Quinn; Department of Family and Community Services [2002] AATA 81 (12 February 2002)

Last Updated: 13 February 2002

CATCHWORDS - SOCIAL SECURITY - Newstart Allowance - whether an activity test breach rate reduction period should apply - whether applicant had refused or failed to provide information about his income when required to do so under a provision of the Social Security Act 1991 - decision set aside.

STATUTORY INTERPRETATION - Social Security Act 1991 - whether a reference to "a provision of this Act" in s. 630AA(1) should be interpreted as a reference to the Social Security Act 1991 alone or include a reference to the Social Security (Administration) Act 1999 - decision set aside.

Social Security Act 1991 (Cth) ss. 23, 593, 601, 601A to 603F, 624, 630AA, 630BD, 631, 644AA, 644AB, 644AE, 644H, 655A, 656, 657, 658, 1224 and 1304

Social Security (Administration) Act 1999 (Cth) ss. 3, 4, 67, 68, 72, 75, 244 and 245

Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 (Cth) ss. 202

Re Gee and Director-General of Social Services (No. 2) (1981) 4 ALD 376

Re Secretary, Department of Social Security and Carruthers (1993) 18 AAR 373

Bartlett v R (1990) 100 ALR 177

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Re Vitalone and Secretary, Department of Social Security (1995) 38 ALD 169

Waugh v Kippen (1986) 64 ALR 195

Beckworth v R (1976) 12 ALR 333

DC Pearce and RS Geddes in Statutory Interpretation in Australia (Butterworths, 4^th edition, 1996)

DECISION AND REASONS FOR DECISION [2002] AATA 81

ADMINISTRATIVE APPEALS TRIBUNAL )

) W2001/342

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Applicant

And MARK QUINN

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Date: 12 February, 2002

Place: Perth

Decision: The Tribunal:

1. sets aside the decision of the Social Security Appeals Tribunal dated 16 August, 2001; and

2. substitutes a decision that the decision of a delegate of the applicant dated 15 May, 2001 be affirmed.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 19 September, 2001 the applicant, the Secretary of the Department of Family and Community Services ("the Secretary"), applied for review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 16 August, 2001. The SSAT set aside a decision of a delegate of the Secretary dated 15 May, 2001 to impose a Newstart allowance activity test breach rate reduction of 18% on the respondent, Mr Mark Quinn, for the period 15 May, 2001 to 12 November, 2001. In its place, it substituted a decision that a newstart activity test breach rate reduction period should not be applied. With the consent of the parties, the SSAT's decision was reviewed on the papers. Written submissions were made on behalf of both parties.

THE ISSUE

2. The issue in this case is whether a reference to "a provision of this Act" in s. 630AA(1) of the Social Security Act 1991 (Cth) ("the Act") should be interpreted as a reference to the Act itself or whether it may be interpreted to include a reference to the Social Security (Administration) Act 1999 (Cth) ("the Administration Act") as a result of amendments to the Act by the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 (Cth) ("the Consequential Amendments Act") and the commencement of the Administration Act on 20 March, 2000.

BACKGROUND

3. There was no dispute between the parties as to the facts in this case. In light of that and on the basis of the material in the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), I have found the findings of fact that I will now set out.

4. Mr Quinn was in receipt of Newstart allowance. Each fortnight, he completed an application for payment of Newstart allowance. In each form, he was asked whether he worked in the fortnightly period just completed. If so, he was asked to supply details of his employment including the amount that he earned even if he had yet to be paid that amount. He signed a statement at the end of the form stating in part that the information he had given was correct. A further statement advised him that "There are penalties for providing false or misleading information". Mr Quinn failed to disclose all of his earnings in the period from 24 October, 2000 to 3 May, 2001. While he earned $4,603.90 in that period, he disclosed only $1,401.30 on the applications he submitted.

5. On 22 May, 2001, an officer of Centrelink wrote to Mr Quinn advising him that he had incorrectly stated his earnings, that his Newstart allowance had been stopped and that he would be penalised. If he were to re-apply for Newstart allowance, any payments made to him in the 26 week period commencing on 15 May, 2001 would be reduced by 18%. Failing to declare his income was a Newstart Activity Test Breach and he was advised by Centrelink that he would commit another breach and incur another penalty were he to take, or fail to take, the steps it specified in its letter.

6. In deciding to impose a penalty, the delegate of the Secretary took the view that Mr Quinn had refused or failed, without reasonable excuse, to provide information in relation to his income from remunerative work when he had been required to do so within the meaning of s. 630AA(1) of the Act. The delegate then applied the provisions of ss. 630AA(2), 644AA, 644AB(1) and 644AE of the Act in imposing a 26 week activity test breach rate reduction period and an 18% activity test breach rate reduction.

LEGISLATIVE FRAMEWORK

7. As it is necessary to understand the submissions made by the parties, I will set out the relevant provisions of the Act both before and after its amendment by the Consequential Amendments Act and the commencement of the Administration Act on 20 March, 2000.

Provisions of the Act before 20 March, 2000

8. A New Start Allowance is provided for in Part 2.12 of the Act. Subdivision A of Division 1 of that Part sets out the criteria that a person must meet in order to be qualified for a Newstart allowance and the circumstances in which that allowance is and is not payable to a person who is qualified. Basic qualifications are set out in s. 593 and, of those, that set out in s. 593(1)(b) is relevant in this case. It provides that a person must either satisfy the activity test or that he or she be not required to satisfy the activity test. The activity test is the subject of Subdivisions B and BA of Division 1. In particular, s. 601 sets out the circumstances in which a person satisfies, or does not satisfy, the activity test. Sections 601A to 603F make provision for circumstances in which a person is deemed to fail to satisfy the activity test and others in which a person is deemed to satisfy it as well as for circumstances in which a person is not required to satisfy the activity test. None of these provisions relates to the circumstances in which a person has failed to provide information or has provided false information.

9. Subdivision F is headed "Activity test breaches". Unless a person is undertaking formal vocational training, an activity under the Community Support Program or rehabilitation programme of the type set out in s. 624(2)(a) or has been exempted from the application of s. 624(1) by the Secretary (s. 624(2)(b)), a newstart allowance is not payable to a person who fails to satisfy the activity test. If the newstart allowance becomes payable at some time after it has ceased, then the effect of s. 624(1A) is that the Secretary must consider whether the person's failure to do so is his or her first, second or third or subsequent activity test breach in the two year period immediately before the day on which the failure occurred. If it is the first or second activity test breach, then an "activity test breach rate reduction period" applies to the person.

10. An "activity test breach" is defined in s. 23(1) of the Act as a "... failure, misconduct or any other act to which any of ...[certain specified] provisions, as in force on or after the commencement of this definition, apply ..." (s. 23(1)). Among the specified provisions is s. 624(1). It follows that failure to satisfy the activity test is an activity test breach for the purposes of the Act.

11. Also among the specified provisions in the definition of an "activity test breach" is s. 630AA(1), which provides that:

"(1) If a person:

(a) refuses or fails, without reasonable excuse, to provide information in relation to a person's income from remunerative work (the failure); or

(b) knowingly or recklessly provides false or misleading information in relation to the person's income from remunerative work (the provision of information);

when required to do so under a provision of this Act, a newstart allowance is not payable to the person."

12. Applying the section to circumstances such as Mr Quinn's, there would first need to be an identification of the "provision of this Act" requiring that he give information before his failure to provide any requested information leads to his not being paid newstart allowance. Carrying out that task leads to the identification of s. 658 although I note that if Mr Quinn's circumstances were slightly different, it would have been relevant to consider also ss. 655A, 656 and 657 of the Act as all permit the Secretary to request or required a newstart recipient to provide information to the Secretary or the Department. Section 658(1) provides that the Secretary may give a person to whom a newstart allowance is being paid a notice that requires him or her to give the Department (or now Centrelink) a statement about a matter that may affect the payment of the allowance to him or her. Sections 658(2), (3) and (4) provide for the manner in which the notice must be given. A person must not, without reasonable excuse, refuse of fail to comply with such a notice to the extent that he or she is capable of complying with it (s. 658(5)).

13. Like s. 624(1), s. 630AA(1) does not specify the time for which the newstart allowance is not payable if such a breach occurs. It is apparent from the provisions of s. 630AA(1) that the time need only be fleeting but that there need be a fresh decision that a newstart allowance is payable to a person who is qualified to receive it. If a decision is made that a newstart allowance is payable to a person, then the effect of s. 630AA(2) is that the Secretary must consider whether the person's failure to provide information or to provide false or misleading information is the person's first, second or third or subsequent activity test breach in the two year period immediately before the day on which the failure or provision occurred. If it is the first or second activity test breach, then an "activity test breach rate reduction period" applies to the person.

14. An "activity test breach rate reduction period" is a period that is specified in certain provisions, including s. 644AA, of the Act (s. 23(1)). Section 644AA provides that, if an activity test rate reduction period applies to a person under Part 2.12, the period applicable is 26 weeks. The period commences on the day on which notice is given to the person that it is applicable (s. 644AB(2)).

15. The amount of newstart allowance that a person is paid during an activity test rate reduction period is calculated according to s. 644AE. In general terms, the person's maximum payment rate is first calculated followed by the rate reduction amount. The latter is taken from the former leaving the activity test breached reduced rate (s. 644AE(1)). Section 644AE(2) provides that:

"A person's rate reduction amount is worked out as follows:

(a) if the activity test breach is the person's first breach in the 2 year period:

Maximum payment rate × 0.18

(b) if the activity test breach is the person's second breach in the 2 year period:

Maximum payment rate × 0.36"

The "2 year period" to which reference is made is the "2 years immediately before the day after the activity test breach (s. 644AE(3)).

16. Section 631 provides for an administrative breach rate reduction in the following manner:

"If a person refuses or fails, without reasonable excuse, to comply with a requirement made of the person under section 656, 657, 658 or 1304:

(a) a newstart allowance is not payable to the person; and

(b) if, at a later time, a newstart allowance becomes payable to the person - an administrative breach rate reduction period applies to the person."

The rate of newstart allowance payable where an administrative breach rate reduction applies is calculated according to s. 644H. In essence, the person's maximum payment rate is first calculated and from that figure is deducted the rate reduction amount leaving the administrative breach reduced rate (s. 644H(1)). The person's rate reduction amount is worked out by multiplying his or her maximum payment rate by 0.16 (s. 644H(2)).

17. Circumstances may be envisaged giving rise to both an administrative breach rate reduction period and an activity test penalty period. An "activity test penalty period" means an activity test non-payment period or an activity test breach rate reduction period (s. 23). The interaction between an administrative breach rate reduction period and an activity test penalty period is the subject of s. 630BD which provides that only an activity test penalty period is to apply in that case.

18. Section 1224 is concerned with debts that arise from the failure or omission by a recipient of a social security payment (including a newstart allowance) to comply with a provision of the Act or of the Social Security Act 1947 or from his or her making a false statement or false representation. If an amount was paid to that person or to another person by reason of that false statement or representation or failure or omission, the amount so paid is a debt due by the recipient to the Commonwealth.

Provisions of the Act and of the Administration Act on and after 20 March, 2000

19. The Administration Act provides for the administration of what it describes as the "social security law". The "social security law" comprises the Administration Act, the Act and any other Act that is expressed to form part of the social security law (Administration Act, s. 3(3)). The expression "a provision of the social security law" has an equivalent meaning (Administration Act, s. 3(4)). Section 4 expressly states that the Administration Act is part of the social security law.

20. On the same day that the Administration Act came into operation (i.e. 20 March, 2000) so too did the Consequential Amendments Act. It amended s. 23 of the Act to add ss. 23(15) and (16) so that they mirror ss. 3(3) and 3(4) of the Administration Act:

"(15) A reference in this Act to the social security law is a reference to this Act, the Administration Act and any other Act that is expressed to form part of the social security law.

(16) A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the Administration Act or any other Act that is expressed to form part of the social security law."

21. The Consequential Amendments Act also repealed a number of provisions of the Act including Division 7 of Part 2.12 and so repealed s. 658 with effect from 20 March, 2000. On that same day, s. 68 came into operation as part of the Administration Act and it provides:

"(1) Subsection (2) applies to a person to whom a social security payment is being paid.

(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:

(a) inform the Department if:

(i) a specified event or change of circumstances occurs; or

(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;

(b) give the Department a statement about a matter that might affect the payment to the person of the social security payment.

(3) Subsection (4) applies to a person who is the holder of a concession card.

(4) The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:

(a) inform the Department if:

(i) a specified event or change of circumstances occurs; or

(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;

(b) give the Department a statement about a matter that might affect the person's qualification for the concession card.

(5) An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or change of circumstances might affect the payment of the social security payment or the person's qualification for the concession card, as the case requires."

Section 72 of the Administration Act provides for the manner in which any notice under Subdivision B of Division 6, of which s. 68 is a provision, is to be given.

22. No amendment was made by the Consequential Amendments Act to s. 630AA but an amendment was made to s. 631 which is concerned with the imposition of an administrative breach rate reduction period. It was amended by omitting its previous reference to ss. 656, 657, 658 and 1304 and substituted a reference to sections "63, 64, 67, 75 and 192 of the Administration Act" (Consequential Amendment Act, s. 75).

23. Finally, reference needs to be made to ss. 244 and 245 of the Administration Act. Section 244 provides that:

"A reference in:

(a) a provision of a law of the Commonwealth or a Territory enacted before 20 March 2000 (whether or not the provision has come into operation); or

(b) an instrument or a document;

to a provision of the 1991 Act that has been repealed by the Social Security (Administration and International Agreements)(Consequential Amendments) Act 1999 is, on and after 20 March 2000, to be construed as a reference to the corresponding section of this Act."

The identification of corresponding provisions is the subject of s. 245(1) which provides:

"If one provision of the 1991 Act and one provision of this Act have the same legal effect, the 2 provisions correspond to each other."

Section 245(2) is concerned with the situation in which a provision of the Act has a certain legal effect in relation to a number of payment types (i.e. pensions, benefits or allowances; s. 245(3)) and the Administration Act has that same legal effect but only in relation to some of those payment types. In that case, the provisions are taken to relate to each for the purposes of the payment types specified in the particular provision of the Administration Act.

24. Section 1224 of the Act was amended by s. 202 of the Consequential Amendment Act by omitting the words "this Act" from s. 1224(1)(b)(ii) and substituting the words "the social security law or this Act as in force immediately before 20 March 2000". It now reads:

"(1) If:

(a) an amount has been paid to a recipient by way of social security payment; and

(b) the amount was paid because the recipient or another person:

(i) made a false statement or a false representation; or

(ii) failed or omitted to comply with a provision of the social security law or this Act as in the force immediately before 20 March 2000 or the 1947 Act;

the amount so paid is a debt due by the recipient to the Commonwealth."

CONSIDERATION

25. The focus of consideration in this case is what is meant by the words "...when required to do so under a provision of this Act" as they appear in s. 630AA(1) of the Act. The Secretary submits that the words "a provision of this Act" relate to a provision of the Act as it was enacted prior to 20 March, 2000 and prior to its amendment by the Consequential Amendments Act and the commencement of the Administration Act. In doing so, he relies on ss. 244 and 245 of the Administration Act and submits that, as s. 658 was a section under which a person could be required to give information and as it was repealed by the Consequential Amendments Act, regard could be had to s. 68 of the Administration Act as the section to which s. 658 of the Act corresponds.

26. If his primary submission is not accepted, the Secretary also submits that the notices issued under s. 68 are notices issued under the social "security law" as defined in ss. 3(3) and (72) of the Administration Act and s. 23(15) and (16) of the Act. His submission continues:

"... as the requirements to provide the information issued to Mr Quinn identify themselves as notices issued under social security law that they can then be considered to have affect in applying the provisions of any social security law which includes the Social Security Act 1991 and therefore section 630AA."

27. The submission made on behalf of Mr Quinn refers to a "a remarkably onerous penalty regime of which section 630AA is one component". Interpretation of the Act requires a consideration of both the purposes of the Act and the financial consequences to a person of any interpretation of that legislation. The consequences to Mr Quinn of the Secretary's interpretation of s. 630AA is that he would face cessation of payments, a reduction of future payments and re-calculation of his past newstart allowance with subsequent recovery of the debt occurring at a time when his newstart allowance had been reduced. The cumulative effect would be to deprive Mr Quinn of the capacity to support himself from moneys provided for the purposes of the Act as well as leaving him potentially open to being prosecuted under the Administration Act. The Act, it is submitted, is intended to be "social welfare legislation" and regard should be had to its beneficial purposes to provide maintenance and relief to those facing financial hardship unless to do so is contrary to specific provisions of the Act (Re Gee and Director-General of Social Services (No. 2) (1981) 4 ALD 376 (Davies J, President, and I Prowse and MJ Cusack, Members). In addition, the particular penalty under consideration is a penal provision and, as such, he submits, should be construed strictly (Re Secretary, Department of Social Security and Carruthers (1993) 18 AAR 373 (O'Connor J, M Allen, Senior Member and H Julian, Member), Bartlett v R (1990) 100 ALR 177 (King CJ, Legoe and Perry JJ) and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Brennan CJ, McHugh, Gummow, Kirby, Hayne JJ). Any interpretation favouring the individual should be applied (Re Vitalone and Secretary, Department of Social Security (1995) 38 ALD 169 (Matthews J). At the same time, it was submitted that the Act is beneficial legislation and so should be interpreted having regard to its beneficial purposes and policy.

28. The effect of the Secretary's submission is that the reference in the Act to "a provision" of the Act in s. 630AA(1), which was enacted prior to 20 March, 2000, rather than to a specific provision is sufficient to bring ss. 244 and 245 of the Consequential Amendment Act into effect. Regard must be had to all of the provisions of the Act that would empower the Secretary to require a person to provide information about his or her income from remunerative work and that have been repealed by the Consequential Amendments Act. Consideration must then be given to whether any of those repealed sections corresponds to a section in the Administration Act. Provisions of the Act which, prior to its amendment, would have met this general description were ss. 655A, 656, 657 and 658. Sections 655A, 656 and 658 respectively correspond to ss. 75(2), (3) and 68 of the Administration Act. Sections 657 and 67 do not correspond to each other. Since the repeal of ss. 655A, 656, 657 and 658 by the Consequential Amendments Act, the Act no longer contains any provisions that would empower the Secretary to require a person to provide information about his or her income from remunerative work within the meaning of s. 630AA(1).

29. It seems to me that an alternative interpretation of s. 630AA(1) of the Act is to begin from the position that s. 244 of the Administration Act refers to a "a provision" in a law referring to "a provision" of the Act "that has been repealed" by the Consequential Amendments Act (emphasis added). Before s. 244 has effect, it may be argued, it must be possible to identify a provision that has been repealed and to which reference is made in a provision of a law of the Commonwealth or Territory under consideration. Section 630AA(1) is a provision of a law of the Commonwealth that was enacted before 20 March, 2000. It refers to another provision in the same law of the Commonwealth. It does not, though, refer to a "a provision ... that has been repealed" by the Consequential Amendments Act by referring to the section number of a provision that can be identified as having been repealed. The broader description that appears in s. 630AA(1) allows only a range of provisions to be identified rather than "a provision".

30. A consideration of other amendments made by the Consequential Amendments Act needs also to be made. I have already set out the amendments effected by the Consequential Amendments Act to sections such as s. 1224 by omitting the words "this Act" from s. 1224(1)(b)(ii) and substituting the words "the social security law or this Act as in force immediately before 20 March 2000" (see paragraph 24 above). It would seem Parliament specifically recognised that a debt may arise by reason of a recipient's failing to comply with a provision of the Act as it was in force before 20 March, 2000 or with any provision of what was expressed as the social security law from that date. I have also referred to the specific amendments made in sections such as s. 631 to delete the references to the sections of the Act prior to its amendment and to substitute specific provisions of the Administration Act.

31. If regard is had to these provisions, it could be said that Parliament turned its mind to the amendments it wished to make and that in choosing not to amend s. 630AA(1) and to leave intact its reference to "a provision of this Act" requiring that he give information before his failure to provide any requested information leads to his not being paid newstart allowance it made a deliberate decision to limit it to a provision of the Act as in force in its amended form after 20 March, 2000. It could be said that this position is supported by reference to principles of statutory interpretation leading to a conclusion that, where there is an ambiguity, an interpretation favouring the person to be benefited by beneficial legislation and confining the impost of a penal provision is to be preferred. Mr Quinn's submission referred to cases applying such principles. At the same time, adopting an interpretation that confines s. 630AA(1) to provisions found in the Act itself means that it would have no application in any circumstances (and not just in Mr Quinn's) for there are no provisions in the Act which require a person to provide the relevant information.

32. Beginning with the principles of statutory interpretation, it seems to me that, on occasion, they can be a little more complex in their application than is suggested in the submission made on behalf of Mr Quinn. Rather than ambiguities necessarily being interpreted liberally to achieve the purpose of beneficial legislation and not extending the operation of penal provisions beyond their strict words, proper interpretation of an ambiguous provision depends on the dominant purpose of the legislation. That occurs in a case such as this where legislation has both beneficial provisions and penal provisions. That was a matter considered by DC Pearce and RS Geddes in Statutory Interpretation in Australia (Butterworths, 4^th edition, 1996) in the following passage:

"... This conflict is illustrated by Mathews v Foggitt Jones Ltd (1925) 37 CLR 455. The case concerned an Act which prohibited, as a health safety measure, the bringing into the Newcastle area of any portion of the carcass of an animal slaughtered outside the area. The weighty question that had to be determined by the highest court in the land was whether a sausage was a portion of the carcass within the meaning of the Act. Knox CJ and Gavan Duffy J held that it was not. Isaacs J held that it was. Isaacs J quoted Lord Shaw in Butler (or Black) v Fife Coal Co [1912] AC 149 at 178-9: "The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure". The fact that this conflicts with the approach adopted in relation to the interpretation of penal statutes was not alluded to. It was discussed, however, by the High Court in Waugh v Kippen (1986) 64 ALR 195. There the court indicated that it was necessary to look at the dominant purpose of the legislation. If, as in the instant case, this was to protect workers from risk of injury, the strict construction required of a penal statute should not be adopted so as to deprive a worker of the protection the parliament intended to afford.

This approach accords with that adopted by Isaacs J in Mathews' case and seems to be that which best resolves any conflict. The judgment in Waugh's case makes the point that the obligation imposed by the Act must be apparent but within that limitation there is no room for a strict construction of a statute the purpose of which is remedial or beneficial. See Glover v McDougall [1976] 2 NSWLR 359 at 365; Trade Practices Commn v Gillette Co (No 2) (1993) 118 ALR 280 at 289." (paragraph 9.4)

33. Taking Waugh v Kippen a little further, Mr Waugh claimed damages for negligence and a breach of statutory duty. The statutory duty was to the effect that a male employee over the age of 18 years was not permitted or allowed to lift, carry or move by hand any object so heavy as to be likely to cause risk of injury. Maximum weights were prescribed for males under 18 years and for all females. There was in issue a question whether the prescription of arbitrary weights for some should influence the construction of the general statutory duty in relation to males over the age of 18 years or whether regard should be had to the risk of injury to each individual worker. In a joint judgement, Gibbs CJ, Mason, Wilson and Dawson JJ said:

" A construction of the rule that would require an employer to have regard to the risk of injury to a particular worker finds support in the character of the Act as legislation concerned with furthering industrial safety. In that character it should be construed 'so as to give the fullest relief which the fair meaning of its language will allow', to use the words of Isaacs J in Bull v A-G (NSW) (1913) 17 CLR 370 at 384; cf also Pearce: Statutory Interpretation in Australia 2nd ed (1981) paras 187-91, pp 137-41. On the other hand, there is the consideration, to which McPherson J referred, that a breach of cl 25 is attended with a penal sanction. The modern approach in construing penal statutes was stated by Gibbs J (as he then was) in Beckwith v R (1976) 135 CLR 569 at 576; 12 ALR 333 at 339, as follows:--

'The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams (1935) 53 CLR 563 at 567-8; Craies on Statute Law 7th ed (1971) pp 529-34. The rule is perhaps one of last resort.'

In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v National Coal Board [1951] AC 639 per Lord Porter at p 650; John Summers & Son Ltd v Frost [1955] AC 740 per Viscount Simonds at p 751; McCarthy v Coldair Ltd [1951] 2 TLR 1226 per Denning LJ at pp 1227-8. In such a contest the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidents of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action.

Having regard to the dominant purpose of the Act, the meaning of cl 25(1) is clear. The physical capacity or condition of the individual worker will be relevant in determining the likelihood of the risk of injury. Indeed, the criterion of liability being expressed in terms of 'any object so heavy as to be likely to cause risk of injury' itself points away from a purely abstract application. The relevant question then becomes, in the present case, whether the appellant, being a male employee over 18 years of age, was permitted to move an object so heavy as to be likely to cause risk of injury to him." (pages 200-201)

34. Regard must also be had to two further principles of statutory interpretation. The first is that "As a general rule a court will adopt that construction of a statute which will give some effect to all of the words which it contains." (Beckworth v R (1976) 12 ALR 333 (Gibbs, Stephen, Mason, Jacobs and Murphy JJ at 337 per Gibbs J). The second is described in the following passage from DC Pearce and RS Geddes in Statutory Interpretation in Australia (Butterworths, 4^th edition, 1996) in referring to the approach adopted by the courts to endeavour to adopt an interpretation that will ensure the validity of legislation. The authors continued:

" This approach will also result in the courts declining to interpret an Act in such a way that its operation will be negated if there is an alternative interpretation available that will carry out the purpose of the Act: Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 at 1022 per Lord Simon. In Norton v Long [1968] VR 221 Winnecke CJ considered a section of an Act that provided: "If any boat to which this Part applies is used as a motor boat upon any Victorian waters - (a) without being registered as required by this Part ... the person using the boat as a motor boat shall be guilty of an offence". He held that the section should be interpreted as impliedly imposing an obligation to register motor boats. The alternative view that there was no obligation to register would have rendered the prohibition nugatory, thereby defeating the purpose of the Act. The same approach will be adopted if the suggested interpretation would produce an obligation that is impossible of performance, thereby vitiating the operation of the Act: Hinton Demolitions Pty Ltd v Lower (No 2) [1971] 1 SASR 512 per Wells J at 528. On the other hand, "the fact that a particular statutory provision is not easy of application, or that it admits of disputes in its application to the facts of particular cases, is not a reason for saying that it is so unworkable that it should be, in effect, disregarded": Boxvale Holdings Pty Ltd v FCT [1989] 2 ATC 4,927 at 4,931 per Wilcox J." (paragraph 2.20)

35. Returning to the provision I must consider, it is apparent that, prior to 20 March, 2000, it was appropriate to take into account only the purpose of the Act itself. Since 20 March, 2000, it is apparent from an examination of its provisions and those of the Administration Act that they, together with any other legislation expressed to form part of the social security law, must be considered together in order to ascertain Parliament's purpose. It was submitted on behalf of Mr Quinn that the Act and Administration Act are "not intended to drive a recipient of such funds into the ground by the accumulation of excessive punishments." When regard is had to the social security law, of which the Act is a part, it is apparent that its purpose is to provide for the payment of certain pensions, benefits and allowances in order to provide maintenance and relief to those who would otherwise face hardship and or require financial assistance. It achieves this purpose by providing for various types of payment. At the same time, its purpose is to ensure that each person receives no more than that to which he or she is entitled under the Act. It achieves this by employing two strategies. First, it imposes obligations upon the recipients of any benefits under the Act and imposes penalties for breaches of those obligations. Second, it establishes systems for recovering the amounts which he or she has been paid but to which he or she was not entitled. It follows that a person may suffer both a penalty for a breach of an obligation and, as a result of his or her failure to fulfil that obligation, face recovery action for amounts that would not have been paid to him or her had he or she fulfilled the obligation. That is illustrated by reference to s. 630AA and s. 1224 in this case. It is quite clear that application of the provisions carrying out the purpose of the social security law may leave a recipient in very straitened circumstances indeed and this would seem to be contemplated by the social security law.

36. In light of Parliament's intending to achieve a quite complex purpose, it is difficult to conclude that it would have intended that s. 630AA(1) should be of no effect. It would be of no effect if it were to be read, as Mr Quinn would argue, as being confined to a provision of the Act as it is enacted after 20 March, 2000 for there are no longer any provisions in the Act that would empower the Secretary to require a person to provide information about his or her income from remunerative work and so no provisions of the type to which reference is made in s. 630AA(1). Since that date, all such provisions are found in the Administration Act. The section would have effect if it were given the meaning I have set out in paragraph 29 above. That is to say, it would have effect if s. 630AA(1) were taken as a provision of a law of the Commonwealth enacted prior to 20 March, 2000 (as it is) referring to provisions of the 1991 Act (as it does by reference to their requiring a person to provide certain information) that have been repealed (as they have been). The effect of s. 244 is that those provisions then be read as referring to corresponding provisions in the Administration Act. That interpretation accords with the purposes revealed by the social security law even though, in its application in a particular case, it may be thought to lead to the imposition of unbearable hardship.

37. For these reasons, I have concluded that, in the circumstances of Mr Quinn's case, s. 630AA(1) should be read as applying in a situation in which he has refused or failed without reasonable excuse to provide information in relation to his income from remunerative work as required by a notice given under s. 68 of the Administration Act. As there is no dispute between the parties that such a notice was given and that he did fail without reasonable excuse to provide the information, it follows that his failure is an activity test breach. Again, there is no dispute between the parties as to the consequences of that activity test breach and that is that he is subject to a newstart allowance activity test rate reduction amount of 18% for the newstart allowance rate reduction period from 15 May, 2001 to 12 November, 2001.

38 For the reasons I have given, I:

1. set aside the decision of the Social Security Appeals Tribunal dated 16 August, 2001; and

2. substitute a decision that the decision of a delegate of the applicant dated 15 May, 2001 be affirmed.

I certify that the thirty-eight preceding paragraphs are a true copy of the reasons for the decision herein of

Miss S A Forgie (Deputy President),

Signed: ....................................................

Clancy Riddiford Associate

Heard on the papers 19 December, 2001

Date of Decision 12 February, 2002

Solicitor for the Applicant Advocacy & Administrative Law Team Centrelink

Solicitor for the Respondent Sussex St Community Law Service