Burke and Secretary, Department of Social Services (Social services second review)

[2015] AATA 550

Burke and Secretary, Department of Social Services (Social services second review) [2015] AATA 550 (29 July 2015)

Division:  GENERAL DIVISION

File Number:  2014/4862

Re:  BRADLEY BURKE

APPLICANT

And:SECRETARY, DEPARTMENT OF SOCIAL SERVICES

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  29 July 2015

Place  Melbourne

The Tribunal decides to:

1.in relation to the decision of the Social Security Appeals Tribunal dated 20 August 2014 affirming a decision of the respondent dated 23 December 2013 and affirmed by a decision of an Authorised Review Officer dated 4 April 2014:

(1)vary the decision by changing the date of cancellation of the applicant’s newstart allowance from 19 December 2013 to 20 December 2013; and

(2)remit the matter to the respondent to recalculate the applicant’s entitlement to newstart allowance; and

2.otherwise affirm the decision.

…[sgd] S A Forgie…

Deputy President

CATCHWORDS

SOCIAL SECURITY – newstart allowance – Newstart Employment Pathway Plan for work with Sea Shepherd for 30 hours per fortnight – applicant sails beyond Australia’s territorial sea – whether absence allowable – whether humanitarian purpose – decision varied to reflect correct day applicant left Australia

LEGISLATION
Migration Act 1958; sections 5, 9A
Sea and Submerged Lands Act 1973; sections 3, 6, 7, 10B, 11 and Schedule
Social Security Act 1991; sections 23, 593, 1212B, 1213, 1214, 1215, 1217

CASES
New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337; 8 ALR 1

OTHER MATERIAL

Seas and Submerged Lands Act 1973 – Proclamation under section 7 (9/11/1990)
Seas and Submerged Lands (Territorial Sea Baseline) Proclamation 2006
United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982

REASONS FOR DECISION

1. Until 2013, Mr Bradely Burke repaired violins but he had to turn to Centrelink when there was not enough work for him to earn his living. A delegate of the Secretary of the Department of Social Services (Secretary) decided that Mr Burke was qualified for the newstart allowance within the meaning of s 593(1) of the Social Security Act 1991 (SS Act). As required by s 593(1)(d), a Newstart Employment Pathway Plan (NEPP) was in force in relation to Mr Burke. In accordance with the NEPP, Mr Burke worked for the Sea Shepherd Conservation Society (Australia) (Sea Shepherd). When asked by Sea Shepherd to use his sailing skills on its vessel, the Steve Irwin, in Australia’s exclusive economic zone protecting whales, Mr Burke agreed thinking the work was part of the work he was required to do under the NEPP. 

1. The Secretary did not take issue with his doing that work but cancelled his newstart allowance between 19 December 2013 and 22 March 2014 (relevant period) on the basis that he was absent from Australia and not eligible for payment of newstart allowance.  As a result of the Secretary’s decision made on 23 December 2013, Mr Burke found that he did not have the newstart payments he had expected would cover the expenses he had incurred in maintaining his home in that period and that he would have incurred regardless of whether he was home or away.  On 20 August 2014, the Social Security Appeals Tribunal affirmed the decision, which had earlier been affirmed by an Authorised Review Officer on 4 April 2014.  I have varied the decision slightly by finding that Mr Burke left Australia a day later on 20 December 2013 and that his newstart allowance should not have been cancelled until that day.  Mr Burke’s entitlement to newstart allowance will need to be recalculated to take account of the difference of a day.  Otherwise, I have affirmed the decision under review.

BACKGROUND

Negotiation of the NEPP relating to activities with Sea Shepherd

1. Section 593 sets out the basic qualifications for newstart allowance.  Mr Burke met those qualifications throughout the relevant period as well as before and after.  He entered various NEPPs, each of which appears to be undated.  On the basis of Mr Burke’s evidence, I find that the consultant with whom he negotiated each NEPP suggested that the job seeking requirements would be waived if he were to volunteer to work with a non-government organisation (NGO).  He could do that because he was then 62 years of age and unlikely to find further employment.  After investigating various NGOs, Mr Burke suggested Sea Shepherd.  He agreed to do two days of paperwork for Sea Shepherd each week.

1. On the basis of Centrelink’s computerised records, I find that an NEPP was negotiated between Mr Burke and a delegate of the Secretary on 29 July 2013[1]  An undated copy of an NEPP referring to that voluntary work is included in the T documents.[2]  Mr Burke said that it was negotiated on 20 July 2013.  Whether it was dated 20 or 29 July 2013 is of no consequence.  It was agreed that it was signed and entered in July 2013.

   [1] T documents; T4 at 61-62; Entry Receipt Date: 29 July 2013

   [2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T3 at 22

1. The date of 20 July 2013 coincides with Sea Shepherd’s Manager completing a Centrelink form headed “Voluntary Work Request for Organisation Approval”.  The Manager wrote that Sea Shepherd had administration, skilled trades and general labouring positions available.  It was prepared to accept direct referrals from Centrelink and attached a copy of its Business Insurance Policy, including public liability and personal accident cover at an appropriate level.  When asked what Sea Shepherd’s opening hours were, the Manager wrote “8am to 5pm”.[3]

   [3] T documents; T5 at 30-31

1. Also dated 20 July 2013 was another Centrelink form signed by Mr Burke.  It was headed “Voluntary Work Verification of Voluntary Work” and stated that he had agreed to undertake full-time voluntary work of at least 30 hours per fortnight.[4]  The work was described as “General admin/office” and would extend from the period 20 July 2013 to 20 July 2014.[5]

   [4] This option was available only to newstart recipients aged 55 years and over.

   [5] T documents; T6 at 32 - 33

The terms of the NEPP

1. The NEPP began with a standard statement that Mr Burke was required to make:

   “On the date this plan was signed, I discussed with Centrelink the activities I agreed to undertake and the appointments I need to attend to assist me in finding a job and prepare for work.  I am aware that if I can’t attend my appointments or activities, I must contact my employment services provider (or Centrelink if I don’t have a provider) in advance.  These activities and appointments have been included in this Employment Pathway Plan, which has been negotiated under the Social Security Act 1991.”[6]

   [6] T documents; T3 at 22

1. Mr Burke went on to state:

   “Goals – these are my employment goals.  The activities and appointments in this Plan will help me reach these goals. 

my goal is to maintain my voluntary work with the Sea Shepherd Conservation Society (Australia)

Job search activities – this section lists the job search activities I will undertake to assist me in finding employment.

30 hours per fortnight voluntary work with sea shepherd during the period from 29/07/2013 to 15/02/2014. Compulsory

1. The remainder of the NEPP relating to Mr Burke included a Job Seeker’s Statement and a Centrelink Statement.  The former states:

   “I have been given a copy of my Employment Pathway Plan.

   I understand that I can have my Employment Pathway Plan reviewed at any time to take into account changes in my circumstances and ways Centrelink will help me.

   I understand that my Employment Pathway Plan includes activities that I must do and appointments I must attend in order to receive income support payments under social security law.  I understand that if I don’t participate in the activities or attend the appointments listed in my Employment Pathway Plan, my income support payment may be stopped or reduced.

   I understand that my Employment Pathway Plan may include activities that I have agreed to do (voluntary activities).  I understand that my income support will not be affected if I do not participate in these voluntary activities.

   As well as participating in the activities and attending the appointments listed in my Employment Pathway Plan, I understand that I must actively look for work (if required) to remain eligible for income support.

   I understand that if I don’t attend a job interview or if I don’t do my best to get the job at an interview I attend my payment may be stopped or reduced.  I understand that my income support may not be payable for 8 weeks if I refuse or fail to accept an offer of suitable employment.

   I understand that I must let my employment services provider (or Centrelink if I don’t have a provider) know if I can’t attend an appointment or participate in an activity for any reason.  I must do this before the time of the appointment or activity.  I understand that if I don’t do this my income support may be stopped or reduced, even if I had a good reason(s) for not attending.

   I confirm that it has been explained to me what I need to do to successfully participate in the activities and attend the appointments listed in my Employment Pathway Plan.  I also confirm that the consequences of not complying with my Employment Pathway Plan have been explained to me.”[7]

   [7] T documents; T3 at 23

1. The Centrelink Statement stated:

   “I confirm that I have explained the participation requirements of this Employment Pathway Plan to BRADLEY BURKE.  We have agreed on the activities that BRADLEY will participate in and the appointments that BRADLEY will attend.  I have also explained the consequences of failing to participate in agreed activities and appointments.

   I have given BRADLEY a copy of this Employment Pathway Plan.

   I have approved the terms of this Employment Pathway Plan as a delegate of the Secretary of the Department of Education, Employment and Workplace Relations under the Social Security Act 1991.”[8]

   [8] T documents; T3 at 24

1. Attached to the NEPP and forming part of it was a two page document headed “Information You Need to Know”.  The opening four paragraphs give a flavour of the document:

   “Your Employment Pathway Plan has been tailored to your individual needs and sets out the things you have agreed to do to gain sustainable employment.  It covers your individual pathway to employment, including the assistance you will receive while you are looking for work.

   The Goals section lists the employment goals you have decided on with the help of your employment services provider (or Centrelink).  The activities and appointments listed in the other sections of your Employment Pathway Plan will help you reach these goals.

   The Appointments section records the appointments you have agreed to attend with your provider or Centrelink.  Some appointments will be marked as compulsory (appointments you need to attend to get your income support payments) and others may be marked as voluntary (appointments you should attend to improve your chances of finding employment).

   The other sections of the Employment Pathway Plan record the activities you have agreed to do to reach your employment goals.  These may include: activities to improve your job search skills; training or educational courses; work experience activities and activities that will help you to overcome any personal barriers to employment you have.  Again, some activities will be marked as compulsory (activities you need to participate in to get your income support payments) and others may be marked as voluntary (activities you should participate in to improve your chances of finding employment).”[9]

   [9] T documents; T3 at 25

1. The document goes on to set out “What happens if I don’t do what is listed in my Employment Pathway Plan?”  It deals with the consequences of not attending a compulsory activity or appointment.  Centrelink will conduct a Comprehensive Compliance Assessment if the person does not “… attend activities for three days or miss three appointments over a six-month period …”.[10]  Under the heading “What should I do if I can’t do the things I have agreed to?”, is written the following:

   “If you can’t do an activity listed in your Employment Pathway Plan, or can’t attend an appointment that has been arranged for you, contact your employment services provider (or Centrelink if you do not have a provider) as soon as possible.  If you do so your provider may make another time to attend your activity or appointment.  If you don’t contact beforehand when you are able to do so, your income support payment may be reduced, or stopped, even if you have a good reason for not being able to attend.

   If there are good reasons why you are unable to look for work or undertake the activities listed in your Employment Pathway Plan, you should discuss these with your provider or Centrelink.  If your personal circumstances are affecting your ability to undertake the activities listed in your Employment Pathway Plan, please discuss these with Centrelink or your employment services provider.”[11]

   [10] T documents; T3 at 25

   [11] T documents; T3 at 26

Centrelink’s records of notifications

1. Following his entering the NEPP, Mr Burke reported his compliance to Centrelink by way of the internet.  Centrelink recorded that each of his reports was entered by means of the internet and each was written in terms similar to the following:

   “… Act’y Test Response

   Customer contacted Centrelink on 14 August 2013 regarding Customer Update for Newstart Allowance.  Information was obtained via Internet.
   Document created by … on 14 August 2013.
   Customer reported on the WEB for the period 31 July – 13 August 2013
   No income reported for Customer.
   Customer answered no to : Do you have any changes to declare to Centrelink that you have not already told us about?

   Activity tested/Participation requirements customer successfully reported via the WEB and payment was stimulated.  Customer answered YES to the following question: Have you undertaken your agreed approved activity/activities as set out in your Employment Pathway Plan this reporting period?”[12]

   [12] T documents; T4 at 60-61

Mr Burke sails on the Steve Irwin

1. Mr Burke, I find on the basis of his evidence, had been involved in sailing for 40 years.  One day, those at Sea Shepherd asked him if he could go to Antarctica.  That would involve him working for it for seven days out of every week rather than two but, Mr Burke thought, he could do more so why should he not work the extra days.  He was living up to his contract with Centrelink and going beyond it. 

1. On the basis of Mr Burke’s evidence, I find that, once it sailed from Williamstown in Victoria, he did not leave the Steve Irwin until it docked again at Williamstown.  The Steve Irwin sailed at 8:00pm on the night of 19 December 2013.  I accept his evidence that the vessel sailed at approximately ten miles per hour and took at least five hours to sail out of Port Philip Bay and then outside the 12 mile limit.

Centrelink stops Mr Burke’s newstart allowance

1. Mr Burke is recorded on records maintained by what is now the Department of Immigration and Border Protection (DIBP) as leaving Australia on 19 December 2013 and returning on 22 March 2014.[13]  On his return to his home, Mr Burke found a letter from Centrelink dated 2 January 2014.  It advised him that his newstart allowance had been stopped from 19 December 2013 because he was not in Australia.[14]

CONSIDERATION

[13] T documents; T15 at 75

[14] T documents; T9 at 38

Portability and allowable absences

1. Division 2 of Part 4.2 of Chapter 4 is concerned with the portability of social security payments.  A “social security payment” includes a “social security benefit” which, in turn, includes a newstart allowance.[15]  Division 2 applies to a person during a period throughout which he or she is continuously absent from Australia if, immediately before the period of absence commenced, he or she was receiving a social security payment mentioned in column 2 at the end of s 1217 of the SS Act.[16] 

[15] SS Act; s 23(1)

[16] SS Act; s 1213(a)

1. A person’s right to be paid some social security payments is not affected by its recipient’s mere absence from Australia.  Those payments are generally portable for an unlimited period although the rate of payment may be affected if the person remains absent for more than 26 weeks.[17]  Other payments have limited portability and are not payable after the period of portability comes to an end.[18]  Section 1217 sets out the maximum portability period for each type of social security payment as well as the class of persons subject to that period.[19]  It does so in a table which also sets out the period of absence – allowable absence – that the person may have in relation to the payment at a particular time.[20]  In so far as newstart allowance is concerned, the table, which is found at the end of s 1217, sets out the following information:

   [17] SS Act; s 1214(1) and see also Division 3 of Part 4.2

   [18] SS Act; s 1215

   [19] SS Act; s 1217(1)

   [20] SS Act; s 1217(2)

Portability of social security payments
Column 1	Column 2	Column 3	Column 4	Column 5
Item	Payment	Person	Absence	Maximum portability period
15	Newstart allowance	All persons	A temporary absence for any of the following purposes: (a) to seek eligible medical treatment; (b) to attend to an acute family crisis; (c) for a humanitarian purpose.	6 weeks

1. As there is no suggestion that Mr Burke’s circumstances came within (a) or (b), I have looked to the meaning of “humanitarian purpose” in (c).  That is a term defined in s 1212B, which also appears in Part 4.2:

   “For the purposes of this Part, a person’s absence is for a humanitarian purpose at a particular time if the Secretary is satisfied that the absence is, at that time:

   (a)for the purpose of involvement in custody proceedings, criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person) or other legal proceedings; or

   (b)       for purposes relating to the adoption of a child by the person; or

   (c)for a purpose specified in the regulations for the purposes of this paragraph.”

1. No regulations have been made for the purposes of s 1212B(c).  That means that Mr Burke’s circumstances do not bring him within the scope of Column 4.  Therefore, his absence while aboard the Steve Irwin and outside Australia was not an allowable absence within the meaning of Item 15 of the table at s 1217 and so not within the meaning of s 1217(2).  As his absence was not an allowable absence, Mr Burke was not entitled to be paid newstart allowance during it.

When did Mr Burke’s absence from Australia begin?

1. The Secretary has identified 19 December 2013 as the day that Mr Burke left Australia.  Whether that is the day on which his absence began depends on what is meant by “Australia”.  It is a term defined in s 23(1) of the SS Act:

   “Australia includes the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.

   Note:    …”[21]

An inclusionary definition of the sort set out in s 23(1) does not determine the limits of Australia.  Looking for those, I have turned to the Sea and Submerged Lands Act 1973 (SSL Act), to which Mr de Uray, who represented the Secretary, referred.

[21] The Note refers to ss 7(4), (6) and (7) regarding special residence rules for external Territories but none is relevant.

A.       What is Australia’s territorial sea?

1. The expression “territorial sea” is defined in s 3(1) of the SSL Act:

   “‘territorial sea’ has the same meaning as in Articles 3 and 4 of the Convention.”

The “Convention” is the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.[22]  Relevant Articles of that Convention are Articles 2,[23] 3[24] and 4.[25] Section 6 of the SSL Act declares sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth. The breadth of the territorial sea is left to s 7. Under that provision, the Governor-General may, by Proclamation, declare the limits of the whole or of any part of the territorial sea. The Governor-General’s power is subject to the proviso that it must not be exercised inconsistently with Section 2 of Part II of the Convention i.e. Articles 3 to 16. On 9 November 1990, the Governor-General issued a Proclamation declaring that, on and from 20 November 1990, the outer limit of Australia’s territorial sea is 12 international nautical miles from the baseline established under international law or as otherwise determined under the SSL Act from time to time.[26]

[22] SSL Act; s 3(1)

[23] Article 2 of the Convention provides for the legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil and provides:

[24] Article 3 of the Convention provides for the breadth of the territorial sea.  It provides: “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”

[25] Article 4 provides for the outer limit of the territorial sea: “The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.”

[26] A further Proclamation relating to ascertaining baselines was made under s 7 on 15 February 2006: Seas and Submerged Lands (Territorial Sea Baseline) Proclamation 2006.

1. What is described as the “normal baseline” is determined according to Article 5, which reads:

   “Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.”

Provision is also made in the Convention for variations such as reefs and islands and other circumstances in which a straight baseline may be adopted.  Paragraph 1 of Article 7 provides an example:

“In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.”

B.       Is its territorial sea part of Australia?

1. As Mr de Uray submitted, s 6 of the SSL Act provides that:

   “It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth.”

1. The validity of the SSL Act was considered by the High Court in New South Wales v The Commonwealth[27] (Seas and Submerged Lands Act case). Although there were differences on some aspects, each of the Judges of the High Court held that the SSL Act was within the Commonwealth’s power to enact as it was supported by the external affairs power in s 51(xxix) of the Commonwealth Constitution. In the course of doing so, Mason J explained the relationship between the SSL Act and the Convention. He began with the concept of “sovereignty”, to which s 6 refers:

   “          The concept expressed by the word ‘sovereignty’ in Arts 1 and 2 of the Convention on the Territorial Sea is that of supreme authority, the supreme authority which a State is recognized by international law as having over its land territory, howsoever the exercise of that supreme authority may be divided between the municipal organs of government within the state, as for example within a state which is a federation. … [T]he continental shelf is considered to be, for the purpose of the exercise of sovereign rights by the coastal state, ‘a natural prolongation of its land territory’.  So also is the bed of the territorial sea.  That is not to say that the seabed is territory in the sense that the land territory of the coastal state is territory.  But it is to say that subject to the Convention and to the rules of international law the coastal state possesses that supreme authority over the bed and subsoil of territorial waters which it enjoys over its land mass, and that in the exercise of this authority the coastal state may in accordance with international law assert ownership and dominion if it chooses so to do.”[28]

   [27] [1975] HCA 58; (1975) 135 CLR 337; 8 ALR 1; Barwick CJ, McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ

   [28] (1975) 135 CLR 337 at [57]; 475; 95 (citations omitted)

1. Consistent with this basis, Mason J explained:

   “          The Act seeks to give effect to the Convention by asserting that the sovereignty in respect of the territorial sea, its land and subsoil as well as the airspace above it ‘is vested in and exercisable by the Crown in the right of the Commonwealth’ (s. 6). …”[29]

   [29] (1975) 135 CLR 337 at [58]; 475; 95

1. In view of s 6 of the SSL Act, it follows that “Australia” is taken to include the sea claimed as its territorial sea up to 12 kilometres from the appropriate baselines determined in accordance with the Convention.

C.       What of the exclusive economic zone and the continental shelf?

1. Control and regulation of the territorial sea and its solum are aspects of Australia’s sovereignty but, on their own, control and regulation are not definitive of Australia’s territorial limits.  This is illustrated by reference to the exclusive economic zone for which provision is made in Part 5 of the Convention i.e. Articles 55 to 75.  Article 55 provides:

   “The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.”

Article 57 provides that the exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. 

1. Section 10B of the SSL Act provides:

   “The Governor-General may, from time to time, by Proclamation declare, not inconsistently with:

   (a) Article 55 or 57 of the Convention; or

   (b)       any relevant international agreement to which Australia is a party;

   the limits of the whole or of any part of the exclusive economic zone of Australia.”

Article 57 provides that the exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

1. There is nothing in s 10B that suggests expressly or impliedly that sovereignty is claimed over any part of Australia’s exclusive economic zone other than for the limited purposes contemplated by the Convention.  In that regard, its drafting is to be contrasted with that of s 6.  Article 56 of the Convention attached to the SSL Act specifies the rights, jurisdiction and duties of the coastal State in the exclusive economic zone.  Reference is made to sovereign rights but they are for limited purposes.  That is to be contrasted with the terms of Article 2 which provides for sovereignty in relation to a country’s territorial sea in unqualified terms.  Article 56 provides:

   “1.       In the exclusive economic zone, the coastal State has:

   (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

   (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

   (i) the establishment and use of artificial islands, installations and structures;

   (ii) marine scientific research;

   (iii) the protection and preservation of the marine environment;

   (c) other rights and duties provided for in this Convention.

   2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.

   3. The rights set out in this article with respect to the sea-bed and subsoil shall be exercised in accordance with Part VI.”

1. The same approach is taken in relation to Australia’s continental shelf.  Paragraph 1 of Article 77 of the Convention provides that:

   “The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.”

Paragraph 1 of Article 76 states

“The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.”

1. In its definition of “continental shelf” in s 3(1) of the SSL Act, Parliament has adopted the meaning given to it in paragraph 1 of Article 76.  Section 11 of the SSL Act then goes on to provide:

   “It is by this Act declared and enacted that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth.”

Sovereignty is claimed for the very limited purposes set out in s 11.  That section does not provide a basis for reading an intention to claim the continental shelf and the waters above it as within the territorial limits of Australia.

D.       When did Mr Burke leave Australia’s territorial waters?

1. The answer to this question depends on when Mr Burke left Australia.  The record from DIBP is that he left on 19 December 2013 but his evidence was to the effect that the Steve Irwin left Australian waters after midnight on that day and so on 20 December 2013.  There is no inconsistency in that evidence for DIBP must be taken to have recorded the time that he presented his documents to the Migration officials at the port.  Under the Migration Act 1958 (Migration Act), the expression “leave Australia, in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone.”[30]  The “migration zone” is:

   “… the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

   (a) land that is part of a State or Territory at mean low water; and

   (b) sea within the limits of both a State or a Territory and a port; and

   (c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;

   but does not include sea within the limits of a State or Territory but not in a port.”[31]

   [30] Migration Act; s 5(1)

   [31] Migration Act; s 5(1)

1. Clearly, the migration zone is different from the territorial sea. It does not purport to include the territorial sea over which the Commonwealth claims sovereignty. The record kept by DIBP, therefore, is aligned to a person’s leaving Australia as that terminology is understood in the Migration Act. I have no evidence as to when Mr Burke presented his papers but it does not matter for the time that he is taken to have left Australia for the purposes of the Migration Act cannot determine what is meant by “Australia” under the SS Act.[32]

[32] Section 9A(4)(e) of the Migration Act emphasises that when it provides that “Unless a provision of this Act, or another Act, expressly provides otherwise, this section does not have the effect of extending, for the purposes of another Act, the circumstances in which a person: (a)-(d); or (e) leaves Australia or is taken to leave Australia.”

1. I accept Mr Burke’s evidence that the Steve Irwin had first to navigate its way out of Port Philip Bay and then traverse the 12 nautical miles of the territorial sea.  His evidence is consistent with the determination of the commencement of the territorial sea by reference under paragraph 1 of Article 7 to a baseline drawn as a straight line joining appropriate points when the coastline is deeply indented as it is in the case of Port Philip Bay.  Therefore, I accept Mr Burke’s evidence that he left Australia’s territorial sea, and so Australia, on 20 December 2013 rather than on 19 December 2013.  The effect of that decision is that his newstart allowance should not have been cancelled until 20 December 2013. 

CONCLUSION

1. The practical outcome of my conclusion is that Mr Burke will be paid one day of newstart allowance for 19 December 2013.  Although that is, as I understand it, the correct decision on the law as it prevails, there is room for some sympathy for Mr Burke.  It is true that, like all social security recipients, he would have received notices on the back of letters he received from Centrelink.  That notice would have included information about his responsibilities to the Australian Taxation Office.  There would then have followed a statement beginning with the words “When to Contact Us  You must tell us within 14 days about events or changes in circumstances affecting your payment. …”.[33]  Twelve single spaced lines later, he was told that he had to advise Centrelink if “… you leave or decide to leave Australia (including holidays); …”.[34] 

[33] T documents; T8 at 35

[34] T documents; T8 at 35

1. Mr Burke should have recalled that notice but it is understandable that he left Australia without giving it a thought.  He was, after all, complying with the requirements of an NEPP negotiated with him by consultants from Centrelink.  The voluntary work that he was required by the NEPP to undertake was specified as being with Sea Shepherd.  While the Verification of Voluntary Work form clearly stated that the voluntary work position involved “General admin/office”, the NEPP did not limit the voluntary work with Sea Shepherd to “General admin/office” and nor did it limit the work to a particular location.  When it lodged its Request for Organisation Approval, Sea Shepherd described the type of work it had available as administration, skilled trades and general labouring.  Again, it did not specify a location in which the work would be available.  That is not a criticism for Sea Shepherd was not asked to specify a location.  It is a matter of general knowledge, however, that Sea Shepherd goes to sea.

1. In the absence of any limitation as to location in his NEPP or type of work, it is understandable that Mr Burke did not give the location of his workplace any thought let alone the note on the back of a letter requiring him to advise Centrelink if he left Australia.  He thought that he was doing the right thing by volunteering much more time for the organisation than the 30 hours he was required to do under the NEPP.  His volunteering, I find on the basis of his evidence, was to make a greater contribution to the community consistent with his obligations under the NEPP rather than to pursue an ideological commitment to the work of Sea Shepherd.  Unfortunately, the SS Act does not give me any discretion to recognise his diligence in meeting the requirements and to disregard his absence from Australia.  Except for varying the decision to defer cancellation of his newstart allowance for one day, I must affirm the decision. 

I certify that the thirty eight preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ………[sgd]....................................................

Associate

Date of Hearing  6 July 2015

Date of Decision  29 July 2015

Applicant self-represented                 Mr B Burke

Advocate for the Respondent            Mr T de Uray

“1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.
2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.”