DYSL and Secretary, Department of Social Services (Social security second review) - [2025] ARTA 869

DYSL and Secretary, Department of Social Services (Social security second review) [2025] ARTA 869 (30 June 2025)
Applicant/s: DYSL
Respondent: Secretary, Department of Social Services

Tribunal Numbers:               2024/0427
2024/0428
  2024/0429
  2024/0430
  2024/0431
  2024/0432
  2024/0433
2024/0434

Tribunal:Senior Member T Simon (second review)
Place:Sydney
Date:30 June 2025
Decision: Pursuant to section 70 of the Administrative Review Tribunal Act 2024, the disclosure of the applicant’s name, the other party’s name and other identifying details are prohibited for the purposes of publication.
Note: The Tribunal is prohibited in certain types of matters from disclosing certain identifiers when publishing reasons for decision. The above order has been made to comply with that requirement.

Decision:Applications 2024/0429, 2024/0430, 2024/0431, 2024/0432 and 2024/0433

The decisions under review are affirmed.

Decision:Application 2024/0427
The Tribunal sets aside the decision of 1 March 2023, and, in substitution, decides that the start date of carer payment for the applicant is 5 April 2022.

Decision:Application 2024/0428

The Tribunal affirms the decision under review in relation to the start date for carer allowance.

Statement made on 26 June 2025 at 6:24pm
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999
CATCHWORDS
SOCIAL SECURITY –– Family Tax Benefit –– immunisation requirements –– medical contraindication –– medical contraindication –– national immunity –– immunisation determination by the Secretary –– Constitutional issues –– international covenant on civic and political rights –– decision under review affirmed
SOCIAL SECURITY –– Carer payment and carer allowance –– deemed claim –––start date –– income support payment –– when an earlier type of income support payment is made –– decision in relation to carer payment set aside –– decision in relation to carer allowance affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Administrative Review Tribunal Act 2024
Constitution of the Commonwealth of Australia
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Huikeshoven v Secretary, Department of Education, Skills and Employment (No 2) [2022] FCA 1021
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Scott v Secretary, Department of Social Services [2000] FCA 1241
Wong v Commonwealth (2009) 236 CLR 573
Secondary Materials
Family Assistance (Immunisation Principles and Vaccination Schedules) (DSS) Determination 2018
United Nations International Covenant on Civil and Political Rights
Statement of Reasons

These decisions and reasons relate to eight separate applications for which the applicant is seeking second review of decisions. The applications were all heard together. The applications can effectively be divided into two categories.
(i)FTB review - Applications 2024/0429, 2024/0430, 2024/0431, 2024/0432, 2024/0433 and 2024/0434 are decisions about whether the applicant was entitled to a higher rate of family tax benefit than the rate paid to her during the financial years from 2016/2017 to 2021/2022 and whether her child, meets the immunisation requirements contained in section 6 of A New Tax System (Family Assistance) Act 1999 (Family Assistance Act). From 20 October 2017 Services Australia – Centrelink (Centrelink) made a series of decisions regarding a debt and the rate of the applicant’s family tax benefit: On 31 January 2023 an authorised review officer of Centrelink found that they did not have jurisdiction to review some of the decisions. In relation to decisions made to reduce the rate of family tax benefit for the period 1 July 2020 to 11 August 2022, the administrative review officer affirmed those decisions. The applicant subsequently applied to the former Administrative Appeals Tribunal for first review of the decision. On 8 December 2023 the Tribunal affirmed the decisions under review. On 17 January 2024, the applicant made an application for second review of the decisions.
(ii)Carer payment and carer allowance reviews - These applications relate to decisions made by Centrelink on 1 March 2023 relating to the grant of carer payment (matter 2024/0427) and carer allowance (matter 2024/0428) from 14 December 2022. On 5 April 2023 an authorised review officer of Centrelink the decisions that the grant of carer allowance and carer payment should commence on 14 December 2022. The applicant subsequently applied to the former Administrative Appeals Tribunal for first review of the decision. On 8 December 2023 the Tribunal set aside the decision under review and, in substitution, decided that the start date of carer payment for the applicant was 5 April 2022 and otherwise affirmed the decision under review in relation to carer allowance. On 17 January 2024, the applicant also made an application for second review of those decisions.
From 14 October 2024, the Administrative Appeals Tribunal (ART) became the Administrative Review Tribunal and under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, applications for review to the Administrative Appeals Tribunal that were not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal.
Pursuant to s 131D of the Administrative Review Tribunal Act 2024, a person whose interests are affected by an ART social services decision may apply to the Tribunal for second review of the decision. An ART social services decision includes an eligible social services decision which has been affirmed by the Tribunal; s 131D(3)(a). An eligible social services decision includes a decision made under the Social Security Act 1991; s 131C(g).
The decisions made by the Tribunal on 8 December 2023 are eligible social services decision and the applicant's interest are affected by the decision. Although the first review decisions are dated 8 December 2023, in both applications for second review the applicant recorded that she had received the first review decisions on 21 December 2023. On that basis the second review applications were made within time.
The applicant appeared at the hearing by video link. The respondent was legally represented and appeared by telephone link. The parties confirmed that they were prepared to deal with both the FTB and carer payment and carer allowance reviews applications. In that regard the respondent had provided a joint tender bundle of documents (joint tender bundle) made up of 727 pages which they relied on. The applicant also relied on two further documents which were not a part of the joint tender bundle. The first was a letter from a General Practitioner (GP) dated 11 March 2025 and the second was the International Covenant on Civil and Political Rights.
(I) FTB REVIEW
The decisions for review
The records indicate that the applicant was in receipt of family tax benefit in relation to her daughter from 2016.[1] On 11 May 2010, the applicant completed a Medicare Australia ‘Immunisation exemption – Conscientious Objection form’ in relation to her child which is the subject of this review,[2] which confirmed that she had discussed the benefits and risks of immunisation with her doctor and she had a personal, philosophical, religious or medical belief involving a conviction that vaccination under the National Immunisation Program should not take place and chose not to have her child immunised.
[1] Joint Tender Bundle p 271.
[2] Joint Tender Bundle p 377 -378.
On 3 December 2015, Centrelink wrote to the applicant advising her that from 1 January 2016, all children must be fully immunised to be eligible to receive childcare fee assistance and family tax benefit Part A supplement. The letter also informed the applicant that to continue to receive payments her child must be immunised according to the National Immunisation Program early childhood vaccination schedule or have an approved medical exemption. Vaccination objection would no longer be a valid exemption from immunisation requirements.[3]
[3] Joint Tender Bundle pp 558 – 560.
From 17 May 2017 until 19 September 2019, Centrelink sent multiple correspondence to the applicant informing her that records indicated that her child was not up to date with her immunisations.[4]
[4] Joint Tender Bundle, pp 561 -578.
In the financial years from 2016/2017 to 2021/2022, decisions were made to either reduce the rate of payment of family tax benefit or not pay tax benefit at all. That was on the basis that the applicant’s child had not met the immunisation requirements contained in section 6 of the of the Family Assistance not pay the applicant family tax. Those decisions have been summarised in the authorised review officers formal review decision as decisions made on:[5]
·     20 October 2017 to ask you to repay a Family Tax Benefit (FTB) debt of $5,088.26 for the 2015-16 financial year (number J3457671). This included the decision not to pay you the FTB supplements as your income was over the limit for FTB to be paid.
·     28 February 2018 to not pay you the FTB Part A supplement for the 2016-17 financial year as [the child] did not meet the immunisation requirements.
·     31 August 2018 to not pay you the FTB Part A supplement for the 2017-18 financial year as your income was over $80,000.
·     26 August 2019 to reduce your rate of FTB Part A for [the child] by $2.02 per day ($28.28 per fortnight), from 10 July 2018 to 30 June 2019, as [the child] did not meet the immunisation requirements.
·     1 July 2019 and 15 July 2020 to reduce your rate of FTB Part A for [the child] by $2.06 per day ($28.84 per fortnight) from 1 July 2019 to 30 June 2020, as [the child] did not meet the immunisation requirements.
·     1 July 2020 and 1 November 2021 to reduce your rate of FTB Part A for [the child] by $2.10 per day ($29.40 per fortnight) from 1 July 2020 to 30 June 2021, as [the child] did not meet the immunisation requirements.
·     1 July 2021 and 11 August 2022 to reduce your rate of FTB Part A for [the child] by $2.12 per day ($29.68 per fortnight) from 1 July 2021 to 30 June 2022, as [the child] did not meet the immunisation requirements.
[5] Joint Tender Bundle, p 113.
Each of those decisions had been allocated a separate file number in these proceedings.
The decisions relating to the family tax benefit debt of $5,088.26 for the 2015-16 financial year has already been reviewed by the Tribunal (2023/M178428) and as a result the debt cannot be further reviewed in these proceedings.[6] The Tribunal has proceeded to consider the balance of the decisions and whether the applicant was entitled to family tax benefit at a higher rate than was paid to her for the relevant financial years as a result of her child.
[6] First review matter file number 2023/M183034 and second review of the matter was settled by consent (see first review decision at [7]).
Consideration
Section 61B of the Family Assistance Act provides that certain family tax benefit payments are reduced if a child does not meet the immunisation requirements set out in section 6 of the Family Assistance Act.
Subsection 6(2) of the Family Assistance Act proscribes when a child is immunised. Section 4 of the Family Assistance Act requires the Minister to make a determination for the purposes of the definition of immunised. Relevantly, schedule 1 of the Family Assistance (Immunisation Principles and Vaccination Schedules) (DSS) Determination 2018 (Immunisation Determination) sets out the vaccinations which must be received by a child for the purposes of immunisation.
Centrelink submits that the applicant’s child has not been immunised pursuant to ss 6(2) of the Family Assistance Act because she has not received the vaccinations set out in Schedule 1 of the Immunisation Determination. The applicant does not dispute that her child had not received the required vaccinations set out in schedule 1 of the Immunisation Determination.
The applicant submits that there is a difference between immunisation and vaccination. She stated that for example that her daughter had whooping cough when she was four years old and would therefore likely be immunised against whooping cough because she has a natural immunity. The applicant also submits that her child cannot safely be vaccinated and that the requirement to vaccinate her child breaches the constitution.
Medical contraindication, natural immunity or vaccine study
Section 6(3) of the Family Assistance Act deal with medical contraindication, natural immunity or vaccine study and provides:
(3) The child meets the immunisation requirements if:
(a) a general practitioner, a paediatrician, a public health
physician, an infectious diseases physician or a clinical
immunologist has certified in writing that the immunisation
of the child would be medically contraindicated under the
specifications set out in the Australian Immunisation
Handbook; or
(b) a general practitioner, a paediatrician, a public health
physician, an infectious diseases physician or a clinical
immunologist has certified in writing that the child does not
require immunisation because the child has contracted a
disease or diseases and as a result has developed a natural
immunity; or
(c) the child is a participant in a vaccine study approved by a
Human Research Ethics Committee registered with the
National Health and Medical Research Council.
The applicant has relied on the following various documents to support her position regarding medical contradiction and natural immunity.
(i)Letter from the applicants General Practitioner (GP) dated 22 May 2018.[7] The GP states he has known the applicant for many years and knows that ‘she objects to vaccination on philosophical grounds and her own beliefs regarding health in general. She is well read on alternative medication and has a lot of faith in it.’
(ii)A further letter from the same GP dated 20 August 2024,[8] in which the GP states that the applicant’s child has extreme needle phobia and refuses all immunisations and all other procedures which require the use of a needle. He also reports:
As a baby, her mother relates that she was settled, happy and interactive. She had a vitamin K injection and immediately tensed up and became stiff. Mother states that she acted differently after this and so her mother has feared giving her any of the usual childhood vaccinations since.
[the child] has a history of language difficulty, extreme anxiety and selective mutism - I believe that she may have other underlying disabilities which are yet to be delineated. She was taken to a naturopath who did a finger prick to get some blood for testing – [the child] had a severe reaction to this which involved heavy breathing, nausea, blood pressure drop, she felt like she could not breath and felt hot, she looked pale and felt like she was going to die. She could not even talk. Now even when her mother mentions this episode, or needles, she can have the same panic reaction. She is at an age where she is able to make her own decisions re immunisations and refuses them due to this extreme needle phobia.
(iii)The applicant also relies on the further letter from the same GP dated 11 March 2025, which was not included in the joint tender bundle. The GP reports that the applicant’s child has been brought up by parents who fear what will happen if she is vaccinated. He again explains that the applicant thinks that her child had a reaction to a vitamin K injection soon after birth and so has avoided all immunisations with her and that the child has selective mutism. The GP states that there is likely to be an underlying medical condition, but it is difficult to have her assessed as she will not talk.
The GP again confirms that the children has developed a severe needle phobia and has refused all injections from a young age as a result. The GP also again refuses to the incident with a naturopath when she required a finger prick from blood testing.
[7] Joint Tender Bundle, p 379.
[8] Joint Tender Bundle, p 635.
For the purposes of subsection 6(3) of the Family Assistance Act, it is not in dispute that GP who wrote the letter would be qualified to certify medical contraindications or natural immunity.
It is noted that the applicant has also provided a letter from a naturopath who notes her credentials as ‘N D Naturopathic Physician, Homeopath and remedial massage practitioner’.[9] The naturopath confirms that the applicant’s child had an extreme physical reaction to a skin prick test to ascertain her blood type and that as at 14 August 2024 the child had not recovered from the episode. The naturopath states that she is concerned about any unacceptable risk of further harm ‘following similar procedures such as vaccinations’. The naturopath is not a ‘general practitioner, a paediatrician, a public health physician, an infectious diseases physician or a clinical immunologist’, for the purposes of ss 6(3) of the Family Assistance Act her opinion would not be relevant to meeting the immunisation requirements under that section.
[9] Joint Tender Bundle, p 634
It is also noted that that the applicant has provided a letter from her child’s psychologist dated 1 March 2025.[10] The report refers to the child’s diagnosis of selective mutism, anxiety and depression. However, the report makes no reference to immunisation for the purposes of s 6(3) of the Family Assistance Act.
[10] Joint Tender Bundle, pp 720 -724.
The current Australian Immunisation Handbook for the financial years between 2018/2019 and 2021/2022 was released on 9 July 2018.[11] The respondent submits that the version of the Australian Immunisation Handbook which applied for the financial years between 2016/2017 and 2017/2018 was in substantially identical terms to the version released on 9 July 2018 in relation to contraindications to vaccination. The Tribunal accepts that submission.
[11] Australian Immunisation Handbook,
Under the heading ‘Fundamentals of Immunisation’, the Australian Immunisation handbook provides:
Vaccine contraindications and precautions
A contraindication is a reason a vaccine should not be given. This might be when a person has a pre-existing condition that significantly increases their chance of having a serious adverse event after a specific vaccine.
Insufficient safety data about a vaccine may also be a contraindication, if there is a theoretical but significant risk of harm in a particular age group or group of people. An example might be use of a particular vaccine in people with specific medical conditions.
Vaccines should not be given if there is a contraindication, except under expert medical advice from an immunisation specialist- external site. This advice would consider both the benefits and the risks of giving the vaccine, in consultation with the person to be vaccinated, or their parent or carer.
A precaution is a condition that may increase the chance of an adverse event following immunisation or compromise the vaccine’s ability to produce immunity.
…
Under the heading ‘Prepare for Vaccination’ the Australian Immunisation Handbook provides:
Contraindications to vaccination
Only 2 absolute contraindications apply to all vaccines:
·anaphylaxis following a previous dose of the relevant vaccine
·anaphylaxis following any component of the relevant vaccine (see Table. Components of vaccines used in Australia)
2 further contraindications apply to live vaccines (both parenteral and oral):
·People who are significantly immunocompromised should not receive live vaccines. This is regardless of whether the immunocompromising condition is caused by disease or treatment.
·Pregnant women should not receive live vaccines, in general. Women should be advised not to become pregnant within 28 days of receiving a live vaccine. See Table. Vaccines that are contraindicated in pregnancy: live attenuated vaccines in Vaccination for women who are planning pregnancy, pregnant or breastfeeding.

The Australian Immunisation Handbook also contains disease-specific chapters which follow a standard format, including a section for contraindications and precautions.
In the decision in Huikeshoven v Secretary, Department of Education, Skills and Employment (No 2),[12] which was an appeal to the Federal Court, the Court considered the legislative requirement for a certificate that immunisation is medically contraindicated under the specifications set out in the Australian Immunisation Handbook (including the ones set out above). One of the grounds of appeal related to whether the only relevant contraindications that could fulfil s 6(3)(a) were anaphylaxis, pregnancy and immunocompromise. The Court referred to those as the ‘three contraindications.
[12] [2022] FCA 1021.
In preliminary observations the Court noted:
49. The controversy arises because the Handbook contains no express signposting as to where it contains specifications as to when immunisation of a child would be medically contraindicated for the purposes of s 6(3)(a) of the Family Assistance Act. It briefly mentions family assistance payments in connection with the Australian Immunisation Register, but does not refer to the Family Assistance Act at all.
After considering in the handbook in details including the various references to details the Court relevantly concluded at [86] – [88]:
86. Reading the Handbook as a whole, there is no room for doubt about which conditions have been specified and set out as contraindications, in the sense of expressly and particularly identified as such, and which are not. If something is not a condition indicating that a vaccine should not be given at all (or only under expert supervision), it is not called a contraindication. It is called a precaution, or given no label at all.
…
87. I therefore do not accept the applicant's submissions about the construction of the Handbook or, what is the more precise subject of inquiry, about the construction of s 6(3)(a) of the Family Assistance Act in so far as it applies and incorporates the Handbook. It is necessary to make that distinction because of the multiple purposes of the Handbook and because of its main purpose as a set of guidelines and recommendations about clinical practice. To the extent that it fulfils that main function it can be accepted, as the applicant submits, that it is comprised of guidelines that leave room for the judgement of medical practitioners as to whether the risk of administering a given vaccine exceeds the benefits for any given patient. But for the reasons given, when the Family Assistance Act refers to medical contraindications 'under the specifications set out in' the Handbook, it can only be referring to a small and readily identifiable set of conditions which, if present in a patient, mean that a given vaccine should not be administered.
88. For that reason, the two possibilities identified in the applicant's question of law 4 set out at [42] above are not mutually exclusive. The question asks whether the Handbook limits the specified contraindications to the three contraindications, and whether the Handbook gives medical practitioners 'a judgment call to make'. But the Handbook can do both; it can specify particular contraindications, and at the same time can give medical practitioners the professional latitude to make a broader judgement about what is in the best interests of their patients. In pointing to specifications set out in the Handbook, s 6(3)(a) of the Family Assistance Act directs attention only to the first of these two things. So the answer to the first part of the question is, yes, the specifications are limited to the three contraindications, and the answer to the second part is that, whether or not the Handbook permits or requires a 'judgment call' for other reasons, that does not affect what is specified as a contraindication as set out in the Handbook.
Consistent with the principles set out in Huikeshoven, when the Family Assistance Act refers to medical contraindications 'under the specifications set out in' the Handbook, it is only referring to the identifiable contradictions set out in the handbook and not the precautions.
Following the principles set out in Huikeshoven, for the applicant’s child to meet the immunisation requirements under s 6(3)(a) of the Family Assistance Act, the GP needed to certify in writing that the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook, that being in relation to anaphylaxis, pregnancy and immunocompromise. The GP did not identified any of those matters in his letters.
Further, the GP has not determined that the applicant’s child has a natural immunity to whooping cough or that the child does not require immunisation because the child has contracted a disease or diseases and as a result has developed a natural immunity. There is also no evidence that the applicant’s child is a participant in a vaccine study approved by a Human Research Ethics Committee registered with the National Health and Medical Research Council.
For those reasons, the applicant’s child does not meet the immunisation requirements as the child does not have a medical contraindication, natural immunity and is not participating in a vaccine study as is required by ss 6(3) of the Family Assistance Act.
For completeness, there is no evidence before the Tribunal that the applicant’s child would satisfy the immunisation requirements because of the exemptions contained in ss 6(4) Family Assistance Act in relation to temporary unavailability of a vaccine or ss 6(5) because the child was vaccinated overseas.
Determination by the Secretary that a child meets the vaccination requirements
Section 6 of the Family Assistance Act provides that a child can meet the immunisation requirements if the Secretary determines in writing that the child meets the immunisation requirements:
Secretary’s decision
(6) The child meets the immunisation requirements if the Secretary determines in writing that the child meets the immunisation requirements.
(7) In making a determination under subsection (6), the Secretary must comply with any decision-making principles set out in a legislative instrument made by the Minister for the purposes of this subsection.
Requirements for certifications and applications for determinations
(8) The following must be made in the form and manner, contain any information, and be accompanied by any documents, required by the Secretary:
(a) a certification under paragraph (3)(a) or (b), (4)(b) or (5)(b);
(b) an application for a determination under subsection (6).
It is not in dispute that the Secretary has not determined in writing that the applicant’s child meets the immunisation requirements. The applicant made submissions that a determination should be made by the Secretary on the basis that her child does not consent to a vaccination or alternatively immunisation would result in an unacceptable risk of harm to the child.
The applicant submits that her daughter refuses to be vaccinated because she has a phobia of needles. In that regard, the applicant relies on a statutory declaration sworn by her on 21 August 2024, in which she states her daughter who was by that time aged 14, did not consent to being vaccinated.
Clause 10 of the Immunisation Determination provides:
10 Refusal of consent to vaccination etc.
The requirements of this section are met if:
(a) an individual has care of the child under a State/Territory child welfare law; and
(b) neither the individual nor the individual’s partner has legal authority to make decisions about the medical treatment of the child; and
(c) if the child is aged under 14 years, a person (other than the child) with legal authority to make decisions about the medical treatment of the child has refused, or failed within a reasonable time, to provide consent to the individual taking actions to enable the child to meet the usual immunisation requirements; and
(d) if the child is aged at least 14 years, the child has refused, or failed within a reasonable time, to provide consent to the individual taking actions to enable the child to meet the usual immunisation requirements.
Clause 10 of the Immunisation Determination does not apply in these circumstances as the applicant does not have care of her child under a State or Territory child welfare law, and the applicant has legal authority to make decisions about her medical treatment. Moreover, the child’s date of birth is recorded as 6 March 2010 and at the times relevant to this review the child was not 14 years of age. In those circumstance cl 10 is not applicable to these circumstances and the Secretary could not have made the decision pursuant to cl 10.
Clause 13 of the Immunisation Determination relates to ‘Unacceptable risk of harm to child or another person’ and provides that the requirements of the section are met if:
a listed medical practitioner has certified in writing, in a form and manner, if any, required by the Secretary, that, for the reasons set out in the certificate, immunisation of the child would result in an unacceptable risk of physical harm to the child or to a person administering a vaccination to the child; and
(b) the Commonwealth Chief Medical Officer has certified in writing that he or she agrees with the listed medical practitioner.
Clause 8 of the Immunisation Determination defines “listed medical practitioner” as:
… a medical practitioner whose name has been given to the Commonwealth Chief Medical Officer by the Chief Health Officer of a State or Territory for the purpose of giving certificates under section 13 of this Determination.
The Tribunal notes that in the GP’s letter dated 11 March 2025, the GP indicates that the child has a ‘severe needle phobia’, however there is nothing to indicate that the GP is a listed medical practitioner for the purpose of giving a certificate under cl 13 of the Immunisation Determination, or that the Commonwealth Chief Medical Officer has not certified in writing that he agrees with the listed medical practitioner. On the available evidence, the applicant’s child would not meet the determination requirements under ss 6(6) of the Family Assistance Act.
Constitutional Issue
In her application for review the applicant purports to raise a Constitutional issue. She refers to s 51 which gives parliament the power to make laws for the peace, order, and good government of the Commonwealth and states that such power is subject to the constitution. She also refer to s 51(xxiiiA) of the Commonwealth Constitution which allows parliament to make laws for the provision of
…maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
She appears to contend that the requirement to vaccinate for the purposes of being eligible for a higher rate of family tax benefit amounts to a form of ‘civil conscription’.
The Tribunal does not have the power to ‘determine’ a constitutional question. In Citta Hobart Pty Ltd v Cawthorn,[13] the majority at [35] explained the task for a Tribunal in assessing a constitutional question in a claim or defence:
… be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.
[13] [2022] HCA 16.
The Tribunal notes that in the decision in Wong v Commonwealth,[14] the High Court considered s 51(xxiiiA) and held that what must be compelled is the provision by a medical practitioner of services to a patient or group of patients. The requirement by the Family Assistance Act that for an individual to qualify for certain rates of family tax benefit the child must be fully immunised, does not involve any legal or practical compulsion upon medical practitioners to provide treatment.
[14] (2009) 236 CLR 573.
At the hearing the applicant was unable to articulate any further how the Constitution applied in these proceedings. In the Tribunal’s view, section 51(xxiiiA) is not genuinely in controversy in this review and does not raise a real question in relation to the Constitution and as such has no application in this matter.
International Covenant on Civil and Political Rights
At hearing, the applicant also raised the applicability of the International Covenant on Civil and Political Rights. In summary, the applicant submits that Australia is bound by the principles proclaimed by the United Nations for the recognition of the inherent dignity of all members of the human family and the foundation of freedom, justice and peace in the world. She submits that conditions are created whereby everyone may enjoy civil and political economic, social and cultural rights. Specifically, the applicant submits that signatories to the Covenant undertake to respect and to ensure that to all individuals within its territory and subject to its jurisdiction have their rights recognised in the present Covenant without distinction of any kind. In the applicant’s view that includes opinion on vaccinations or other opinions. The applicant also submits that no one shall be subjected without their free consent to medical or scientific experimentation.
In so far as the applicant may be raising this as a Constitutional principle, in the High Court case Plaintiff M1/2021 v Minister for Home Affairs,[15] the majority stated at [20]
[15] [2022] HCA 17.
In point of constitutional principle, an international treaty (or customary
international law obligations of a similar nature) can operate as a source of rights
and obligations under domestic law only if, and to the extent that, it has been
enacted by Parliament. It is only Parliament that may make and alter the domestic
law. The distinction also has significant consequences for discretionary
decision-making under powers, such as s 501CA, conferred by statute and without
specification of unenacted international obligations: such obligations are not
mandatory relevant considerations attracting judicial review for jurisdictional
error.
Accordingly, international law can only operate to the extent that it has been enacted in Australian law. The International Covenant on Civil and Political Rights does not apply in these proceedings. Moreover, even if the treaty did apply, the applicant’s child is neither being forced or coerced into being vaccinated, rather the non-vaccination status of her child only affects the applicant’s eligibility to the family tax benefit.
Conclusion on FTB Review
Having considered the parties submissions and the evidence, the Tribunal determines that the applicant’s child did not meet the requisite immunisation requirements to be eligible for the family tax benefit part A supplement between 2016/2017 and 2021/2022 and that any exemptions do not apply in the circumstances.
Accordingly, the decisions relating to the rate of family tax benefit for the 2016/2017, 2017/2018, 2018/2019, 2019/2020, and 2020/201 financial periods are correct, and the Tribunal affirms the decisions.
(II) CARER PAYMENT AND CARER ALLOWANCE REVIEWS
The applicant made an application for carer payment and carer allowance on 14 December 2022.[16] On 1 March 2023, the applicant was granted carer payment and carer allowance effective from 14 December 2022.[17]
[16] Joint Tender Bundle, pp 97 – 109.
[17] Joint Tender Bundle, pp 606 – 608.
The applicant seeks payment of carer payment and carer allowance from 2018. The applicant stated at the hearing that she went to Centrelink in 2018 with qualifying documents and asked what she qualified for because of her daughter’s disability.
The applicant stated that nobody told her until early 2022 that she should apply for job seeker payment. The applicant stated that she subsequently did apply and then did not qualify for job seeker. The applicant submits that it was not until around September 2022, that she was told that she should apply for disability support pension. After she applied, she was rejected and was again contacted and told she should have been applying for carers payment and carers allowance. She stated that after multiple applications and wrong advice from Centrelink, she lodged the correct application for carers payment and carer allowance on 14 December 2022. The applicant described the process as very stressful for her and her daughter. The applicant also stated at the hearing that she had accrued multiple debts due to not having carers payment when she was entitled to it and that she could not even afford to pay even her bills at that time
Entitlement to carer payment and carer allowance
The entitlement to social security payments is set out in the Social Security Act 1991 and the Social Security (Administration) Act 1999. The qualification for payment of carer payment is set out in s 197B of the Social Security Act and the qualification for carer allowance is set out in s 953 of the Social Security Act.
Section 11 of the Social Security (Administration) Act requires that a person who wants to be granted a social security payment, such as carer payment and carer allowance, must make a claim. Subsection 13(1) provides that the person is taken to have making the claim for the social security payment on the day on which the Department was contacted.
In that regard, the applicant did not make a claim for carer payment and carer allowance until 14 December 2022 and once the applications for benefits were granted, she was entitled to payment from that date.
There is no general duty for Centrelink to have to advise applicants of benefits that might potentially be available under the Social Security Act. In Scott v Secretary, Department of Social Services,[18] Beaumont J and French J (as His Honour then was) stated at [23]:
…It is one thing to expect a Department (reasonably) to communicate accurately the general range of benefits available; it is another to expect the Department to have sufficient knowledge of the personal circumstances of any particular applicant for social security, so as to be in a position to advise the applicant of specific benefits that might be available in his or her personal circumstances.
[18] [2000] FCA 1241.
On the applicant’s own evidence, Centrelink generally communicated to the applicant about various benefits. However, they would not have had sufficient knowledge of her circumstances to advise her precisely of benefits she would have been entitled to and the legislative regime requires her to make an application for a claim.
Can the applicant’s carer payment start from a date earlier than 14 December 2022?
Subsection 15(1) of the Social Security (Administration) Act sets out the circumstances where a person can be taken to have made a claim for a social security payment on an earlier date than when it was claimed on the basis that an earlier claim for a different social security payment was incorrect. That is, the second claim will be taken to have been made on the date the earlier claim was made. Subsection 15(2) relevantly provides that a claim is an incorrect claim if, when the claim was made, the person was not qualified for the payment claimed but was qualified for another social security payment, other than a supplementary payment.
On 5 April 2022 the applicant made a claim for jobseeker payment.[19]
[19] Joint Tender Bundle p 201.
Subsection 15(1) Social Security (Administration) Act provides:
15 Deemed claim—incorrect or inappropriate claims
(1) For the purposes of the social security law, if:
(a) a person makes an incorrect claim; and
(b) the person subsequently makes a claim for a social security
payment for which the person is qualified; and
(c) the Secretary is satisfied that it is reasonable that this
subsection be applied;
the person is taken to have made a claim for that social security
payment on the day on which he or she made the incorrect claim.

The Secretary submitted that the applicant’s claim for jobseeker payment was not an incorrect claim on the basis that when she made the claim for jobseeker payment as she was qualified for the payment. Rather, the jobseeker payment was later cancelled as the applicant did not comply with reporting requirements, so it was still the case that as at the time she made the claim she was qualified for the payment. Therefore s15(1) cannot apply in these circumstances.
However, the Tribunal finds that the applicant is nevertheless entitled to receive carer payment from an earlier date than 14 December 2022 because of the application of ss15(4A) of the Social Security (Administration) Act.
Subsection 15(4A) provides:
(4A) For the purposes of the social security law, if:
(a) a person makes a claim for an income support payment (the initial claim); and
(b) on the day on which the initial claim is made, the person is qualified for another
income support payment (the other income support payment); and
(c) the person subsequently makes a claim for the other income support payment
(the later claim); and
(d) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made the later claim on the day on which the initial claim was
made.
Jobseeker payment and carer payment are ‘income support payments’ as defined under s 23 of the Social Security Act. On the date the applicant made her claim for jobseeker payment she was qualified for carer payment. Given that the applicant later made a clam for carer payment, the Tribunal find’s that the applicant is taken to have made the carer payment claim on the date the claim for jobseeker payment was made, being 5 April 2022.
Can the applicant’s carer allowance payment start from a date earlier than 14 December 2022?
A carer allowance is not defined as an income support payment. Sub section 15(4B) provides:
(4B) For the purposes of the social security law, if:
(a) a person makes a claim for a supplementary payment (the
initial claim); and
(b) on the day on which the initial claim is made, the person is
qualified for another supplementary payment (the other
supplementary payment); and
(c) the person subsequently makes a claim for the other
supplementary payment (the later claim); and
(d) the Secretary is satisfied that it is reasonable that this
subsection be applied;
the person is taken to have made the later claim on the day on
which the initial claim was made.
Sub section 15(5) defines supplementary payment as
(a) carer allowance; or
(b) double orphan pension; or
(c) education entry payment; or
(i) mobility allowance; or
(j) pensioner education supplement.
In these circumstances, ss 15(4B) cannot apply because the applicant has failed to demonstrate that she made a claim for an initial supplementary payment, as defined in ss 15(5), prior to making the claim for the carer allowance on 22 December 2022.
Conclusion on carer payment and carer allowance
Accordingly, the Tribunal has decided to set aside the decision regarding carer payment and substitute the decision so that the start date for carer payment is 5 April 2022. However, is no basis for a date earlier than 14 December 2022 in regard to carer allowance and so that decision is affirmed
DECISIONS
In relation to applications 2024/0429, 2024/0430, 2024/0431, 2024/0432 and 2024/0433
The decisions under review are affirmed
In relation to application 2024/0427
The Tribunal sets aside the decision of 1 March 2023, and, in substitution, decides that the start date of carer payment for the applicant is 5 April 2022.
In relation to application 2024/0428
The Tribunal affirms the decision under review in relation to the start date for care allowance.

Date(s) of hearing: 12 March 2025

Applicant: Self represented

Solicitors for the Respondent: Ms Peta Heffernan

Date(s) of hearing:	12 March 2025
Applicant:	Self represented
Solicitors for the Respondent:	Ms Peta Heffernan