Dudzinski v Centrelink

Case •

[2003] FCA 1500

•

16 DECEMBER 2003

FEDERAL COURT OF AUSTRALIA

Dudzinski v Centrelink [2003] FCA 1500

INJUNCTION – prerogative relief - where application for writ of mandamus, prohibition and injunction against Centrelink for refusal to pay Newstart Allowance – whether such remedies are available – whether signing a Preparing for Work Agreement a condition of payment of Newstart Allowance - whether the requirement to join Job Seeker Network is ultra vires the Social Security Act 1991 (Cth) – whether notice required under s 605(1B) and s 605(3) of that Act is satisfied by letters posted or hand delivered, or by oral notice

Judiciary Act 1903 (Cth) s 39B
Social Security Act 1991 (Cth) s 593, s 604, s 605, s 606
Social Security (Administration) Act 1999 (Cth) s 11, s 13(1), s 16, s 41, s 42,
Schedule 2 Part 2

R v Spicer; Ex parte Waterside Workers Federation of Australia No. 2 (1958) 100 CLR 324 followed

WALDEMAR DUDZINSKI and ANNA DUDZINSKI v CENTRELINK and JUDY O’SHEA and JOHN CURCURRUTO

Q 15 of 2003

SPENDER J
BRISBANE
16 DECEMBER 2003


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 15 OF 2003

BETWEEN:

WALDEMAR DUDZINSKI
FIRST APPLICANT

ANNA DUDZINSKI
SECOND APPLICANT

AND:

CENTRELINK
FIRST RESPONDENT

JUDY O'SHEA
SECOND RESPONDENT

JOHN CURCURRUTO
THIRD RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

16 DECEMBER 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The second applicant pay the respondents’ costs of the application, including reserved costs, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 15 OF 2003

BETWEEN:

WALDEMAR DUDZINSKI
FIRST APPLICANT

ANNA DUDZINSKI
SECOND APPLICANT

AND:

CENTRELINK
FIRST RESPONDENT

JUDY O'SHEA
SECOND RESPONDENT

JOHN CURCURRUTO
THIRD RESPONDENT

JUDGE:

SPENDER J

DATE:

16 DECEMBER 2003

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. This is an application under s 39B of the Judiciary Act 1903 (Cth) for orders of mandamus, prohibition and injunction. The applicants make this claim in respect of a refusal by the first respondent, Centrelink, to pay them various social security payments.

  2. The first applicant has been dismissed from this proceedings, so it is not necessary to make further reference to his claim. The second and third respondents are employees of the first respondent.

  3. In the application filed 13 February 2003 , the second applicant (Mrs Dudzinski) seeks:

    ‘1.Order of prohibition under the Judiciary Act 1903 (Cth), section 39B against the first, the second and the third respondents prohibiting:

    1.1The first and second respondents to refuse a payment of the second applicant’s entitlement called newstart allowance since or about 10/9/2002 and totalling as at present ca $4,300.00;

    1.2The third respondent to make the decision he made on or about 24/12/2002 aiding and abating (sic) the first and the second respondents refusing to pay the second applicant her entitlement called newstart allowance since or about 10/9/2002 totalling as at present ca $4,300.00;

    1.3The first and second respondents to coerce the second applicant in order to be paid newstart allowance to sign:

    1.3.1.The first and second respondents’ form called ‘Preparing for Work Agreement’ (PFWA) which is outside the Social Security Act 1991 (Cth) and fabricated by the second and first respondent.

    1.3.2.The first respondent’s form called “Claim for job Network Assistance while Looking for Work” which is outside of the Social Security Act 1991 (Cth) and any statutory law in relation to this matter.

  4. The order of mandamus sought by Mrs Dudzinski is an order commanding:

    ‘2.1The first and second respondents to pay to the second applicant her entitlement called newstart allowance since or about 10/9/2002 and totalling as at present ca $4,300.00;

    2.2To stop the first and second respondents to coerce the second applicant in order to be paid newstart allowance to sign:

    2.2.1The first and second respondents’ form called “Preparing for Work Agreement” (PFWA) which is outside of the Social Security Act 1991 (Cth) and fabricated by the second and first respondents;

    2.2.2The first respondent’s form called “Claim for job Network Assistance while Looking for Work” which is outside of the Social Security Act 1991 (Cth) and any law in relation to this matter.’

  5. Mrs Dudzinski also seeks:

    ‘3.Order of injunction under the Judiciary Act 1903 (Cth), section 39B against the first, the second respondents requiring them:

    3.1To pay immediately outstanding money of ca $4,300.00 to the second applicant being her entitlement called newstart allowance since or about 10/9/2002 totalling as at present ca $4,300.00 and to continue such payments.

    3.2To stop the first and second respondents to coerce the second applicant in order to be paid newstart allowance to sign:

    3.2.1The first and second respondents’ form called “Preparing for Work Agreement” (PFWA) which is outside of the Social Security Act 1991 (Cth) and fabricated by the second and first respondents;

    3.2.2The first respondent’s form called “Claim for job Network Assistance while Looking for Work” which is outside of the Social Security Act 1991 (Cth) and any law in relation to this matter.

  6. Much of the relief sought by Mrs Dudzinski is simply not available.  In respect of the orders sought in pars 1.1 and 1.2, Mrs Dudzinski seeks prohibition in relation to the decision of Judy O’Shea, the second respondent, made on 13 November 2002 to refuse payment of Newstart Allowance (‘NSA’) to Mrs Dudzinski, and the decision of John Curcurruto made on 24 December 2002 affirming the decision of Ms O’Shea. 

  7. Each of those decisions is complete on its making, and there is no continuing effect which remains to be prohibited.   In R v Spicer; Ex parte Waterside Workers Federation of Australia No. 2 (1958) 100 CLR 324, the High Court (Dixon CJ, McTiernan, Webb, Fullager and Taylor JJ) said at 341, of a writ of prohibition:

    ‘With nothing left to prohibit … the prosecutors are not entitled to the writ.’

    There is, therefore, in my judgment, no entitlement to a writ of prohibition in respect of either of those decisions.

  8. The application seeks prohibition to prevent Mrs Dudzinski from being required to enter into a Preparing for Work Agreement (“PFWA”) and to sign a “Claim for Job Network assistance while Looking for Work Form”. There is no continuing obligation for Mrs Dudzinski to enter into a PFWA or to sign a claim for Job Network Assistance  while looking for work Form, other than in the context of lodging a further claim.  The decision to refuse to pay NSA to Mrs Dudzinski was because of her failure to enter into a PFWA.  Again, there is nothing to which a writ of prohibition can attach. 

  9. What Mrs Dudzinski really is seeking is a declaration that there is no obligation for her to enter into either a PFWA or to sign the Claim for Job Network assistance while Looking for Work Form, it being her contention that there was no such obligation as a pre-requisite to entitlement for NSA.  It was and is the contention of Centrelink that Mrs Dudzinski was not entitled to NSA where she declined to enter into a PFWA.

  10. Mrs Dudzinski’s claim for an order of mandamus to force payment to her of NSA requires, as a preliminary, an order that the second respondent re-determine Mrs Dudzinski’s claim for NSA, and to entitlement to result from that re-determination. 

  11. Mrs Dudzinski’s complaints really are that she was wrongfully required to sign a PFWA as a condition for an entitlement to NSA.  Such an obligation, she contends, is not a requirement under the Social Security Act 1991 (Cth) (“the Act”). She further says that her declining to sign cannot disqualify her from receiving payments, because the Secretary of the Department did not give her correct notice, as the Act requires. She further contends that she was wrongly required to register with a Job Network member, which was not a statutory requirement under the Act.

  12. On 29 August 2002, 18 September 2002 and 1 October 2002, Centrelink had been contacted and informed of Mrs Dudzinski’s intention to make a claim for NSA.  A written claim for NSA was lodged by Mrs Dudzinski on 21 October 2002.

  13. Certain provisions of the Social Security (Administration) Act 1999 (Cth) (“the Admin Act”) are relevant to the making of such a claim. Section 11 of the Admin Act requires a claim to be made; s 13(1) allows for a claim to be deemed to have been made up to fourteen days prior to lodging the claim if otherwise qualified for payment at that time; s 16 requires a claim to be in writing in the approved form; s 41 provides that payment becomes payable from the start date; s 42 provides that the start date is calculated by reference to Schedule 2 of the Admin Act; and Part 2 of Schedule 2 provides that the relevant start date is the date on which the claim was made.

  14. The effect of these provisions is that the earliest date on which the second applicant might otherwise have been entitled to payment of NSA pursuant to her written claim on 21 October 2002 was 7 October 2002.

  15. Mrs Dudzinski attended and was interviewed on 7 October in response to a letter dated 23 September 2002 sent to her requesting that she attend the Toowong Centrelink office at 11.10 am on 7 October 2002 so that her claim for a social security payment could be made.  Mrs Dudzinski was advised by Ms O’Shea at the beginning of that interview that she would be required to enter into a PFWA in order to be eligible to receive payment of NSA.  Ms O’Shea deposes:

    ‘10. The second applicant advised that she would sign a Newstart Activity Agreement but would not sign a PFWA as in her view she was already prepared for work.  I advised that there was no separate Newstart Activity Agreement form and suggested that I print out a copy of a PFWA so that she could view the standard terms of the agreement that she would be required to enter.  She agreed to this. [A copy of the agreement was printed out for this purpose.]

    11. The second applicant advised that she wanted the PFWA to be renamed a Newstart Activity Agreement.  She also advised that she wanted the contents to be amended to exclude the requirement that she be registered with a job network member.  I advised that I would not accept these changes to the standard agreement.

    12. The PFWA contains standard terms, some of which might be omitted if they were considered to be inapplicable or inappropriate for a particular claimant.  However, it is standard practise for a NSA claimant who has to satisfy the activity test by actively seeking employment to be required to be registered with a job network member.  Accordingly, in most cases it would not be acceptable to omit such a term from the PFWA which is to be entered into by a person who is required to satisfy the activity test.’

  16. The copy PFWA that Ms O’Shea had printed out commenced:

    ‘At my appointment on 7 October 2002, my Centrelink contact(s) discussed with me a range of issues to assist me to prepare for work and to understand my mutual obligation to the community which supports me. At the appointment we prepared the following Preparing for Work Agreement. (Depending on the Allowance received, this Agreement is a Youth Allowance Activity Agreement or a Newstart Allowance Activity Agreement under the Social Security Act 1991.)

    Preparing for Work Agreement

    ·    I will register with a Job Network Member for Job Matching within 5 working days and maintain my registration.

    ·    I will from 7 OCT 2002 to 18 DEC 2002 undertake 10 job search contact(s) each fortnight and record these in my Jobseeker Diary.  I will return my completed Jobseeker Diary on 18 DEC 2002.  These contact(s) will include all types of suitable work, including part-time, casual and full-time.  Of the 10 job search contact(s) I have agreed to undertake and record in my Diary:

    ·At least 1 contact per fortnight will be made through a Job Network Member

    ·4 job search contact(s) each fortnight will also be recorded on my fortnightly application for payment forms from 07 OCT 2002 to 18 DEC 2002.

    …’

    The PFWA acknowledged:

    ‘I Understand that:

    ·    If I do not keep to the terms of this Preparing for Work Agreement, my allowance may be stopped and a penalty imposed if I reclaim allowance;

    ·    …’

  17. Both on 7 October 2002 and 6 November 2002, Mrs Dudzinski was invited to sign the prepared PFWA, and on each of those occasions she refused to do so.  As a consequence, Ms O’Shea refused payment of NSA to Mrs Dudzinski pursuant to her claim, that is, from 7 October 2002.

  18. Entitlement to NSA is governed by s 593 of the Act, which relevantly provides:

    ‘(1) … a person is qualified for newstart allowance in respect of a period if:

    (a)the person satisfies the Secretary that throughout the period the person is unemployed; and

    (b)throughout the period, or for each period within the period, the person either:

    (i)satisfies the activity test; or

    (ii)is not required to satisfy the activity test; and

    (c) if subsection 604(1) applies to the person, at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and

    …

    (e)   if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement.’

  19. Section 604 deals with Newstart Activity Agreements, relevantly providing:

    ‘(1)Subject to subsection (1A), if a person is in receipt of a newstart allowance, the Secretary may require the person to enter into a Newstart Activity Agreement.

    (1A)A person who, under Subdivision BA, is not required to satisfy the activity test is not to be required to enter into a Newstart Activity Agreement.

    (1B)The Secretary is to give a person who is required to enter into a Newstart Activity Agreement notice of:

    (a)the requirement; and

    (b)the places and times at which the agreement is to be negotiated.

    (1C)A Newstart Activity Agreement is a written agreement in a form approved by the Secretary and the Employment Secretary. The agreement is between the person and the Secretary.’

  20. The Secretary of the Department of Employment Workplace Relations and Small Business approved the PFWA as a form that satisfied the requirement of s 604 of the Act on 22 August 2000. A further form was approved on 24 September 2001. The draft PFWA, which Mrs Dudzinski declined to sign, part of which is earlier set out, recites:

    ‘(Depending on the Allowance received, this Agreement is a … Newstart Allowance Activity Agreement under the Social Security Act 1991.)’

  21. The PFWA approved on 22 August 2000 by the Secretary to the Department of Employment, Workplace Relations and Small Business said, under the heading “Preparing for Work Agreement”:

    ‘I will: Appropriate term(s) inserted here.’

  22. On the PFWA offered to Mrs Dudzinski, the terms inserted commenced:

    ‘I will register with a Job Network Member for Job Matching within 5 working days and maintain my registration …’

    Other terms related to making job search contacts, and making records in a Jobseeker Diary. 

  23. That these were ‘appropriate terms’ to be inserted in a PFWA is confirmed by the explanations contained as part of the approved form.  Those explanations include the following:

    ‘INFORMATION YOU WILL NEED TO KNOW

    What is the Preparing for Work Agreement?
    The Agreement is about giving you a clear understanding of the support you will receive and your obligations in return for this support.  You can contribute to the community by strengthening your job search efforts, improving your work skills, or undertaking community work experience such as Work for the Dole.

    What will Centrelink do?
    Centrelink will:

    ·    provide further information detailing local Job Network Members;

    ·    provide access to a computer and software if you need to complete a resume, through the employment self help facilities in the Customer Service Centre;

    ·    arrange referral to agreed programmes of assistance; and

    ·    remind you of your Mutual Obligation interview.

    What will the Job Network do?
    Job Matching is a service provided by Job Network Members to help people find work.

    Through Job Matching, Job Network Members will:

    ·    meet with you to discuss your work skills and abilities;

    ·    match your skills and abilities to suitable jobs;

    ·    refer you to job interviews with employers; and

    ·    provide you with a resume service.’

    …’

  24. Mrs Dudzinski has a long-standing opposition to registering with a Job Network Member.  She contends that such a requirement is ultra vires the Act. On her behalf it was contended that s 606 of the Act specifies the terms of Newstart Activity Agreements, and ‘The joining of Job Network Members is clearly not a statutory requirement of such agreement and is not a term of such an Agreement.’  The claim on Mrs Dudzinski’s behalf is that the respondents ‘persistently force the second applicant to use those unsolicited services which are misleading and deceptive and which have nothing to do in assisting the second applicant but reverse is true.’

  25. The form approved on 24 September 2001 by Frances Davies, the Assistant Secretary, Parenting and Employment Programs Branch in the Department of Family and Community Services (as clarified by a supplementary affidavit by Richard McQuinlan as inter alia an approved form under subsection 604(1C) of the Act), is relevantly in the same terms as the earlier form, although there is no reference to ‘appropriate term(s) inserted here’ in that form.  The INFORMATION YOU NEED TO KNOW set out above from the earlier approved form is the same in respect of the INFORMATION YOU NEED TO KNOW in the second of the approved forms. 

  26. In this context, it is helpful to recall subsection 606(1) of the Act, which provides:

    ‘A Newstart Activity Agreement with a person is to require the person to undertake one or more of the following activities approved by the Secretary:

    (a)a job search;

    (b)a vocational training course;

    (c)training that would help in searching for work;

    (d)paid work experience;

    (e)measures designed to eliminate or reduce any disadvantage the person has in the labour market;

    (ea)subject to section 607A, development of self-employment;

    (eb)subject to section 607B, development of and/or participation in group enterprises or co-operative enterprises;

    (ec)an approved program of work for unemployment payment;

    (f)participation in a labour market program;

    (fa)participation in a rehabilitation program;

    (fb)an activity approved by the Employment Secretary under the CSP;

    (g)an activity proposed by the person (such as unpaid voluntary work proposed by the person).’

  27. It is therefore necessary, if an agreement is to be a Newstart Activity Agreement, that at least one of the activities set out in s 606(1) is specified in the form. Participation in a labour market program is one such activity.

  28. Further, Mrs Dudzinski complains that the Secretary had failed to give notice relating to entry into a NSA, contrary to the requirements of s 604(1B) or s 605(3) of the Act.

  29. Mrs Dudzinski had ongoing communication with Centrelink. In letters dated 28 October 2002 and 31 October 2002 she was informed that:

    ‘[a]t the interview you will be required to sign a Preparing for Work Agreement and Complete a Looking for Work Form. Section 593(1) provides for a person to be qualified for Newstart Allowance in respect of a period if they meet the qualification provisions contained within that section’.

    A letter dated 4 November 2003 to Mrs Dudzinski contained the paragraph quoted above, and an added requirement to complete a “Claim for Job Network assistance while looking For Work” form as well as a PFWA.  These letters also informed her of a second interview scheduled for 6 November 2002.

  1. At this interview Mrs O’Shea requested Mrs Dudzinski to sign a PFWA and handed Mrs Dudzinski a notice advising her that:

    ‘At this interview you will be required to negotiate and sign a Preparing for Work Agreement which will include activities you will undertake in order to maximise your chances of finding work.

    If you do not attend this appointment, your application for Newstart … Allowance may not be granted. If you are already receiving Newstart … Allowance and you fail to attend this appointment, your payments maybe stopped and a penalty imposed if you reclaim an Allowance.’

  2. Section 604(1B) relevantly provides:

    ‘The Secretary is to give a person who is required to enter into a Newstart activity agreement notice of:

    (a)        the requirement; and
    (b)        the places and times at which the agreement is to be negotiated.’

  3. Section 605(3) is in the same terms.

  4. It is clear that in relation to the meeting of 6 November, Mrs Dudzinski was provided with notice that she would be requested to enter the PFWA, both through the letters of 28, 31 October and 4 November and by the notice that was handed to her at that meeting.

  5. As to the meeting of 7 October 2003, there is no evidence to suggest that the notice given at that meeting did not satisfy the requirements of s 604(1B) or s 605(3). Neither of these sections requires the notice to be written, and neither specifies any time period in which notice is to be given. I am satisfied that Mrs Dudzinski did receive notice of this requirement. Her real complaint is that, having been given notice of this requirement, she declined, because the agreement she was asked to sign required her ‘to register with a Job Network Member for Job Matching …’.

  6. In my judgment Mrs Dudzinski was not qualified for NSA at any time during the period of her claim, by virtue of s 593(1)(c) of the Act, because she was not at any time during that period prepared to enter into a Newstart Activity Agreement.

  7. Section 606(1) of the Act authorises, in a Newstart Activity Agreement, the activities that an applicant for NSA is required by the Secretary to undertake. Section 605(1) authorises the Secretary to require an applicant for NSA to enter into a Newstart Activity Agreement.

  8. The fact that Mrs Dudzinski has a view of the utility of Job Network Members in obtaining employment does not provide a lawful basis for declining to sign the proffered Newstart Agreement, being the PFWA given to Mrs Dudzinski by Ms O’Shea. This is a case where Mrs Dudzinski has simply refused to do what would confer on her an entitlement to be paid NSA. In my judgment the obligation to sign a PFWA, which agreement includes a requirement that the applicant will register with a Job Network Member for job matching within five working days and maintain her registration, is an obligation which the Secretary is entitled by the Act to impose upon claimants for NSA.

  9. The application should be dismissed.

  10. There is nothing to suggest why the Court should not make the usual order as to costs.  I order the second applicant to pay the respondents’ costs of the application, to be taxed if not agreed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .

Associate:

Dated:             16 December 2003

The applicant appeared on her own behalf
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 22 May 2003
Date of Judgment: 16 December 2003
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