FRANCE and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2011] AATA 463

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 463

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0185

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GEOFFREY FRANCE

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr P McDermott RFD, Senior Member

Date30 June 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............[Sgd]................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – Income management – Application of Social Security Administration Act 1999 – Applicant long-term recipient of Newstart allowance – Income management provisions satisfied – Decision under review affirmed

Social Security (Administration Act) 1999 (Cth) ss 123TC, 123TFA, 123UCA, 123UCB, 123UCC, 123UGB, 123UGC, 123UGD

REASONS FOR DECISION

30 June 2011 Dr P McDermott RFD, Senior Member   

1.      Mr Geoffrey France (“the applicant”) has sought review of a decision of Centrelink that he be made subject to income management.

BACKGROUND

2.      There is no dispute about the facts of this case and the parties have consented to a determination of this application on the papers. On 3 September 2010, the date of the original decision by Centrelink, the applicant had been in receipt of Newstart allowance for a continuous period of over 12 months. The applicant is over the age of 25 years and resides in Alice Springs. He does not have a payment nominee.

PRIOR DECISIONS

3.      On 3 September 2010, Centrelink wrote to the applicant to advise that as he was a “Long Term Welfare Payment Recipient Customer”, he was now eligible to be income managed. The letter of advice to the applicant stated that income management involved managing 50 percent of his fortnightly payments “to help you pay for things you and your family need. The rest will be paid to you”. In that letter, the applicant was advised that if he did not contact Centrelink by 1 October 2010 his “fortnightly payments will be automatically income managed”. The applicant had advised Centrelink prior to that date that he did not agree with that arrangement.

4.      On 29 September 2010, the applicant was advised that his request for exemption from income management was not granted. In that letter, the applicant was also advised that “Income Management will continue to affect your payment arrangements”. However, the prior correspondence from Centrelink had advised the applicant that income management was not to commence until 1 October 2010. On 1 October 2010, Centrelink again wrote to the applicant to inform him as follows: “Long Term Welfare Payment Recipient Income Management has been applied to your fortnightly payments, due to your age and the length of time you have been in receipt of benefit”.

5.      On 29 September 2010, the applicant sought review of the decision to subject him to income management. On 2 November 2010, an Authorised Review Officer advised him that the decision to place him under income management was correct.

6.      On 10 November 2010, the applicant appealed against the decision to place him under income management to the Social Security Appeals Tribunal (“SSAT”). On 14 December 2010 the SSAT decided to affirm the decision.

7.      On 17 January 2011 the applicant lodged with this Tribunal an application for further review of the decision.

CONTENTIONS OF APPLICANT

8.      The applicant has raised a number of objections to being income managed which were appended to his application for review to this Tribunal. The applicant did not file any document in response to the Secretary’s Statement of Facts and Contentions.

9.      The applicant has submitted that he is more than capable of managing and taking responsibility for his finances. He does not object to the “legislation per se” but he also stated that the scheme “is also an inconvenience to my landlady who has been very understanding but nonetheless put out”.

10.     The applicant has also pointed out that the income management card (the “Basics Card”) has very limited use. He informed the SSAT that he has neither a drinking nor a gambling problem. He also contended that he does not live in a disadvantaged community.

11.     The applicant also pointed out that he has no children.  While the welfare of children was one factor which influenced the “Intervention”,[1] the income management scheme is not confined to recipients of social welfare payments who have children.

[1] F. Arney, K. McGuiness and G. Robinson, “In the Best Interests of the Child? Determining the Effects of the Northern Territory Emergency Response on Child Safety and Wellbeing” (2010) 27(2) Law in Context 42.

LEGISLATION

12. Part 3B of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) is concerned with the income management regime. There are a number of different categories of Centrelink customers who are eligible for income management, such as “vulnerable welfare payment recipients” (s 123UCA); “disengaged youth” (s 123UCB) and, relevantly for this application, “long-term welfare payment recipients” (s 123UCC).

CONSIDERATION

13.     This application is concerned with the income management scheme in the Northern Territory. This scheme was originally introduced by what has been referred to as the “Intervention” in June 2007.[2] Income management was provided for by legislation which was intended to “promote socially responsible behaviour, particularly in relation to the care and education of children”.[3] In 2010, the income management scheme was amended by legislation which is intended to fully reinstate the application of the Racial Discrimination Act1975 (Cth).[4] This amending legislation does not appear to have been previously considered by the Federal Court of Australia or by this Tribunal.[5]

[2] Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth).

[3] Social Security (Administration) Act 1999 (Cth) s 123TB. This object was s 123TB(a) at the time of enactment in 2007, but is now s 123TB(e) (with a slight variation in wording).

[4] Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 (Cth).

[5] However, the legislation has been recently comprehensively analysed: see P. Billings and A. Cassimatis, “Redesigning the Northern Territory Emergency Response – Social Welfare Reform and Non-Discrimination” (2010) 27(2) Law in Context 58.

14. Central to the determination of this application is s 123UCC of the Administration Act, which provides that a person is subject to the income management regime at a particular time (“the test time”) if the applicant comes within the terms of paragraphs (a) to (g) of subsection (1) of that section.

15.     It has been contended that the test time is 3 September 2010, when Centrelink initially identified that the applicant was eligible to be income managed.

16. I am satisfied that the applicant comes within the terms of paragraphs (a) to (g) of subsection (1) of s 123UCC of the Administration Act.

Paragraph (a)

17. Paragraph (a) requires that “the person is an eligible recipient of a category E welfare payment”. A “category E welfare payment” is defined in s 123TC of the Administration Act to include Newstart allowance. The applicant was receiving Newstart allowance at the test time.

Paragraph (b)

18. Paragraph (b) requires that “at the test time, the person is at least 25 years of age but has not reached age pension age”. In these reasons, which are a matter of public record, I have decided to protect the privacy of the applicant by not disclosing his actual age. There is no issue that the applicant comes within the terms of s 123UCC(b).

Paragraph (c)

19. Paragraph (c) requires that “at the test time, the person’s usual place of residence is within a declared income management area”. Under s 123TFA of the Administration Act, the Minister may declare by legislative instrument an area as a “declared income management area”. On 29 July 2010, the Minister[6] in a Determination declared the “Alice Springs Municipality” to be a “declared income management area” from 30 August 2010.[7] There is no issue that the applicant’s usual place of residence is in Alice Springs.

[6] The Hon. Jenny Macklin MP, Minister for Families, Housing, Community Services and Indigenous Affairs.

[7] Social Security (Administration) (Declared income management areas) Determination 2010 (Cth); T-Document 3, Folios 41 – 46.  

Paragraph (d)

20.     Paragraph (d) requires that “at the test time, the person is not an exempt welfare payment recipient”.

21. Section 123TC of the Administration Act defines an “exempt welfare payment recipient” as the meaning given by ss 123UGB, 123UGC or 123UGD of the Administration Act.

22. Section 123UGB provides for an exemption if the person is included in a class of persons specified in an instrument made by the Minister. Such an instrument was made on 29 July 2010.[8] There was no contention by the applicant that the Instrument assists him. I am satisfied that the instrument does not assist the applicant as it only provides an exemption to a class of persons who are, among other things, in receipt of special benefit (s 4(a)(ii) at folio 54), or to a class of persons each member of which is receiving CDEP Scheme Participant Supplement.

[8] Social Security (Administration) (Classes of Exempt Welfare Payment Recipients) Specification  2010 (Cth); T-Document 3, Folios 53 – 54.

23.     The Special Minister of State and Cabinet Secretary remarked during the second reading speech of the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination) Bill 2009 (Cth) in the Senate that an exemption will be given to those without children who are “engaging in study, or participating in employment”.[9] Section 123UGC of the Administration Act reflects this legislative intention by providing an exemption to a person who, as well as having no dependent children at the test time, is a full-time student or a new apprentice, or has worked at least 15 hours per week for at least 26 weeks. The applicant does not come within the terms of this exemption, although, commendably, the applicant intends to undertake some courses in the future. Section 123UGC(1)(b)(iii) also states that a person is exempt where “at the test time, the person is undertaking an activity specified in an instrument made by the Minister under subsection (2)”. No such instrument appears to have been made for the purposes of s 123UGC(1)(b)(iii).

[9] Commonwealth, Parliamentary Debates, Senate, 25 February 2010, 1159 (Senator the Hon. Joseph Ludwig, Special Minister of State and Cabinet Secretary).

24. An instrument in respect of persons with dependent children has been made by the Minister under s 123UGD of the Administration Act[10], however, this instrument does not assist the applicant who, in his application for review, has stated: “I have no children”.[11]

[10] Social Security (Administration) (Exempt Welfare Payment Recipients – Persons with Dependent Children)(Specified Activities)  Determination 2010 (Cth) (This Determination is not in the T-Documents but is found within the Federal Register of Legislative Instruments).

[11] T-Document1, Folio 3.

25.     There is no material before me to suggest that the applicant is an exempt welfare payment recipient. Accordingly, I conclude that the applicant comes within the terms of paragraph (d).

Paragraph (e)

26.     Paragraph (e) refers to “If, at the test time, the person has a payment nominee – the payment nominee is not an excluded payment nominee”. The applicant informed the SSAT that he does not have a payment nominee. The material before me does not disclose that the applicant has an excluded payment nominee. Accordingly, I conclude that the applicant comes within the terms of paragraph (e).

Paragraph (f)

27.     Paragraph (f) refers to “If at the test time, the person is not subject to income management under 123UC, 123UCA, 123UD, 123UE or 123UF”. The material before me does not disclose that the applicant is subject to income management under any of these provisions. Accordingly, I conclude that the applicant comes within the terms of paragraph (f).

Paragraph (g)

28.     Paragraph (g) requires that “the person was an eligible recipient of a category E welfare payment for at least 52 weeks during the preceding 104-week period”. This requirement is satisfied as the material before me discloses (and I so find) that the applicant has been in continuous receipt of Newstart allowance since 30 October 2008. The applicant himself informed the SSAT that he has been receipt of Newstart allowance for more than a year. Accordingly, I conclude that the applicant comes within the terms of paragraph (g).

29. As the applicant comes within the terms of paragraphs (a) to (g) of subsection (1) of s 123UCC of the Administration Act, he is subject to the income management regime.

30.     The applicant is to be commended for intending to undertake some courses to improve his employment prospects. However, the position of the applicant may be reviewed when he undertakes those courses. 

DECISION

31.I affirm the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: .........................[Sgd]...................................................
  Research Associate

Hearing on the papers
Date of Decision  30 June 2011