Arnold, Pamela Lorraine v Secretary of the Department of Employment, Education, Training and Youth Affairs
[1998] FCA 1695
•18 DECEMBER 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW – Social security – Newstart allowance – Allowance cancelled – Statutory condition of a “requirement” that recipient of allowance enter into a new Case Management Activity Agreement – Whether notice must use the word “require” or its cognate – Letter of cancellation of allowance recited omissions of applicant – Whether recitals were incorrect.
Employment Services Act 1994, ss38 and 44
PAMELA LORRAINE ARNOLD v SECRETARY OF THE DEPARTMENT OF EMPLOYMENT EDUCATION, TRAINING AND YOUTH AFFAIRS
NG866 of 1998
WILCOX J
SYDNEY
18 DECEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG866 of 1998
BETWEEN:
PAMELA LORRAINE ARNOLD
ApplicantAND:
SECRETARY OF THE DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS
RespondentJUDGE:
WILCOX J
DATE OF ORDER:
18 DECEMBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The appeal be dismissed.
The question of costs be reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG866 of 1998
BETWEEN:
PAMELA LORRAINE ARNOLD
ApplicantAND:
SECRETARY OF THE DEPARTMENT OF EMPLOYMENT EDUCATION, TRAINING AND YOUTH AFFAIRS
Respondent
JUDGE:
WILCOX J
DATE:
18 DECEMBER 1998
PLACE:
SYDNEY
EX TEMPORE REASONS FOR JUDGMENT
WILCOX J: This is an appeal against a decision of the Administrative Appeals Tribunal handed down on 8 July 1998. The Tribunal, constituted by Mr R.P. Handley, Senior Member, dismissed an appeal brought to the Tribunal by Pamela Arnold against the Secretary of the Department of Employment, Education, Training and Youth Affairs. The proceeding before the Tribunal called in question a decision made by a delegate of the Secretary to cancel payment of Newstart allowance to Ms Arnold. The Tribunal decision dealt with a number of matters, both factual and legal. The notice of appeal filed in this Court stated four grounds but I think they raise only two questions.
The facts
In the latter part of 1995 Ms Arnold was in receipt of a Newstart allowance. This was payable to her pursuant to the Employment Services Act 1994. She had entered into a Case Management Activity Agreement with the Department under that Act.
The points raised by Ms Arnold arise out of correspondence sent to her by the Kempsey branch of Employment Assistance Australia.
Apparently, Employment Assistance Australia wrote to Ms Arnold about interviews in October 1995. I need not go into the reasons why particular interviews did not occur or what happened in respect of any interviews that did occur. It is sufficient to start with a letter of 30 November 1995, written by Mr Tom Mosley, senior case manager of Employment Assistance Australia at Kempsey. The letter read as follows:
“You did not attend your interview on the 27th October 95 to review your Case Management Activity Agreement which is now out of date. I have noted on file that you did phone to cancel this interview with the reason you gave, which was that you said as you had written to the ombudsman that you felt you did not have to attend while the ombudsman’s office was investigating your concerns. I have received advice from our Area Office in Newcastle that the reason you gave for not attending does not exempt you from the interview, that you are required to attend this interview under the terms of the Employment Services Act 1994. I also note from our records that you also did not attend your review interview in August with your previous case manager even though you had agreed to this in your previous Case Management Activity Agreement.
Your interview has been rebooked for:
. EAA 1st Floor, 59 Smith Street, Kempsey (above CES)
. 2pm
. Friday
. 8th December 1995Under the terms of the Employment Services Act 1994, if you do not attend this interview you will be taken to have unreasonably delayed entering into a Case Management Activity Agreement and your Newstart Allowance will not be paid to you for a period of time and case management services may be withdrawn.
You must attend this interview if you do not want your allowance to stop.”
The interview appointed by this letter did not take place. The reason was that Ms Arnold contacted Employment Assistance Australia and mentioned she was undertaking a valuer's course examination on 8 December. Accordingly, a new appointment was made for 18 December. On 11 December 1995, Mr Mosley sent a further letter to Ms Arnold referring to the new appointment. The letter of 11 December read as follows:
“I refer to my previous letter of the 30th November 95 which notified you of your rebooked interview. I have been advised by the CES today that you have advised that you would not be able to attend at this time. The CES further advise that you have agreed that another time of 9.30am on Monday the 18th December 95 would be more convenient for you.
The focus of this interview is to complete a Case Management Activity Agreement that adheres to the requirements of the Employment Services Act 1994. During this interview I will also be introducing you to another experienced case manager, Ms Ursula Donohue. Sometimes people find it beneficial to change to another case manager. Therefore after you have signed your agreement at this interview Ms Donohue will be your case manager if you wish to change to another case manager.
Your interview has been rebooked for:
. EAA lst Floor, 59 Smith Street, Kempsey (above CES)
. 9.30am
. Monday
. 18th December 1995Under the terms of the Employment Services Act 1994, if you do not attend this interview you will be taken to have unreasonably delayed entering into your Case Management Activity Agreement and your Newstart Allowance will not be paid to you for a period of time and case management services may be withdrawn.
You must attend this interview if you do not want your allowance to stop.”
On the same day the manager of the Kempsey office, Ms J Sproule, wrote a further letter to Ms Arnold, as follows:
“I am writing to you in regards to your letter received by this Officer on the 19th of October. This response has taken longer than usual as I had previously looked closely at the handling of your case in response to your letter of the 24th July 1995. I understand that some of the concerns that you have raised have already been addressed. Due to your more recent correspondence the Regional Manager of this Region asked me to review the handling of your case again. I am satisfied that your case has been handled with the utmost consideration of your needs, in terms of the information you have provided us with to date, and the Governments Working Nation Strategies to assist the long term unemployed clients.
You have requested to be reinstated to your former Agreement as signed in Tamworth. This can not occur as the Employment Services Act 1994 requires that you have a current Case Management Activity Agreement in place. This new Agreement will focus on helping you obtain skills and qualifications that will help you obtain work.
In regard to our phone conversation on 4th December 1995 I confirm that your next case management interview will be at 9.30am on Monday 18th December 1995 so that a current Case Management Activity Agreement can be developed on the suggestions made by your case manager and can include additional activities, if meeting the requirements, as suggested by yourself.
Please note that if you feel that there may have been a breakdown in communication between yourself and your case manager, you may choose the services of another case manager. Mr Mosley has suggested that if this is the case then during his interview with you that you will be introduced to another experienced EAA case manager Ms Ursula Donohue. After you complete and sign your agreement at this interview Ms Donohue will be your case manager if you think this change in case manager will be helpful to you.
If you have any further questions that have not already been covered by the range of information provided to you to date, please discuss them with your case manager. Please note we can only answer questions that are specific and relate to the process of case management or operation of programs administered by this Office.”
Ms Arnold did not attend the interview appointed for 18 December. On that date a letter was sent by Ms Sproule in the following terms:
“You have recently been contacted on at least two occasions by your Case Manager, requiring you to attend an interview to enter into a new Activity Agreement or review you [sic] current agreement.
As you have not responded or attended your Case Manager’s office at the specified times, I am satisfied that you have unreasonable [sic] delayed entering into an Agreement with your Case Manager.
As required by subsection 44(3) of the Employment Services Act, you are hereby notified that you are taken to have failed to enter into an Activity Agreement.
This decision means that:
. If you are receiving Job Search/Newstart or Youth Training Allowance, your allowance will not be paid to you for a period of time,
or
. If you don’t receive any of the above allowances, your relationship with your Case Manager has ended and you will not be able to enter the Case Management System again for 26 weeks.
If you are a Job Search/Newstart/Youth Training allowance recipient, you will be sent a separate letter to tell you the date on which your non-payment period will start. Your local Department of Social Security Office can tell you how long this period will be.
You have the right to request a review of this decision if you think it is wrong. You can request a review by an independent Authorised Review Officer (ARO) by contacting you [sic] local CES.
There is no time limit for requesting a review, but is [sic] the request is made more than three months after this decision, you will not be back paid for the period prior to your request for review, should the decision be overturned by the ARO.”
“Requirement” (s 38)
The first point taken by Ms Arnold, in her argument before me today, relates to the proper interpretation and application of s 38 of the Employment Services Act. This section relevantly reads as follows:
“38.(1)This section applies to a person who has been referred to a case manager under Part 4.3.
(2)The person is to have a written agreement with the case manager. The agreement is to be known as a Case Management Activity Agreement. The agreement is to be in a form approved by the Employment Secretary.
(3)If the person is not a party to a Case Management Activity Agreement, the Employment Secretary must require the person to enter into such an agreement.
(4)If the person is already a party to a Case Management Activity Agreement, the Employment Secretary may require the person to enter into such an agreement instead of the existing one.
(5)If the person is required to enter into a Case Management Activity Agreement under subsection (3) or (4), the Employment Secretary must give the person written notice of:
(a)the requirement; and
(b)the places and times at which the agreement is to be negotiated.
(6).
(7)…”
Ms Arnold argues that a notice complying with s 38(5) must use the word "require" or some cognate of that word. She says neither of the letters that are said by the Secretary to have been a notification of a requirement to enter into a Case Management Activity Agreement complies with this stipulation.
The letters to which I have referred were discussed by Mr Handley in the course of his reasons for decision. He acceded to arguments put to him by Ms Arnold that neither a letter of 12 October 1995, which I have not set out, nor the letter of 30 November amounted to a notification of a requirement to enter into a Case Management Activity Agreement. However, he held the letter of 11 December complied with s 38(5). The relevant paragraph in the Tribunal's reasons is as follows:
“However, the letter from Mr Mosley dated 11 December 1995 states that the ‘focus of the interview is to complete a Case Management Activity Agreement’ and notes that ‘after you have signed your agreement at this interview Ms Donohue will be your case manager if you wish to transfer to another case manager’. In the Tribunal’s view, it is clear from this letter that the purpose of the interview on 18 December 1995 was to prepare a new CMA Agreement. This is reinforced by the second letter of 11 December 1995 from Ms J Sproule which confirms the date and time of the interview:
‘so that a current Case Management Activity Agreement can be developed on the suggestions made by your case manager and can include additional activities, if meeting the requirements, as suggested by yourself.’”
Ms Arnold submits this approach was erroneous because Mr Handley overlooked the omission from the letter of 11 December of the word "require” or “requirement".
I do not accept this submission. It seems to me the approach taken by Mr Handley was not erroneous in point of law. The letter stated what it called the "focus of the interview” as being "to complete a Case Management Activity Agreement that adheres to the requirements of the Employment Services Act 1994". It then went on to mention a further purpose, namely to introduce Ms Arnold to a new case management officer, apparently because she was unhappy with her relationship with Mr Mosley, her current case management officer. I think the letter plainly indicates it is expected a new agreement will be made. This is reinforced by the penultimate paragraph of the letter in which Ms Arnold was told that, if she did not attend the interview, she "will be taken to have unreasonably delayed entering into your Case Management Activity Agreement and a Newstart allowance will not be paid to you". As Mr Handley pointed out, the letter from Ms Sproule the same day referred to the purpose of the interview of 18 December as being, "so that a current Case Management Activity Agreement can be developed".
I think the legislative intention behind s 38(5) was to ensure that a recipient of a Newstart allowance is given a notice in clear terms of the desire of the Employment Secretary to have a new agreement entered into. This is the “requirement” to which it refers. If this desire is made clear in a letter, the legislative purpose is fulfilled. There is nothing in the Act to indicate any particular word must be used to convey the message required by s 38(5). I do not think Mr Handley misunderstood the proper construction or purpose of s 38(5) or that he misapplied the subsection in any way.
Notification of failure to enter agreement (s44)
Ms Arnold’s second point arises out of the terms of the letter of 18 December. It will be recalled this letter opens with the following recital:
“You have recently been contacted on at least two occasions by your Case Manager requiring you to attend an interview to enter into a new Activity Agreement or review your current agreement.”
Ms Arnold says this statement is incorrect; that, consistently with Mr Handley's ruling, on only one occasion was she required to attend an interview to enter into a new activity agreement. Apparently Mr Handley approached the matter on that basis. He said, in para. 37 of his reasons, that the letter of 18 December constituted a notice for the purpose of s 44(3)
“… even though it refers, in error, to two occasions when the Applicant had not responded to a requirement to attend an interview.”
He went on to say:
“The letter satisfies the requirements of s44(3) by notifying the Applicant that 'you are taken to have failed to enter into an Activity Agreement.’ The Tribunal noted, contrary to the Applicant's submission, that there is no requirement that the notice follow the exact wording of s44(3).”
Section 44 reads:
“(1) This section applies if:
(a)a person has been given notice under subsection 38(5) of a requirement to enter into a Case Management Activity Agreement; and
(b)the Employment Secretary is satisfied that the person is unreasonably delaying entering into the agreement.
(2)The Employment Secretary may be so satisfied:
(a)because of the person’s failure to:
(i)attend the negotiation of the agreement; or
(ii)respond to correspondence about the agreement; or
(iii)agree to terms of the agreement proposed by the case manager, or
(b)for any other reason.
(3)The Employment Secretary may give the person a written notice stating that the person is being taken to have failed to enter into the agreement. If such a notice is given, the person is taken to have failed to have entered into the agreement.
(4)A notice under subsection (3) must:
(a)set out the reasons for the decision to give the notice; and
(b)include a statement describing the rights of the person to apply for a review of the decision.”
It will be noted that the operative provision is subs (3), pursuant to which the Employment Secretary may give the person receiving the Newstart allowance a written notice stating that the person is being taken to have failed to enter into the agreement. That is precisely the form of the notice that was included in the box on the first page of the letter of 18 December. Mr Handley obviously thought this was the critical requirement of s 44(3) and that it was fulfilled in this case. I agree. Of course, if there was no material by reference to which the Employment Secretary could be satisfied of the matters set out in subs (2), then it would not be possible validly to give a notice under subs (3). That is not this case. In this case, on the Tribunal's findings of fact, the case fell within s 44(1)(a) and, indeed, perhaps 44(1)(b).
It seems to me immaterial that only one notice under s 38(5) had been given rather than two; the requirement of subs (1) was nonetheless satisfied. The reference to two occasions would only be relevant if it could be inferred that the difference between one reference and two references might have affected the formation of the opinion required under subs (2). I do not see any basis for that conclusion.
More importantly, it seems to me the statement in the opening sentence of the letter of 18 December was accurate. It is true there had only been one requirement to attend an interview to enter into a new activity agreement but there had also been an occasion on which Ms Arnold had been required to attend an interview for the alternative purpose stated in the opening sentence of the letter; to review her current agreement. This occasion was the letter of 30 November which clearly indicated that the purpose of the interview of 27 October, which was being rebooked, was "to review your Case Management Activity Agreement". Any fair reading of the letter of 30 November would leave the reader in no doubt that review of the agreement, if not the making of a new agreement, was the purpose of the 8 December appointment. It follows that the statement made in the opening paragraph of the letter of 18 December was not inaccurate. This destroys the foundation of Ms Arnold's argument.
Orders
It seems to me there is no merit in either of the legal points taken by Ms Arnold. The appeal should be dismissed.
[There was discussion on costs.]
I dismiss the appeal and reserve the matter of costs.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox
Associate:
Dated: 18 December 1998
The Applicant appeared in person Counsel for the Respondent: Gregory Peek Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 December 1998 Date of Judgment: 18 December 1998
0
0
0