Austin v Secretary, Department of Family and Community Services
[1999] FCA 938
•08 JULY 1999
Social Security
(1999) 92 FCR 138
Austin v Secretary, Department of Family & Community Services
[1999] FCA 938
KATRINA AND GARRY AUSTIN v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
QG 157 OF 1998
DRUMMOND J
8 JULY 1999
BRISBANE
SOCIAL SECURITY - Newstart Allowance - Partner Allowance - benefits paid at rates that were too low due to departmental error - what constitutes "notice" for the purposes of s 660K(2) to (4) Social Security Act 1991 (Cth) to enable review of that error
WORDS AND PHRASES - "notice"
Social Security Act 1991 (Cth) ss 23, 660(2), 660FA, 660G, 660I, 660IA, 660IB, 660J, 660K, 771NR, 1068, 1359
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 27A, 28
Income Tax Assessment Act 1936 (Cth) s 24ABM
Re Secretary, Department of Social Security and Sting (1996) 39 ALD 721 not followed
Re McAllan and Secretary, Department of Social Security (1998) 51 ALD 792 not followed
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 considered
Ex parte Oastler. In re Friedlander (1883) 13 QBD 471 considered
Goodyear Tyre & Rubber Co (Great Britain) Ltd v Lancashire Batteries, Ltd [1958] 3 All ER 7 considered
R v Secretary of State for the Home Department ex parte Tolba [1988] Imm AR 78 considered
IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 157 OF 1998
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: KATRINA AND GARRY AUSTIN Applicants
AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Respondent
JUDGE: DRUMMOND J DATE OF ORDER: 8 JULY 1999 WHERE MADE: BRISBANE
THE COURT ORDERS THAT:
1. The decision of the Administrative Appeals Tribunal the subject of Mr Austin's appeal be set aside and his case remitted to the Administrative Appeals Tribunal for re-determination in accordance with the following directions:
(a) That the Tribunal determine, in accordance with these reasons, whether any notice within s 660K(2) or (3) was ever given of any decisions that may have been made between 17 May 1993 and 26 February 1997 that fixed the rate or rates of Newstart Allowance that was paid to Mr Austin in that period.
(b) That the Tribunal determine, in accordance with these reasons, the amount of Mr Austin's entitlement to payment of arrears of Newstart Allowance underpaid in respect of the period between 17 May 1993 and 26 February 1997.
2. The decision of the Administrative Appeals Tribunal the subject of Mrs Austin's appeal be set aside.
3. The further hearing of Mrs Austin appeal be adjourned to a date to be fixed with liberty to apply.
4. The respondent pay Mr and Mrs Austin's costs of and incidental to each appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 157 OF 1998
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: KATRINA AND GARRY AUSTIN Applicants
AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Respondent
JUDGE: DRUMMOND J DATE: 8 JULY 1999 PLACE: BRISBANE
REASONS FOR JUDGMENT
1 These are appeals from decisions of the Administrative Appeals Tribunal, firstly, that arrears of Newstart Allowance are not payable to Mr Austin in respect of the period 18 May 1993 to 3 February 1997 and, secondly, that arrears of Partner Allowance are not payable to Mrs Austin in respect of the period 20 September 1994 to 10 July 1995.
2 The question of law involved in Mr Austin's appeal is what constitutes "notice" for the purposes of s 660K the Social Security Act 1991 (Cth), while the question of law in Mrs Austin's appeal is what constitutes "notice" for the purposes of s 771NR of that Act.
3 The determination in Mr Austin's appeal of what is meant by the expression "notice" in s 660K will govern the outcome of Mrs Austin's appeal, since there is no material difference between s 660K and s 771NR.
4 The object of s 660K is to fix the date on which decisions made under ss 660G and 660J in favour of persons who are, or who have been, in receipt of Newstart Allowance take effect. It provides:
"660K Date of effect of favourable determination660K(1) The day on which a determination under section 660G or 660J (in this section called the favourable determination) takes effect is worked out in accordance with this section.
Notified decision - review sought within 3 months
660K(2) If:
(a) a decision (in this subsection called the previous decision) is made in relation to a newstart allowance; and
(b) a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision - review sought after 3 months
660K(3) If:
(a) a decision (in this subsection called the previous decision) is made in relation to a newstart allowance; and
(b) a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
660K(4) If:
(a) a decision (in this subsection called the previous decision) is made in relation to a newstart allowance; and
(b) no notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
...
Other determinations
660K(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination."
5 Section 660G, the provision under which the "favourable determination" within s 660K was made that is here relevant, provides:
"660G Rate increase determinationIf the Secretary is satisfied that the rate at which a newstart allowance is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination."
6 Section 660J, the other provision to which s 660K applies, provides:
"660J Resumption of payment after cancellation or suspension660J(1) If the Secretary:
(a) cancels or suspends a person's newstart allowance under section 660I or 660IA; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that because of the decision to cancel or suspend:
(i) the person did not receive newstart allowance that was payable to the person; or
(ii) the person is not receiving newstart allowance that is payable to the person;
the Secretary is to determine that a newstart allowance was or is payable to the person.
660J(2) The reconsideration referred to in paragraph (1)(b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary's own initiative."
7 A full statement of the facts relevant to Mr Austin's position, which are not contentious, is contained in the decision of 18 November 1997 given by the authorised review officer on Mr Austin's request of 22 July 1997 for review of the Department's decision not to pay him arrears of Newstart Allowance for the period 18 May 1993 to 3 February 1997, a decision that was notified to Mr Austin by the Department's letter of 13 June 1997. The facts upon which the AAT determined the case can be shortly stated. In early 1993, Mr Austin, who had then been in receipt of what is now called Newstart Allowance for some time, twice inquired of the Department whether his allowance was being correctly assessed. He did not receive a response. However, after his second inquiry the Department, on 18 May 1993, undertook a recalculation of his rate of entitlement. In doing that, the Department used a figure of $140 per week as the income Mr Austin was receiving from his rental property when the true position was that the figure was only $70 per week. This error was carried through, fortnight by fortnight, and affected each of the benefit payments made to Mr Austin for the period 18 May 1993 to 25 February 1997, when his Newstart Allowance was cancelled.
8 Although the Social Security Appeals Tribunal had some doubt about whether anything at all was done on 18 May 1993 with respect to the assessment of Mr Austin's Newstart Allowance entitlement, the AAT found that the Department did then make a recalculation of that entitlement and treated it as a decision for the purposes of s 660K. It was not suggested in this Court that the AAT's approach was wrong or that this recalculation did not constitute a "decision" within the meaning of that term in the phrase "previous decision" in s 660K. The term "decision" is defined in s 23 the Social Security Act as having the same meaning as in the Administrative Appeals Tribunal Act 1975 (Cth). It appears from the latter Act, and in particular from provisions such as ss 25(3) and 27A(1), that it is only determinations made in relation to Newstart Allowance under ss 660G and 660J by some person that can be the subject of a "notice" sufficient for the purposes of s 660K(2) to (4). The recalculation of benefit made on 18 May 1993 would appear to comprise or involve "a decision" for the purposes of that section.
9 The rate at which Mrs Austin claimed Partner Allowance, initially in August 1994, was also incorrectly assessed at too low a rate as a consequence of the mistake made by the Department in May 1993 in double counting the rent receipts that had been notified to it by Mr Austin earlier on. The respondent has conceded throughout that Mr Austin, and Mrs Austin also, were underpaid benefits to which they were entitled and that that was directly attributable to error by the Department.
10 In the claim for Partner Allowance which Mrs Austin lodged on 1 May 1997, she provided details of Mr Austin's rental income. The SSAT noted that Mrs Austin then also queried the rate at which Mr Austin's Newstart Allowance was paid. As a result, the errors that had been perpetuated to this point by the Department in respect of Mr Austin's by then cancelled Newstart Allowance payments and in respect of the Partner Allowance payments made to Mrs Austin in the period 20 September 1994 to 10 July 1995 were discovered.
11 Although the AAT did not refer to it, the SSAT found that the calculations made by the Department of the Newstart Allowance payable to Mr Austin in the period including that between 17 May 1993 and 26 February 1997 contained a second error that arose because the Department had incorrectly coded, through lack of care, one of Mr Austin's investments as a bond, when it should have been identified as a rollover investment. A perusal of the SSAT's decision and that of the authorised review officer of 18 November 1997 does not clearly reveal whether this second error resulted in any of the payments made to Mr Austin of Newstart Allowance (or in any of the payments of Partner Allowance to Mrs Austin) being further reduced below those which were proper. Since Mr Austin and Mrs Austin's claims must be remitted to the AAT for re-determination, the Tribunal will have the opportunity to investigate this issue.
12 On 13 June 1997, Mr Austin was advised as follows:
"As a result of a recent reassessment of your spouse's Partner Allowance, an adjustment has been made to your Newstart benefit from 4 February 1997 to 24 February 1997. An arrears payment of $121.78 has been issued to your bank account.I have made this decision as a delegate of the Secretary under the Social Security Act."
13 Mrs Austin received a similar notification of reassessment of the rate of her Partner Allowance by a letter of the same date.
14 The AAT, following the SSAT, characterised the decision the subject of review in Mr Austin's case as the decision of the delegate of the Secretary on 13 June 1997 not to pay arrears of Newstart Allowance to him from 18 May 1993 to 3 February 1997, affirmed on internal review on 18 November 1997. The material before me, however, indicates that what happened on 13 June 1997 was that Mr Austin was notified by the respondent by letter of that date that "as a result of a recent reassessment of your spouse's Partner Allowance, an adjustment has been made to your Newstart benefit from 4 February 1997 to 24 February 1997". It is uncertain, on the material before the Court, whether that "recent reassessment" was made on 13 June 1997 or at some time prior to despatch of the letter of that date.
15 After his queries in early 1993, Mr Austin did not again query the rate at which it was being paid until his wife raised the matter for him on 1 May 1997. It was because Mrs Austin's query occurred within three months of a letter dated 4 February 1997, which apparently notified Mr Austin of a change to the rate at which he was to be paid Newstart Allowance, that the Department determined, once it had discovered its errors, that arrears of benefit could be paid only from that date. The Department treated its letter of 4 February 1997 as both a "previous decision" and "notice" to Mr Austin of the making of that decision for the purposes of s 660K and decided to pay arrears only from that date by applying s 660K(2). It thus treated Mrs Austin's query of 1 May 1997 as a review application for the purposes of s 660K (and also for the purposes of s 771NR). This is the basis on which the authorised review officer in his decision of 18 November 1997 affirmed the earlier decisions the subject of the Department's letters of 13 June 1997. It is how the SSAT approached the matter: see pars 3.4 and 3.5 of its reasons. It was how the AAT also dealt with the case: see par 16 of its reasons.
16 Counsel for the respondent at one point in argument suggested that the Department selected 4 February 1997 as the earliest date from which it could give effect to its "favourable determination", notified to Mr Austin in its letter of 13 June 1997, because s 660K(9) applied. This necessarily means that the "favourable determination" must have been made no later than 4 May 1997, though if this theory is correct, it was not notified to Mr Austin until 13 June 1997. There is nothing in the material before me suggesting the existence of such a decision. That is not how either the internal review officer, the SSAT or the AAT viewed the facts. Counsel's suggestion is wrong.
17 Newstart Allowance is a periodic benefit payable fortnightly: see ss 42(1), 643, 646 and 1068-A1. To obtain the Newstart Allowance benefit, Mr Austin had to lodge fortnightly claim forms. Each (other than, of course, the very first) contained a statement of the amount he had been paid by the Department for the preceding fortnight. The example referred to by the Tribunal is the form lodged by Mr Austin on 17 May 1993, ie, the day before the making of the erroneous rate recalculation. But the relevant statement of payment is typical of subsequent ones, save that various of them refer to differing amounts. It is: "Account No. 10010919 was credited $367.26 on 4 May 93".
18 Mr Austin also received a number of letters, including the following, to which the Tribunal specifically referred (par 9 of its reasons): a letter dated 22 March 1996 which informed him that he had been paid $201.94 for Newstart Allowance for the period 5 - 18 March 1996; a further letter dated 3 April 1996 advising that his net fortnightly rate of Newstart Allowance had been changed from 19 March 1996 to $207.54, a rate less than the maximum payable because he and his wife had other income; a letter dated 25 July 1996 informing him of a further reduction in the net fortnightly rate of his Newstart Allowance to $198.31 made for the same reason and, finally, a letter dated 6 March 1997 informing him that his Newstart Allowance was cancelled from 25 February 1997 "as you commenced a Special Employer's Support Program from this date". The AAT did not here refer to the Department's letter of 4 February 1997, which I have mentioned, even though the initial decision-maker relied on it to arrive at the decision that is the subject of this litigation. It is not in the appeal papers. Apparently a copy cannot now be found.
19 As appears from pars 16 and 17 of its reasons, the way the parties conducted the case in the AAT was on the basis that each fortnight between 18 May 1993 and 3 February 1997 a decision was made as to the rate at which Newstart Allowance was to be paid to Mr Austin for the next claim period. The case in this Court was fought by the parties on the same basis. In response to questions I put to him, counsel for the respondent referred me to various sections of the Act dealing with Newstart Allowance; but counsel did not resile from the case presented in the AAT and in this Court which I have already outlined. It was not in dispute that each decision incorporated the errors made in the Department's recalculation of the rate of Newstart Allowance benefit payable to Mr Austin on 18 May 1993. It is also common ground that the decision of 13 June 1997 is the "favourable determination" within s 660K that was made under s 660G and which is of present relevance to the question for determination as to the proper interpretation of the term "notice" in s 660K.
20 The respondent contended that, by reason of the statements of payment which Mr Austin received, throughout the period 1993 to 1997, in each fortnightly claim form sent to him for completion and return to the Department after the rate recalculation decision was made on 18 May 1993, he was given "notice", sufficient for the purposes of s 660K, of each of the decisions made thereafter each fortnight as to his Newstart Allowance rate entitlement. The other issue was whether such a "notice" was contained in any of the letters sent to Mr Austin, to which I have referred. The respondent contended that if any one of these many communications was such a "notice", the failure of Mr Austin to seek review of the decision the subject of that notice until 1 May 1997 necessarily meant that the decision the subject of the Department's letter of 13 June 1997 was correct: the only decision infected with the error of 18 May 1993 of which Mr Austin sought review within three months of receiving notice of it was the Department's decision of 4 February 1997, notified to Mr Austin by the letter of that same date. Mr Austin's response was that none of these communications were "notices" within s 660K for want of explanatory detail.
21 The AAT applied the reasoning in Re Secretary, Department of Social Security and Sting (1996) 39 ALD 721 and held that:
"The Tribunal is satisfied that the reasoning of Deputy President Forgie applies to the forms and letters sent by the Department to the respondents and is equally applicable in its analysis to ss. 771NL and 771NR ...... the relevant provisions simply require that when a decision regarding rate, such as the reassessment that occurred on 18 May 1993, is made, there be a notification of that decision as to rate; ie, the notice to be valid merely has to set out the total rate payable. The notices in this case did so, by informing the respondents of the amount that had been credited to their accounts each fortnight. It is not a requirement for validity that the elements used in the calculation of that rate - such as rental income - be specified in the notice of the decision itself."
22 In
Sting
, Deputy President Forgie held (at 726 - 727) that s 660G was concerned only with decisions that there should be an increase in the rate of payment of Newstart Allowance, that that section made no provision for decisions with respect to entitlement to or payability of Newstart Allowance; it followed that, when the question was to identify the date on which a decision under s 660G takes effect, s 660K required attention to be focused "upon whether notice of the decision relating to the rate has been given". The Deputy President held in that case that a letter sent by the Department advising the person that he was to be paid Newstart Allowance at a particular rate and that an amount calculated at that rate had been paid into his account in respect of a particular period was notice given to the person of the making of a decision that Newstart Allowance was to be paid to him; she also held that, because s 643 required the rate of Newstart Allowance payable to a person to be worked out in accordance with the Rate Calculator in s 1068, the statement in a letter given to the recipient of the total amount, so worked out, of benefit payable to the recipient in respect of a particular fortnightly period was a statement of the rate of that benefit payable to the recipient. So the letter was sufficient notice of the decision involving that calculation for the purposes of s 660K. It will be necessary to return to
Sting
.
23 The applicant relied on Re McAllan and Secretary, Department of Social Security (1998) 51 ALD 792; Senior Member Handley there reached a different conclusion, viz, that for there to be a notice sufficient for the purpose of s 660K, it had to contain enough information for the recipient to understand the main reason for decision and so be in a position to decide whether or not to exercise the person's right to seek a review; the Senior Member found support for this conclusion from the fact that s 660K was to be read in the context of the Commonwealth system for review of administrative decisions founded, as he said, on the premise that the person affected by such a decision was entitled to know why the decision is made and, if dissatisfied, to seek its review.
24 While disavowing (as did the Member in Re McAllan) the proposition that before a "notice" of a decision could be given for the purposes of s 660K, full reasons for the decision had to be communicated to the recipient, applicants' counsel submitted that Re McAllan was correctly decided and that none of the claim forms or letters relied on by the respondent was sufficient to constitute a "notice" of the decision of 18 May 1993 or of any of the subsequent fortnightly decisions for lack of sufficient information as to, among other things, the rental income figure used in the method of calculation adopted by the decision-maker.
25 The respondent submitted that the short answer to this was that any suggestion that a "notice" for present purposes had to contain this kind of information could only be seen as a suggestion that reasons, albeit abbreviated, for the decision in question had to be communicated to the recipient before the communication could amount to such a "notice". Since it was plain that the relevant decision-maker was under no obligation to give any reasons for the decision of 18 May 1993, there could be no justification for the conclusion that notification of that decision could not constitute such "notice" unless it contained information of the kind suggested by the applicant. Reference was made to Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662 - 663 and 676. It was also said that the term "decision" in s 660K is defined in s 23 to have the same meaning as that term in the AAT Act and s 28 the AAT Act shows that the term "decision" does not include the reasons for the determination that constitutes such a "decision".
26 I accept these submissions as showing that it is not necessary for any reasons for a decision to be notified to a benefit recipient before there can be "notice" given of that decision within the meaning of that term in s 660K. Re McAllan was not correctly decided.
27 I do not, however, accept that any of the notations in the many claim forms to which I have referred constitutes a "notice" of any decision as to the rate of the Newstart Allowance payable to Mr Austin at any time in the period in question.
28 Section 660K operates only when one or other of two kinds of decision have been made, viz, decisions under ss 660G and 660J. Both involve recognition that a person has not been receiving in the past his or her entitlements to Newstart Allowance and both provide for redress of that situation. There is no time limit on when a decision can be made under ss 660G or 660J to correct a past injustice, no matter how old. Where an injustice of the kind correctable under either s 660G or s 660J results from a decision made in the past, s 660K(2) to (4) fix how far back the ss 660G and 660J determinations themselves can go in redressing the old wrong, by reference to whether notice was given to the person of that old erroneous decision and whether (and if so when) that person sought its review.
29 So far as s 660G is concerned, the redress it provides for is redress in respect of past payments of Newstart Allowance made at rates below the proper rates. Such erroneous past payments may be made by force of an actual decision fixing the incorrect rate. The extent, if any, to which s 660G may operate to permit redress of Newstart Allowance rate errors that arise otherwise than from past incorrect rate decisions was not the subject of argument. It is unnecessary to pursue that topic since the case in the AAT and here was fought by both parties on the basis that the decision under review, ie, that referred to in the Department's letter to Mr Austin of 13 June 1997, dealt only with a large number of earlier decisions made by the Department each fortnight, all infected with the error in the decision made on 18 May 1993, that fixed the rate of Newstart Allowance paid to Mr Austin, from time to time, in the period 1993 to early 1997. I note, however, that by reason of provisions such as ss 660FA and 660IB, erroneous payments of Newstart Allowance may be made by rate changes effected by deemed decisions; I also note that s 600K(9) would appear to apply to fix how far back in time the remedial decision under s 660G can go in fixing the amount payable by way of redress, if the old injustice does not result from a past decision, actual or deemed, eg, because the erroneously low payment the subject of review was made under the authority of s 660(2).
30 In terms, each of s 660K(2) and (3) applies only if "a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision", ie, a decision made in relation to a Newstart Allowance of the kind that can be corrected pursuant to either s 660G or s 660J. The giving of notice plays an important role in fixing the cut-off date for calculating payments determined under s 660G or s 660J to be necessary to redress unjust decisions made in the past. It is therefore unlikely that Parliament intended that the answer to the question whether a notice had been given might permit of an investigation into a range of information supplied by the Department to the benefit recipient over a longer or shorter period to determine whether an inference could be drawn from a part or from the entire body of that information that a prior decision as to the rate or the entitlement had been made. I therefore consider that a communication will only constitute a good "notice" of the earlier unjust decision for the purpose of s 660K(2) to (4) if it meets the following requirements. In the case of a decision correctable under s 660G, it must be identifiable as a communication to the benefit recipient that a decision has been made to pay him or her Newstart Allowance at a particular rate. In the case of a decision correctable under s 660J, it must be a communication that a decision has been made to cancel or suspend the Newstart Allowance that was being paid to that person.
31 Such a reading of s 660K is, in my opinion, consistent with the interpretation frequently placed on the word "notice" in the context of statutes that provide for rights or obligations to be created or affected by the giving of notice.
32 Stroud's Judicial Dictionary, 4th ed, Vol 3, at p 1783 summarises the effect of some old cases dealing with what is required before it can be said that notice of dishonour of a bill has been given to the drawer, as follows:
"... `Notice' is a direct and definite statement of a thing, as distinguished from supplying materials from which the existence of such thing may be inferred ..."
33 In
Ex parte Oastler. In re Friedlander
(1883) 13 QBD 471, it was said of a statutory provision declaring the giving of notice by a debtor to his creditors of an intention to suspend payment to be an act of bankruptcy, that "giving notice":
"... does not mean mere casual talk; it must be something formal and deliberate, something done by the debtor with a consciousness that he is `giving notice', and intended to be understood in that sense. An act of bankruptcy is a serious matter."
34 Goodyear Tyre & Rubber Co (Great Britain) Ltd v Lancashire Batteries, Ltd
[1958] 3 All ER 7 was a case involving a statute that made a contractual condition enforceable against a non-party, provided it acquired the goods the subject of the contract "with notice of the condition". Lord Evershed MR said at 12 that while "notice" in such a context means something less than full knowledge:
"It means, no doubt, that the thing of which a man must have notice must be brought clearly to his attention."
35 To the same effect is the decision in
R v Secretary of State for the Home Department ex parte Tolba
[1988] Imm AR 78, a decision concerned with a statutory provision requiring that "notice giving or refusing leave" to enter the United Kingdom be given to a new arrival. Kennedy J held that a communication could only constitute such "notice" if it was in writing and if:
"... viewed objectively, it can reasonably be expected to convey the relevant information to the mind of the average intending immigrant of the class to which the particular immigrant belongs".
36 A clear statement by the respondent that a decision has been made fixing the rate of payment of Newstart Allowance at a particular figure or that a decision has been made cancelling or suspending Newstart Allowance, as opposed to information from which an inference to one or other of those effects might be drawn, is, in my opinion, required before a communication can constitute a "notice" within s 660K. It is not enough for there to be a "notice" of a prior decision within s 660K(2) or (3) that there is notification to the recipient of the amount of the payment of Newstart Allowance required to be made by that prior decision. At most, that involves notice being given of only the result or effect of a decision that fixes the rate of Newstart Allowance to be paid, without any notification that that amount has been fixed by a decision that has been made. For the same reason, when the question is: what is that date of effect of a favourable determination under s 660J, the mere stopping of payment of Newstart Allowance or payment of a lesser amount than that paid hitherto could not constitute "notice" within s 660K that a decision had been made by the Secretary under ss 660I or 660IA to cancel or suspend that benefit. The person affected is entitled to be informed with clarity that the change made to his benefit is the result of a decision.
37 The AAT was in error in holding that each of the fortnightly claim forms contained a "notice" sufficient for the purposes of s 660K. The notation on the fortnightly claim form to the effect that a certain amount was credited on a certain date to Mr Austin's account with the Department is incapable of constituting a notice of the making of any decision in relation to Newstart Allowance under s 660G for the purposes of s 660K(2) or (3), including the making of the recalculation decision here of critical importance, viz, that of 18 May 1993. This is so for a number of reasons.
38 First, the wording of the notation does not contain a clear statement by the respondent that a decision was made as to the rate at which the particular payment of Newstart Allowance the subject of the notification in the form was payable to Mr Austin. It is at best for the Department, no more than a statement of the effect of such decision as may have been made. The claim form recipient might infer from the notification that a decision of that kind had been made in respect of his claim for that particular payment. But the inference might or might not be correct: the amount credited in respect of the previous fortnight may have resulted not from any decision but rather from the operation of s 660(2) on a decision fixing the rate that was made in response to an earlier fortnightly claim.
39 Further, it is plain from the Department's internal records of Mr Austin's account that this notation in the claim form is not intended by the Department to inform the recipient of the rate at which Newstart Allowance is being paid to him. Rather is its object to inform the recipient of the amount credited to his account with the Department in respect of a particular fortnightly period. This is the balance amount arrived at by the Department that is made up of the fortnightly Newstart Allowance payment, any adjustments made under s 1068 that form part of that payment and any adjustments in respect of a number of other matters, including additions or deductions on account of tax and withholdings on any basis that may be available to the Department that are unconnected with the amount of the recipient's Newstart Allowance entitlements for the period.
40 Payments of Newstart Allowance are, in part, assessable to income tax: see s 24ABM the Income Tax Assessment Act 1936 (Cth). The Secretary is obliged to deduct from such a social security payment the tax payable by the recipient and pay it to the Commissioner of Taxation: see s 1359 the Social Security Act. But tax deductions so made are not required by s 1068 to be brought into account, in working out the rate of a person's entitlement to Newstart Allowance. The obligation to deduct tax is unconnected with that exercise.
41 Sting is correct in holding that for there to be a "notice" within s 660K, the communication must advise the recipient both that a decision has been made as to the rate of Newstart Allowance to be paid and what that rate is. But it is not correct in saying that advice that a particular amount is payable in respect of Newstart Allowance is necessarily advice of the rate at which that benefit is payable: that may or may not be the position. It will only be where the recipient is advised of payment of an amount that is the result of applying the Rate Calculator referred to in s 1068 to his circumstances, without adjustments not provided for by that Calculator, that the advice will be capable of constituting "notice" within s 660K(2) to (3). It was because the AAT adopted the interpretation given to this expression in Sting that it made an error of law as to the proper interpretation of that expression that invalidates its decision.
42 It is said that the notation as to $367.26 on the claim form lodged by Mr Austin on 17 May 1993 in fact refers to the amount of Mr Austin's Newstart Allowance entitlement for a particular fortnightly period (from 20 April to 3 May 1993), and nothing else, since the Department's account records show that there were no adjustments made to that figure in respect of entitlements or indebtedness unrelated to his Newstart Allowance entitlement. Sometimes, as on this occasion, the amount of the notation may be the total rate payable to the recipient by way of Newstart Allowance for a fortnightly period, but sometimes it may be a quite different amount which incorporates, but which does not state, that rate. But it is impossible to tell from any particular notation on the claim form what the amount actually refers to. The fact that by combing through information in the Department's own records, the notation on a claim form may be found to contain the kind of information which a notice under s 660K must contain, does not permit that notation to be characterised as a notice for the purposes of s 660K. The respondent cannot be said to have made in such a notation a clear statement as to what is the rate at which Newstart Allowance is being paid to the recipient. The latter would need further information as to whether the amount so notified was the unadjusted rate of Newstart Allowance payable to him before he could act on the basis that the notation was a "notice" sufficient for the purposes of s 660K. It is not possible therefore for the Department to rely on figures in the claim forms given to a person as notices to that person of a decision or decisions made in relation to a Newstart Allowance, since those figures are devised by the Department for a different purpose.
43 Further, the form states "This is a recipient statement notice under s 658 of the Social Security Act 1991". Reference to that section shows that it has nothing to do with authorising the making of a decision in respect to the Newstart Allowance payable. Instead, it is a provision empowering the Secretary to require a recipient of Newstart Allowance to provide information to the Department to enable the Secretary, if appropriate, to make a decision in relation to the Newstart Allowance payable to that person. That that is the manifest object of the form is confirmed by its text. Because the Department has expressly identified the purpose intended to be served by the form as a notice obliging the recipient to provide the Department with certain information as to his or her financial position, the notation on the form, even if otherwise capable of constituting a "notice" within s 660K, is incapable of being so described because it is not a statement that clearly draws to the attention of the recipient the fact that the Department has, in the past, made a decision with respect to the rate of that person's Newstart Allowance entitlement.
44 The letters, however, differ in their effect from these notations on the forms.
45 The letter of 22 March 1996 can only be taken to refer to a decision made on or about that date in working out the rate at which Mr Austin was entitled to be paid Newstart Allowance for the period 5 March 1996 to 18 March 1996, viz, $201.94. Provided this figure is the amount arrived at by applying the Rate Calculator referred to in s 1068 to Mr Austin's circumstances and not that amount adjusted for matters such as tax liabilities that are not factors in the Rate Calculator, it is, in my opinion, "a notice ... advising [Mr Austin] of the making of the previous decision", ie, the decision made some time prior to the date of that letter in relation to the rate at which Newstart Allowance is payable to him for the period 5 to 18 March 1996. But it can be a notice of nothing more than that narrow decision. That decision reflected the error in respect of the amount of Mr Austin's rental income that was originally made on 18 May 1993. But, for the reasons given, this letter does not constitute notice of the making of the latter decision (or any other prior decisions as to the rate at which Newstart Allowance was to be paid to him), to which it makes no reference.
46 Each of the letters of 3 April 1996 and 25 July 1996, which open by informing Mr Austin that: "Your Newstart Allowance has been changed from [a specified date]", also constitutes notice of the making of the particular decisions in relation to Newstart Allowance payable to Mr Austin there referred to. Provided the amount stated in each is the figure thrown up by the Rate Calculator, both letters are sufficient "notices" for the purposes of s 660K of the two decisions there referred to, viz, decisions to change the rate of Newstart Allowance payable to Mr Austin from the date mentioned in each. Each of these decisions, however, could, by reason of s 660(2), have effect only until a further decision was made altering that rate yet again. Each letter can therefore only be a "notice" within s 660K of the making of a decision fixing the rate of Newstart Allowance for the period the decision in fact remained operative. Only in respect of the two periods in question can these letters affect Mr Austin's entitlement to recover arrears of Newstart Allowance wrongly denied him.
47 The letter of 4 February 1997 critical to both the Department's decision referred to in its letter of 13 June 1997 and the review decision of 18 November 1997 is not before me. It is not possible to say whether it advises of a decision fixing the rate of Newstart Allowance payable to Mr Austin for a particular fortnight (as does the letter of 22 March 1996) or whether it notifies a decision fixing the rate payable until a further decision altering that rate is made (like the letters of 3 April and 25 July 1996). I cannot therefore say whether it may be a "notice" sufficient for the purposes of s 660K.
48 The respondent has consistently accepted that Mr Austin sought a review that encompassed all decisions made as to his Newstart Allowance entitlements via his wife's oral request on 1 May 1997. See the Regional Manager's letter of 22 July 1997, the internal review decision of 18 November 1997 and the SSAT decision. It would appear that, in addition, he sought, via his wife's written request of 12 June 1997, a "review of all payments made to" both himself and his wife and also, as the SSAT observed, internal review of the decision to limit arrears to those payable from 4 February 1997 by his written application of 22 July 1997.
49 It is common ground that no express notice was given that informed the Austins that the recalculation had been made on 18 May 1993. There is nothing in the material before me to suggest that any notice of this decision of 18 May 1993 containing the error that pervaded all subsequent payments to both Mr and Mrs Austin was ever given to them. I have held that only the letters of 22 March, 3 April and 25 July 1996 are capable of constituting "notices" within s 660K(2) and (3) of decisions made in relation to the rate of his Newstart Allowance. But each is a notice of only limited effect. Save only in respect of the periods that the rates referred to in these three letters applied to fix Mr Austin's rate of Newstart Allowance, there is, on the material before me, nothing to suggest that any notices were given which would prevent Mr Austin obtaining effective redress by reason of the review he requested on 1 May 1997 or 12 June 1997 or 22 July 1997 for all underpayments of Newstart Allowance made in the whole of the period from 18 May 1993 to 25 February 1997. Mrs Austin is in a similar position.
50 I would therefore set aside the decision of the AAT in both Mr and Mrs Austin's appeals. I would remit Mr Austin's matter to the AAT to determine, in accordance with these reasons, whether any notice within s 660K(2) or (3) was ever given of any decisions that may have been made between 17 May 1993 and 26 February 1997 fixing the rate of Newstart Allowance that was paid to Mr Austin in that period. (For the reasons given, each of the letters of 22 March 1996, 3 April 1996 and 25 July 1996 may constitute such "notice", though, if so, each can only have a limited effect in preventing Mr Austin recovering arrears of Newstart Allowance erroneously withheld throughout this period of nearly four years.) I would further direct that the Tribunal determine, in accordance with these reasons, the amount of Mr Austin's right to payment of arrears of Newstart Allowance underpaid in respect of the period between 17 May 1993 and 26 February 1997.
51 The applicant Mrs Austin must bring into Court minutes of the order setting aside the AAT determination relating to her claim to arrears of Partner Allowance and remitting the matter to the Tribunal for re-determination of her entitlement to arrears of Partner Allowance in respect of the period from 20 September 1994 to 10 July 1995 that reflect these reasons. In default of agreement, each party has leave to apply to the Court for orders disposing of Mrs Austin's appeal in accordance with the draft orders to be filed by each.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.
Associate:
Dated: 8 July 1999
DATE OF HEARING: 11 June 1999
DATE OF DECISION: 8 July 1999
PLACE: BRISBANE
#DATE 08:07:1999
Appearances
Counsel for the Applicants: Mr DP O'Gorman
Solicitor for the Applicants: Ms G Bolton
Counsel for the Respondent: Mr JA Logan
Solicitor for the Respondent: Australian Government Solicitor
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