Abel v Secretary, Department of Education, Employment and Workplace Relations
[2013] FMCA 124
•7 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABEL v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS | [2013] FMCA 124 |
| ADMINISTRATIVE LAW – Appeal against decision of Administrative Appeals Tribunal – appeal on question of law – whether grounds of appeal raise question of law – whether evidence of fact of delegation to employment services provider. |
| Administrative Appeals Tribunal Act 1975 (Cth), ss.33(1), 44AA, 44 Federal Court Rules 2011 (Cth), r.33.12(2)(b) Social Security Act 1991 (Cth), Part 2.10, Division 2, Part 2.11, Division 1, Sub-division E, Part 2.12, Division 1, Sub-division C, ss. 28(4), 28B, 593, 601(4B) and (4C), 605(3) and (4), 624, 1035A(3)(b)(ii) and (6)(b)(ii) Social Security (Administration) Act 1999 (Cth), Part 3, Division 3A, ss.7, 42A, 42B, 42E, 42H(1), (3) and (4), 42U, 63, 64, 234(1), (3) and (7) |
| Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 Waterford v The Commonwealth of Australia (1987) 163 CLR 54 |
| Applicant: | WALTER ABEL |
| Respondent: | SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS |
| File Number: | PEG 177 of 2012 |
| Judgment of: | Lucev FM |
| Hearing date: | 15 August 2012 |
| Date of Last Submission: | 15 August 2012 |
| Delivered at: | Perth |
| Delivered on: | 7 March 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Thipthorp |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The decision of the Administrative Appeals Tribunal of 9 March 2012 is set aside.
The matter is remitted to the Administrative Appeals Tribunal for reconsideration.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 177 of 2012
| WALTER ABEL |
Applicant
And
| SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS |
Respondent
REASONS FOR JUDGMENT
Introduction
Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)[1] provides that:
A party to the proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
[1] “AAT Act”.
By Notice of Appeal dated 10 April 2012, the applicant seeks to appeal[2] from an Administrative Appeals Tribunal[3] decision[4] made on 9 March 2012. The AAT affirmed a Social Security Appeals Tribunal[5] decision[6] made on 21 June 2011 authorising the imposition on the applicant of a reconnection penalty because the applicant did not have a reasonable excuse for failing to attend a reconnection appointment with a service provider on 10 March 2011.
[2] “Appeal”.
[3] “AAT”
[4] “AAT Decision”.
[5] “SSAT”.
[6] “SSAT Decision”.
The Notice of Appeal was originally filed in the Federal Court. Under s.44AA(1) of the AAT Act the Appeal was transferred to this Court on 20 July 2012 by order of the Federal Court. This Court has like powers to deal with the Appeal as the Federal Court.[7]
Legislation concerning Newstart allowance, connection failures, reconnection failures and reconnection penalties
[7] AAT Act, s.44AA(8), (9), (11) and (12).
Before turning to the issues raised by the Appeal it is convenient to set out the relevant legislative provisions relating to Newstart allowances, connection failures, reconnection failures and reconnection penalties.
Section 593 of the Social Security Act 1991 (Cth)[8] entitles a person to Newstart allowance, relevantly for the purposes of this matter, if they are unemployed, comply with the requirements of an Employment Pathway Plan[9] and are prepared to enter another EPP if required to do so.
[8] “SS Act”.
[9] “EPP”.
Division 3A of Part 3 of the Social Security (Administration) Act1999 (Cth)[10] deals with the compliance obligations of a person in relation to participation payments. In that regard:
a)the SS Administration Act provides that the Newstart allowance is a participation payment;[11] and
b)the objects of Division 3A of the SS Administration Act include:
i)participation in employment and engagement with employment services;
ii)compliance with a person’s obligations and requirements in relation to participation payments, and
iii)ensuring that those who do not comply are re-engaged with employment services as soon as possible,
provided that if a person has a reasonable excuse for failure to comply with a person’s obligations penalties are not to be imposed.[12]
[10] “SS Administration Act”.
[11] SS Administration Act, s.42A.
[12] SS Administration Act, s.42B.
In relation to connection and reconnection failures:
a)a person who fails to comply with a requirement notified under s.63(2) of the SS Administration Act, including that a person in receipt of a social security payment attend appointments at a Centrelink office, or any other particular place for a particular purpose of which notice is given in writing or in any other appropriate way, commits a connection failure;[13]
b)a person who fails to attend a reconnection appointment without a reasonable excuse commits a reconnection failure;[14]
c)a person’s social security payment is not payable if the appointment is not attended without a reasonable excuse;[15] and
d)an excuse cannot be reasonable unless it was provided prior to a person’s non-compliance, or if the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give prior notification.[16]
[13] SS Administration Act, s.42E(2)(a).
[14] SS Administration Act, s.42H(1) and (3).
[15] SS Administration Act, s.64.
[16] SS Administration Act, s.42U.
Relevantly for the purposes of this matter in order for there to be a reconnection penalty, there must be a reconnection failure, and in order for there to be a reconnection failure there must have been a connection failure. Put differently, if there was not a connection failure in relation to the 2 March 2011 appointment, there could not have been a reconnection failure on 10 March 2011, and, therefore, no basis for imposing a reconnection penalty.
Background facts
Events leading to reconnection penalty
The events leading to the imposition of the reconnection penalty are as follows:
a)the applicant had been in receipt of a Newstart allowance since 2 November 2007;[17]
[17] AAT Decision at para.1 per Member Hogan.
b)a letter was written on 25 February 2011 to the applicant in the following terms:
APPOINTMENT NOTIFICATION
Dear Walter
You are required to attend an appointment with CRS Australia, your Disability Employment Services Provider. The purpose of this appointment is to assess your employment needs and tailor the services your Provider will provide to you based on this assessment. Your Provider will also negotiate an Employment Pathway Plan with you.
The details of your appointment are as follows:
Time: 2:00 PM
Date: Wednesday, 2 March 2011
Place: CRS Australia
13 Pattie Street
Cannington.
Phone: 08 9229 7500
Contact: David
You need to call David before your appointment if you:
· genuinely can’t attend the appointment and/or
· have special requirements (such as an interpreter or special building access).
This is a notice under social security law. In order to fulfil your requirements for Newstart Allowance you must attend this appointment and enter an Employment Pathway Plan.
If you do not attend this appointment and you do not have a valid reason, this could result in a connection failure. You will then be required to attend a reconnection appointment and if you do not attend that appointment a penalty amount may be deducted from your payment. You will lose your payment for a longer period if you are deliberately avoiding your obligations.
Please treat all communication from your Provider very seriously, because it is the same as being notified of your requirements by Centrelink.[18]
[18] “25 February 2011 Letter”; Supplementary Tribunal Documents (“Supplementary AAT Documents”) at page 2 (emphasis in original).
It is relevant to note that the 25 February 2011 Letter:
i)as it appears in the Supplementary AAT Documents does not bear the name or signature of the sender;[19] and
[19] Supplementary AAT Documents at page 2.
ii)was posted in an envelope which bore the Australian coat of arms and the words “Australian Government” and “CRS Australia”;[20]
c)the applicant received the 25 February 2011 Letter notifying him of the 2 March 2011 appointment with CRS Australia but he was unaware of the appointment because he did not open the 25 February 2011 Letter;[21]
d)the applicant did not attend the 2 March 2011 appointment;[22]
e)the failure to attend the 2 March 2011 appointment was deemed to be a connection failure;[23]
f)a reconnection appointment was scheduled for the applicant for 10 March 2011;[24]
g)it would appear that the notification to the applicant to attend the appointment on 10 March 2011 was given orally by telephone, and not in writing, and the applicant said he could not clearly hear details of the appointment as there was significant traffic at the time and when he asked for details they were not repeated, although the respondent’s records indicate that the appointment details were repeated several times;[25]
h)on 10 March 2011 a reconnection penalty was imposed on the applicant because he was held not to have a reasonable excuse for failing to attend the reconnection appointment on 10 March 2011. The applicant was notified of the decision to impose a reconnection penalty on 17 March 2011;[26]
i)the applicant attended a reconnection appointment on 21 March 2011;[27] and
j)the reconnection penalty for the period 10 March 2011 to 20 March 2011 was $369.42, which was deducted from the applicant’s payment paid on 6 May 2011.[28]
[20] Supplementary AAT Documents at page 3.
[21] AAT Decision at para.13 per Member Hogan.
[22] AAT Documents at pages 51-54.
[23] AAT Documents at page 58.
[24] AAT Documents at page 57.
[25] AAT Documents at page 57.
[26] AAT Documents at pages 61-63 and 66.
[27] AAT Documents at pages 72-73.
[28] AAT Documents at pages 78-79.
Instrument of delegation
On 26 February 2010 the Secretary made an instrument of delegation under s.234 of the SS Administration Act.[29] The Instrument of Delegation was in the following terms:
[29] “Instrument of Delegation”.
Delegation of powers to employment services providers
1Commencement
This instrument commences on 1 March 2010.
2Revocation
Instrument DEEWR SSL 14 of 2009 is revoked.
3Definitions
In this instrument:
employment services provider means an organisation that performs functions or provides services for the purposes of the social security law under:
(a) a relevant arrangement; or
(b) a subcontract under such an arrangement.
relevant arrangement means the following arrangements with the Commonwealth:
(a) Employment Services Contract 2006-2009;
(b) Employment Services Funding Deed 2006-2009;
(c) Employment Services Deed 2009-2012;
(d)Memorandum of Understanding between Department of Education, Employment and Workplace Relations and Department of Human Services as represented by CRS Australia 2008-2009;
(e)Memorandum of Understanding between Department of Education, Employment and Workplace Relations and Department of Human Services as represented by CRS Australia 2010-2012; and
(f)Disability Employment Services Deed 2010-2012.
4Delegation
(1)Each person engaged by an employment services provider to perform functions or to provide services under a relevant arrangement is delegated the following powers:
(a) the powers of the Secretary under the provisions of the Social Security Act 1991 mentioned in the table in Part 1 of Schedule 1 to this instrument; and
(b) the powers of the Secretary under the provisions of the Social Security (Administration) Act 1999 mentioned in the table in Part 2 of Schedule 1 to this instrument.
(2)However, a person mentioned in subsection (1) is not delegated the following powers under the Social Security Act 1991:
(a) a power to approve the form of an employment pathway plan;
(b) a power to determine, by legislative instrument, the kinds of requirements that employment pathway plans must not contain;
(c) the powers under paragraph 544DA(5)(c) and subsection 544DA(7).
Part 1 of Schedule 1 of the Instrument of Delegation dealt with powers under the SS Act delegated to employment service providers,[30] and provided that the following powers under the SS Act were delegated to ESPs:
[30] “ESPs” or “ESP”.
1 subsection 28(4);
2 section 28B;
3 Division 2 of Part 2.10;
4 Subdivision E of Division 1 of Part 2.11;
5 subsections 601(4B) and (4C);
6 Subdivision C of Division 1 of Part. 2.12; and
7 subparagraphs 1035A(3)(b)(ii) and (6)(b)(ii).
There was also a delegation of power under the SS Administration Act in respect of s.63(2) of the SS Administration Act.[31]
[31] Instrument of Delegation, Schedule 1, Part 2.
Authorised review officer’s decision
On 8 April 2011 the applicant requested a review of the decision to impose a reconnection penalty.[32] A Centrelink authorised review officer subsequently met with the applicant on 13 May 2011, and thereafter affirmed the decision to apply a reconnection penalty.[33]
[32] AAT Documents at page 74.
[33] AAT Documents at pages 81-93.
The SSAT Decision
The applicant subsequently sought further review before the SSAT, and a hearing was held on 21 June 2011. The applicant argued that he was only required to comply with compulsory activities listed in his EPP, and that was to attend appointments with Centrelink, and not the voluntary activity of searching for work. The applicant said that he ignored the 25 February 2011 Letter from CRS Australia advising of the appointment on 2 March 2011, by not opening it. The applicant did this because he had been previously told by Communicare Inc (seemingly a previous service provider involved with the applicant) that he was not required to attend their appointments even when notified by letter that he was required to do so. The applicant, therefore, ignored the letter from CRS Australia assuming it was from Communicare Inc.[34] The SSAT affirmed the decisions to:
a)apply a connection failure for the applicant’s non-attendance at the CRS Australia appointment on 2 March 2011;
b)apply a reconnection failure for the applicant’s non-attendance at the CRS Australia reconnection appointment on 10 March 2011; and
c)impose a reconnection penalty.[35]
[34] AAT Documents at pages 7-8.
[35] AAT Documents at pages 3-17.
The AAT Decision
On 11 July 2010 Mr Abel applied to the AAT for a review of the SSAT Decision.[36] The “Reasons for Application” provide as follows:
Primary issue is not 10th March. It is 2nd March 2011, there is no mention of job network member/service provider in EPP as compulsory if there is no connection failure all subsequent issues are viod.[37]
[36] AAT Documents at pages 1-2.
[37] AAT Documents at page 2 (transcribed from the original without amendment).
The AAT hearing was adjourned on 29 November 2011 to allow written submissions in regard to whether CRS Australia had delegated authority to:
a)send a letter to the applicant requiring him to attend an appointment on 2 March 2011; and
b)require the applicant to enter into an EPP.
The applicant contended that he had not committed any failures as:
a)he was not required under the terms of his EPP to attend appointments with CRS Australia;
b)CRS Australia did not have any delegation to send him a letter requiring him to attend an appointment on 2 March 2011; and
c)CRS Australia did not have the delegation to require the applicant to enter into an Employment Pathway Plan.
Before the AAT the respondent submitted that:
a)the Instrument of Delegation set out at clause 3 a definition of ESP which included reference to the “Memorandum of Understanding between Department of Education, Employment and Workplace Relations and Department of Human Services as represented by CRS Australia 2010-2012”[38]as being a relevant arrangement, and, therefore, that persons engaged by CRS Australia had delegated to them the powers under clause 4 of the Instrument of Delegation and as set out in Schedule 1;
b)Mr Philip was a person engaged by an ESP to perform functions or provide services under an arrangement with the Department, and, therefore, under the Instrument of Delegation, had delegation under s.63(2) of the SS Administration Act to send the 25 February 2011 Letter to the applicant requiring him to attend the interview on 2 March 2011;
c)with respect to an EPP that, under the Instrument of Delegation, the delegations under Items 1, 2, 5 and 6 of Part 1 of Schedule 1 of the SS Act allowed EPPs to be negotiated by ESPs with Newstart allowance recipients, and for approved activities to be included in the EPPs;
d)with respect to the EPP the respondent referred to the Federal Court’s judgment in Lim v Secretary, Department of Education, Employment and Workplace Relations (No. 2),[39] and the fact that the instrument of delegation in Lim (No. 2)[40] was an instrument previous to the Instrument of Delegation, but that the respondent had basically the same delegated powers under each.
[38] “2010 MOU”.
[39] [2008] FCA 1752 (“Lim (No. 2)”).
[40] Lim (No. 2) at para.17 per Bennett J.
In the AAT Decision:
a)the AAT summarised the issues to be considered by it as follows:
(a)whether the applicant was required to attend an appointment with CRS Australia on 2 March 2011;
(b)whether his non-attendance constituted a connection failure;
(c)if so whether he was required to attend a reconnection appointment on 10 March 2011 and if so, whether his non-attendance constituted a reconnection failure;
(d)if so, whether he has to serve a reconnection penalty period;
(e)whether CRS Australia had the delegation to send a letter to the applicant requiring him to attend an appointment on 2 March 2011; and
(f)whether CRS Australia had the delegation to require him to enter into an Employment Pathway Plan.
b)the AAT found that:
i)the 25 February 2011 Letter to attend the 2 March 2011 interview was sent by a person who was an ESP engaged by the Department of Education, Employment and Workplace Relations to perform the functions or provide services under an arrangement;[41]
ii)the purpose of the appointment on 2 March 2011 notified in the 25 February 2011 Letter was to assess the applicant’s needs and requirements and to negotiate an EPP;[42]
iii)CRS Australia had the delegation to send the 25 February 2011 Letter to the applicant requiring him to attend an appointment with CRS Australia, and that CRS Australia had the delegation to require him to enter into an EPP;[43]
iv)the applicant was properly notified of the appointment on 2 March 2011, and failed to attend that appointment without reasonable excuse;[44]
v)the applicant was notified orally of the appointment on 10 March 2011 and, pursuant to s.63 of the SS Administration Act, received valid notice of the appointment;[45]
vi)the applicant did not have a reasonable excuse, considering the factors listed in the Reasonable Excuse Determination, for failure to attend the appointment on 10 March 2011;[46]
vii)as a consequence of the applicant’s failure to attend the appointment, he committed a reconnection failure;[47] and
viii)under s.42H(4) of the SS Administration Act as a consequence of the reconnection failure, a reconnection failure period applied, beginning on 10 March 2011 and ending on 20 March 2011,
and the AAT, therefore, affirmed the SSAT Decision.
[41] AAT Decision at para.20 per Member Hogan.
[42] AAT Decision at para.24 per Member Hogan.
[43] AAT Decision at para.39 per Member Hogan.
[44] AAT Decision at para.40 per Member Hogan.
[45] AAT Decision at para.41 per Member Hogan.
[46] AAT Decision at para.42 per Member Hogan.
[47] AAT Decision at para.44 per Member Hogan.
A question of law must be stated in the notice of appeal
Rule 33.12(2)(b) of the Federal Court Rules 2011 (Cth) provides that a Notice of Appeal must state the precise question or questions of law to be raised on an appeal.
In TNT Skypark International (Aust) Pty Ltd v Federal Commissioner of Taxation [48] the Federal Court observed that:
The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself…
[48] (1988) 82 ALR 175 at 178 per Gummow J (“TNT Skypak”).
There is, therefore, no doubt that it is essential in appeals brought under s.44 of the AAT Act that a question of law be identified. If a Notice of Appeal fails to disclose a question of law then the necessary subject matter is absent. The Federal Court has repeatedly emphasised the need for a question of law to be identified, and for the question of law to appear in the notice of appeal in order for the Court to be able to entertain an appeal.[49]
[49] Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 524 per Ryan J (“Lambroglou”); Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 at 323-325 per Branson and Stone JJ; [2003] FCA 232 at paras.10-18 per Branson and Stone JJ (“Birdseye”).
A question of law includes, but is not necessarily limited to:
a)whether a particular section of an Act was properly construed and, whether if on that proper construction, the decision-maker was obliged to take into account certain considerations;[50]
b)whether there was any evidence of a particular fact,[51] where the finding about that fact formed part of the basis for the decision,[52] or in other words, the fact was significant to, or affected, the decision-maker’s decision;[53] and
c)whether the decision could not be reasonably inferred from the facts before the decision-maker.[54]
[50] Birdseye ALD at 325-326 per Branson and Stone JJ; FCAFC at paras.21-24 per Branson and Stone JJ.
[51] Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321.
[52] Birdseye ALD at 327 per Branson and Stone JJ; FCAFC at para.29 per Branson and Stone JJ.
[53] Birdseye ALD at 327-328 per Branson and Stone JJ; FCAFC at para.31 per Branson and Stone JJ.
[54] Lambroglou at page 521 per Ryan J.
A question of law is not:
a)a question that asks for an inquiry into whether the decision-maker has committed an error of law;[55]
[55] Birdseye ALD at 322 per Branson and Stone JJ; FCAFC at para.6 per Branson and Stone JJ.
b)a mere assertion that the decision-maker erred in law;[56]
[56] Lambroglou at 524 per Ryan J.
c)the grounds relied on in support of the order sought;[57]
[57] Lambroglou at 524 per Ryan J.
d)a question where the answer could not affect the decision of the decision-maker;[58]
[58] Birdseye ALD at 327 per Branson and Stone JJ; FCAFC at para.28 per Branson and Stone JJ.
e)a question which asks what is the meaning of an ordinary English word;[59]
f)a question about whether a “a particular set of facts comes within the description of …a word or phrase”;[60] or
g)assertions that a decision was against the evidence and the weight of the evidence.[61]
Furthermore:
a)there is no error of law simply in making a wrong finding of fact;[62]
b)an “immaterial error of law will not vitiate the AAT’s decision”;[63] and
c)the failure to take into account certain pieces of evidence is not failure to take into account a relevant consideration.[64]
Competency of the Notice of Appeal
[59] Lambroglou at 520 per Ryan J.
[60] Lambroglou at 520 per Ryan J.
[61] Collins v Minister for Immigration & Ethnic Affairs (1981) 4 ALD 198.
[62] Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77 per Brennan J.
[63] BTR PLC & Anor v Westinghouse Brake & Signal Company (Australia) Ltd & Ors (1992) 34 FCR 246 at 254 per Lockhart and Hill JJ.
[64] Walsh v Department of Employment, Education, Training & Youth Affairs (1998) 51 ALD 690.
Notice of Appeal and grounds
The Notice of Appeal says that the part of the AAT Decision appealed from, or which should be varied is as follows:
WHETHER C.R.S HAS DELEGATED AUTHORITY TO NOTIFY FOR APPOINTMENTS, NO CONNECTION FAILURE NO RE-CONNECTION FAILURES
Asked to specify the precise question or questions of law to be raised on the Appeal the applicant has written “AS ABOVE”. That can only be a reference to the words set out above. The applicant goes on to indicate that what is sought by way of relief is to “OVERTURN DECISION”, that being the AAT Decision. Asked to state the grounds relied upon the applicant says:
SECTION 7 OF ADMINISTRATIVE ACT 1999
Applicant’s submissions
The applicant filed no written submissions.
The applicant’s oral submissions were brief, but put squarely the proposition was that there was no relevant delegation by the respondent to CRS Australia.[65]
[65] See Transcript, page 2.
Respondent’s submissions
The respondent submits that:
a)the Notice of Appeal does not raise any questions of law, but contains mere statements of grievances or disagreement by the applicant with the AAT Decision;
b)the Appeal should be dismissed with costs as the Notice of Appeal does not disclose a question of law as required under s.44(1) of the AAT Act; and
c)in any event, the AAT did not commit any error of law in the making of its decision. The AAT considered the evidence and concluded that:
i)CRS Australia had the delegation to send the 25 February 2011 Letter to the applicant requiring him to attend appointments with CRS Australia;
ii)CRS Australia had the delegation to require the applicant to enter into an EPP;
iii)the applicant was properly notified of the appointment on 2 March 2011;
iv)the applicant failed to attend the appointment on 2 March 2011 without reasonable excuse as set out in the Reasonable Excuse Determination;
v)the applicant was orally notified of the appointment on 10 March 2011, and that is deemed valid notice of the appointment under s.63 of the SS Administration Act;
vi)the AAT was not satisfied that the applicant provided a reasonable excuse for his failure to attend the appointment on 10 March 2011;
vii)the applicant failed to attend appointments on 2 March 2011 and 10 March 2011, and as a consequence of the connection failure on 2 March 2011, he committed a reconnection failure on 10 March 2011; and
viii)on the basis of those findings, the AAT decided that under s.42H(4) of the SS Administration Act, a reconnection failure period applied, beginning on the day of the applicant’s reconnection failure and ending on the day before his compliance with a further reconnection requirement.
Does the applicant raise a question of law?
It was incumbent on the applicant to formulate a precise question of law for consideration by the Court on the Appeal.[66] The requirement to formulate a precise question of law cannot be ignored, because it is the question of law that enlivens the jurisdiction of the Court.[67]
[66] Birdseye ALD at 325 per Branson and Stone JJ; FCAFC at para.18 per Branson and Stone JJ; Zoia v Secretary, Department of Employment & Workplace Relations [2008] FCA 988 at para.20 per Siopis J.
[67] Perry v Comcare (2006) 150 FCR 319 at 329 per Greenwood J; [2006] FCA 33 at para.32 per Greenwood J.
In Lim (No. 2) the Federal Court dealt with a question as to whether a delegation of power made by the respondent to enter into Newstart activity agreements (the predecessors of EPPs) was within power, and whether the ESP could exercise that power if delegated by the respondent.[68]
[68] Lim (No. 2) at paras.14 and 30-42 per Bennett J.
In Piotto v Secretary, Department of Education, Employment and Workplace Relations[69] the question arose as to whether there was any evidence of a valid delegation of powers from the Secretary to an ESP. In Piotto the respondent (the same respondent as in these proceedings) identified an ESP as falling within clause 3(b) of an instrument of delegation, namely that that ESP was an organisation which provides services to the respondent under the “Employment Services Contract 2006-2009.”[70] Having referred to Lim (No. 2),[71] the Federal Court went on to observe as follows:
19 In contrast to the circumstances described in Lim, the respondent did not produce evidence before the Tribunal to show that MatchWorks provided services to the respondent pursuant to an arrangement described in cl 3 of the delegation, or that the relevant employees of MatchWorks were employed to perform functions and provide services pursuant to that arrangement. In particular, no document was before the Tribunal to show that MatchWorks was an Employment Service Provider within the meaning of cl 3(b) of the delegation. The mere assertion in submissions that such was the case is not tantamount to evidence before the Tribunal.
20 Accordingly, I am not satisfied that there was any material on which the Tribunal could conclude that a valid delegation from the respondent to MatchWorks was in place at the time of the Participation Failure. The application must be remitted to the Tribunal. ...[72]
[69] [2009] FCA 1116 (“Piotto”).
[70] Piotto at para.16 per Marshall J.
[71] Piotto at para.18 per Marshall J.
[72] Piotto at paras.19-20 per Marshall J.
Piotto was appealed.[73] On appeal the Full Court of the Federal Court noted that at first instance the Federal Court had found error only in relation to the issue of delegation by the respondent to the relevant ESP,[74] and specifically observed that in Piotto “the … [AAT] was found to have erred on a question of law.”[75] That finding was not overturned in Piotto Appeal.
[73] Piotto v Secretary, Department of Education, Employment and Workplace Relations [2010] FCAFC 48 (“Piotto Appeal”).
[74] Piotto Appeal at para.9 per Ryan, Mansfield and McKerracher JJ.
[75] Piotto Appeal at para.28 per Ryan, Mansfield and McKerracher JJ.
In the circumstances, the applicant’s contention that CRS Australia had no delegated authority to make appointments is a question of law, as is the question of whether or not there is evidence to show a valid delegation from the respondent to the relevant ESP in relation to the making of the relevant appointments with the applicant. A question of law having been raised, the Notice of Appeal is competent.
Delegated authority
Section 605(3) and (4) of the SS Act provides as follows:
(3) The Secretary is to give a person who is required to enter into a Newstart Employment Pathway Plan notice of:
(a) the requirement; and
(b) the places and times at which the plan is to be negotiated.
(4) A Newstart Employment Pathway Plan must be in a form approved by the Secretary.
Section 63(2) of the SS Administration Act provides as follows:
(2) If the Secretary is of the opinion that a person to whom this subsection applies should:
(a) attend an office of the Department; or
(b) contact the Department; or
(c) attend a particular place for a particular purpose; or
(d) give information to the Secretary;
the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing. However, the Secretary may not, under this subsection, notify a person that he or she is required to do an act or thing referred to in paragraph (4)(a) or (b).
Section 7 of the SS Administration Act, which was adverted to by the applicant, provides as follows:
The Secretary is, subject to any direction of the Minister, to have the general administration of the social security law.
There was no evidence of any relevant direction of the Minister which affects this matter.
Section 234(1) of the SS Administration Act provides that:
Subject to sub-section (3), the Secretary may, in writing, delegate to an officer all or any of the powers of the Secretary under the social security law.
Section 234(3) of the SS Administration Act is not relevant for present purposes.
Section 234(7) of the SS Administration Act provides that:
Without limiting the operation of the definition of officer in sub-section 23(1) of the 1991 Act [the SSA Act], in this section officer includes a person engaged (whether as an employee or otherwise) by:
(a)…; or
(b)…; or
(c)an organisation that performs services for the Commonwealth;
…
The delegation under s.234(1) and (7) of the SS Administration Act must be to a “person” who is an “officer”, and therefore the delegation can only be to an individual.[76] That “person” can be a person engaged by an organisation that performs services for the Commonwealth,[77] and it may be necessary to examine each particular arrangement between the respondent and an ESP to determine if there has been such an engagement.[78]
[76] Piotto Appeal at para.28 per Ryan, Mansfield and McKerracher JJ; Fair Work Ombudsman v Nerd Group Australia Pty Ltd & Anor (No. 2) (2012) 262 FLR 315 at 351 per Lucev FM; [2012] FMCA 6 at para.138 per Lucev FM.
[77] Instrument of Delegation, cl.4(1).
[78] Piotto Appeal at para.28 per Ryan, Mansfield and McKerracher JJ.
Asked at hearing to identify the relevant delegation[79] the respondent pointed to the finding in the AAT Decision that CRS Australia had the delegation to send the relevant letter to the applicant requiring him to attend appointments and to enter into an EPP.[80] When the question was asked again, following the above answer, the answer was said to lie in the supplementary written submissions made by the Secretary preceding the AAT hearing.[81] The Court then referred to the definition in the Instrument of Delegation of an ESP, and again asked where in the AAT Documents was there evidence of the particular fact that there was a relevant arrangement with CRS Australia. The answer to that question was that it was the 2010 MOU referred to in clause 3(e) of the Instrument of Delegation.[82]
[79] Transcript, page 3.
[80] Transcript, page 4; AAT Decision at paras.39-42 per Member Hogan.
[81] Transcript, page 4.
[82] Transcript, page 4.
Consideration
Two questions arise:
a)did the respondent have power to delegate the relevant powers to the ESP, CRS Australia; and
b)if the respondent had that power is there evidence of a proper exercise of the delegated power?
There is no question that the respondent has power to delegate all or any of the respondent’s relevant powers to an ESP, including CRS Australia.[83] Specifically, that includes the power to make appointments with a person such as the applicant, and to negotiate an EPP with a person such as the applicant.[84] Where there is such a delegation within power a person such as the applicant can be obliged to attend appointments, such as those in issue here, and to negotiate an EPP with a service provider, such as CRS Australia. That leaves the question as to whether or not the respondent legally delegated the power in this instance, and whether there was evidence of a proper exercise of that delegation before the AAT.
[83] SS Administration Act, ss.7 and 234(1) and (7).
[84] SS Act, s.605(3) and (4); SS Administration Act, ss.63(2) and 234(1) and (7).
The only delegation relied upon both before the AAT and before this Court was the Instrument of Delegation. That Instrument of Delegation became effective from 1 March 2010. As such, assuming a proper delegation, the Instrument of Delegation could found a direction by CRS Australia in the 25 February 2011 Letter to the applicant to attend a meeting on 2 March 2011.
Counsel for the respondent pointed to the 2010 MOU as being the relevant arrangement between the Commonwealth and CRS Australia. The 2010 MOU was not in evidence before the AAT. There was no evidence as to the content of the 2010 MOU. Nor was there any evidence of “[e]ach person engaged” by CRS Australia “to perform functions or provide services under” the 2010 MOU. It is only persons engaged by CRS Australia to perform functions or provide services under the 2010 MOU who have delegated authority.[85] There was no evidence that any person engaged by CRS Australia sent the 25 February 2011 Letter to the applicant. There was also no evidence as to what persons at CRS Australia had been engaged to perform functions or provide services under the 2010 MOU. Specifically, there was no evidence that the sender of the 25 February 2011 Letter was, or whether that person, whoever it was, was a “person engaged” for appropriate purposes under the 2010 MOU. It was submitted that the sender of the 25 February 2011 Letter was a Mr David Philip, who was said to be a case manager based at the CRS Australia Cannington office, and that he was a person engaged by CRS Australia to perform functions or provide services under the 2010 MOU, but again there was no evidence of this fact, as opposed to submission and assertion. Whilst the AAT may proceed informally, and is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate,[86] it cannot act on a mere submission by a party in circumstances where a critical factor, such as the proper exercise of delegation, is challenged. As the Federal Court observed in Piotto:
The mere assertion in submissions that such was the case is not tantamount to evidence before the … [AAT].[87]
The making of findings and the drawing of inferences in the absence of evidence is an error of law.[88]
[85] Piotto Appeal at para.28 per Ryan, Mansfield and McKerracher JJ; Piotto at para.19 per Marshall J.
[86] AAT Act, s.33(1).
[87] Piotto at para.19 per Marshall J.
[88] Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138 per Jordan CJ cited in Lambroglou at 520-521 per Ryan J.
As in Piotto, what distinguishes this case from Lim (No. 2) is that in Lim (No. 2) there was evidence of the relevant arrangements, including the employment and engagement of persons for the relevant purposes under the relevant arrangements, in that case under the “Employment Services Contract 2006-2009”.[89]
[89] Piotto at paras.18-19 per Marshall J, citing Lim (No. 2) at para.19 per Bennett J.
No other basis was argued by the respondent to sustain the validity of the making of the appointment on 2 March 2011 by the sending of the 25 February 2011 Letter.
In the circumstances, the Court finds that there is no evidence of the, or any, “person engaged” by CRS Australia “to perform functions or to provide services under” the 2010 MOU, who is said to have sent the 25 February 2011 Letter to the applicant. Accordingly, the Court is not satisfied that there was any material on which the AAT could conclude that any delegation from the respondent to CRS Australia was properly exercised at the time of the sending of the 25 February 2011 Letter. Accordingly, the applicant’s failure to attend the 2 March 2011 meeting could not have been a connection failure. It follows that the applicant’s failure to attend the 10 March 2011 meeting was not a reconnection failure. That being the case there was no basis on which to impose a reconnection penalty upon the applicant on the basis of the failure to attend the appointments on 2 and 10 March 2011. It follows that the AAT Decision must be set aside, and the matter must be remitted to the AAT for reconsideration.
Conclusions and Orders
The Court has concluded that:
a)the Notice of Appeal does raise a question of law and is competent; and
b)there is no evidence that any delegation by the respondent to CRS Australia to send the 25 February 2011 Letter to the applicant directing the applicant to attend the 2 March 2011 appointment was properly exercised, and it follows that there was:
i)no connection failure on 2 March 2011;
ii)no reconnection failure on 10 March 2011; and
iii)no basis for imposing a reconnection penalty thereafter,
on the basis of the evidence before the AAT.
It follows that the AAT Decision must be set aside, and the matter must be remitted to the AAT for reconsideration.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 7 March 2013
12
4