In your memorandum dated 27th September, 1949, advice is requested whether Mrs X. is residentially qualified for an age pension.

(2)  The facts and law are set out in some detail in your memorandum but, for purposes of record, it would be convenient if I mention the principal points of your memorandum.

(3)  Mrs. X. arrived in Australia on 5th December, 1913. Her husband died in July, 1932, and she left for England with her four children on 10th January, 1933, returning to Australia on 10th June, 1948, where she has since resided.

(4)  The relevant provisions of the Social Services Consolidation Act are sections 20(2)(c) and 21 which, so far as material, are as follows:

Section 20(2)(c)

For the purposes of this Part, a claimant shall be deemed to have been resident in Australia—

…

(c) during occasional absences from Australia not exceeding, in the aggregate, one-tenth of the total period of residence and of those occasional absences.”

Section 21

Subject to this Part, a person who is not receiving an invalid pension and—

(a) being a man has attained the age of sixty-five years, or being a woman has attained the age of sixty years; and

(b) is residing in Australia on the date on which he lodges his claim for a pension and has been continuously so resident for a period of not less than twenty years,

Shall be qualified to receive an age pension.

(5)  Mrs X. apparently satisfies paragraph (a) of section 21 and was residing in Australia on the date on which she lodged her claim (paragraph (b)), but the question has arisen whether she has been continuously resident in Australia for a period of not less than twenty years. This question involves the construction of sections 21(b) and 20(2)(c).

(6)  I think it clear that the period of twenty years referred to in section 21(b) is any continuous period of twenty years at any time before the lodging of the claim. A similar question was considered by Mr. Attorney-General Glynn in Opinion No. 120 of 1910 in relation to former section 17(b) of the Invalid and Old-Age Pensions Act and he expressed the view that a claimant must be able to show ‘that for some continuous period of twenty years or upwards he was resident in Australia and that, during that period, he was not “absent from Australia”, within the meaning of the Act, for more than one-tenth of that period’.¹

(7)  The question remains as to the meaning of ‘Occasional’ absences in its context in section 20(2)(c). Having regard to the critical period, namely, twenty years, I think that ‘occasional’ means one or more absences (few in number) of comparatively short duration during the period selected. Section 20(2)(c) requires that the aggregate of such absences is not to exceed one-tenth of the total period of residence (i.e. the time during which the claimant was actually residing or physically present in Australia) and of the occasional absences.

(8)  If the critical period 5th December, 1913 to 4th December, 1933 be selected, the absence from 10th January, 1933 to 4th December, 1933 would be less than one-tenth of the total period of residence and of that absence. However this absence is a portion only of the much more extended absence of fourteen years which extended absence could not, in my view, be regarded as an occasional absence within the meaning of section 20(2)(c). Furthermore, I do not think that it is permissible to sever one continuous period of absence. The expression used in section 20(2)(c) is ‘occasional absences’ and the period of each such absence is, I think, to be regarded as a single indivisible period.

(9)  Accordingly, Mrs X. cannot, in my view, satisfy all the requirements of section 21(b).

(10)  Although the strict interpretation of the Act requires this result, it appears to work hardship in the circumstances of this case and I suggest that consideration be given to the question whether some ex-gratia payment to Mrs X. might not be recommended to the Treasury.

¹ Opinion not published.