tribunal had essentially been led into error because it treated s.116(6A) as operating, not as a substantive provision, but as an exception or proviso to s.116(1), so that its function was to deny qualification only to a person falling within its terms who would otherwise have been qualified to receive an unemployment benefit. As the making of a claim was an essential requirement of qualification, the Tribunal concluded, so the submission ran, that s.116(6A) would only have an operation where the claim had been made prior to the change in the place of residence and that the operation of s.126(1)(aa) was similarly limited.

17. The alternative contention - that which counsel for the application asked the Court to accept - was that, treating s.116(6A) as the trigger to s.126(1)(aa) and (4), a person who was seeking payment of an unemployment benefit and of whom it could be said that he or she had reduced his or her employment prospects by moving to a new place of residence without sufficient reason was not entitled to payment of an unemployment benefit for a period of 12 weeks irrespective of the date of the claim. It was submitted that that date was not expressed to be relevant to the operation of the provisions and that it would not accord with the intention of the Parliament to construe the provisions in such a way that a different result ensued according to the relationship between the date of the change of residence and the date of the claim. Although at one point in his submissions counsel for the applicant said that it was a matter for the Secretary, exercising the discretion conferred upon him by s.126(1), to determine the day from which the period of 12 weeks referred to in s.126(4) was to run, he later adopted the stance that, upon the proper construction of the provisions, the period of 12 weeks was to run from the day upon which the move to the new place of residence occurred.

18. Applying the provisions, so construed, to the assumed facts, it followed, so it was said, that the respondent, not having had a sufficient reason, within s.116(6B), for moving her residence from Sydney to Young, was, in terms of s.116(6A), not qualified to receive an unemployment benefit on 28 February 1991, the day on which the move took place, and that, by virtue of s.126(1)(aa) and (4), an unemployment benefit was not payable to her for the period of 12 weeks commencing on that day. It should be mentioned, in passing, that if, contrary to the final submission of counsel for the applicant, the statute were to be construed as conferring a power to do so, there is nothing in the material before the Court to show that a decision was made by the Secretary or his delegate, in writing, as to the date of commencement, in the respondent's case, of the period of 12 weeks specified in s.126(4). Nor is it clear, on the material before the Court, in respect of what period of 12 weeks the respondent was treated as being a person to whom unemployment benefit was not payable and, in particular, whether it was the period of 12 weeks commencing on 28 February 1991 (the day of the move), 8 March 1991 (the day on which the respondent made a claim for unemployment benefit), the day on which the respondent became registered as unemployed by the Commonwealth Employment Service (see s.125(2)) or some other, and, if so, what, date.

19. Counsel for the applicant, although abandoning the ground set out in the application to the effect that the Tribunal erred in law in holding that it was permissible to have regard to the Explanatory Memorandum and the Minister's second reading speech to which reference has already been made, submitted that no assistance was to be derived from a consideration of that material.

20. Counsel for the respondent submitted that ss.116(6A) and 126(1)(aa) and (4) were not concerned with the initial qualification for, or initial payment of, an unemployment benefit but were to be read as relating solely to the continuing qualification for, and the continuing payment of, such a benefit. Section 116(6A), it was said, would rarely support the refusal of a claim for an unemployment benefit: its operation was to provide, in the event of a change of residence having the consequences there described, the foundation for the cancellation, in exercise of the power conferred by s.168(1), of the right to receive further payments under an existing entitlement. Thus, the primary impact of s.116(6A) was said to be on a person who was already the recipient of an unemployment benefit at the time the change of residence occurred. Counsel sought support for this submission in the extrinsic material to which reference has already been made. Counsel qualified his submission to this extent that he conceded that s.116(6A) could have an operation where the change of residence occurred on the same day as, or on a day later than, the day on which the claim for unemployment benefit was made.

21. Counsel for the respondent further submitted that, notwithstanding the generality of the language used, s.126(1)(aa) was to be confined to those cases where a decision to cancel an existing unemployment benefit had been made consequent upon a change of residence. It was only by so confining the provision, so it was said, that s.126(1)(aa) could be given a sensible and reasonable operation. Counsel emphasised that, if the provision were to be read as applying to a new claimant for an unemployment benefit, difficulty would be experienced in determining from what date the period of 12 weeks referred to in s.126(4) was to commence.

22. Counsel for the respondent also advanced an argument that the relevant statutory provisions were to be construed, if such a construction were open on the language, in such a way as to be consistent with the international obligations assumed by Australia by reason of its having acceded to Article 12(1) of the International Covenant on Civil and Political Rights (see Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth)), that Article providing:

"Everyone lawfully with the territory of a State shall, within
that territory, have the right to liberty of movement and freedom
to choose his residence."

The imposition of a non-payment period in respect of unemployment benefit of 12 weeks duration was submitted to be a restriction of the freedom to choose one's place of residence that was guaranteed by that Article. I should say, at once, that I do not regard this submission as having substance.

23. The provisions of the Social Security Act to which reference has been made purported to deal separately with, on the one hand, the criteria to be satisfied before a person became "qualified" to receive an unemployment benefit and, on the other, the circumstances in which a person so qualified was entitled to receive a payment. Section 116 was expressed to be dealing with the former topic while ss.125 and 126 were expressed in terms appropriate to the latter.

24. In order to answer the question whether, in terms of s.116(1), a person was qualified to receive an unemployment benefit, it was necessary to have in contemplation an identifiable period, referred to in the provision as "the relevant period". This was because the criteria set out in s.116(1) were specified by reference to the commencement, the end or the duration of that period. It is also apparent, from a reading of the provision, that one could not determine that a person was qualified to receive unemployment benefit in respect of that period until after the period had expired and, except where s.116A or s.116B applied, unless and until the Secretary or his delegate had reached the requisite state of satisfaction in respect of the matters referred to in s.116(1)(c).

25. In contrast, s.116(6A) was not expressed as relating to the qualifications necessary to entitle a person to receive an unemployment benefit "in respect of a period": it was concerned with the qualification to receive such a benefit "on" a particular day, being the day on which the person reduced his or her employment prospects by moving to a new place of residence without sufficient reason for the move. Both parties accepted that that was the effect of s.116(6A), notwithstanding that the provision refers to "a day" and not "the day". It followed that, after the insertion of that provision by the Social Security and Veterans' Affairs Legislation Amendment Act (No.3) 1989 (Cth), even if an applicant could satisfy the qualifications prescribed by s.116(1) in respect of the relevant period, he or she would, if the move was made without sufficient reason as defined, cease to be qualified on the day he or she reduced his or her employment prospects by moving to the new place of residence. To determine what was the consequence of a finding that the person was disqualified by reason of s.116(6A) on a day which fell within the relevant period referred to in s.116(1), a period in respect of which the person was otherwise qualified to receive such benefit, would seem to be a matter of some difficulty. On the other hand, a finding that the person was disqualified by reason of s.116(6A) on a day which fell outside the relevant period would appear to have been a finding that was irrelevant to the question whether the person was entitled to receive an unemployment benefit "in respect of" that relevant period.

26. As has already been said, s.125 dealt with the second of the two topics referred to above, namely the time from which an unemployment benefit which was payable to a person, that is to say an unemployment benefit which the person was qualified to receive, was payable. Except in the cases mentioned in the succeeding paragraphs of s.125(1), such a benefit was payable, by virtue of par.(a) of that subsection, from and including the seventh day after the day on which the person became unemployed or after the day on which a claim for unemployment benefit was made (or was deemed to have been made under s.125(2)), whichever was the later. It would seem to follow from the provisions of ss.116 and 125 that a person might have been qualified to receive an unemployment benefit in respect of a period but precluded from receiving payment of that benefit in respect of the whole, or some part, of that period.

27. The text of s.126 gives rise to its own set of difficulties and the context provides little, if any, assistance in their satisfactory resolution. The first point to notice is that, while the operative part of subs.(1) provided that, in the circumstances set out in the lettered paragraphs, an unemployment benefit was not payable in respect of such period as was determined by the Secretary in writing and that the period might commence before the day on which the determination was made, the scope of the discretion was affected by later subsections. Thus, in a case falling within subs.(2) but not within subs.(3), a minimum period of 2 weeks was specified. In a case falling within subs.(3) or subs.(4), the Secretary had no discretion as to the length of the period for which payment was not to be made, the length of the period being specifically prescribed. Somewhat curiously, while subs.(1) was expressed to be subject to subs.(2), it was not expressed to be subject to subs.(4), though it would seem that it had to be so read. What was absent from each of the subsections was any reference to the commencing date of any of the periods to which those provisions referred. I shall return to this aspect of the matter.

28. The relationship between the provisions contained in s.116 and those contained in s.126 is by no means clear. For example, par.(d) in s.126(1) was expressed in somewhat similar terms to s.116(1)(c)(ii) except that the latter provision was expressed to operate only upon the satisfaction of the Secretary while the former was expressed objectively. Similarly, there was a correlation between s.116(1)(d) and s.126(1)(e) though, in the light of s.116(1)(d), it is not immediately obvious why it had been thought necessary to include par.(e) in s.126(1).

29. As the Tribunal observed, the statutory provisions here under consideration clearly had an operation where a person who was in receipt of unemployment benefit reduced his or her employment prospects by moving to a new place of residence without sufficient reason for the move. In such a case the person, by reason of having become disqualified from receiving an unemployment benefit (s.116(6A)) might have the unemployment benefit cancelled pursuant to s.168(1) and, if that action were taken, would not have been entitled to any further payment of unemployment benefit for a period of 12 weeks commencing, it might be said, on the day of the move. It is, I think, significant that it was only to such a case that the Explanatory Memorandum and the Minister's second reading speech referred. If the provisions were intended to operate in other circumstances, one might have expected more general words to have been used in that material.

30. In my opinion, having regard to its place in the scheme of the legislation, s.126 was intended to have an operation only where, by virtue of the operation of the other provisions of the statute, including ss.116 and 125, an unemployment benefit was payable to a person in respect of an identifiable period. The evident purpose of s.126 was to deny such payment in respect of a period ascertained in accordance with that section provided one or other of the lettered paragraphs in s.126(1) was satisfied. I am further of opinion that s.126(1) was to be read as requiring that the circumstances referred to in each of the lettered paragraphs have a close relationship to the period in respect of which the unemployment benefit would have been payable by virtue of the provisions of the statute other than s.126. Thus, par.(a) of s.126(1) required that an affirmative answer be given to the question whether the unemployment during the period in respect of which the unemployment benefit would otherwise have been payable was properly to be regarded as due, either directly or indirectly, to a voluntary act of the claimant which was without sufficient reason. Similarly, under par.(b), the relevant question was whether the unemployment in respect of which benefit would otherwise have been payable was properly to be regarded as being due to the claimant's misconduct as a worker. The refusal or failure referred to in par.(c) or par.(ca), so it seems to me, had to have occurred during the period in respect of which the benefit would, apart from the provisions of s.126, have been payable. I would also read pars (d) and (e) as having required that the facts upon which their operation depended occurred within the period in respect of which unemployment benefit was otherwise payable. Unless those paragraphs of s.126(1) were so read, it is difficult to see how they could have been relevantly related to the question whether a payment for which the other provisions of the statute provided was to be denied. The circumstance that par.(f) of s.126(1) appears not to have fitted clearly into that pattern does not, in my view, provide a sufficient reason for seeking to read the other paragraphs of the subsection in a manner different from that which I have adopted.

31. In respect of each of the paragraphs of s.126(1), the question from what date the period determined, in a case falling within s.126(2) but not within s.126(3), by the Secretary or prescribed by the statute, in a case falling within s.126(3) or s.126(4), would remain. Various possibilities may be suggested. The period might be said to have commenced on the date of the act or event to which the relevant paragraph referred. For example, under par.(a) or par.(b), the period might be said to have commenced on the day on which the person's previous employment was terminated, in the one case by reason of the person's voluntary act and, in the other by reason of the person's misconduct. The commencing date might have been similarly determined in a case falling within par.(c), par.(ca) or par.(e), though it would not have been so easy to have done so in a case falling within par.(d) or par.(f). Such a construction would, however, have resulted in s.126 purporting to deny payment in respect of a period when unemployment benefit would not otherwise have been payable. That construction would run counter to the view I have expressed above as to the intention or purpose of s.126.

32. Another possibility might have been to treat the period as commencing on the date when the benefit would have been paid if s.126(1) had not been applicable.

33. A further alternative might have been to treat the provision as conferring a power on the Secretary to fix the commencing date of the period. This view is supported, to some extent, by the recognition in subs.(1) that the period might commence before the day on which the Secretary's determination of the period was made. As has already been mentioned, neither party supported this possible view of the provisions.

34. The question as to the date of commencement of the various periods referred to in s.126 is not easy of resolution and it is fortunate that it need not be resolved for the purpose of determining the present application.

35. How, then, did s.126(1)(aa) operate? In my opinion, that paragraph is also to be read as having required that the change in the claimant's place of residence occurred during the period in respect of which unemployment benefit would otherwise have been payable. Thus, the paragraph would operate in a case where a person already in receipt of an unemployment benefit moved to a new place of residence with the consequent lessening of his or her employment prospects. The paragraph would also operate in the case of an initial application for unemployment benefit provided the change in residence occurs during the period in respect of which benefit would, apart from the provisions contained in s.126, have been payable. So read, the provision would not have operated to deny payment to the respondent of the unemployment benefit to which she was otherwise entitled.

36. It will be apparent from what is said above that I have not accepted the submissions of counsel for the applicant as to the proper construction and operation of s.126. Those submissions would have been more persuasive if s.126 had been a provision laying down criteria to be satisfied before a person became "qualified" to receive an unemployment benefit. The section was not so expressed and, as mentioned earlier in these reasons, it operated only in relation to the circumstances in which a person so qualified was entitled to receive a payment of such benefit.

37. Although I have taken a somewhat different view of the relevant statutory provisions from that taken by the Tribunal, I am of opinion that the Tribunal was correct in concluding that ss.116(6A) and 126(1)(aa) and (4), on their proper construction, did not operate to disentitle the respondent to the payment of unemployment benefit to which she was otherwise entitled consequent upon her claim for such benefit dated 8 March 1991. The application is, therefore, dismissed. The applicant must pay the respondent's costs of the application.