Gamble and Secretary, Department of Defence

The Administrative Appeals Tribunal considered a dispute between Mr Gamble (the applicant) and the Secretary, Department of Defence (the respondent) concerning the cessation of Mr Gamble's Defence Home Ownership Assistance Scheme (DHOAS) subsidy payments. Mr Gamble sought the reinstatement of these payments, arguing that the subsidy ceased due to a genuine error and that departmental policy should have allowed for discretion in such circumstances. The matter was heard and determined on the papers.

The primary legal issue before the Tribunal was whether the applicant's home loan account being paid into a credit balance constituted a "subsidy ceasing event" under the Defence Home Ownership Assistance Scheme Act 2008 (Cth), and if so, whether there was any discretion available to the respondent to continue subsidy payments in cases of genuine error. The Tribunal also considered the applicability and consistency of a departmental "Genuine Error Policy" with the governing legislation.

The Tribunal reasoned that item 1 of section 36 of the Act mandates that subsidy payments cease "as soon as the outstanding amounts are paid" if all outstanding amounts under the subsidised loan are paid. It found that a home loan being paid to a zero or credit balance means all outstanding amounts have been paid, thus constituting a subsidy ceasing event. This interpretation was found to be consistent with the ordinary meaning of the statutory language and the objectives of the DHOAS, which is to assist members of the ADF with home ownership. The Tribunal concluded that the departmental "Genuine Error Policy," which suggested discretion could be exercised in cases of genuine error, was inconsistent with the mandatory language of section 27(4) of the Act, which uses the word "must" and therefore does not permit discretion. While acknowledging the applicant's reliance on an earlier version of DHOAS website information, the Tribunal noted that an updated condition more accurately reflected the legislation.

The Tribunal affirmed the Reviewable Decision, which had upheld the earlier decision to cease Mr Gamble's subsidy payments. The applicant's argument that the loan was not technically in credit because a debt still existed was rejected, as was the contention that the "Genuine Error Policy" allowed for discretion. Consequently, Mr Gamble's subsidy payments were not reinstated.