Druett and Department of Family and Community Services

[2001] AATA 834

DECISION AND REASONS FOR DECISION [2001] AATA 834

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/676

GENERAL ADMINISTRATIVE  DIVISION     )          
           Re      GARRY DRUETT   
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms SM Bullock, Senior Member   
Date              4 October 2001
Place            Sydney
Decision      The Tribunal decides that pursuant to section 27 of the Administrative Appeals Tribunal Act 1975, Mr Druett is not a person whose interests are affected. The Tribunal has no jurisdiction to consider his application for review.
  ..............................................
  Ms SM Bullock
  Senior Member
CATCHWORDS
SOCIAL SECURITY- Jurisdiction - Person Whose Interests are Affected - Family Allowance – Cancellation  
LEGISLATION
Social Security Act 1991 (Cth) ss 126,135
Social  Security (Administration) Act 1999 (Cth) ss 142
Administrative Appeals Tribunal Act 1975 (Cth) ss 27

AUTHORITIES
Yolbir v Administrative Appeals Tribunal and Secretary, Department of Social Security (1994) 48 FCR 246
Lee v Secretary, Department of Social Security (1996) 68 FCR 491
Re McGregor and Secretary, Department of Social Security (W 91/189, 29 May 1992)
Re Anderson and Secretary, Department of Social Security (1993) 28 ALD 913
Collector of Customs NSW v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1
Walker v Secretary, Department of Social Security (No 2) (1997) 75 FCR 493
US Tobacco Company v Minister for Consumer Affairs and Others (1988) 20 FCR 520
Control Investments Pty Ltd v Australian Broadcasting Tribunal  (1980) 50 FLR 1

REASONS FOR DECISION

4 October 2001       Ms SM Bullock, Senior Member   

1. This matter involves the Administrative Appeals Tribunal ("the Tribunal") determining whether or not it has jurisdiction to consider an application for review to the Tribunal by the Applicant, Mr Garry Druett. Mr Druett seeks a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 24 April 2001. The SSAT decided that Mr Druett is not a person who may apply to that Tribunal under section 142 of the Social Security (Administration) Act 1999, as at the date he applied to the SSAT on 13 February 2001, he was not a person whose interests are affected by the review that was undertaken by an Authorised Review Officer ("ARO") of the original decision to cancel Mrs Kirrily Druett's Family Allowance.

2. A hearing to determine jurisdiction was held before the Tribunal in Sydney on 27 July 2001.  Mr Druett was self-represented and provided oral evidence.  Mrs Kirrily Druett also provided evidence by conference telephone. The Respondent, the Secretary, Department of Family and Community Services ("the Department"), was represented by Mr B. Slattery, Departmental Advocate.  The Tribunal took into evidence the following exhibits:
   Exhibit  Description  Date
   Exhibit A1                 Applicant's submission  26 July 2001
   Exhibit A2                 High Court of Australia Draft Notice of Appeal   21 June 2001
   Exhibit A3                 Letters to Mr and Mrs Druett   August 1998
     from their children

Exhibit A4                 Employment History of Mr Druett  Undated
Exhibit A5                 Draft Contract of Employment with Sampson     Undated

Pacific Corporation for the Pty Ltd.

Exhibit R1                 Respondent's Submission  8 June 2001

Issues

1. There are a number of issues in this matter.

   (a) Is Mr Druett a person whose interests are affected by the review undertaken by an ARO of the decision to cancel Mrs Druett's Family Allowance?
   (b) As at 13 February 2001, is Mr Druett a person who may have applied to the SSAT under section 142 of the Social Security (Administration) Act 1999?
   (c) Does the Tribunal have jurisdiction to consider Mr Druett's application for review?

Legislation

1. A decision in this matter requires consideration of the provisions of the Social Security (Administration) Act 1999, the Social Security Act 1991 and the Administrative Appeals Tribunal Act 1975.

2. Section 135 of the Social Security (Administration) Act 1999 deals with criteria for the SSAT to review a decision and as relevant states:

   "Review of decisions following application under section 129

   (1) Subject to subsection (3) and subsection 127(1), if a person applies under section 129 for review of a decision, the Secretary, the CEO or an authorised review officer must:

   (a) review the decision; and
   (b) do one of the following:

   (i) affirm the decision;
   (ii) vary the decision;
   (iii) set the decision aside and substitute a new decision.

(2) In the case of an application for review of a decision made by an officer of the Employment Department as a delegate of the Secretary, the reference in subsection (1) to an authorised review officer is to be read as a reference to an authorised review officer who is an officer of that Department.

(3) An authorised review officer may not review a decision relating to the exercise of the Secretary's power under section 1285A of the 1991 Act.

(5) If:

(a) a person sets aside a decision under subsection (1); and

(b) the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.
…"

1. Section 142 of the Social Security (Administration) Act 1999 states as relevant:

   "Application for review by SSAT
   (1) Subject to section 144, if:

   (a) a decision has been reviewed by the Secretary, the CEO or an authorised review officer under section 126 or 135; and

   (b) the decision has been affirmed, varied or set aside;

   a person whose interests are affected by the decision of the Secretary, the CEO or the authorised review officer may apply to the SSAT for review of that decision.

   (2) Subject to section 144, if a decision has been made by the Secretary himself or herself or by the CEO himself or herself, a person whose interests are affected by the decision may apply to the SSAT for review of the decision.

(4) For the purposes of subsection (1), the decision made by the Secretary, the CEO or the authorised review officer is taken to be:

(a) if the Secretary, the CEO or the authorised review officer affirms a decision—that decision as affirmed; and

(b) if the Secretary, the CEO or the authorised review officer varies a decision—that decision as varied; and

(c) if the Secretary, the CEO or the authorised review officer sets a decision aside and substitutes a new decision—the new decision.

(5) For the purposes of subsection (2), if:

(a) an application has been made under subsection 129(1) for review of a decision made by the Secretary himself or herself or the CEO himself or herself; and

(b) before the application under subsection 129(1) was made, the Secretary or CEO had reviewed the decision under section 126;

the decision made by the Secretary or CEO is taken to be:

(c) if the Secretary or CEO had affirmed or varied the decision—that decision as affirmed or varied; and

(d) if the Secretary or CEO had set the decision aside and substituted a new decision—the new decision

…"

1. Section 27 of the Administrative Appeals Tribunal Act 1975 states:

   "Persons who may apply to Tribunal

   27. (1) Where this Act or any other enactment (other than the Australian Security Intelligence Organization Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.

   (2) An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.
   (3) Subsection (2) does not apply in relation to a decision given before the organization or association was formed or before the objects or purposes of the organization or association included the matter concerned.

…"

Background

1. The following information is provided by way of background and the facts contained within are not in dispute.

• In 1998, Mr Druett's wife, Mrs Kirrily Druett was receiving Family Allowance in respect of their children, Chloe, Gregory, Nicole and Bernice.

• On 9 January 1998, the New South Wales Department of Community Services removed the children from Mr and Mrs Druett's care without their consent.

• The Commonwealth Services Delivery Agency determined that Mrs Druett was no longer qualified to continue to receive the Family Allowance for the children and on 13 August 1998, Mrs Druett received the last payment of the Family Allowance.

• On 14 October 1999, a Magistrate of the New South Wales Children's Court made Chloe Druett a Ward of the State for a period of five years.  The other three children were made Wards of the State until they reach the age of 18 years.

• On 12 May 2000, his Honour, Judge Naughton of the New South Wales District Court, heard an appeal from Mr Druett and decided to dismiss the appeal and vary the previous court order by extending Chloe Druett's wardship until she reaches the age of 18 years.  Mr Druett then lodged an appeal to the New South Wales Supreme Court.

• Having made an application for review to the SSAT concerning the cancellation of her Family Allowance, Mrs Druett then withdrew this application for review on 20 May 1999.

• Mr Druett provided a letter from Mrs Druett to the SSAT dated 21 July 1999.  The letter stated that Mrs Druett gave permission for her husband, Garry Druett, to pursue the matter of the cancellation of her Family Allowance before the SSAT.

• On 2 April 2001, the SSAT made telephone contact with Mrs Druett.  She stated that she did not wish to apply for a review by the SSAT of the decision to cancel her Family Allowance as she accepted the correctness of the original decision.  Mrs Druett told the SSAT that she had not had the children in her care since they were taken "into care" by the New South Wales Department of Community Services in January 1998.  Mrs Druett also told the SSAT that she did not give authority to her husband to apply to the SSAT on her behalf.  The SSAT reported that:

  "Mrs Druett desires that her estranged husband would accept that she was not qualified to continue receiving the allowance once the children ceased to be in their care and subsequently, ceased to have legal responsibility for the children by order of the court."  (Page 4 of the SSAT's Decision)

• On 24 April 2001, the SSAT found that an ARO had reviewed the cancellation of Mrs Druett's Family Allowance and affirmed the decision. The decision that Mr Druett was asking the SSAT to review had therefore met the criteria of section 135 of the Social Security (Administration) Act 1999. However, the SSAT decided that Mr Druett was not, as at the date he applied to the SSAT for review, a person whose interests were affected by the review undertaken by the ARO. He was at that time living separately and apart from Mrs Druett and she had not consented to have him act on her behalf as a representative of her interests. The SSAT decided that pursuant to section 142 of the Social Security (Administration) Act 1999, Mr Druett was not a person who may apply for review of the decision to cancel Mrs Druett's Family Allowance.

• On 24 May 2001, Mrs Druett lodged an application for review to the Tribunal of the SSAT's decision.  Attached to the application for review was a hand written document dated 23 May 2001 which noted:

  "To whom it may concern
  I, Kirrily Druett give my husband Garry Druett consent for him to pursue the Family Allowance on behalf of myself and our children.
  Yours sincerely
  Kirrily Druett "

• On 15 June 2001, the Tribunal's District Registrar wrote to Mrs Druett seeking her advice as to a number of questions. Mrs Druett did not reply to this letter. The District Registrar sought clarification as to:

  Whether Mrs Druett wished to be joined as a party to the proceeding before the Tribunal; or
  Whether Mrs Druett personally wished to have the SSAT's decision of 24 April 2001 reviewed by the Tribunal; or,
  Whether Mrs Druett did not wish to be involved in the proceedings currently before the Tribunal.

Evidence of Mrs Kirrily Margaret Druett

1. Mrs Druett provided evidence by conference telephone to the Tribunal on 27 July 2001.

2. Mrs Druett stated that she lived at 9 Ashgrove Crescent, Blacktown and lived "on and off" with Mr Druett.  Her marital status as at the time of the hearing was that Mr Druett and herself were separated but living under the same roof.  Mrs Druett expressed some hope that the marriage would be able to be resurrected.

3. Mrs Druett confirmed that she had written a letter dated 23 May 2001, providing consent for her husband to pursue the issue of the cancellation of her Family Allowance.  She told the Tribunal that she had hoped to get the letter back from Mr Druett, before he presented it to the Tribunal.  Her husband kept "harping at me [Mrs Druett] to write the letter and I had not wanted to -- it was written under duress".  Mrs Druett told the Tribunal that she did not want to write the letter.  She stated:

   "Surely he must realise that you have to have children in your care to get payment for them… I just wrote it to shut him up.  

   …
             I just don't agree with him and he just hangs on and on."

In answer to the Tribunal's question, did she wish Mr Druett to pursue the SSAT's decision with the Tribunal on her behalf, Mrs Druett stated:
  "No, I have told him that."

1. Mrs Druett told the Tribunal she had first told Mr Druett she did not wish him to pursue the cancellation of the Family Allowance about a year ago and had continued to do so.  Most recently, Mrs Druett had told her husband the night before the Tribunal's hearing that she did not wish him to pursue the matter, noting that  "He wants it pursued, not me."

2. Mrs Druett concluded that she did not wish Mr Druett to pursue the matter on her behalf and if she did wish to pursue it, she would have done so herself.

3. Mrs Druett stated that she had not replied to the District Registrar's correspondence.  She explained that she did not make contact, thinking that by not doing so, the District Registrar would know she did not wish to go on with the matter.
   Evidence and submissions of Mr Garry Druett

4. Mr Druett told the Tribunal that when his children were taken, the Federal Government had taken a number of actions which impacted on him.  In this regard, Mr Druett stated that the Federal Government "privatised the job network system" and this placed great restrictions on Mr Druett.  He stated:

   "There's a vested interest in holding me back and not letting me work to the best of my ability and that's because of the action that was wrongly taken."

1. Mr Druett told the Tribunal that he had no legal representation and believed he did need to have a legal representative.  He stated that neither he nor his children had any rights.  Mr Druett had unsuccessfully applied to a number of lawyers for assistance.  Mr Druett wished the Tribunal to understand that his case spoke for itself and 100 per cent of his problem came from the Federal Government.  He further stated that his interests were affected by the SSAT decision.

1. Referring to the New South Wales Children's Court and District Court, over which the Tribunal noted to Mr Druett it had no jurisdiction, Mr Druett stated that false facts had been presented to these courts.  He stated that he was not given a hearing and:

   "…they just got a finding and argued for a year that it was done by consent.  …It does appear that my wife has been a party to this action. I'd suggest it's been manipulated."

   (Transcript, p. 18)

2. Mr Druett suggested that family members had been manipulated and complaints he had taken out against the local hospital had upset vested interests which had then impacted on the family's treatment by the New South Wales and Federal Governments.  Mr Druett stated to the Tribunal that he did not know why his wife did not support him to bring the children home for their own well being.

3. Mr Druett told the Tribunal that there was discrimination against him as a male and there was also evidence of racism in this matter.  While the Tribunal and the respondent had attempted to explain to Mr Druett the Tribunal's lack of jurisdiction over State Government matters, Mr Druett maintained that the Federal Government could influence the New South Wales Government. 

4. Mr Druett stated at page 22 of the Transcript, that it was appropriate that his wife have the Family Allowance in her name.  Before the cancellation of this benefit, Mr Druett explained to the Tribunal that he had been advised to stay at home and assist with the care of his children.  The problem was then, as Mr Druett saw it, that he was penalised for not working and the children were taken away.  Mr Druett believes that the course of action he took in being at home with the children was the correct one.  Mr Druett informed the Tribunal that he was trying to do what should be encouraged, to have families together and he called this good policy.  Mr Druett stated:

   "All I know is I've done the right thing.  I've tried my best, to the best of my ability, and there's something you're not telling me.  My health is fine, and that seems to be the case.  The manager needs to be reviewed.  Her -- it's just management, it's just administered through management and a manager that's got a vested interest in, well, there's been a bad accident.

For my mind, just to restore the Family Allowance being made, and forget all the courts, and it's not about money for me.  It would be nice to have a few dollars just to be able to sustain a decent lifestyle and to be able to work, but if I have $1 million in one corner and my kids in the other corner, I'd say take the million dollars.  It's just wrong, I don't have all the answers. If it could be fixed, I would be very grateful and I am sure my kids would be very happy."

Mr Slattery's submissions

1. Mr Slattery submitted that in relation to the matters raised by Mr Druett about the care and custody of his children, his Department and Centrelink had no authority or power over that matter. Nor was the Department able to direct or influence New South Wales Government organisations.

2. Mr Slattery wished to make it clear that in opposing Mr Druett's application for review to the Tribunal, he was not asserting that Mr Druett was not interested in what happens to his children nor that he was also not interested in what happened to the Family Allowance.  The issue was whether, in the legislative sense, Mr Druett's interests were affected under the provisions of the Social Security (Administration)Act 1999 or under section 27 of the Administrative Appeals Tribunal Act 1975. Mr Slattery submitted that because Mr Druett was not the person in receipt of the Family Allowance, then his interests were not affected. Mrs Druett, Mr Slattery contended, is the only person on the facts of this matter whose interests can be affected by the Department's decision. Mrs Druett had however told the Tribunal that she did not want to have the cancellation of the Family Allowance pursued. Mr Slattery submitted that given Mrs Druett's clearly expressed view in this matter, that was the end of it as no other person, including Mr Druett, could persist with the application once Mrs Druett has declined the matter to be pursued either by herself, Mr Druett or any other person.

3. Mr Slattery contended that Mr Druett's application for review to the Tribunal should be dismissed pursuant to section 27 of the Administrative Appeals Tribunal Act 1975 on the basis that Mr Druett is not a person whose interests are affected by the SSAT's decision.
   Findings

4. The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law.

5. At the commencement of the hearing, Mrs Kirrily Druett made and repeated on a number of occasions, the clear and unambiguous statement that she does not wish the decision to cancel her Family Allowance to be pursued.  Mrs Druett also stated that she does not wish her husband, Mr Garry Druett, to pursue this matter on her behalf either in terms of the original decision to cancel the Family Allowance or the decision of the SSAT dated 24 April 2001.  Mrs Druett told the Tribunal that she understood that if she and her husband did not have the care of the children, then they could not expect to receive Family Allowance payment for them.  Mrs Druett further stated that she had told her husband this on many occasions and wished he would understand.  From Mrs Druett's clear evidence to it, the Tribunal finds that Mrs Druett does not and did not wish to pursue the matter of the cancellation of her Family Allowance before this Tribunal or the SSAT.

1. The SSAT had decided that pursuant to section 142 of the Social Security (Administration) Act 1999, Mr Druett was not a person affected by the Department's decision to cancel the Family Allowance because Mrs and Mr Druett were living separately and Mrs Druett did not wish the matter pursued. These are precisely the circumstances in which this Tribunal now finds itself. In so concluding, the Tribunal accepts Mrs Druett's evidence that her handwritten letter of 23 May 2001 was written under duress and did not and does not reflect her true view on this matter.

2. Mr Druett has made an application for review to this Tribunal in relation to the SSAT's decision of 24 April 2001 that he is not a person whose interests are affected. This raises issues as to the Tribunal's role and jurisdiction. Mr Druett asserts that he is a person whose interests are affected.  What Mr Druett ultimately wants however, is for the Tribunal to review the operative or primary decision which cancelled Mrs Druett's Family Allowance.  In Yolbir v Administrative Appeals Tribunal and Secretary, Department of Social Security (1994) 48 FCR 246, the Full Federal Court in considering section 41 of the Administrative Appeals Tribunal Act 1975, made it clear that the decision under review, in relation to a stay order, was the operative decision. This view seems to have been echoed in Lee v Secretary, Department of Social Security (1996) 68 FCR 49. The operative decision in this matter currently before the Tribunal is arguably the primary decision, as this was the decision which affected the substantive rights of Mrs Druett.

3. The Tribunal must also deal however, with the SSAT's determination that pursuant to section 142 of the Social Security (Administration) Act 1999, Mr Druett is not a person whose interests are affected by the decision to cancel Mrs Druett's Family Allowance. In making this decision, the SSAT did not proceed to review the cancellation decision and the practical implication of this is that the operative decision is affirmed. The weight of authority seems to support the view that if the SSAT finds it does not have jurisdiction to review a decision, such a decision by the SSAT can be classified as an affirmation of the primary or operative decision, meaning that the Tribunal does have jurisdiction to conduct a review: see Re McGregor and Secretary, Department of Social Security (W 91/189, 29 May 1992) Re Anderson and Secretary, Department of Social Security (1993) 28 ALD 913; Collector of Customs NSW v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1. The Tribunal notes that the opposite view was taken in obiter in a decision of the Full Federal Court, Walker v Secretary, Department of Social Security (No 2) (1997) 75 FCR 493.

4. If the Tribunal were to take the view that as the SSAT had no jurisdiction to review Mr Druett's application for review, then the Tribunal also has no jurisdiction to review his application for review to it, then that would be the end of the matter. Taking a more expansive view that the SSAT's decision amounts to an affirmation of the operative decision and that the Tribunal has jurisdiction to deal with that decision, then the Tribunal must decide whether Mr Druett is a person whose interests are affected pursuant to section 27 of the Administrative Appeals Tribunal Act 1975.

5. Given Mrs Druett's unambiguous evidence to the Tribunal, the Tribunal does not consider that Mr Druett is a person whose interests are affected as dealt with under subsection 27(1) of the Administrative Appeals Tribunal Act 1975. Such interests do not have to be pecuniary interests or even specific legal matters. The question is to be determined by looking at whether Mr Druett has interests "which a person other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. " (Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1 as discussed in US Tobacco Company v Minister for Consumer Affairs and Others (1988) 20 FCR 520.)

6. In Mr Druett's case, he is living separate and apart from his wife under the same roof. Mrs Druett, whose interests are directly affected, does not wish to pursue the matter of the cancellation of her Family Allowance nor the decision of the SSAT, nor does she wish her husband to do so on her behalf. In all these circumstances, the Tribunal finds that in relation to Mr Druett's application for review to this Tribunal, pursuant to section 27 of the Administrative Appeals Tribunal Act 1975, Mr Druett is not a person whose interests are affected by the decision to cancel Mrs Druett's Family Allowance. Accordingly, the Tribunal finds that it does not have jurisdiction to deal with Mr Druett's application for review

   I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member

   Signed:         ............................................................................
     Stella Vaughan, Associate

Date of Hearing  27 July 2001

Date of Decision  4 October 2001

Representative for the Applicant              Self- Represented

Representative for the Respondent        Mr B Slattery, Departmental Representative