Hiscock and Secretary, Department of Family and Community Services

[2004] AATA 1200

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2004] AATA 1200

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/217

GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLIAM THOMAS HISCOCK

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DIRECTION

Tribunal Senior Member WJF Purcell

Date29 October 2004

PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, and being satisfied that it has no jurisdiction to hear this application for review, the Tribunal directs that the application be dismissed.  

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – application dismissed

Administrative Appeals Tribunal Act 1975 ss 3, 25

Social Security Act 1991 ss 55, 1064

Director-General of Social Services v Chaney (1980) 3 ALD 161

ORAL REASONS FOR DECISION

29 October 2004   Senior Member WJF Purcell           

1.               On 7 July 2004 the applicant lodged an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 24 June 2004, which affirmed the decision of a delegate of 26 March 2004 that the applicant is being paid the correct rate of Age Pension provided for in the Social Security legislation. 

2.               This matter came on for Hearing in relation to the question of jurisdiction; as the applicant maintains that he is not being paid the correct rate of Age Pension from 1 July 2000, pursuant to the Social Security legislation.  Under the heading “Reasons for Application” in his “Application for Review of Decision” he stated:

“The SSAT Tribunal did at no time in its report show written evidence I had received from Centrelink which proves my pension is incorrect.  It has taken four years to reach this point it is obvious to me now that my complaint should have come to you in the first place apparently you have the powers to question legislation and law.  At all interviews previously I have been told they have no jurisdiction over legislation even the Ombudsman stated that.”  [T1/2]

Attached to his application for review was a letter which reads as follows:

“I trust you will forgive me for submitting a separate sheet, I do not wish to retract from reasons given only to add to them.  As I have already stated this case has been going on for over four years, so you can imagine the correspondence that has taken place over this period most of the evidence I will submit will be of written testament.

Reasons for Seeking Review.

First the obvious I don’t agree with it.

I do not agree to the way the SSAT Tribunal was conducted, I was led to understand the interviewers conducting the Tribunal would be of Professional standing and completely independent in their findings.  I queried the two interviewers as to what their profession.  I came to the conclusion they were Public Servants if this was so, their independence would be in jepody [sic].

My main complaint is that evidence shown to the interviewers was not contained in their summing up, not even a mention, as I have stated previously, this is in black an[d] white.  If I am granted an interview (AAT) I will query the decision of the (SSAT) paragraph by paragraph I only wish the interview had been recorded.”  [T1/3]

3.               The applicant attended the Hearing, and Ms Pugsley represented the Department.

4.               The applicant is in receipt of Age Pension.  He considers that pensioners have not been paid the correct amount of pension supplement as promised by the Government when the Goods and Services Tax (GST) was introduced in July 2000.  He has pursued his concerns through political channels, and the Commonwealth Ombudsman.  On 26 March 2004 a Centrelink officer determined that he was being paid the correct rate of Age Pension according to legislation.  The applicant sought review, and on 23 April 2004 an Authorised Review Officer affirmed the decision.  The applicant applied for review to the SSAT. 

5.               The applicant told the SSAT that it has taken him 3 years to pursue this matter, and he was still not satisfied.  He said he had written and spoken with many organisations and politicians including Centrelink, Consumer Affairs, the Commonwealth Ombudsman, his Federal Member of Parliament, Martyn Evans, the Prime Minister of Australia, the Treasurer of Australia, Senators Vanstone, Patterson and Lees, and he has also discussed the matter with the media.

6.               The applicant told the SSAT that he did not disagree with Centrelink’s calculation of his rate, as set out by legislation, and believed that Centrelink officers had implemented the legislation before them.  His argument was that the legislation does not reflect the promises made when “A New Tax System” was proposed.  He explained that the Government promised to compensate pensioners for the anticipated price increases caused by the GST.  He understood the promise to be a 4 percent increase in July 2000, in the form of a pensioner supplement.  He said he received two instalments of the supplement, on 6 July 2000, and 20 July 2000, and he agreed that this represented a total supplement of 4 percent.

7.               The applicant said that he anticipated normal CPI increases to the pension thereafter.  He told the SSAT that there have been correct CPI increases in every March and September after the GST was introduced, except in March 2001.  He said that instead of getting the full CPI in March 2001, it was 2 percent less.  He believes that in March 2001 the Government did not fulfil its promises to give pensioners the correct rate.  He contends that this action has meant that compounded over time, his and his wife’s pensions, including the supplement, is now about $500 a year less than it would have been if full indexation had occurred.  He told the SSAT that the current round of $600 bonuses for carers of children, being paid in an election year, is another “deceptive, devious way of presentation”, and he doubts that recipients will really get extra money.

8. At the Hearing, the applicant repeated, in effect, the submissions he had made to the SSAT, and submitted that the amendments to s 1064 of the Social Security Act 1991 (the Act) in July 2000 did not fulfil the Government’s promise of a 4 percent increase in the base pension to compensate for the incoming GST.  The rate rose only 2 percent in March 2001.  Therefore, in effect, the pensioner’s base rate had 2 percent “knocked off” by the CPI.

9.               Ms Pugsley explained to the applicant that the Government in July 2000 gave a one-off payment to pensioners of 2 percent, and an advance of 2 percent on the March 2001 CPI increase, in acknowledgement of the effects of the incoming GST.  Parliament introduced also, a new payment, a “pension supplement”.  The CPI increase in September 2000 was processed as normal, but in March 2001 the CPI increase had to be adjusted by the 2 percent advance paid in July 2000, hence the increase was reduced to 2 percent.

10.              The applicant most fervently believes that pensioners have been denied what they were promised, and he has pursued his “crusade” since at least March 2001.  He will not accept any other explanation for the 2 percent reduction in March 2001, and I am sure that he will continue to attempt to rectify this position.

11.              The Department does not seek to challenge the Tribunal’s capacity to review a decision made pursuant to Social Security legislation. If the applicant asserts that his rate of payment is not that provided for in the legislation, and that this is the basis for his application to this Tribunal, the Department does not take issue with this application.  However, if the applicant wishes this Tribunal to review whether promises made by the Government have been enacted accurately, the Department is of the opinion that this Tribunal does not have the jurisdiction to review such an issue, and that it is not the appropriate forum for such an issue to be contemplated.

12. The Administrative Appeals Tribunal, it submits, has no general review powers. It may only review those decisions in relation to which it has been given jurisdiction. Section 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) enables an enactment to provide for the review of decisions made under that or another enactment. Section 25 of the AAT Act, as far as is relevant for the purposes of this review, provides:

“(1)     An enactment may provide that applications may be made to the Tribunal:

(a)       for review of decisions made in the exercise of powers conferred by that enactment; or

(b)       for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

(3)       Where an enactment makes provision in accordance with subsection (1), that enactment:

(a)       shall specify the person or persons to whose decisions the provision applies;

(b)       may be expressed to apply to all decisions of a person, or to a class of such decisions; and

(c)       may specify conditions subject to which applications may be made.

(3A)    Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power:

(a)       by any person to whom that power has been delegated;

(b)       in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment - by any person for the time being acting in, or performing any of the duties of, that office or appointment; or

(c)       by any other person lawfully authorized to exercise that power.

(4)       The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

…”

13. The Department contends that essentially the Tribunal, pursuant to s 25(4) of the AAT Act has power to review any decision in respect of which application is made to it under any enactment. “Enactment” is defined in s 3 of the AAT Act as:

“enactment means, subject to section 3A:

(a)       an Act;

(b)       an Ordinance of a Territory other than the Northern Territory; or

(c)       an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance;

and includes an enactment as amended by another enactment;”

14.              The Department maintains that there is no Act which sets out the right to review whether a promise made by the Government is accurately enacted by the Parliament.  Undertakings by the Government, as part of its budget initiative to provide particular services and payments, are subject to Parliament’s scrutiny and consent to enact them.  The Government can only undertake to place such initiatives before the Parliament.  It cannot guarantee that the Parliament will enact legislation in any exact terms.  It contends that a promise does not equate with a decision, and there must exist a decision capable of being reviewed.  It relies on Director-General of Social Services v Chaney (1980) 3 ALD 161 in which Deane J said at p 178:

“The word “decision” is a word of indeterminate meaning.  In some contexts, it can refer to the mental process of making up one’s mind.  In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication.  In such a context, the word “decision” may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue.”

15.              The Department maintains that the promise the applicant refers to, cannot be said to be a published ruling or adjudication, nor can it be said to include the determination of any question of substance or procedure.  The only decision relating to the applicant’s rate of pension payment, that is capable of being reviewed, is the decision to pay him his current rate of payment, and whether it is correct pursuant to the Act.

16. In my view, this Tribunal has jurisdiction to review the SSAT’s decision wherein the rate of Age Pension is calculated using the rate calculator in s 1064 of the Act, in accordance with the provisions in s 55 of the Act. The rate calculator sets out the steps necessary to calculate the amount of basic rate, pension supplement, the pharmaceutical allowance, and rent assistance (if any) to obtain a maximum payment rate. The pension is subject to an income and assets test. From the maximum payment rate therefore, reductions may be made for excess income or assets.

17.              The SSAT was satisfied that the rate of the applicant’s Age Pension, as determined by Centrelink on 26 March 2003 at $390.50 per fortnight, was the correct rate according to legislation.  The applicant does not assert that the rate of his pension, as determined by Centrelink, was the incorrect rate according to the legislation.  He is not challenging therefore, the decision under review, but the terms of the legislation itself which does not, in his view, reflect the promises made by Government before the legislation was introduced to Parliament in the year 2000.  I accept the Department’s submission that this Tribunal does not have jurisdiction to determine this aspect of the applicant’s complaints.

18.              For these reasons, the Tribunal is satisfied that it has no jurisdiction to hear this application for review, and directs that the application be dismissed. 

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .....................................................................................
  Associate

Date of Hearing  29 October 2004
Date of Decision  29 October 2004
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms A Pugsley
Solicitor for the Respondent     Centrelink Service Recovery Team