Herring v Secretary Department of Families, Community Services and Indigenous Affairs

[2007] FCA 1537

FEDERAL COURT OF AUSTRALIA

Herring v Secretary Department of Families, Community Services and Indigenous Affairs [2007] FCA 1537

CICERO HERRING v SECRETARY DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
NSD 915 OF 2007

ALLSOP J
9 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 915 OF 2007

BETWEEN:	CICERO HERRING Applicant
AND:	SECRETARY DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	9 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.To the extent necessary, time be extended to the applicant to file any application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to the decision of the Administrative Appeals Tribunal made on 2 May 2007 up to and including 25 June 2007.

2.The amended application be dismissed.

3.The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 915 OF 2007

BETWEEN:	CICERO HERRING Applicant
AND:	SECRETARY DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent

JUDGE:	ALLSOP J
DATE:	9 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Cicero Herring, complains about the approach of the Administrative Appeals Tribunal (the “AAT”) to an appeal before it from the Social Services Appeals Tribunal (the “SSAT”). The complaint is found in a document filed on 25 June 2007 which is a combined amended notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) and application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “AD(JR) Act”).

2. Strictly, the application under the AD(JR) Act requires leave. In all the circumstances, I think that an additional and unnecessary layer of complexity would be added to the proceeding if I did not grant leave. I therefore propose to do so.

3. Before identifying the gist of the complaint as argued before me, a little background is necessary.  Mr Herring came to Australia from the United States of America.  In 2001, Mr Herring came into receipt of an age pension from the Government of the United States.  There is no issue but that he is entitled to receive that pension, the precise amount of which is irrelevant for this application.  The commencement of receipt of the US pension led to the reduction of payments that Mr Herring was receiving from the Australian Government through Centrelink up to 2001.  No complaint is, or has been, made by Mr Herring about this initial impact of the receipt of the US pension.

4. In 2003, Mr Herring became entitled to receive an age pension from the Australian Government under the relevant social security legislation.  The calculation of that Australian pension was affected by his receipt of the US pension.  Though the receipt of the latter did not disentitle him to any Australian age pension, it did reduce the amount.  It is unnecessary to deal with the precise sums and legislative provisions involved in these calculations.

5. Mr Herring did however make certain complaints in relation to his pensions.  He made a complaint about the exchange rate at which his US pension was being converted.  An Authorised Reviewing Officer (“ARO”) and the SSAT dealt with this complaint.  It is not presently relevant.

6. By letter dated 22 May 2006 to Centrelink at Maroubra, Mr Herring made an application for “CFP as outlined at section 23, p 3 of the Social Security Act 1991 and compensation in lui [sic] of denied equal treatment as to the International Agreement Between Australia and the United States of America”.  The Social Security Act 1991 (Cth), s 23 contains a definition of “comparable foreign payment” to which Mr Herring was referring by the initials “CFP”. That phrase was defined as follows:

   Comparable foreign payment  means a payment-type that is:

   (a)available from a foreign country; and

   (b)similar to a social security pension.

7. This application appears thereafter to have been treated as an application for a greater sum of money than Mr Herring was receiving under the Australian age pension and in a sum comparable to that which he was receiving under the US pension payments.  The claim was less than clear because there does not appear in the legislation to be any basis for a claim for a so-called CFP by the Australian Government.

8. On 8 August 2006, an ARO affirmed the decision under review “to not pay you an Australian CFP”.  This decision identified a CFP as a “comparable foreign pension”.  The gist of the decision was the rejection of what the ARO identified Mr Herring to have requested.  In his reasons the ARO said:

   You have told several Centrelink staff that you believe that the Commonwealth Government of Australia is required to pay you a CFP in addition to your Australian age pension. 

9. The reasons then referred to parts of the International Social Security Agreement between Australia and the United States, to which Mr Herring had referred, as well as ss 51 and 51C of the Social Security Act.  The ARO rejected the basis for any payment.  This decision of the ARO was the subject of an appeal by Mr Herring to the SSAT.  This appeal was lodged on 23 August 2006.  The decision under review was identified by the SSAT as:

   A decision made by a Centrelink authorised review officer on 8 August 2006 to not pay Mr Herring an Australian Comparable Foreign Payment.

10. In its findings of fact the SSAT stated the following:

    [6]Whilst receiving an United States social security pension Mr Herring was granted an Australian age pension from 31 December 2003.  His US Pension (currently US$883 per month) reduces his rate of Australian age pension.  This finding is on the basis of his Centrelink records and not disputed by Mr Herring.

    [7]On 21 June 2006, this Tribunal, differently constituted, decided that there was no legislative basis to pay Mr Herring Australian age pension at the same rate as his US social security pension.

    APPLICATION OF THE LAW:

    [8]Whether Mr Herring can be paid an Australian age pension at the same rate as his US social security pension has been already decided by this Tribunal as noted in paragraph 6 above.

    [9]From 20 March 1994, it became mandatory for Australian pensioners to take action to obtain Comparable Foreign Payments.  This requirement was inserted into the Social Security Act 1991 by the Social Security (Budget and Other Measures) Legislation Amendment Act 1993 (No 121/1993).

    [10]Section 23 of the Social Security Act 1991 gives the meaning of Comparable Foreign Payment as a payment that is available from a foreign country and similar to a social security pension.  The meaning is reproduced below:

    “comparable foreign payment” means a payment-type that is:

    (a)available from a foreign country; and

    (b)similar to a social security pension;

    …

    [12]The Tribunal found no provision in the Social Security Act 1991, Social Security (Administration) Act 1999 and Schedule 13 of Social Security (International Agreements) Act 1999 (which contains the Social Security Agreement between Australia and the USA) that provides for a payment called the Australian Comparable Foreign Payment.  The reference to Comparable Foreign Payment in these Acts and agreements is in relation to a different purpose which has been explained in paragraphs 8 to 10 above.

11. From this decision Mr Herring appealed to the AAT. The application for this appeal was filed on 25 October 2006. The reasons for the application are set out in Mr Herring’s handwriting on the application form and refer to schedule 13 of the Social Security (International Agreements) Act 1999.  Various papers were filed with the AAT.  The material filed on behalf of Mr Herring identified a number of grounds of his complaint, including the Social Security Act, ss 8(8) and 23 and other matters.  Mr Herring in one document conceded that he made an error in his appeal to the SSAT by reference to the Social Security Act, s 23. He did, however, place before the AAT arguments in relation to the Social Security Act, s 8(8), to the terms of which I will come. 

12. The decision that was before the SSAT was one which was made following a complaint by Mr Herring of not being paid enough by Centrelink.  At that time, he was claiming that he was entitled to a payment called a “Comparable Foreign Payment” and relied in particular on the Social Security Act, s 23. By the time the matter was before the AAT he recognised an inability to rely upon either the Australia/US Social Security Agreement or s 23 to ground some entitlement for an additional payment called a Comparable Foreign Payment. He did, however, in a number of places in his written and oral submissions deal with s 8(8) and in particular paragraph (s) thereof. Mr Herring said that he was addressing these issues because they had been raised by Centrelink with him.

13. Mr Herring’s essential complaint before me as to the substance of the error of law under the appeal pursuant to s 44 of the AAT Act and the complaints under the AD(JR) Act was that once he had recognised and expressed his error to the AAT about the comparable foreign payment, there was nothing further before the AAT. Thus, he stated, there was no administrative matter before the AAT upon which it could make a decision.

14. The difficulty with this argument is that the decision that was before the AAT and that had been before the SSAT was one that lacked a certain precision.  It was not clear from time to time precisely what Mr Herring was arguing.  Certainly, by the time the matter came before the AAT, as his written and oral submissions display, he was contending for the operation of s 8(8)(s) in his favour.  However, it may have been that this point arose whilst he was addressing the AAT on this issue.  Thus, the AAT had before it what appeared to be a generalised claim by Mr Herring for further payment by the Australian Government, expressed before the SSAT as a claim for a comparable foreign payment and now being expressed before the AAT as, in some fashion, a claim supported by the meaning and operation of the Social Security Act, s 8(8)(s).

15. Though the confines and extent of what was before the SSAT and the AAT are not entirely clear, what is clear is that the decision was not one referable solely to s 23 of the Social Security Act or the operation of the Australia/United Stated Social Security Agreement.  Mr Herring was making a claim for more money from the Australian Government by way of social security payments.

16. Therefore, I do not accept the fundamental argument that Mr Herring puts forward that the AAT was without administrative authority or jurisdiction to deal with the Social Security Act, s 8(8)(s). 

17. That leaves the question of the meaning and content of that provision.  It is a definition provision in the following terms:

    The following amounts are not income for the purposes of this Act:

    …

    (s)in the case of a person who is receiving a social security pension, a social security benefit, a service pension or income support supplement and is in part-time training, or engaged in part-time work experience, under a program included in the programs known as Labour Market Programs – a payment received by the person under that program in respect of the person’s expense associated with his or her participation in the training or work experience;

    …

18. Ms Watson conceded that if the US pension were not income for the purposes of the s 8(8)(s), in all likelihood Mr Herring would be entitled to a further payment by the Australian Government pursuant to the social security legislation.  She was not in a position to identify precisely how much, but the broad proposition can be accepted.  Mr Herring’s argument was and is that the US Pension is a “a social security benefit” on the second line of s 8(8)(s) and is thereby exempt.  In my view, this construction is plainly wrong.  What is exempted are payments received that are referred to after the hyphen on the sixth line of the paragraph.  What appears before the hyphen is the predicate or context of what appears after it.  That is, in the case of a person who is receiving certain kinds of payments being a social security pension, [or] a social security benefit, [or] a service pension or income support entitlement and is in part-time training, or engaged in part-time work experience, under a program included in the programs known as Labour Market Programs, if that person receives payments “under that program in respect of the person’s expenses associated with his or her participation in the training or work experience”, such payments are not income.

19. The obvious thrust of the paragraph is that payments, received in a program which is connected with certain types of programs in which a person receiving social security benefits may be involved in, are not income.  This does not exempt and not is directed in any way to exempting payments such as those received by Mr Herring from the United States Government.

20. In my view, the AAT was plainly correct in refusing to conclude as a matter of law that s 8(8)(s) led to Mr Herring’s entitlement to more funds from the Australian Government by way of pension.

21. In these circumstances, not only do I find that the AAT had authority to address the question of the Social Security Act, s 8(8)(s), but it correctly addressed it.

22. These were the only matters debated before me.  The orders of the Court are:

    1. To the extent necessary, time be extended to the applicant to file any application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to the decision of the Administrative Appeals Tribunal made on 2 May 2007 up to and including 25 June 2007.
    2. The amended application be dismissed.
    3. The applicant pay the respondent’s costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated:        9 October 2007

The Applicant appeared in person.
Solicitor for the Respondent:	Ms D Watson of the Australian Government Solicitors
Date of Hearing:	3 October 2007
Date of Judgment:	9 October 2007