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Wednesday, 11 April 1973
Page: 1345

Mr WENTWORTH (Mackellar) - I move:

In proposed section 83ae, omit 'giving effect to an agreement referred to in section 137, a pension payable by virtue of those regulations', substitute 'where a person's eligibility for pension is dependent upon regulations giving effect to an agreement under section 137 of the Principal Act, a pension'.

This may seem to be a technical amendment. It has 2 distinct purposes. The Bill repeals sections 49 and 78 of the Principal Act which allow for the payment of invalid and widows' pensions for 30 weeks after a pensioner returns to Australia. I think that as a general principle we should not take away one of the privileges at present existing in the Act. The Minister for Social Security (Mr Hayden) must have overlooked the fact that, because of the peculiar way in which this clause is drafted, it takes away certain of those privileges. This applies to people taking their Australian pension under the provisions of an agreement made in accordance with section 137 of the Act.

Proposed section 83AE provides that, except as provided by regulations, a pension is not payable in respect of any period during which the pensioner is outside Australia. I would like the Committee to consider the position of persons taking their pensions by virtue of an agreement in terms of section 137. I refer to the reciprocal agreement with the United Kingdom or New Zealand. When those people go abroad to the United Kingdom or New Zealand, as the case may be, they can draw their temporary pensions while they are there. They receive the 30-weeks privilege on going there and coming back under which they can draw their pensions. But at present if they visit the United States, Canada, India or somewhere else and are away for 30 weeks, on their return to Australia they are able to receive their 30 weeks back pensions. Under the Bill before the Committee they cannot do so unless a new regulation is brought in.

Unfortunately, this clause has been drafted in a clumsy way which prevents such a new regulation being brought in. It says: 'except as provided by regulations giving effect to an agreement referred to in section 137'. A regulation of the kind I have mentioned would not be a regulation giving effect to an agreement referred to in section 137. Therefore, if we pass the Bill in its present clumsy form it would be impossible legally to provide a regulation retaining for these people a privilege which already exists. For that reason it is necessary to rephrase the clause, which has been wrongly drawn. This will not alter the intention or what the Minister meant as the sense of it. The clause has the effect, which I know the Minister did not intend, of taking away from certain pensioners in Australia rights which they possess at present. I think this must be looked at. In my amendment I have changed the order of words a little, so that it will make it possible for the Minister to do what I have no doubt he really intended to do. This is purely a technical matter.

The second matter to which I draw attention is a more difficult one because it has a legal doubt in it. All I am concerned with is removing a legal doubt. In regard to this second matter I am raising, which is a more substantial matter, it may be that the law would carry out what the Minister intends. But the drafting is very obscure. I want to consider this carefully. If the Minister looks at Article 8 and Article 27 of the existing agreement with the United Kingdom he will see what I mean. There is a legal point of some complexity here. Article 27 says that a person shall be taken to be permanently resident in Australia if he has resided here 3 years or he has been here for one year and the authorities of both countries - that is, the United Kingdom and Australia; it cannot be done unilaterally - have not agreed that he should not be treated as a permanent resident. I know that the Minister has said that he will renegotiate this agreement but he has not yet done so, and I do not think that we should pass sloppy laws here related to agreements to be negotiated some time in the future.

I turn now to Article 8 which is the important one. It says that for the purposes of any claim to receive, an age pension a person who is permanently resident in Australia shall be treated as if he was a resident there during any period in which he was resident in the United Kingdom. The important technical words are 'any claim'. If the claim is accepted his pension becomes an Australian pension. It could well be held that, because of the use of this technical word 'claim' which has a meaning in the Principal Act, proposed section 83AE does not do what it intends to do. I know that is a doubtful point. I know it is a point of considerable legal complexity, but it seems to me that when we pass a Bill we should not pass one which has a doubtful application. I have therefore redrawn the proposed section so that it will do what I believe the Minister intended it to do. I do not think that the Minister could cavil at my words. I shall read the clause as it would be if it were amended:

Except as provided by regulations where a person's eligibility for pension is dependent upon regulations giving effect to an agreement under section 137 of the principal Act, a pension is noi payable in respect of any period during which the pensioner is outside Australia.

I think that this amendment gives effect to what the Minister intended and gets rid of any possible ambiguity in the meaning of the phrase concerned. I do not see how the Minister could really object to this amendment because at the same time as it does this it also removes the thing which the Minister has done in this Bill and did not intend to do, that is, to take away certain travel privileges from people who are now entitled to them. So I ask the Minister to consider whether this amendment might not be acceptable to the Government. 1 do not quite see why he should refuse to accept it in the circumstances. He said a moment ago when he talked about a pension in Australia being-

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