Dennis v Minister for Finance
[2017] FCCA 45
•16 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DENNIS v MINISTER FOR FINANCE | [2017] FCCA 45 |
| Catchwords: ADMINISTRATIVE LAW – Judicial review of decision made pursuant to s.65(1) of the Public Governance Commonwealth Performance and Accountability Act 2013 – Minister not satisfied that special circumstances existed – “act of grace” payment not authorised – whether decision maker denied the applicant procedural fairness – whether decision maker exhibited bias – whether decision maker failed to take into account relevant considerations. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977, ss.5(1), 13 Financial Management & Accountability Act 1997, s.33 Public Governance Commonwealth Performance and Accountability Act 2013, s.65(1) Social Security Act 1991, s.42S(2) Superannuation Industry (Supervision) Regulations 1994(Cth), r.6.19A. |
| Cases cited: Croker v Minister for Finance and Deregulation [2011] FCA 1188 |
| Applicant: | SUSAN KAY DENNIS |
| Respondent: | MINISTER FOR FINANCE |
| File Number: | BRG 725 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 15 September 2016 |
| Date of Last Submission: | 15 September 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 16 January 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms McKechnie |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The further amended application filed on 19 August, 2016 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be assessed according to the Federal Court Rules 2011 up to and including 2 August, 2016 and thereafter according to schedule 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 725 of 2016
| SUSAN KAY DENNIS |
Applicant
And
| MINISTER FOR FINANCE |
Respondent
REASONS FOR JUDGMENT
On 27 January, 2016 the applicant, Ms Dennis applied for an “act of grace” payment as provided for in s.65(1) of the Public Governance Commonwealth Performance and Accountability Act 2013 (Cth). A payment pursuant to that section is a payment authorised by the Minister for Finance (or his delegate) to the applicant even though the Commonwealth is under no legal liability to make the payment.
Section 65(1) of the Act reposes a discretion in the Minister to authorise a payment or payments to a person where the Minister considerers it appropriate to do so because of special circumstances.
By a letter dated 17 June, 2016, a delegate of the Minister for Finance refused Ms Dennis’ application. The delegate determined that there were no special circumstances and so no payment to Ms Dennis was authorised.
By these proceedings, Ms Dennis seeks review of the delegate’s decision to refuse her application for an act of grace payment pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)
Ms Dennis represented herself in these proceedings. She has prepared and filed a further amended application, some affidavit material and written submissions (including written submissions in reply) in support of her application.
The gravamen of her complaint is, it seems to me, that the Minister’s delegate did not properly understand the basis of Ms Dennis’ claim to the act of grace payment. Ms Dennis has raised a number of grounds in her further amended application for review, but in the end, they all point to the same complaint, namely that the delegate did not come to grips with the true basis of her claim to the payment. She also argues that the decision to refuse her application was, in the circumstances, unreasonable.
The respondent opposes the application and asks for an order that it be dismissed with costs.
The factual background
It is necessary to understand the factual background to Ms Dennis’ application before considering the delegate’s decision. Much of it is uncontroversial.
Ms Dennis is a qualified accountant. She obtained her professional accounting qualification when she was 22 years of age. She is now over 65 years of age. She was in continuous employment since she was 18 years of age and until 2005. The circumstances in which her employment ended in 2005 appear highly contentious and are not directly relevant to these proceedings. However, losing her employment in 2005 had a deleterious effect upon her financial situation. She found it difficult to secure fresh employment. She attributes that, at least in part I think, to what she describes as age based discrimination against mature aged people seeking employment.
Ms Dennis secured two casual positions in 2012, one with the Logan City Council and the other with Queensland Health. Between 2005 and 2012 however, Ms Dennis had accumulated debt. She had a mortgage over the home in which she lived, a personal loan and credit card debts. Her evidence is that she had a debt of approximately $350,000 that she had to service. Her new employment was not as well remunerated as her old employment and consequently, she says, she had to manage on a very tight budget. She lived, effectively, from pay day to pay day.
Ms Dennis lives alone with a number of companion animals in a rural setting to the south of Brisbane. Her companion animals (two dogs and three horses) are her family. As she points out, she had and continues to have a legal obligation, as well as a moral obligation, to provide for their care.
On 9 October, 2015 Ms Dennis’ companion dog, an English Setter named Hobson, was diagnosed with hemangiosarcoma. Although Hobson had been unwell for other reasons for some time, he was responding well to his treatment and the care that Ms Dennis was providing for him. However, the diagnosis of hemangiosarcoma was both unexpected and serious. According to Ms Dennis and the veterinary advice that she obtained, Hobson could not be left alone and required her constant care and attention. She was the only person available to provide that care.
There is evidence in the Court Book that Ms Dennis was told by Hobson’s veterinarian that, due to the risk of spontaneous haemorrhaging, unnecessary movement of Hobson was not recommended. However, he was not in need of hospitalisation and was able to remain at home with Ms Dennis. His back legs were weak and he needed assistance for drinking, feeding, toileting and cleaning. Nonetheless, according to Hobson’s veterinarian’s advice, euthanasia was not considered appropriate at that time.
Ms Dennis needed to be on hand to properly care for Hobson. Ms Dennis was able to immediately secure extended leave, without pay, from each of her employers so that she might stay at home to nurse him. Her employers understood her predicament and the email correspondence to her from them in evidence before me was very supportive of her. She was under no pressure to return to work before she was able to safely leave Hobson on his own.
The duration of Hobson’s illness was entirely unknown. His condition was very serious and according to the material before me, usually resulted in an afflicted dog passing very quickly. However, with the assistance of some trial treatments, Hobson battled the odds. His illness was unexpectedly lengthy.
Without an income Ms Dennis soon, to use her words, “ran out of cash and credit”. She had the debt of some $350,000 that she needed to service as well as to provide for herself and her animals. But her funds were limited and quickly exhausted. She made a number of attempts to acquire funds from various sources, none of which were successful.
Ms Dennis had a small superannuation account with a balance of about $22,000. She determined to access that account as a source of funds from which she could continue to live and care for her animals whilst she was not working. To that end, on 5 November, 2015 she contacted the trustee of her fund but was apparently advised that the trustee would not allow her to access her superannuation early because she had not been in receipt of Centrelink benefits for the requisite period of time, or indeed at all since 2012.
Ms Dennis also contacted the Department of Human Services in Canberra about accessing her superannuation account early (that is to say before she had turned 65 or had retired from employment). She was told that she would not be allowed to access her superannuation early on compassionate grounds until she had been in arrears on her mortgage for three months.
There was a formal application process to be undertaken by Ms Dennis if she wished to have Centrelink authorise the early release of her superannuation. She did not commence that formal application process because of the information that she had been given by the person to whom she had spoken at Centrelink. She took it that there was no prospect of her accessing her superannuation early on compassionate grounds.
Ms Dennis sought advice from her local Federal Member of Parliament. She sent an email to him on 9 November, 2015. I have set it out in full because it captures Ms Dennis’ predicament in a way that I cannot do by attempting a summary of it. She said:
Are you able to help me access my superannuation of $22,000 now so that I do not starve and my dogs and my horses do not starve? The Department of Human Resources (formerly Centrelink) will not help me. I am a certified practising accountant. I am 64 years of age. I am in this terrible financial predicament because I was bullied out of my employment in 2005 and to this day I have still been unable to find a decent paying position in the finance field. I am an excellent financial manager. I have lived on the poverty line myself for the last 10 years - have not had a social life, have not been out to dinner, been to the movies, hired a video, etc. am completely on my own without the help of a family member, a friend or a neighbour. l do not have a Next of Kin and I do not have an emergency contact person to help me. I am currently employed at base level wages earning 50% less than I earned 25 years ago. I am a responsible pet owner. I cannot work at present because it would constitute animal cruelty to leave my dog at home on his own in his current condition. I am not going to kill my dog because of age discrimination and bullying in society. I have been given extended leave from my employment so my jobs are secure, but I am receiving no income. The Commonwealth Bank of Australia has the mortgage over my property. This bank will lend me no money whatsoever to help me through this temporary period because I am not receiving an income at present I have little left on my credit card. When this is gone, I will have no credit left to pay for anything and my dogs, my horses and myself are going to starve, let alone all the essential living expenses I need to pay e.g. electricity, health insurance and my debt repayments.
In my desperation I wrote to the Gold Coast Bulletin yesterday to see if they can help me because no one will listen to me. I was told by a medical practitioner last year that I should kill my dog because he was inconveniencing my life. My dog has been a better friend to me than any human being I have met in my life. He is fighting to live. I cannot kill him, whatever the consequences, and I should not be forced to even consider this. Mature aged persons like myself are ignored in society. My dogs and my horses love me and support me. They are my family and my friends.
Understandably I feel debilitated by this financial stress and I feel physically very ill so I hope I have made some sense in this message.
After receiving information and advice from her local Federal Member Ms Dennis determined to retire from her employment. That was the only way, it seems, that she could access her superannuation account without waiting to turn 65 years of age. At that point Ms Dennis was aged 64 years and 8 months.
She resigned her employment with each of her employers on 11 November, 2015. Although it is not clear when, Ms Dennis was able to draw upon her superannuation account.
On 23 November, 2015 Ms Dennis registered for Newstart Allowance. Centrelink took the view that Ms Dennis had voluntarily left her previous employment and that her decision to do so was unreasonable in the circumstances. In those circumstances, by force of s.42S(3) of the Social Security Act 1991 (Cth) an eight-week non-payment period was applied to her receipt of Newstart Allowance. That meant that she was not eligible for a payment until at least 23 January, 2016. Ms Dennis sought a review of that decision. She pursued the review to the Administrative Appeals Tribunal. The AAT determined that Ms Dennis’ resignations were voluntary acts, but that in the circumstances they were not unreasonable. The AAT determined that the non-payment period did not apply to Ms Dennis.
Ms Dennis had a number of issues with how she was dealt with by Centrelink staff. Those difficulties resulted in her making complaints about her treatment. Those complaints, however, are of no particular significance to these proceedings.
On 2 December, 2015 Ms Dennis applied to Centrelink for an act of grace payment to her. Her request was submitted through the on-line Centrelink Feedback or complaint mechanism. She followed it up by correspondence dated 4 December, 2015. The correspondence contains the first articulation by Ms Dennis of the basis upon which she sought the act of grace payment (Court Book p. 19 - 20):
I also emailed Shine Lawyers because I believe am eligible for an Act of Grace compensation payment. … I did not want to resign from my employment and there would not have been a need for me to resign from my employment if Centrelink had considered my individual circumstances and allowed me to access my superannuation on compassionate grounds to help me though this temporary period. The bank could not provide financial assistance to me because of Lending Code of Practice. If Centrelink had allowed me to access my superannuation I would have returned to my permanent employment with Gold Coast Health and Logan City Council and there would not have been any need for me to make any Centrelink application. Because I was unfairly bullied out of my employment in 2005 by a public sector organisation and it took me 7 years to find secure employment because of mature age discrimination in the workplace I have been forced to live on the poverty line and increase my debt. I was prepared to continue working for the remainder of my life. I have sacrificed a great deal to hold onto my acreage property. Now that I have lost my employment the Bank can soon take possession of this. It is highly I will end up homeless and penniless and still in debt in the not too distant future with no home to my dogs and my horses. I will never allow Centrelink or any person or to make me act and neglect my animal children or sell my animal children.
The application of the legislation to deny me early access to my superannuation even though I am 64 years of age; I have no liquid assets and a debt of more than $350,000; I live completely alone without any type of support; my debt has arisen because I was unfairly bullied out of my employment and because of mature age discrimination in the workplace; I was on the verge of starvation with legal responsibilities towards my dogs and my horses; the legal responsibilities of the University of Queensland veterinarian towards my dog, Hobson; and the fact that I had been in permanent employment for more than 3 years with 2 government organisations, did not take into account my individual circumstances and has produced an unacceptable result because I was forced to resign from my employment and now my home is in jeopardy as well as my safety and the safety of my dogs and my horses. This is causing me an enormous amount of stress.
Because of my severe financial hardship, time is of the essence. I respectfully request a timely response to all the matters raised.
Sadly, on 24 December, 2015 Hobson was euthanised.
Following some correspondence with the Commonwealth Ombudsman and an officer from the Department of Finance, on 27 January, 2016 Ms Dennis sent an email to the relevant officer of the Discretionary Payments, Risk, Insurance and Special Claims Branch, Business, Procurement and Asset Management Group of the Department of Finance. Enclosed with the email was a formal application to the Department of Finance for the act of grace payment. Also enclosed was a letter from Ms Dennis dated 27 January, 2016 that set out her grounds of claim together with 15 attachments to the letter. In her email, Ms Dennis said:
“As stated in my letter dated 27 January, 2016, in view of my dire financial situation and the high level of stress and anxiety this is causing me I respectfully request that consideration is given to prioritising my application. I would appreciate very much if you would let me know if you are able to do this.”
In the accompanying letter Ms Dennis sets out the basis upon which she sought the act of grace payment:
I am applying for an act of grace compensation payment because the decision of the Department of Human Services – Centrelink to ignore my individual circumstances and deny me early access to my superannuation on compassionate grounds to assist me financially for a short term period when an unforeseen event occurred has resulted in my losing my livelihood which has had disastrous consequences for my financial and emotional well-being. If Centrelink had allowed me to access some of my superannuation on compassionate grounds I would have returned to work on 4 January 2016. I had been employed by Logan City Council since 4 June 2012 and Queensland Health since 5 November 2012. My employers had granted me extended leave from work and my employment was secure. As a consequence of the decision of Centrelink I am now unemployed with minimal, if any prospect of ever obtaining employment again because of my mature age and I am at very high risk of being on the verge of starvation again very soon. I do not believe that the Commonwealth legislation was developed to punish a hard working mature aged Australian citizen like myself. The application of this legislation has had a disastrous and unacceptable impact on every aspect of my life and I do not believe this is the intention of the legislation. In addition, by adhering strictly to the requirements of the Superannuation legislation, the decision of Centrelink has contradicted the Social Security legislation which is supposed to encourage Australian citizens to participate in employment. I had planned to keep working for the remainder of my life and I had no intention of retiring because of my individual circumstances. Because of my excellent health there was no reason I could not have continued to work for at least another 10 years, possibly 15 years.
The payment that Ms Dennis sought by her application was:
The value of the Act of Grace payment I am seeking is compensation for having my livelihood taken away from me with the ability to increase my superannuation and continue to work for at least another 10 years in secure government employment which should have been sufficient to pay out my entire debt to prevent the bank from taking possession of my home as well as having liquid assets available to enable me to continue to pay for essential living expenses and veterinary costs. The age pension alone is not sufficient to enable me to do this. I am negotiable about the exact amount.
Following the letter on 27 January, 2016, Ms Dennis took the opportunity to correspond with the Department of Finance and the relevant delegate on many occasions. She provided a great deal of material. That material has been included in the Court Book in these proceedings.
On 17 June, 2016 a delegate of the Minister wrote to Ms Dennis to advise that her application had been declined. The letter commences with a statement of the nature of Ms Dennis’ claim. The letter contains a number of assertions to which Ms Dennis took the opportunity to respond by way of return correspondence dated 18 June, 2016. I will not set out all of her responses. However, by way of example the delegate said in the second paragraph of her letter:
I understand that in October, 2015, your companion animal, Hobson, was diagnosed with hemangiosarcoma. You made a decision to take extended unpaid leave from your employment to provide care for Hobson, despite advising that you were not financially prepared to do so. I note your advice that in order to alleviate your short term financial hardship, you attempted to gain early access to your superannuation. You state that Centrelink ignored your personal circumstances and denied your request forcing you to retire from secure employment to access your superannuation and prevent you and your companion animals from starving.
Although Ms Dennis suggests that this paragraph is misleading and “could be interpreted as deliberate bias against me” because there is no reference to “important factual information” included in that paragraph, the paragraph is not misleading. Nor does it exhibit any bias against Ms Dennis. The paragraph is factually accurate.
Ms Dennis expressed concern that the delegate had emphasised that Ms Dennis had applied for the early release of her superannuation on compassionate grounds on the basis of Hobson’s ill health. Indeed, it is the case that the delegate identified that as the basis for Ms Dennis’ application on at least two occasions. In the fifth paragraph of the decision letter (at p.305 of the Court Book), the delegate said:
However, for the purpose of your act of grace request, it will be taken that you applied for the early release of your superannuation on the basis of Hobson’s ill health, and your request was rejected by Centrelink.
The mischaracterisation is also apparent in the sixth paragraph of the delegate’s letter:
Your inability to access your superannuation early on the basis of Hobson’s health, and any advice you received advising the same, is correct and in accordance with the legislation.
To characterise Ms Dennis’ application for the act of grace payment as made on the basis of Hobson’s ill health was erroneous. It was not made on that basis. It was made on the basis that Ms Dennis was suffering severe financial hardship. That financial hardship was the culmination of a number of matters, but according to Ms Dennis’ case, the operation of the laws relating to the early access to superannuation which Ms Dennis saw as forcing her into retirement so that she could access her superannuation some four months early. Hobson’s illness was not the reason for Ms Dennis’ claim to an act of grace payment and she did not advance her claim on that basis.
Ms Dennis did not seek to access her superannuation early on that basis. In her response letter, Ms Dennis then argues:
Even though the decision of Centrelink was in accordance with the Superannuation Industry Supervision Regulations (SIS Regs), particularly r 6.19A and I have never denied this (refer my letter dated 13 March 2016 as an example), this decision of Centrelink did breach social security legislation by placing me in a position that I had no other objectively reasonable option than to resign from my employment because the Section 42 Object of the Social Security (Administration) Act 1999 is to encourage people to participate in employment. In addition this decision of Centrelink did ignore age discrimination in Australia; the extreme difficulties all mature aged persons will encounter in obtaining any type of employment; and the Australia government policy of encouraging mature aged workers to delay retirement. I have made these statements to you on countless occasions in letters and emails. You have ignored the important and relevant information I have provided to you.
Ms Dennis sought a statement of reasons from the Minister’s delegate pursuant to s.13 of the ADJR Act. The statement of reasons was furnished on 23 June, 2016. The statement of reasons sets out 23 matters under the optimistic heading “FINDINGS ON MATERIAL QUESTIONS OF FACT”. Despite the heading, what appears in the following 23 paragraphs is a recitation of uncontentious matters, the arguments and evidence provided by Ms Dennis and Centrelink in support of the arguments and other statements not capable of easy characterisation. There are no findings of fact, let alone in respect of anything that was contentious.
The delegate’s reasoning consists of the following four paragraphs:
REASONS FOR THE DECISION
5. I noted that both Centrelink and Ms Dennis confirmed that she did not lodge a request for the ERoS [early release of superannuation] and that Ms Dennis’s statement that her claim for the ERoS was rejected was therefore incorrect. However, for the purpose of the act of grace request I took it that an application for early release was lodged on the basis of Hobson’s ill health, and rejected by Centrelink.
6. I acknowledged that Ms Dennis equated the care she provided to Hobson to the care a parent would provide to a human child. However, I noted that there are limited circumstances where superannuation benefits may be released early and the ill health of a companion animal is not one of these circumstances. I considered that Ms Dennis’s inability to access her superannuation early on the basis of Hobson’s health was correct and in accordance with the legislation. I noted that Ms Dennis’s inability to satisfy the eligibility criteria does not make the legislation inequitable.
7. Despite Ms Dennis’s numerous assertions that Centrelink is responsible for her unemployment, I determined that the outcome in this matter was not due to the action or inaction of the Australian Government, but rather due to a private decision made by Ms Dennis to take extended unpaid leave from her secure employment to care for Hobson without the financial means to do so. I considered that the situation was further exacerbated by Ms Dennis’s private decision to retire in order to gain access to her superannuation to allow her to remain at home with Hobson, rather than returning to her paid employment.
8. I did not consider it unreasonable for Ms Dennis to have considered the financial consequences of this decision and I concluded that it was not appropriate for the Australian Government to bear the financial costs of Ms Dennis’s personal decision.
The Statutory Framework
Section 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) provides:
(1) The Finance Minister may, on behalf of the Commonwealth, authorise, in writing, one or more payments to be made to a person if the Finance Minister considers it appropriate to do so because of special circumstances.
Note 1: A payment may be authorised even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability.
Note 2: Act of grace payments under this section must be made from money appropriated by the Parliament. Generally, an act of grace payment can be debited against a non -corporate Commonwealth entity’s annual appropriation, providing that it relates to some matter that has arisen in the course of the administration of the entity.
(2) An authorisation of a payment must be in accordance with any requirements prescribed by the rules.
(3) Conditions may be attached to a payment. If a condition is contravened, the payment is recoverable by the Commonwealth as a debt in a court of competent jurisdiction.
(4) An authorisation of a payment is not a legislative instrument.
The Minister’s discretion to authorise a payment to a person is enlivened by a determination that it is appropriate to make the payment because of special circumstances. The discretion is unfettered by anything in s.65 or any other part of the Public Governance Act. Speaking of the discretion conferred by the predecessor to s.65 (s.33 of the Financial Management Act), in Toomer v Slipper [2001] FCA 981 Weinberg J described the discretion conferred by that section as “obviously broad” (at [31]).
Section 65(1) requires three steps. First, the Minister must determine that there are special circumstances. Second, the Minister must consider that it is appropriate to authorise a payment or payments because of the identified special circumstances. Third, if the Minister considers it appropriate to do so because of the identified special circumstances, the Minister may, but does not appear obliged to, exercise the discretion conferred by the Act to authorise a payment or payments.
Section 65(1) of the Act replaced s.33 of the Financial Management and Accountability Act 1997 (Cth). There are textual differences between the two sections, but they are of no present relevance. The sections purport to do the same work, in generally the same way. The discretion conferred by s.65 of the Public Governance Act is similar to the discretion conferred by the Financial Management Act in that it is conditioned upon the existence of special circumstances. The respondent submits that in those circumstances, authorities that touch upon the interpretation of s.33 of the Financial Management Act are relevant to the interpretation of s.65(1) of the Public Governance Act. I accept that submission.
The discretion conferred by s.33 of the Financial Management Act, in the context of an application for review under the ADJR Act, was considered in Tomson v Minister for Finance and Deregulation [2013] FCA 664. At [33] Rares J said:
The discretion conferred on the Finance Minister by s 33(1) of the FMA Act is enlivened if she “considers it appropriate because of special circumstances” to authorise one or more payments to a person. Critically, the section authorises such a payment notwithstanding that it is not made under any law or to satisfy a legal liability. The Parliament did not circumscribe the breadth of the discretion it conferred on the Finance Minister in s 33(1) except to require her to consider that the making of the payment be “appropriate” because of “special circumstances”.
The purpose of the discretion provided by s.33 of the Finance Management Act was described by Weinberg J in Toomer v Slipper [2001] FCA 981 in the following way:
The respondent said in the letter of denial that the power to approve act of grace payments under the FMA Act was only to be exercised where it was considered that the application of Commonwealth legislation had produced unintended, anomalous, or inequitable results, or where because of its direct role in a particular situation the Commonwealth considered that it had a moral responsibility to redress the circumstances of the individual concerned. . . There is nothing in the formulation of “special circumstances” adopted by the respondent which strikes me as being too narrow, or otherwise erroneous in law.
That approach was applied in Croker v Minister for Finance and Deregulation [2011] FCA 1188 and was referred to without criticism in Simeon v Minister for Finance and Deregulation [2012] FCA 286.
Given the nature and breadth of the discretion conferred by s.65 of the Public Governance Act it is no surprise that the phrase special circumstances is not the subject of description or definition. However, in Toomer v Slipper (above) Weinberg J considered the phrase special circumstances where it appeared in s.33 of the Financial Management Act. His Honour’s consideration was adopted and applied by Robertson J in Croker v Minister for Finance and Deregulation [2011] FCA 1188. Robertson J said:
16. In Toomer v Slipper [2001] FCA 981, Weinberg J considered s 33 of the FMA Act. In that case, in the letter of denial, the respondent wrote:
“My power to approve act of grace payments under the FMA Act is only exercised where it is considered that the application of Commonwealth legislation has produced unintended, anomalous, or inequitable results, or where, because of its direct role in a particular situation the Commonwealth considers that it has a moral responsibility to redress the circumstances of the individual concerned.”
17. The applicant in that case submitted that the respondent had erred in law by adopting an unduly narrow interpretation of the term “special circumstances” in s 33(1) of the FMA Act. The Court rejected that submission.
18. Weinberg J said, at [28] and following:
The expression “special circumstances” has been the subject of extensive judicial consideration. However, there does not appear to have been any occasion on which that expression has been considered in the context of s 33(1) of the FMA Act.
In Wu v Attorney General (1997) 79 FCR 303 at 307, Burchett J dealt with an interlocutory motion for the grant of bail in which the meaning of the expression “special circumstances” arose for determination. His Honour referred to Jess v Scott (1986) 12 FCR 187, a case involving an application to extend time in which to file a notice of appeal, in which the Full Court discussed a number of decisions concerning the terms “special circumstances”, and “special reasons”, terms which were treated as having essentially the same meaning. The Court said that “special reasons”:
“...is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.”
Burchett J went on to say:
“The same principle was applied to the expression “special circumstances”, in relation to an application for release from an implied undertaking, in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578-579, where it was pointed out that the word “special” derives almost all of its meaning from its context. See also Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 at 132-133...”
The statutory context in which the term “special circumstances” arises in the present case is one in which the Minister is given a discretion to authorise the making of act of grace payments where such payments “would not otherwise be authorised by law or required to meet a legal liability”. There are any number of circumstances which may give rise to a claim for a payment of this type. It is impossible to anticipate the situations in which such payments may be warranted. The discretion vested in the Minister is obviously broad.
. . .
The legislature has entrusted the power to make act of grace payments to the Minister. Such payments are not based upon any legal entitlement but are made in response to moral obligations assumed by the Commonwealth as a result of the actions of its employees or instrumentalities. The power to make such payments is, by its very nature, one which is particularly suited to be exercised by the Minister. The role of the Court is to ensure that the Minister exercises that power lawfully. Provided he does so, his decision cannot be impugned.
Consideration
I accept Ms Dennis’ argument that on its face it appears that the Minister’s delegate did not properly understand the basis upon which Ms Dennis approached Centrelink about securing an early release of her superannuation. As I have pointed out above, it was not because of Hobson’s ill health, but rather because of her straitened financial circumstances at the time.
Ms Dennis takes issue with the delegate’s use of the term “short term financial hardship” in her decision letter of 17 June, 2016. The letter suggests that Ms Dennis’ financial difficulty was “short term”, but Ms Dennis tasks issue with that. She says it was long term. I have set out above Ms Dennis’ financial position. It was difficult over the long term, although she was managing before the need to take unpaid leave from her employment to care for Hobson arose. The delegate’s reference to “short term financial hardship” was, I think, a reference to the deterioration in Ms Dennis’ ability to manage financially following her decision to take unpaid leave to care for Hobson. In that sense, the use of the term “short term financial difficulty” is entirely understandable.
The delegate approached Ms Dennis’ application on the basis that an application to Centrelink for the early release of her superannuation could not be successful. On the facts as disclosed in the material before me, that was plainly correct. Indeed, Ms Dennis acknowledges that fact herself in her response dated 18 June, 2016 to the delegate’s decision letter. If the relevant Centrelink officers (exercising the delegated powers of the Regulator for the purposes of reg 6.19A of the Superannuation Industry (Supervision) Regulations 1994 (Cth)) could not have certified that Ms Dennis satisfied a condition of release on a compassionate ground (which included financial hardship: see reg, 6.19A(1), no basis could exist for Centrelink to authorise the early release of her superannuation to her. Centrelink had no discretion to permit early release in the absence of satisfaction of the relevant conditions.
Thus, in terms of the test as articulated by the respondent before me (derived from Toomer v Slipper) there can be no question that the Commonwealth has assumed a moral obligation as a result of the actions of its employees or instrumentalities. There is nothing that was done, or which could have been done by Centrelink or its employees to avoid the operation and effect of the Superannuation Act and the Regulations.
Despite some statements by Ms Dennis to the contrary in some of the material before the Court, it seems that Ms Dennis accepts that she was not, according to the statutory regime established by the Superannuation Regulations, entitled to the early release of her superannuation. Nonetheless, she argues that Centrelink should have released her superannuation to her. The difficulty with this argument for Ms Dennis, however, is that once it is accepted that no statutory authority existed for Centrelink to authorise the early release of her superannuation, any application by Ms Dennis for the early release of her superannuation via Centrelink was bound to fail.
In terms of the test that I have referred to above (as set out in Toomer v Slipper) then, Ms Dennis’ case must turn on the proposition that the application of Commonwealth legislation has produced unintended, anomalous, or inequitable results. In that respect Ms Dennis argues that “the Early Release of Superannuation (ERoS) legislation implemented by the Australian government has had an enormous negative impact on every aspect of my life”. She is now unemployed and living in a “severely impoverished state with no likely prospect of obtaining employment again because I am 65 years of age.” Ms Dennis is in arrears with her mortgage and other debt repayments and she is, she claims, facing homelessness. She argues that her “entire life has been destroyed because the ERoS legislation implemented by the Australian government did not take into account “my individual financial situation when I was 64 years 8 months of age. My ‘long term’ financial hardship arose because of the extent of age discrimination in Australia. I believe it is unfair that the Australian government is not accepting any accountability for the negative impact of this legislation particularly on vulnerable Australian citizens.”
While I accept that the delegate has perhaps not properly understood or articulated the basis of Ms Dennis’ approach to Centrelink for the early release of her superannuation, that misunderstanding or mischaracterisation has not infected the delegate’s understanding of the basis of Ms Dennis’ claim to the act of grace payment. The delegate clearly understood and recorded Ms Dennis’ argument that the application of the Superannuation legislation has had a disastrous and unacceptable impact on her life. The delegate recorded Ms Dennis’ argument that Ms Dennis did not consider that such an outcome was the intention of the legislation.
Nor does the delegate’s misunderstanding of the basis of Ms Dennis’ approach to Centrelink infect the validity of the delegate’s decision. It is clear from the statement of reasons that the delegate had regard to the material Ms Dennis placed before the delegate and the arguments that she wished to make.
Ms Dennis argues that the delegate breached the rules of procedural fairness and she was not given a “fair hearing”. To the extent that this is an assertion that Ms Dennis was not given an appropriate opportunity to be heard, that argument cannot succeed. It is clear that Ms Dennis was afforded and took the opportunity to place all that she wished to place before the decision maker.
To the extent that Ms Dennis suggests that the delegate’s decision is infected by bias, her argument cannot succeed. There is no evidence of either actual or apprehended bias. A misunderstanding as to the basis of Ms Dennis’ approach to Centrelink for early release of her superannuation is not evidence of actual or apparent bias. In my view, Ms Dennis’ claim of bias is merely an emphatic way of expressing her disagreement with the delegate’s decision.
The real question, in terms of the test identified above, was whether the Superannuation Act and Regulations produced an unintended, anomalous, or inequitable result. Ms Dennis’ submissions filed in response to those of the respondent in these proceedings, recognises that point. She says (footnotes omitted):
20. The considerable amount of important and relevant information that is supported by evidence that the Respondent and decision-maker have disregarded includes but is not limited to the following:
…
v. Special Circumstances do apply to my act of grace request because if the Early Release of superannuation legislation implemented by the Australian government had considered my financial situation when I was aged 64 years 8 months; the fact that my permanent, suitable government employment was not in jeopardy; and the extreme difficulties all mature aged Australians face in obtaining employment because of age discrimination in Australia, I would have returned to my employment on 4 January 2016, which by the way was unknown on 5 November 2015, and I would not now be unemployed, living in an impoverished condition and facing homelessness
The Minister’s delegate considered that matter. The decision letter of 17 June, 2016 records that the delegate did not consider that Ms Dennis’s inability to satisfy the eligibility requirements made the legislation inequitable.
It is clear as a matter of principle that before an act of grace payment can be authorised, the Minister (or his delegate) must determine that there are special circumstances present, because of which it would make such an authorisation appropriate. A finding of special circumstances is a matter for the determination of the decision maker. Here there was a determination that there were no special circumstances.
Section 65(1) does not confine the Minister’s discretion. It does not make the consideration of any particular matter mandatory. The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: that certain considerations be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40.
In Tomson, at [35] Rares J explained:
In essence, the Finance Minister, in considering the exercise of the discretion under s 33(1), will assess whether there is a feature or characteristic of the particular circumstances that renders them “special”: or out of the ordinary. As Weinberg J held in Toomer [2001] FCA 981 at [31] there are any number of circumstances that may give rise to a claim for a payment under s 33. In considering whether to exercise the discretion, the Finance Minister is not bound to have regard to any other matters than those set out in s 33 itself and any that may be discerned by implication from the subject matter, scope and purpose of the FMA Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed).
In my view, Ms Dennis does not establish that the Minister’s delegate did not take into account a relevant consideration, or for that matter, took account of an irrelevant consideration.
Ms Dennis argues that the decision under review was unreasonable. In my view, there can be little room for doubt that the power set out in s.65(1) of the Act must be exercised reasonably. In Minister for Immigration v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ said (at [123], footnotes omitted):
Judicial review has commonly been relied on to set aside a discretionary decision which “is so unreasonable that no reasonable authority could ever have come to it” or decisions “which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful”. As remarked by Gaudron J in Abebe v The Commonwealth:
“[I]t is difficult to see why, if a statute which confers a decision‑making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.”
This Court has observed with reference to s 75(v) of the Constitution and jurisdictional error that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably and justly.
However, the occasion for the exercise of the discretion conferred by s.65(1) of the Act did not arise in this case because the delegate was not satisfied that the relevant special circumstances existed to enliven the discretion to authorise or make a relevant payment to Ms Dennis. The question of unreasonableness applies to the exercise of the discretion conferred by s.65(1) of the Act. It does not apply to the antecedent fact finding necessary to enliven a consideration of the relevant discretion: Minister for Immigration v SZMDS (above) at [39]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [22].
Thus, in the absence of the decision maker being satisfied that special circumstances existed so as to give rise to an occasion for the exercise of the discretion conferred by s.65(1) of the Act, it could not be said that the delegate’s decision was unreasonable in a legal sense.
Conclusion
In my view, Ms Dennis has not established that the decision of the delegate should be set aside for any ground arsing under s.5(1) of the ADJR Act.
In the circumstances, the application must be dismissed with costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 16 January, 2017.
Date: 16 January 2017
4
15
0