Hendy v The Manager Centrelink (Ipswich)
[2004] FMCA 579
•12 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENDY v THE MANAGER CENTRELINK (IPSWICH) | [2004] FMCA 579 |
| ADMINISTRATIVE LAW – Application for review of decision not to grant Newstart allowance and rental assistance – no internal review – application dismissed as applicant failed to produce evidence or particularise claims. |
Federal Court of Australia Act 1976, s.32AB
Social Security Act 1991, ss.593 to 634, 1068-F1
Social Security Administration Act 1999, ss.126 to 189, 192, 201
Privacy Act 1988, s.98
Child Support Registration and Collection Act, s.120
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Minister for Immigration, Local Government and Ethnic Affairs (1994) 50 FCR 189
Hagdorn v Dept of Social Security (1996) 44 ALD 274-281
Heery v Dupont Australia v Controller General of Customs (1993) 30 ALD 829
| Applicant: | MICHAEL FRANK HENDY |
| Respondent: | THE MANAGER OF CENTRELINK (IPSWICH) |
| File No: | BZ112 of 2003 |
| Delivered on: | 12 October 2004 |
| Delivered at: | Brisbane |
| Hearing date: | 10 June 2003 |
| Judgment of: | Rimmer FM |
REPRESENTATION
| Applicant in person | Michael Frank Hendy |
| Counsel for the Respondent: | D. C. Rangiah |
| Solicitors for the Respondent: | Spark Helmore |
ORDERS
That the application filed on 4 February 2003 and the amended application filed on 6 May 2003 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ112 of 2003
| MICHAEL FRANK HENDY |
Applicant
And
| THE MANAGER OF CENTRELINK (IPSWICH) |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to an application for review of a decision made by Centrelink not to grant the applicant Mr Hendy Newstart allowance and rental assistance.
The matter was originally filed in the Federal Court of Australia and pursuant to s.32AB of the Federal Court of Australia Act 1976 (Commonwealth) the matter was transferred to this Court for hearing.
The matter first came before me on 22 April 2003 and I made orders that the matter be adjourned for a two hour hearing at 9.30 am on
10 June 2003 and also some procedural orders in relation to filing and serving submissions, affidavits and responses. The applicant filed written submissions on 8 July 2003 and relies on those submissions to support his grounds for this Court.
The applicant's written submissions are somewhat incomprehensible and lack particularity with respect to his principal claim. Effectively, the applicant's contentions are that the passing on of information collected by Centrelink to other government departments, and in this case the Child Support Agency is in breach of the Privacy Act 1988 (Commonwealth).
He further contends that demanding more information than is necessary to fulfil the primary function to verify a claim is also in contravention of the Act and the need and relevance of some of the material demanded was also in contravention of the Act.
Background
The applicant lodged an application for Newstart allowance and rental assistance on 21 October 2002 with Centrelink. An appointment was scheduled for the applicant to attend for 28 October 2002. At the time of his application the applicant was informed by Centrelink to provide shares documentation and evidence of his previous employment and evidence of his tenancy or lease agreement and any rental receipts verifying his address and the amount of rent that he paid prior to the interview.
The applicant indicated to Centrelink that he would not be supplying the required documentation. At the interview on 28 October the applicant was interviewed by a Centrelink officer Kathryn Edwardson. She indicated that he signed a preparing for work agreement after striking out the section titled "Privacy Details". She claims that other necessary forms and documentation were not completed and signed by the applicant and they were unable to be processed because all the necessary information was not there.
Ms Edwardson further wrote to the applicant on 29 October 2002 requesting further information in order to process his application for Newstart and rental assistance. The information was sought was verification from his last employer and that his employment had ceased.
On 1 November 2002 the applicant lodged a formal privacy complaint regarding the actions of Centrelink and the Child Support Agency. On 13 November 2002 based on the reasons of Ms Edwardson, she refused to process his Newstart allowance because he failed to provide the requested documents and information.
The respondent filed submissions and supporting affidavit material on 28 July 2003. They argued that the applicant's case fails to a large extent to make clear exactly what his complaints are. Their interpretation of the submissions filed by the applicant are that he is entitled to an injunction restraining Centrelink from disclosing information relating to the applicant to other government departments or agencies, particularly to the Child Support Agency.
He is entitled to an injunction in respect to the alleged joint administration of programs and services by the Child Support Agency and Centrelink. An injunction should be granted in relation to Centrelink's requirement that the applicant produce certain information in relation to his application for Newstart allowance and rental assistance because the requirement was allegedly excessive and unnecessary.
There was no evidence adduced and put before this Court that would suggest the material the respondent had requested for the purposes of processing his application for Newstart allowance and rental assistance was for any unlawful purpose to be disclosed to the Child Support Agency or any other person or entity.
For an applicant to be eligible for Newstart allowance, he or she must demonstrate pursuant to s.593 to 634 of the Social Security Act 1991 that throughout the relevant period that person was unemployed. The applicant did provide a document to Centrelink in relation to this dated 28 October 2002, but it only indicated that the contract that Mr Hendy was working on finished on 18 October 2002, and at this stage the company has no other contracts and it is alleged that the document was signed by the applicant himself.
Centrelink then wrote to the applicant on 29 October 2002 indicating to him that the document he had supplied did not provide sufficient information in order for them to properly assess his entitlement to Newstart allowance and they also requested verification to the cessation of his employment. Thus the respondent refused the applicant's application for Newstart allowance on 10 March 2003 as no further material had been provided.
To be eligible for rental assistance an applicant must satisfy the requirements under s 1068-F1 of the Social Security Act. They must be able to demonstrate that they pay rent and that their rent must be payable at a rate more than the threshold rate. To be eligible further, rental assistance depends in part upon the amount of rent paid by the person.
The applicant was asked to provide Centrelink with a current written lease or tenancy agreement with the applicant's name, weekly rental paid, address and the date rent started, or a rent certificate signed by the landlord giving the same information. Under s.192 of the Social Security Administration Act 1999 (Commonwealth), Centrelink is entitled to request the applicant to provide the information and documents it so requested.
Section 192 of the Act relevantly provides:
The Secretary may require a person to give information or produce a document that is in the person's custody or under the person's control to the Department if the Secretary considers that the information or document may be relevant to one or more of the following:
(a)The question whether a person has made a claim for a social security payment is or was qualified for the payment; and
(d)Rate of social security payment that is or was applicable to a person;
(g)The question whether a person who has applied for a financial supplement is eligible for the supplement.
The guidelines the respondent has used to request the verification of rent or current lease or tenancy agreement or a rent certificate are qualified by case law and such guidelines may validly be considered and applied by a decision maker. See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589-591; Minister for Immigration, Local Government and Ethnic Affairs (1994) 50 FCR 189 at 206-207.
In his submission the applicant seeks certain injunctions pursuant to s.98 of section one of the Privacy Act. That section provides:
(1)Where a person is engaged, is engaged or is proposing to engage any conduct that would constitute a contravention of this Act, The Federal Court or the Federal Magistrates Court may on the application of the Commissioner or any other person grant an injunction restraining the person from engaging in the conduct and if in the Court's opinion it is desirable to do so, requiring a person to do any act or thing to where:
(a) person has refused or failed or is refusing or failing or is proposing to refuse or fail to do an act or thing, albeit the refusal or failure was, is, or would be a contravention of this Act, the Federal Court or the Federal Magistrates Court may, on the application to the Commission or any other person grant the injunction requiring the first mentioned person to do that Act or thing.
Section 6A sub-s.1 of the Privacy Act relevantly provides that for the purposes of the Act an actual practise breach of the national privacy principle if and only if it is contrary to or inconsistent with that National privacy principle.
In essence, the Privacy Act prevents agencies from releasing personal information about another person without that person's permission. See generally the information privacy principle 11. However, it does not prevent the release of a document if it is lawfully required to be disclosed under the Freedom of Information Act.
The respondent requested information from the applicant as it was entitled to under the provisions of the Social Security Administration Act. There was no evidence advanced before the Court that the respondent had breached, or may have breached in the future any of the national privacy principles.
The applicant has not in any way commenced an internal review of that decision by application for review of decision to the Social Security Appeals Tribunal and then if necessary to the Administrative Appeals Tribunal. See s.126 to 189 of the Social Security Administration Act.
The applicant essentially contends, from what I can make of his application, that the respondent has no entitlement in the context of an application with Newstart allowance and rental assistance to require the production of a tenancy agreement or a rental certificate or verification from a former employer that his employment has ceased.
Further it appears that the applicant is contending that the respondent is obliged to approve the payment of Newstart allowance and rental assistance based on only the information and documentation that he sees fit to provide.
The applicant's contention in relation to that there is some breach of the Privacy Act 1988 is unfounded and misconceived. It is quite clear that the Social Security Act 1991 sets out the documentation required of an applicant to support in the process of that application to be considered eligible for the entitlement of Newstart allowance and rental assistance.
I am satisfied that in no way did Centrelink breach any of the national information privacy principles. They sought the request of this information merely for the purposes of processing an application by the initiated by the applicant for Newstart allowance and rental assistance. There is no evidence before me to suggest that this information was to be used for any unlawful purposes.
It was collected for a purpose that was lawful, that directly related to a function in the activity of Centrelink. The collection of that information thus was necessary and related directly to the purpose of processing the application.
There is no evidence before me to suggest that the material the respondent requested proposed to unlawfully disclose any information relating to the applicant to the Child Support Agency or any other person. Thus there is no grounds in granting the relief sought by the applicant. The applicant misconceived the effect of the respondent's submissions to the extent that the respondent's attitude is that it must comply with a demand made and with any demand made under s.120 of the Child Support Registration and Collection Act without question.
The application has no merit and lacks substance. I find that the respondent's decision to request the relevant material was in all intents and purposes lawful and in accordance with the relevant statutory provisions of the Social Security Act and other relevant statutory provisions.
The applicant claims that the use of s.120 to obtain information from Centrelink would be invalid. This claim is founded on the basis that Centrelink documents are protected documents within the Social Security Administration Act. However, the applicant disregards the provisions under s.201 of the Social Security Administration Act which relevantly provides that nothing in this division prevents a person from disclosing information to another person if the information is disclosed for the purpose of the Child Support Registration and Collection Act or the Child Support Assessment Act.
The applicant has effectively sought to circumvent the review process by bringing an application of a review of the decision to reject his application for Newstart and rental assistance, both to the Federal Court of Australia and on transfer of the application, to the Federal Magistrates Court.
The respondents submit that on discretionary grounds the Court would refuse to review the decision in these circumstances. I adopt that submission of the respondents and note the following list of authorities. Hagdorn v Dept of Social Security (1996) 44 ALD 274-281; Heery v Dupont Australia v Controller General of Customs (1993) 30 ALD 829.
Thus, the application is dismissed with costs as the applicant has failed to produce any evidence and particularise his claims in an appropriate manner before this Court. All of his grounds are unfounded and lack merit. It appears that at all material times he may very well have been eligible for Newstart and rental assistance but he has failed to provide the necessary documentation which would have assisted the process to determine his eligibility for the benefits. The applicant at all times was advised by members of Centrelink, both in the form of oral advice and written advice what the requirements were in order for him to have entitlements of Newstart and rental assistance paid to him.
Accordingly, I make the order set out at the commencement of these reasons.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Rimmer FM
Associate: Lynnette Chin
Date: 12 October 2004
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