Balihodzic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 795
•8 September 2008
CATCHWORDS – SOCIAL SECURITY – jurisdiction – whether “decision made under” the Social Security Act or SSA Act – whether purported to be so made – whether Secretary has represented entitlement and estopped from arguing the Tribunal has no power to review decision - Tribunal’s power to review decisions– no jurisdiction.
Acts Interpretation Act 1901 s 38
Administrative Appeals Tribunal Act 1975 ss 3, 25 and 37
Social Security (Administration) Act 1991 ss 3, 7, 8, 11, 12, 12A-12C, 13, 15, 16, 36, 37, 64, 123YC, 123ZM, 126, 135 140, 142, 144 and 179(1)
Social Security Act 1991 ss 23, 94, 98 and 103
Australian National Airlines Commission v Newman (1987) 162 CLR 466;
70 ALR 275
Australian National University v Burns (1982) 43 ALR 25; 5 ALD 67
Burns v Australian National University (1982) 40 ALR 707
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; (1979) 2 ALD 1; (1979) 24 ALR 307
Comcare Australia v Hill (1999) 56 ALD 487
Formosa v Secretary, Department of Social Security (1988) 46 FCR 117; 81 ALR 687; 15 ALD 657
General Newspapers Pty Limited and Others v Telstra Corporation (1993) 117 ALR 629; 45 FCR 164
Hutchins v Deputy Commissioner of Taxation (1994) 123 ALR 133
Hutchins v Deputy Federal Commissioner of Taxation (1996) 96 ATC 4,372; 136 ALR 153; 41 ALD 193
Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409; 112 ALR 463; 29 ALD 616
Minister for Immigration; Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; 92 ALR 93
Re Maria Esequiel Faisca and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees, AAT 7973,1 May, 1992
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213; 34 ALD 72
Terrule Pty Limited v Deputy Commissioner of Taxation (no 4) (1985) 5 FCR 153
DECISION AND REASONS FOR DECISION [2008] AATA 795
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/3270
GENERAL ADMINISTRATIVE DIVISION )Re:SAFIRA BALIHODZIC
Applicant
And:SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 8 September 2008
Place: Melbourne
Decision:The Tribunal has decided that the respondent did not make a decision that it has power to review.
SA Forgie
Deputy President
REASONS FOR DECISION
Mrs Safira Balihodzic had been granted a disability support pension (DSP) on 1 October 1999 but it had been suspended when she returned to work in January 2001 and cancelled two years later when she continued to work. On 10 December 2007, Mrs Balihodzic contacted Centrelink advising that she was going overseas on 26 December 2007 and would be returning sometime between June and the end of December 2008. Centrelink regarded her enquiry as a “Portability Enquiry, Change of Address/Accommodation Details, Review of Entitlement for Disability Support Pension” and advised her that she would be paid DSP until 26 March 2008. Had she not returned to Australia by then, the payment would be cancelled. Centrelink confirmed this advice in a letter written on the basis that she was already in receipt of DSP payments. Mrs Balihodzic did not lodge a claim for DSP.
When she was not paid DSP, Mrs Balihodzic asked for review of the decision not to pay her. The decisions on review by first the Authorised Review Officer (ARO) and then the Social Security Appeals Tribunal (SSAT) were made on the basis that they had no jurisdiction or power because there had been no decision made regarding her entitlement to DSP as she had not lodged a claim. The relevant provisions in the social security law, which includes the Social Security Act 1991 (Social Security Act) and the Social Security (Administration) Act 1991 (SSA Act), did not give them the power in those circumstances. I agree and consider that they do not give me the power to carry out a review either.
At the conclusion of the hearing and after I had told Mr Tegeltija, who appeared for his wife, that I did not have the power to carry out a review, I suggested to him that the Ombudsman might be able to assist him and that he could consider making a claim for defective administration. Mr Hamilton, who appeared for the Secretary, encouraged him to make his claim for defective administration immediately at any office of Centrelink. Mr Tegeltija said that he preferred to wait for my reasons and take further action at that stage. Should he or his wife decide to take these other courses, I have attempted to provide a comprehensive background to assist them.
BACKGROUND
History of payment of DSP to Mrs Balihodzic
Mrs Balihodzic was granted DSP on 1 October 1999. Centrelink has maintained a computerised record of the payment of DSP to her since 2001 together with a record of advice that either she or her husband have given it.[1] When Mrs Balihodzic’s husband, Mr Tegeltija, spoke on her behalf at the hearing of her application, his view of events did not disagree with that set out in the computerised records. In light of those records and the statements made by Mr Tegeltija at the hearing, I have made a number of findings of fact as to the order in which events occurred in this matter. They are set out in the following table:
[1] The computerised records appear in the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 42-49; 54-59
| Date | Activity | Advice | Payment |
| 1 October 1999 | Mrs Balihodzic granted DSP | Mrs Balihodzic paid DSP. | |
| 28 January 2000 | Mrs Balihodzic leaves Australia to travel overseas. | Mrs Balihodzic paid DSP. | |
| 5 January 2001 | Mrs Balihodzic remains overseas. | Mr Tegeltija advised that his wife “… sick while GOS …” and “… is overseas and is sick will not be able to travel till end of … [January] as per doctors orders”[2] | Mrs Balihodzic paid DSP. |
| 8 January 2001 | Mrs Balihodzic remains overseas. | Mr Tegeltija advised that his wife “… is still OS, getting her teeth fixed” and “… has delayed her return, she is not sure if she will make it back by 28/1/2001.”[3] | Mrs Balihodzic paid DSP. |
| 28 January 2001 | Mrs Balihodzic overseas for 12 months. | DSP cancelled as overseas 12 months. | |
| 8 February 2001 | Mrs Balihodzic returned to Australia. | “cust stayed overseas for a few days more due to her health …”[4] | Payment of DSP restored 8 February 2001. |
| 21 February 2001 | Mrs Balihodzic in Australia. | “cust was paid arrears from 280101 until 070201, she’s booked to return to AUST on 180101 but due to poor health she was not able to travel and also when she was ready to travel there was no flight available she returned back on 080201 …”[5] | Paid arrears of DSP from 28 January 2001 to 7 February 2001. |
[2] T documents at 59
[3] T documents at 59
[4] T documents at 58
[5] T documents at 58
| 15 March 2001 | Mrs Balihodzic in Australia. | Mrs Balihodzic advised Centrelink that she wished to return to study so that she can return to work. Centrelink was referred to Commonwealth Rehabilitation Service (CRS) for assistance with returning to study.[6] | |
| 11 July 2001 | Mrs Balihodzic in Australia. | Mrs Balihodzic advised that she was thinking of going overseas permanently. Centrelink noted that the decision “… should be made by Hobart …”.[7] | |
| 27 December 2001 | Mrs Balihodzic in Australia. | Mrs Balihodzic advised that she might be commencing full time work in January 2002. Centrelink officer told her to contact office within 14 days of commencing work and that she should complete a medical review to allow restoration of DSP within a two year period if she could not continue full time work due to her disability.[8] | |
| 2 January 2002 | Mrs Balihodzic in Australia. | Mrs Balihodzic advised that her medical review would be late as her doctor on holidays. | |
| 4 January 2002 | Mrs Balihodzic in Australia. | Mrs Balihodzic “… has advised that she will be starting work as of 07/1 which may be full time.”[9] | |
| 7 January 2002 | Mrs Balihodzic in Australia. | Mrs Balihodzic returns to work full-time. | DSP suspended.[10] |
| 26 February 2004 | Mrs Balihodzic in Australia. | Mrs Balihodzic remains in full time employment. | DSP cancelled.[11] |
[6] T documents at 57
[7] T documents at 56
[8] T documents at 56
[9] T documents at 55
[10] T documents at 43
[11] T documents at 43
Mrs Balihodzic’s leave of absence
In a letter dated 14 May 2007, the Academy Director-General and Board Secretary of the Australian International Academy wrote to Mrs Balihodzic regarding her application for leave of absence. He was pleased to inform her that the Board had approved her application to take leave of absence during one school year. In doing so, the Board had taken into account her long service to the Academy and her commitment and dedication to work. Leave, which would be without pay, would commence on 7 January 2008 and continue until the last school day of the year. She was to resume duties on the first day for non-teaching staff in 2009.[12]
Mrs Balihodzic’s contact with Centrelink regarding DSP from December 2007
[12] T documents at 14
On 10 December 2007, Mrs Balihodzic contacted Centrelink and advised that she was going overseas on 26 December 2007 and would return sometime between 25 June 2008 and 24 December 2008.[13] Centrelink regarded her enquiry as a “Portability Enquiry, Change of Address/Accommodation Details, Review of Entitlement for Disability Support Pension.”[14] The note made by the Centrelink officer who spoke with Mrs Balihodzic recorded that “Information was obtained via Interview using Personal – In Office.”[15] After recording Mrs Balihodzic’s travel plans, the officer noted that:
“DSP can be paid o/s until 26 MAR 2008. Cancel DSP if still o/s then.”[16]
[13] T documents at 15
[14] T documents at 15
[15] T documents at 15
[16] T documents at 15
The Centrelink officer also recorded:
“Factors that affected the decision:
A/n is paid DSP.
A/n has no children recorded.
There is no social security agreement with the destination country.
Pay types assessed: DSP.
DSP (or payments) started 08 FEB 2001 – more than 2 years ago.
Customer’s DSP payments are not affected by former residence rules.
A/n did not change their country of destination.
No known future event prevents portability of DSP as detailed above.”[17]
[17] T documents at 15
On the same day that Mrs Balihodzic spoke with Centrelink, an officer
wrote to her stating, in part:
“Thank you for telling us about your plans to travel outside Australia from 26 December 2007. Please read this letter carefully. It tells you what will happen to your Centrelink payments while you are outside Australia.
…
What happens to your payments
The information you provided shows that you can receive Disability Support Pension until 26 March 2008. If you are outside Australia on 26 March 2008, your Disability Support Pension will stop.
What to do when you return to Australia
If you return to Australia you may need to make a new claim for any payments that were cancelled while you were away.
…
What affects your payments while you’re away
Your payment will continue to be affected by any changes that would normally impact upon it. For example if your income or assets change, your rate of payment may be reduced. If you own a home in Australia and you stay away from Australia for more than 12 months, your home in Australia will be assessed as an asset. …
What to do if you think this decision is wrong
If you do not agree with this decision, please contact us and we will explain it. We will reconsider your case and change the decision if appropriate. …”[18]
[18] T documents at 17-18
On 24 December 2007, Mrs Balihodzic telephoned Centrelink to advise that her partner was no longer working and would be travelling overseas.[19]
[19] T documents at 21
On 21 January 2008, Centrelink’s computerised records record, Mr Tegeltija contacted it:
“… to advise that cus attended CSC on 10/12/2007 to advise portability and was adv would be paid for period of 13 weeks. as Cus has been working ftw from 2002 and not on dsp payments. not entitled to any payment. Ptr stated cus stopped working due to medical reasons and was not aware needed to reclaim dsp as she was told dsp would be portable for 13 weeks. …”[20]
[20] T documents at 22
Mrs Balihodzic was not paid DSP and Mr Tegeltija made several calls to Centrelink to enquire about it. He referred to the correspondence that she had received stating that DSP would be paid for 13 weeks while she was overseas.[21]
[21] T documents at 23-25
Review of decision by Centrelink officer
Mrs Balihodzic had further contact with Centrelink and the officer who wrote to her on 10 December 2007 revisited her decision. She wrote to him that she
was:
“… the person who made the decision on 10 December 2007 not to pay you Disability Support Pension.
You asked for that decision to be reconsidered because you received a letter stating that you were entitled to receive Disability Support Pension whilst you were overseas.
My decision
After carefully considering the information you have provided, I have concluded the decision was correct and should not be changed.
The reason for my decision
I have reached this decision because you were not in receipt of Disability Support Payment at the time. To test your eligibility for Disability Support Pension you are required to lodge a claim. Under Section 94 of the Social Security Act to be eligible for Disability Support Payment the claimant must be unfit to work more than 15 hours a week. Our records show that your payments were cancelled because you had returned to employment.
…”[22]
[22] T documents at 27
Mr Tegeltija and Mrs Balihodzic’s further contact with Centrelink
In a telephone call to Centrelink on 15 February 2008, Mr Tegeltija is recorded as being adamant that he and his wife had not known that her payment of DSP could not be restored once she had returned to work for more than two years. Her payment of DSP had been suspended during the first two years that she had returned to work but was then cancelled. Mr Tegeltija is also recorded as being adamant that they had not known that the suspension of DSP lasts for two years only and that, once that period has passed, his wife had to reclaim for DSP. Had she known that she had to reclaimed the DSP,[23] she would have done so before going overseas.[24]
[23] T documents at 28
[24] T documents at 32
On 25 March 2008, Mr Tegeltija advised Centrelink that his wife was staying overseas longer due to health reasons.[25] On the same day, Mrs Balihodzic asked for review of the decision on the basis that she had been advised that DSP was portable for 13 weeks, a letter dated 10 December 2007 to that effect had been sent to her and:
“… she was working up to December 07 and left to go overseas as no longer able to work. She was not advised that she needed to reapply for DSP before departure and cus presumed she would be paid dsp for period of 13 weeks which was then confirmed by the letter she received dated 10/12/2007. Cus now appealing due to wrong information/ procedure as this has now placed her in financial hardship whilst overseas and therefore this appeal. Ptr states she cus would not have travelled overseas as would have lodged new claim for dsp before going overseas if correction [sic] information given to her. …”[26]
[25] T documents at 31
[26] T documents at 32
Review of decision by an Authorised Review Officer
The Authorised Review Officer (ARO) decided that he did not have jurisdiction to consider the matter. In a letter dated 22 April 2008, he explained to Mrs Balihodzic that:
“… The reason for this is that you have not yet lodged a written claim for Disability Support Pension with Centrelink, as required by sections 11 and 16 of the Social Security (Administration) Act 1999. Therefore, no decision can be made to either grant or reject any Disability Support Pension until such time that a claim for that payment is completed in writing on the approved claim form. This means your appeal was unsuccessful.”[27]
THE TRIBUNAL’S JURISDICTION
[27] T documents at 38
General principles
Unlike a court of general jurisdiction which may consider all matters that come before it for trial, the Tribunal’s jurisdiction is limited. The foundation of the limitations is found in s 25 of the Administrative Appeals Tribunal Act 1975 (AAT
Act). In the context of this case, s 25(1) is relevant and it provides that:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; …”
An “enactment” includes “an Act”.[28] As “An Act passed by the Parliament of the Commonwealth may be referred to by the word ‘Act’ alone”[29] and the Social Security Act is such an Act, it is an “enactment” for the purposes of the AAT Act. A “decision” is broadly defined in s 3(3).[30]
[28] AAT Act, s 3(1)
[29] Acts Interpretation Act 1901, s 38
Section 25(4) is also relevant. It provides that the “… Tribunal has power to review any decision in respect of which application is made to it under any enactment.”[31] Implicit in the provision is that the Tribunal does not have jurisdiction to review a decision unless it has been made under an enactment and that enactment has provided that applications may be made to the Tribunal for review of that decision.
[31] AAT Act, s 25(4)
Power to review decisions under the Social Security Act
The power to review decisions made in the exercise of powers under the Social Security Act is not given to the Tribunal by that enactment. Instead, the power is found in the Social Security (Administration) Act 1999 (SSA Act). Section 179(1) sets out the circumstances in which a decision may be reviewed by the Tribunal. It provides that:
“If:
(a)a decision has been reviewed by the SSAT; and
(b)the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.”
The reference to the SSAT and so to the Social Security Appeals Tribunal, means that I must look at the decisions that it may review. Only if the decision has been reviewed by the SSAT may it be reviewed again by the Tribunal. That takes me back to Division 3 of Part 4 of the SSA Act. Section 140 sets out the decisions to which Division 3 applies. They include “all decisions of an officer under the social security law”.[32] The “social security law” includes a provision of the Social Security Act or of the SSA Act.[33] With one exception, application may be made to the SSAT for review of a decision to which Division 3 applies provided the decision has first been reviewed by the Secretary, the Chief Executive Officer of Centrelink or an ARO under ss 126 or 135 of the SSA Act.[34] The exception refers to those decisions set out in s 144 of the SSA Act as s 144 provides that the SSAT is not permitted to review them. None has any bearing on the decision in this case.
[32] SSA Act, s 140(1)(a)
[33] SSA Act, s 3(4)
[34] SSA Act, s 142(1)
In summary, then, the Tribunal has the power to review a decision made under the Social Security Act or the SSA Act if that decision has first been reviewed by an ARO, who has affirmed or varied it or set it aside, and then reviewed by the SSAT which has affirmed or varied it or set it aside.
How to identify a decision that is a “decision made under” the Social Security Act or the SSA Act
Has there been a decision “of an officer under the social security law” within the meaning of s 140(1)(a)? It is clear that there has been a decision that Mrs Balihodzic is not entitled to be paid DSP. The word “decision” has the same meaning as it has under the AAT Act.[35] That means that it extends to “refusing to make an order or determination”[36] and “… refusing to do any other act or thing”.[37] In this matter, there has been a refusal to pay Mrs Balihodzic a DSP. That refusal amounts to a decision.
[35] Unless a contrary intention appears, and it does not, an expression used in the SSA Act has the same meaning as it does when used in the Social Security Act: SSA Act, s 3(2). Section 23(1) of the Social Security Act provides that the word “decision” has the same meaning as in the AAT Act.
[36] AAT Act, s 3(3)(a)
[37] AAT Act, s 3(3)(g)
Has the refusal, and so decision, been made “under the social security law”? What is meant by the word “under” in that context? The authorities considering the more broadly based expression “under an enactment” (such as the Social Security Act or the SSA Act) are relevant. In the case of Australian National University v Burns,[38] Bowen CJ and Lockhart J said:
“… [W]e turn to the question whether the decision of the Council [of the Australian National University] to dismiss the respondent was made ‘under an enactment’.
…
The difficulty in the present case does not lie in the definition of the expression ‘under an enactment’. We agree with Fox J who said in Evans v Freimann (1981) 35 ALR 428 at 436; 3 ALD 326 at 333, that the word ‘under’, in the context of the Judicial Review Act, connotes ‘in pursuance of’ or ‘under the authority of’: see also R v Clyne [1941] VLR 200. The difficulty lies in the application of the expression to particular circumstances. The present case poses the problem in an acute form.”[39]
[38] (1982) 43 ALR 25; 5 ALD 67
[39] (1982) 43 ALR 25; 5 ALD 67 at 31; 72
Bowen CJ and Lockhart J then went on to give some general guidance as to how to apply the general principles:
“ We agree with the primary judge when he said (40 ALR at 716-7): [[40]] ‘In many cases the power to do a particular thing will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where the particular power is precisely stated. In each case, the question to be asked is one of substance, whether, in effect, the decision is made “under an enactment” or otherwise.’”[41]
[40] Burns v Australian National University (1982) 40 ALR 707 at 716-717 per Ellicott J
[41] (1982) 43 ALR 25; 5 ALD 67 at 31; 72-73
Their Honours had to decide whether a decision made by the Council of the University terminating appointment as a professor in one of its Departments had been made “under an enactment”. Applying the principles to the facts of the case before them, they said:
“In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the Australian National] University Act [1946]. Section 23 [of the University Act] empowered the council to enter into the contract on behalf of the appellant. Even if the council, in considering the position of the appellant under the contract, might be said to be acting under section 23, the effective decision for dismissal taken and notified to the respondent was directly under the contract.”[42]
[42] (1982) 43 ALR 25; 5 ALD 67 at 32; 73
In Australian National Airlines Commission v Newman,[43] the High Court considered whether the alleged failure of the Australian National Airlines Commission to maintain its kitchen properly and to provide a safe system of work was something “done or purporting to be done” under the Australian National Airlines Act 1945. Brennan J said:
“ In the present case, the Commission required no statutory authority to conduct a kitchen. That is an activity which, so far as appears, might lawfully be engaged in without statutory authority. The Commission was at liberty to perform the functions prescribed by s 19(1) or by other provisions of the Act by whatever lawful means it chose, and no further grant of power or prescription of functions was needed to authorise the conduct of the kitchen. True it is that the Act expressly confers powers on the Commission to operate services and facilities for the purposes of and incidental to the carrying on of its business (s 19D) and to do ‘all things necessary or convenient to be done for or in connection with, or as incidental to, the performance of its functions’ (s 19H(1)) but the Act is not to be regarded, for the purpose of s 63(1), as the source of power which the commission otherwise possesses. Freedom under the common law to engage in conduct requires no grant of statutory power to confirm it, and a limitation provision which affects liability for things done or purportedly done ‘under’ the statute does not affect liability for things which are and can be done without reliance on a statutory power to do them. The conduct of the kitchen was something which the Commission had capacity to undertake without the grant of statutory power to undertake it. It follows that an act committed in the course of conducting the kitchen is not an act arising out of something done or purportedly done under the Act for the purpose of
s 63(1).”[44][43] (1987) 162 CLR 466; 70 ALR 275
[44] (1987) 162 CLR 466; 70 ALR 275 at 477-478; 282-283
The case of General Newspapers Pty Limited and Others v Telstra Corporation,[45] was concerned, in part, with whether Telstra’s actions in negotiating the printing of its telephone directories and in deciding to enter a contract with printers without calling for tenders was reviewable under the ADJR Act. In their joint judgement, Davies and Einfeld JJ reviewed a number of the authorities and continued:
“In the present case, the decisions relied upon involved the entry of contracts and the conduct challenged was conduct leading to the making of the contracts. No statute made specific provisions for such contracts, merely conferring upon Telecom all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus, the ADJR Act had no application to the conduct or to the alleged decisions.”[46]
[45] (1993) 117 ALR 629; 45 FCR 164
[46] (1993) 117 ALR 629; 45 FCR 164 at 637; 173
What was the decision?
I have first considered the events of 10 December 2007 including the notes of Mrs Balihodzic’s conversation with a Centrelink officer and the letter that the officer sent to her. They lead me to conclude that the decision made on 10 December was a decision that, should she travel overseas, any DSP then being paid to
was portable for a period of 13 weeks. There was no decision, either express or implicit in the events that took place, that Mrs Balihodzic was entitled to be paid DSP. Quite apart from the fact that she had not lodged a claim for DSP and had not established that she had a physical, intellectual or psychiatric impairment that was of 20 or more Impairment points and that she had a continuing inability to work, the notes and the correspondence are written on an assumption that she was already being paid DSP. No decision was made that Mrs Balihodzic was, or was not entitled to be paid DSP at that time.
Mrs Balihodzic
The decision that was subsequently made by the ARO did not alter that decision. It was a decision that no decision could be made either to grant or reject DSP until Mrs Balihodzic had lodged a claim on the approved claim form. The SSAT’s decision was to the same effect. Looking at the practical effect of this decision, it can be characterised as a decision to refuse to pay her DSP. That is so even though the reason for the refusal is that Mrs Balihodzic has not lodged a claim and that, as a consequence, her claim cannot be considered and a decision cannot be made either to grant or refuse a DSP. As that is the practical effect of the decision, I have characterised it that way and considered the Tribunal’s jurisdiction on that basis.
Was the decision to refuse to pay DSP to Mrs Balihodzic made under the Social Security Act?
It is clear from the authorities to which I have referred that I must look at the provisions of the Social Security Act and the SSA Act in order to answer the question I have posed in the heading. I will look first at Division 1 of Part 2.3 of the Social Security Act as it sets out the provisions relating to DSP. In particular, Subdivision A of Division 1 sets out the circumstances in which a person is qualified for DSP and Subdivision B is concerned with payability. The qualifications are set out in s 94. Among them is the requirement that the person has a physical, intellectual or psychiatric impairment[47] that is of 20 or more points under the Impairment Tables in Schedule 1B to the Social Security Act[48] and that the person has a continuing inability to work.[49] In so far as payability is concerned, DSP is not payable if the person’s DSP rate would be nil[50] or, if the person is already receiving a DSP, another social security pension or social security benefit becomes payable to that person.[51]
[47] Social Security Act, s 94(1)(a)
[48] Social Security Act, s 94(1)(b)
[49] Social Security Act, s 94(1)(c)(i)
[50] Social Security Act, s 98
[51] Social Security Act, s 103(2)
The Social Security Act is not concerned with the way in which a person goes about making a claim for a social security pension. That is left to the SSA Act. The general rule is set out in s 11 of the SSA Act. In so far as it applies to a social security payment, which includes a DSP,[52] a person who wants to be granted such a payment must make a claim for it in accordance with Division 1 of Part 3 of the SSA Act.[53] In the circumstances set out in s 12(1), the Secretary may determine that a person is taken to have made a claim but those circumstances require as a minimum that the person already be receiving another income support payment.
A claim is not required for certain one-off payments such as those to the aged or to carers.[54][52] Social Security Act, s 23(1) and SSA Act, s 3(2)
[53] SSA Act, s 11(1)(a)
[54] SSA Act, ss 12A-12C
Section 13(1) of the SSA Act deems a person to have made a claim for:
“… the purposes of social security law if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment on the day on which the person was contacted.”
Section 15(1) is also concerned with deemed claims. It provides that a person is taken to have made a claim for a social security payment if he or she makes a claim for a social security payment for which he or she is not entitled but subsequently makes another claim for a social security payment for which he or she is entitled and the Secretary is satisfied that it is reasonable for the section to apply.
A person makes a claim for a social security payment by lodging a written claim for the payment, which must be in accordance with a form approved by the Secretary,[55] or making a claim in a manner approved by the Secretary for the purposes of s 16(7) of the SSA Act.[56] A written claim is lodged by being delivered in a manner and to a place or to a person approved by the Secretary provided that, except in very limited circumstances, the place or person must be in Australia.[57]
[55] SSA Act, s 16(1)(a) and 16(2)
[56] SSA Act, ss 16(1)(b) and 16(7)
[57] SSA Act, ss 16(4)-(6)
Once a claim has been made, it is relevant to look at s 36(1) of the SSA Act, which provides that, subject to an exception that is not relevant:
“… the Secretary must, in accordance with the social security law, determine a claim for a social security payment …, either granting or rejecting the claim.”
Subject again to a qualification that is not relevant in this case, the Secretary must determine that a claim for a social security payment is to be granted if satisfied that the claimant is qualified for the social security payment claimed and that the social security payment is payable.[58]
[58] SSA Act, s 37(1)
Had Mrs Balihodzic made a claim for a DSP or been deemed to have made a claim for it, it is clear from these provisions that a decision either to refuse or to grant her claim would have been made under the SSA Act. It was a decision that the Secretary, and so a Centrelink officer, was clearly authorised to make under the SSA Act once a claim had been made. It was a decision that had to have regard to the qualification and payability provisions of the SS Act.
It is clear from the papers and from what Mr Tegeltija said at the hearing that Mrs Balihodzic had not made a claim for DSP when she contacted Centrelink regarding her overseas trip. She did not lodge a claim in the form required. I have also considered whether she could be said to have been deemed to lodge a claim on the basis that she had contacted Centrelink “in relation to a claim” for DSP. On the material that I have, I am not necessarily satisfied that she did contact Centrelink on that basis. On Mrs Balihodzic’s view, she did not need to make a claim for DSP as she was already entitled to it. What she was contacting Centrelink was about its payability while she was overseas. Arguably, that is a matter different from claiming it. Resolution of the issue would require a consideration of what is meant by contacting “in relation to a claim” as provided in s 13(1)(a) of the SSA Act. There is no need to do that for, even if Mrs Balihodzic did make contact on that basis, she has not lodged a claim for DSP within 14 days of her contact as required by s 13(1)(d). It follows that she cannot be deemed to have made a claim according to s 13(1).
As Mrs Balihodzic has not made a claim, it is not possible to characterise the refusal of DSP as a decision made by the Secretary under s 36(1) of the SSA Act. Was it a decision that was authorised by another provision of the SSA Act or the Social Security Act so that it could be said to have been made under that provision and so under the social security law?
Section 7 of the SSA Act provides that, subject to any direction of the Minister, the Secretary is to have the general administration of the social security law. In administering that law, s 8 provides, the Secretary is to have regard to what six principles of administration that are relevant to the administration of social security law generally and are not directed to the resolution of an individual’s entitlement to a payment under the social security law. The Secretary is, for example, required to have regard to achieving “the delivery of services under the law in a fair, courteous, prompt and cost-efficient manner”[59] and to have regard to “the special needs of disadvantaged groups in the community”.[60] Does s 7, either expressly or implicitly and either alone or when read with s 8, give the Secretary the power to make a decision of the sort made in this case so that it can be said to have been made under an enactment?
[59] SSA Act, s 8(a)(iii)
[60] SSA Act, s 8(b)
Section 7 is a provision that gives the Secretary a function. That is to say, it designates and so identifies the person who has the task of managing the social security law but does it give the Secretary any power? A function and a power are different things although the distinction may be blurred. This was recognised by Lockhart J in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission[61] when considering the then Australian Securities Commission Act 1989 (ASC Act):
“ The ASC Act draws a distinction between the functions and powers of the ASC [Australian Securities Commission], a distinction well recognised in the law with respect to the functions and powers of administrative bodies. The distinction is between functions or purposes of activities of an administrative body on one hand, and the powers conferred upon it to perform or execute those functions, purposes and activities on the other. …”[62]
[61] (1993) 40 FCR 409; 112 ALR 463; 29 ALD 616
[62] (1993) 40 FCR 409; 112 ALR 463; 29 ALD 616 at 422; 475; 626-627
Section 8 of the Income Tax Assessment Act 1936 (ITA Act) was drafted in terms similar to that of s 7 of the SSA. It provided that “The Commissioner shall have the general administration of this Act.” In Hutchins v Deputy Commissioner of Taxation,[63] Jenkinson J considered whether a decision by a Deputy Commissioner of Taxation to vote against a motion at a creditors’ meeting held under the Bankruptcy Act 1966 was a decision under the ITA Act and, in particular, under s 8 or s 209. Jenkinson J decided that a general power cannot be understood to make provision for any of the many decisions which the Commissioner must make in exercising his authority. The function of the section, he said, is merely to nominate the person by whom decisions relating to general administration may be made. Section 209 provided that the Commissioner or a Deputy Commissioner could sue for and recover unpaid tax. Section 208 provided that, when income tax becomes due and payable, it is a debt due to the Commonwealth.
[63] (1994) 123 ALR 133
His Honour referred to his earlier judgement in TerrulePty Limited v Deputy Commissioner of Taxation (no 4)[64] and doubted its correctness. He said:
”I see more force now than when I rejected it in the submission of counsel for the Deputy Commissioner in Terrule’s case that s 209 did not make provision for decisions of that character but merely authorised suit by the Commonwealth for recovery of income tax by the Commissioner or a deputy commissioner suing in his official name, and that no other section of the Income Tax Assessment Act 1936 made provision for such a decision. I have already given my reasons for thinking that s 8 does not make that provision. On the view for which counsel for the Deputy Commissioner contended in Terrule’s case the decision whether or not to institute the suit for recovery of the tax is an exercise of the executive power of the Commonwealth conferred by s 61 of the Constitution.”[65]
[64] (1985) 5 FCR 153
[65] (1994) 123 ALR 133 at 139
An appeal from Jenkinson J’s judgement was dismissed by the Full Court of the Federal Court in Hutchins v Deputy Federal Commissioner of Taxation.[66] The majority, Black CJ and Spender J, concluded that s 8 was expressed too generally and that ss 208 and 209 were too remote and non specific to support a conclusion that the decision had been made under an enactment.
[66] (1996) 96 ATC 4,372; 136 ALR 153; 41 ALD 193
Applying the approach in these cases, it seems to me that care must be taken in identifying the power under which the decision was made. The source of the power which may at first present itself may not be the appropriate source.
Returning to the SSA Act, it seems to me that the distinction between a function and a power is maintained. Specific power is given to the Secretary to make decisions or to take certain steps or actions in relation to specific matters set out in the legislation. I have already referred to the Secretary’s power to make a decision to grant or refuse a claim but there are many other examples scattered throughout the SSA Act. The Secretary may, for example, require certain persons to give the Department information,[67] purchase on behalf of the Commonwealth vouchers that enable a person to acquire goods or services to a particular amount and that are then given to a person under s 123YC[68] or require a person to attend a medical examination.[69] Unlike a provision such as s 11(4) of the then ASC Act, the SSA Act does not contain a general provision giving the Secretary power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of his functions.
[67] See generally SSA Act, Part 5
[68] SSA Act, s 123ZM
[69] SSA Act, s 64
Having regard to these matters as well as to the scheme of the SSA Act generally, it seems to me that Parliament intended to specify the Secretary’s powers explicitly in relation to the payment of pensions, benefits and other payments under the Social Security Act. Section 7 sets out the Secretary’s functions but it does not purport or claim to give the Secretary implicit powers in relation to dealings with individuals who may have dealings with his Department or with Centrelink in relation to the payment of a pension, benefit or other payment to a specific person. Its language is too broad for that. When I read s 7 with the principles of administration set out in s 8, I do not change my mind. They are exhortatory and aspirational if not inspirational but are not themselves a source of power to make a decision to refuse to pay Mrs Balihodzic DSP. Therefore, the decision cannot be said to have been made under the SSA Act.
It follows that the refusal of the Secretary to make a decision about DSP at all is a decision made under the executive power of the Commonwealth that is conferred by s 61 of the Commonwealth Constitution and extends to the maintenance of the laws of the Commonwealth. A decision made in the exercise of that power cannot be said to have been made under the social security law for it is neither the Social Security Act nor the SSA Act.
Does the letter of 10 December 2007 alter my conclusion?
Mr Tegeltija placed some weight on the letter dated 10 December 2007 and sent by Centrelink to his wife. As I have said, I regard it as written on the assumption that Mrs Balihodzic was already entitled to be paid DSP. The letter did not intend to convey any decision regarding her entitlement to DSP or its payability to her and did not convey any such decision.
I will also take a moment to explain why the existence of letter does not prevent the Secretary from raising the issues that he has or from making any further decisions about Mrs Balihodzic’s entitlement to be paid DSP. Had the letter contained a representation that she was entitled to DSP, that representation would have been made by an officer of the Commonwealth. A representation by an officer of the Commonwealth cannot override the requirements and effect of legislation passed by the Parliament of the Commonwealth. To adapt the words of Gummow J in Minister for Immigration; Local Government and Ethnic Affairs v Kurtovic[70] where the statutory duty of the Department was alleged to have not been followed, a representation:
“‘… cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public’. …”[71]
[70] (1990) 21 FCR 193; 92 ALR 93, Neaves, Ryan and Gummow JJ
[71] (1990) 21 FCR 193; 92 ALR 93 at 208; 109
The facts in the Kurtovic case illustrate the point made by Gummow J. The respondent attempted to argue that a letter from the Department of Immigration carried an implication that, were Mr Kurtovic to give no further cause to be deported, he would not be deported. The Minister later decided to deport Mr Kurtovic. Mr Kurtovic asked the Full Court to prevent the Minister from making a decision within his powers in the exercise of his statutory discretion. The Full Court did not accept his argument. One of the major themes in the judgement is that executive action is subordinate to legislation and a representation cannot reverse that relationship. That meant that any representation made in the letter suggesting otherwise could not be relied on to prevent the Minister from using the powers that he had been given in the Migration Act 1958.[72]
Do the principles in the Brian Lawlor case alter my conclusion?
The principle established by the case of Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd[73] is that, provided the Tribunal has been given jurisdiction to review a decision by an enactment, it does not matter whether the particular decision of which review is sought was validly made or not. All that matters is that the particular decision has been made and that it purports or claims to have been made in the exercise of powers conferred by that enactment.[74]
[73] (1979) 41 FLR 338; (1979) 2 ALD 1; (1979) 24 ALR 307
[74] See, for example, Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219-220 per Von Doussa J in a judgment agreed in by Spender and French JJ
In this case, the Secretary has not purported or claimed to make a decision under either the Social Security Act or the SSA Act. The officer who wrote the letter assumed that Mrs Balihodzic was already being paid DSP and there is no suggestion that any thought had been given to whether or not she was entitled to be paid DSP. Therefore, I have decided that there is no decision purporting or claiming to have been made under a power given by a social security law and the principles in the Brian Lawlor case do not apply.
Conclusion
For the reasons I have given, I have decided that the Tribunal does not have jurisdiction to review any decision that has been made in relation to Mrs Balihodzic arising from the events to which I have referred.
I certify that the preceding fifty one paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Jayne Haydon Associate
Date of Hearing 27 August 2007
Date of Decision 8 September 2008
Representative for the Applicant Mr Tegeltija
Representative for the Respondent Mr Hamilton
Legal Services Officer
“(a) making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article, or
(g) doing or refusing to do any other act or thing.”
See also Formosa v Secretary, Department of Social Security (1988) 46 FCR 117; 81 ALR 687;
15 ALD 657, Davies, Burchett and Gummow JJ and my decision in Re Maria Esequiel Faisca and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees, AAT 7973,1 May, 1992. In Comcare Australia v Hill (1999) 56 ALD 487, Spender J reached a similar conclusion when Mr Hill submitted that Comcare was bound by its initial decision and could not alter it.
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