Case: McDonald v Director General of Social Security (1984) 6 ALD 6
Outcome: considered
The Deputy President summarised the legislative provisions and the arguments put to him by both sides, together with the evidence including, in particular, that of Dr Rogers and Dr Cook. He then addressed the meaning of the word 'permanent' in s 24 by reference to dictionaries and to the following passage from the reasons of Woodward J in McDonald v Director General of Social Security (1984) 6 ALD 6 at 13: 'The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made. It is not inconsistent with the notion of permanent incapacity that the pensioner's position should be reviewed from time to time. Unexpected improvements in the person's condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent. In my view the true test of a permanent, as distinct from temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future ... This test involves two questions. The first is whether it is more likely than not that the disability will terminate (or fall below 85% in the sense referred to above) at some time in the future. Even if the answer to this question is "yes" I think it would be inaccurate in the context of employment to describe as "temporary" a condition which was likely to last for a number of years. Hence the two elements of degree of likelihood of improvement and time span for that improvement, should be weighed together in determining what is permanent and what is temporary. The greater the likelihood of substantial improvement and the earlier that it is likely to occur, the more accurate will be a "temporary" label. The longer the period and the less probable the improvement, the more appropriate will be a finding of permanent incapacity ...' 11 The Deputy President noted that those observations were made in the context of the Social Security Act 1947 which provided for invalid pensions (payable to workers who were permanently incapacitated), sickness benefits (payable to persons who were temporarily incapacitated) and unemployment benefits (payable to persons who were capable of work but unable to find any). He considered that the Social Security Act required that persons receiving benefits fall into one of these three classes and that 'an incapacity which was not temporary was automatically permanent' . He contrasted that position with that which obtains under ss 24 and 25 of the Act. 12 The observations made by Woodward J may well be applicable for present purposes, subject to two qualifications. Firstly, invalid pensions, sickness benefits and unemployment benefits are not analogous to pensions (including benefits payable pursuant to ss 24 and 25), payable to veterans who suffer from war-caused injuries or diseases. Sickness benefits, the invalid pension and unemployment benefits are properly characterised as social security payments . They do not reflect any particular obligation owed by the Commonwealth to recipients other than the general social duty to ensure the well-being of all citizens, which duty is discharged by provision of the benefits prescribed in the Social Security Act . However a pension payable pursuant to Part 2 of the Act is by way of compensation for injury or disease incurred in, or as the result of, war service. See s 13. In other words, it recognises the special obligation of the Commonwealth to compensate a person who has an injury or disease as the result of war service and any attendant incapacity. A determination pursuant to either s 24 or s 25 is only as to the rate at which the pension is paid. Any applicant for a benefit pursuant to either section will be entitled to a pension under some other provision of Pt 2 of the Act. The second distinction which I would draw between the regime prescribed by ss 24 and 25 and that to which the decision in McDonald related is that Parliament has clearly distinguished between persons who satisfy the requirements of s 24 and those who only satisfy the requirements of s 25. The obligation of the Administrative Appeals Tribunal, and of this Court, is to give effect to that distinction, not to achieve consistency in the interpretation of terms as used in this Act and in other legislation. That was, I think, the point which the Deputy President was making concerning the applicability of the remarks in McDonald to the present case. 13 Whether or not a particular incapacity is permanent is a question of fact. I do not understand Woodward J to have purported to lay down an exhaustive definition of the word "permanent". If the Deputy President misunderstood the question posed for his consideration, then he erred in law. However it is not to the point that he may have considered that words used by Woodward J in an earlier case, concerning other legislation, were inapposite to describe the notion of permanence as it is used in the Act. 14 The Deputy President concluded that the word "permanent", when used in s 24, means 'for a period longer than just a few years hence' . Implicit in that conclusion is the proposition that a demonstrated incapacity for 'a few years' would not, at least in this case, be a basis for a favourable determination under s 24. The Deputy President placed weight upon the fact that in the relevant second reading speech in connection with the Repatriation Legislation Amendment Bill 1985 (Volume H of R 142, 13-31 May 1985, page 2646) the Minister observed that the purpose of the special rate of pension was to provide for severely disabled veterans of a relatively young age 'who could never go back to work and could never hope to support themselves or their families' . Use of the word "never" supports the Deputy President's approach. However, he did not say that s 24 requires that a decision-maker be satisfied that the veteran's incapacity will continue for the rest of his or her life. In this respect his reasons reflect a similar approach to that adopted by Woodward J. 15 In the present case, the Deputy President preferred the evidence of Dr Cook to that of Dr Rogers. In other words, he accepted Dr Cook's evidence that there was a 50 percent chance that the applicant would be able to re-enter the workforce over the next four or five years, although perhaps in a limited or part-time capacity. The limited or part-time capacity was that referred to by Dr Cook in his evidence and certainly exceeded the eight hours per week limit prescribed for the purposes of s 24. The Deputy President's preference for the evidence of Dr Cook over that of Dr Rogers is beyond challenge in these proceedings. Given that view of the evidence, it was open to the Deputy President to conclude that he was not satisfied as to the permanence of the applicant's condition, and therefore to treat his application as falling within s 25 and not s 24. In other words, it cannot be said that as a matter of law the applicant's incapacity, as found by Dr Cook, was permanent for the purposes of the Act. The Deputy President's reasons disclose no error of law. His conclusions were fairly open on his view of the evidence. 16 The appeal must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 12 April 2006 Counsel for the Applicant: Darin Honchin Solicitor for the Applicant: Purcell Taylor Lawyers Counsel for the Respondent: Madeline Brennan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 March 2006 Date of Judgment: 12 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/395.html