Case: Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690
Outcome: applied
As to the import and operation of 'wholly and substantially' appearing in ss 8A(4)(a) and 8B(3)(d), I was referred to an analysis of the statutory notion of whole or substantial dependency appearing in the reasons the joint judgment of Branson and Hely JJ in Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690 , being a decision made otherwise than in a matrimonial context. After reference to usages in statutory contexts of superannuation, social security and bankruptcy legislation, the following appears at [11]-[12] of that joint judgment: 'Thus Scott's case, and cases which have followed it, treat "substantially" in the phrase "wholly or substantially dependent" as involving the notion of predominance. When the Full Court in Scott adopted the paraphrase of a person who is "primarily, essentially or in the main" dependent upon another person, in our opinion the Court was describing, in slightly different ways, the same idea, rather than expressing three slightly different ideas. That colours or confines the signification of "essentially". We respectfully disagree with [the primary judge's] conclusion ... that A is wholly or substantially dependent on B as well as on C. A is dependent upon both, but is not wholly or substantially dependent on B because it is upon C that A is mainly dependent. Whilst B's contribution may be essential to A's support, the notion of predominance which is implicit in the phrase "wholly or substantially" dependent, is lacking.' Although that dicta occurred of course in relation to a different legislative context, its emphasis on ' the notion of predominance ' seems to me to carry through by way of assistance to the resolution of the issues of legislative construction here arising. 14 The Tribunal considered that ' the real question is not whether the ultimate relationship of the [appellant] and the Deceased Member was a "marital relationship" at common law, but rather whether it was a "marital relationship" for the purposes of ss 8A and 8B ' of the Superannuation Act , which the Tribunal described ' as a materially different issue '. The Tribunal's reasoning continued to the effect that for the purposes of the Superannuation Act , s 8A(1) stipulates that there is a 'marital relationship if two people ordinarily lived together as husband and wife on a permanent and bona fide domestic basis at the relevant time, and further that it was ' fairly clear ' that those s 8A(1) terms such as ' ordinarily ', ' lived together ', ' permanent ' and ' bona fide domestic basis ' imported requirements over and above those that may be necessary for an undefined marital relationship, and should not be regarded as merely surplusage. There is clear force in those observations. 24 Nevertheless in the Tribunal's concluding view, the position here involved was properly addressed and dealt with by Scott, the reasoning whereof the Tribunal purportedly adopted. The Tribunal summarised the reasoning in Scott on what may be described as the 'wholly or substantially dependent' issue (that is, picking up reference to 'wholly and substantially ' in s 8A(4)(a)) as follows: 'In that case, the Federal Court was considering the meaning of the expression "wholly or substantially dependent" in the definition of "spouse" in s 3 of the Relevant Act (as it then was; the current s 3 does not contain a definition of "spouse"). The Court came to the view that where the word "substantially" finds its place in the phrase "wholly or substantially dependent", it must be construed having regard to the whole phrase. This was because where the word "substantially" is placed within that phrase, connotations of the term "substantially" is governed by the conjugational position of the word "wholly" immediately before it. In other words, that "substantial" does not stand alone, but is related to "wholly". On this basis, the Court came to the view that "substantially" does not simply mean something more than trivial, minimal or nominal, instead it meant in relation to a person in the expression "wholly or substantially dependent" that the person is primarily, essentially or in the main dependent upon a person (that is, upon the Deceased Member). The Court also cautioned against the use of percentage and instead suggested as the approach to consider whether the person (the Complainant) is primarily, essentially or in the main dependent upon the other person (the Deceased Member) in the context of that particular relationship.' The Tribunal proceeded to point out that the foregoing view as to whole or substantial dependence, summarised by the Full Federal Court in Scott , was applied in the context of the joint judgment of Branson and Hely JJ in Graovac .