HOLROYD AND SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 638

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 638

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0661

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANGELA HOLROYD

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  M J Carstairs, Senior Member

Date 25 August 2010

Place Brisbane

Decision  The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Mobility allowance – Foster care – Meaning of “voluntary work” – Application of the Guide as policy – Voluntary work must be approved by the Secretary – Nature of merits review does not lend itself to review of policy – Meaning of “charitable, welfare or community organisations” – Government instrumentalities distinguished from non-government organisations – Foster care for government department not voluntary work – Decision under review affirmed.

Social Security Act 1991 (Cth), ss 1035(1)(f), 1035(3)

Guide to Social Security Law, s 3.6.6.53

Central Bayside General Practice Association Ltd v Commissioner of State Revenue (Vic) (2006) 228 CLR 168

In re Cain (deceased) [1950] VLR 382

Hneidi and Others v Minister for Immigration and Citizenship (2010) 182 FCR 115

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Strauss and Secretary, Department of Family and Community Services (2005) 88 ALD 176

Secretary Department of Social Security v Helen Thiele Knight, Federal Court, 23 December 1996, 286/1996

A Edgar Tribunals and administrative policies: Does the high or low policy distinction help? (2009) 16 AJ Admin L 143

REASONS FOR DECISION

25 August 2010  M J Carstairs, Senior Member     

1.      Angela Holroyd seeks review of a Centrelink decision to cancel her mobility allowance.  On the present application, she was seeking this allowance on the basis of her voluntary work caring for children placed with her under a Queensland Department of Communities (Child Safety Services) programme.

2.      Mobility allowance is a payment designed to help with travel costs where people who have a disability incur outlays for travel associated with undertaking employment, vocational training or “voluntary work”.  To qualify, the disability must be such as to mean that they cannot use public transport.

3.      These days, mobility allowance is paid with respect to voluntary work, but it was not always so. The payment once was paid only with respect to “gainful employment”—that is, paid to people working or training for such employment.  Amendments recognising “voluntary work” were introduced into the Social Security Act 1991 (“the Act”) in 1992.[1]   “Voluntary work” was defined in these amendments.  The scope of this definition provides the focus of the matters now in dispute.

[1] Social Security Legislation Amendment Act (No. 3) 1992.

ISSUE

4.      It is as well, then, to set out the definition of “voluntary work”.  Those words mean “work approved by the Secretary undertaken in a voluntary capacity for charitable, welfare or community organisations”.[2] 

[2] Section 1035(3) of the Act.

5.      The issue before me was whether Ms Holroyd, when undertaking foster caring for the Queensland Department of Communities, was undertaking “work approved by the Secretary” for a “charitable, welfare or community” organisation.

BACKGROUND

6.      The parties agreed that Ms Holroyd satisfied several of the qualifying criteria for the payment of mobility allowance, including that she:

§  is disabled;

§  is unable to use public transport, due to her disabilities[3] (she received disability support pension from Centrelink for nearly thirty years before transferring to age pension);

§  undertakes foster caring in a voluntary capacity.  That is, the foster caring is undertaken voluntarily (of her free will) and is done without payment for her services; and

§  undertakes work to the statutory hours.[4]

[3] Sub-sections 1035(1)(f)(i), (ii)(A) and (ii)(B) of the Act.

[4] 32 hours over four weeks: s 1035(1)(f)(ii)(C) of the Act.

7.      Ms Holroyd has received mobility allowance in the past, when she was studying at TAFE and later as a Lifeline volunteer.  She informed me at the hearing that she is currently receiving the payment, not as a foster carer but for activities she is now undertaking (seeking paid employment).

8.      The Queensland Government pays an allowance to Ms Holroyd as reimbursement for the costs associated with the care she provides. It is quite clear the payments are not wages.  The payment, some $497.61 per fortnight, is called a “caring allowance”. In addition, there are other one-off payments when care commences.  All of the payments are excluded as assessable income under the Income Tax Assessment Act 1936.   

9.      Ms Holroyd says, however, that the Queensland Government provides no reimbursement for travel costs.  She uses her car to drive the children to school; to tutoring; to medical appointments; and to and from work if they have part-time jobs.  Ms Holroyd said that she outlays about $80 per week on petrol in addition to car maintenance and on-road costs.  So it can be seen that her costs are substantial.

WAS THIS WORK APPROVED BY THE SECRETARY FOR CHARITABLE, WELFARE OR COMMUNITY ORGANISATIONS?

10.     The parties focussed their submissions upon the meaning and application of the words “charitable, welfare or community organisations” in the definition of “voluntary work”.

11.     I do not agree that the words “charitable, welfare or community organisations” in this definition should be given the primary focus at the expense of the opening words.  To do so is to fail to appreciate the pivotal role which the words “work approved by the Secretary” play in the definition.  They form part of a composite expression, qualifying the definition. The composite expression must be construed as a whole, not by dissecting it into individual words taken in isolation from one another.

12.     The real significance of the words “work approved by the Secretary” in the definition is that they refer decision-makers to relevant policy considerations.  The definition of “voluntary work” would be capable of possibly wider interpretation had Parliament chosen to draft the definition as “work undertaken in a voluntary capacity” rather than as “work approved by the Secretary undertaken in a voluntary capacity”.  Parliament clearly had in mind some role to be played by those additional words.  As a general principle, all words in a statute are to be given some meaning and effect and not treated as superfluous.[5]  What is or is not “approved by the Secretary” will be expressed in the Guide to Social Security Law (“the Guide”).

[5] DC Pearce and R S Geddes: Statutory Interpretation in Australia (6^th ed) at 2.22.

13.     The Secretary has drafted relevant policy in the Guide to aid in consistent decision-making.  There, it is said with reference to  “voluntary work” (at s 3.6.6.53 of the Guide):

Voluntary work

For the purposes of standard rate … [mobility allowance], voluntary work on a continuing basis, must be:

·likely to last for at least 3 months, AND

·for a period of at least 32 hours every 4 weeks,

·provided willingly by a recipient without obligation or payment, other than for out-of-pocket expenses, AND

·performed for a charitable, welfare or community organisation run on a not-for-profit basis with the objective of providing services or assistance to the community (see examples), AND

·demonstrated by the organisation to have provided a service, product or benefit to the community, AND

·approved by the Secretary of the Department or their delegate, after carefully considering the nature and objectives of the voluntary work

…

Examples:

·Charitable or welfare organisations include the Salvation Army, Meals on Wheels and Society of St Vincent de Paul.

·Some churches/religious organisations also provide services and assistance to the community and can be considered charitable or welfare organisations. Services and assistance such as grief counselling, counselling for the ill and their families, assistance to ill or elderly people, provision of emergency relief/food parcels, or fund raising for charitable works can be considered as qualifying voluntary work. However, activities such as attending services, singing in choirs, or religious canvassing are not considered qualifying voluntary work.

·Community organisations include sporting associations, schools and service clubs such as Rotary, Apex and Lions.

14.     No evidence was presented to me that there were other, more formal, approvals by the Secretary specifying particular categories of voluntary work.  In that respect this was not a case that directly raised the kind of issues addressed by the President of the Tribunal, Downes J, in Re Strauss and Secretary, Department of Family and Community Services (2005) 88 ALD 176. The President in that case was considering a provision of the Act that was worded “determined by the Secretary”. In that case there were formal determinations that had been made by or on behalf of the Secretary. Although not identical, this case raised a somewhat analogous consideration, where the words used in the Act are “approved by the Secretary”.

15.     In Re Strauss the President pointed to the importance of correctly characterising which powers were being exercised when a Tribunal came to review a decision. He noted that a number of powers the Secretary exercises relate to formulating guidelines and “must be distinguished from the ordinary decision-making that much of the Act requires”.[6] 

[6] (2005) 88 ALD 176 at 183 [30].

16.     It is important to consistent decision-making that policy be appropriately applied.  It frequently has been said that tribunals are not the appropriate institutions for reviewing administrative policies.  This was something upon which the President also commented in Re Strauss, observing that Tribunals must be free not to apply guidelines, but that it might be a surprising result if they could redraft them.[7]  For one thing, the nature of merits review does not lend itself to review of policy.[8]  That seems to me to be the case here, where the content and meaning of “work approved by the Secretary” is to be found in the Guide which, as policy, is not a “decision” itself the subject of review.

[7] (2005) 88 ALD 176 at 183 [30]. See also A Edgar Tribunals and Administrative Policies: Does the high or low policy distinction help? (2009) 16 AJ Admin L 143 at 151.

[8] A Edgar Tribunals and administrative policies: Does the high or low policy distinction help? (2009) 16 AJ Admin L 143 at 143.

17.     “Voluntary work” thus entails applying the Guide.  The Guide specifies that the work must be performed for “a charitable, welfare or community organisation run on a not-for-profit basis with the objective of providing services or assistance to the community” [emphasis added].

18.     Mr A Davison, who appeared for the applicant, submitted however that the Department of Communities does operate on such a basis; that is, it is not run for profit.  However that argument does not withstand close scrutiny.  It is simply not correct to characterise government departments as “not-for-profit”, because they are not run with a profit motive.   To argue that way ignores a fundamental distinction which the law recognises when describing an organisation as “not-for-profit”.  To be a not-for-profit organisation means that any profit or surplus be used to further the organisation’s purposes, and not distributed to owners, members or any other individual or group of individuals.  Such organisations are by their nature non-government organisations. 

19.     Government departments, on the other hand, expend allocations of public money for public purposes.  Whilst it might be true to point to the absence of a profit motive in their activities, this does not make them “not-for-profit” organisations, such as the law recognises. 

20. The Guide assists those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines, may do so and, indeed, will usually do so unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645, a principle recently reaffirmed by the Full Federal Court in Hneidi and Others v Minister for Immigration and Citizenship (2010) 182 FCR 115.

21.     The Guide confirms that the kind of organisations that will qualify as being “charitable, welfare or community organisations” will only be those run on a not-for-profit basis.  Government departments have no independent legal status, and it seems to me to be beyond doubt that government departments cannot meaningfully be described as “not-for-profit organisations”.   Some support for this can be found—implicitly, if not explicitly—in the High Court decision of Central Bayside General Practice Association Ltd v Commissioner of State Revenue (Vic) (2006) 228 CLR 168.  In particular, Kirby J emphasised that if the purposes of an organisation are not more than to implement governmental objectives, this would “colour the character of the body” regardless of whether the governmental policies are charitable or non-charitable.[9]  Organisations coloured in that way lack “the charitable ‘purposes’ necessary to attract characterisation as a ‘charitable body’”.[10]

[9] (2006) 228 CLR 168 at 209 [123].

[10] (2006) 228 CLR 168 at 210[126].

22.     The High Court also stated in Central Bayside that where a statute uses the word “charitable” it is intended to bear this technical legal meaning, unless otherwise indicated.[11] Similar considerations, I suggest, apply to the term “welfare”, when its meaning is to be understood as part of a composite expression “charitable, welfare or community”. 

[11] See also Exhibit R4 (Taxation Ruling 2005/21).

23.     Taking the view that I do of how the definition of “voluntary work” is to be construed, i.e. giving primacy to the Guide, I must affirm the decision that Ms Holroyd is not entitled to be paid mobility allowance while foster caring for a government department.

OTHER SUBMISSIONS

24.     Mr Davison drew my attention to instances in State legislation where the terms “community” and “voluntary” have come to be defined without regard to the distinction between public or private bodies, particularly for purposes of civil liability.  He noted that “community organisation” is defined in a number of State Acts to include public authorities and their agencies. 

25.     Mr Davison developed this argument by pointing to the wide meaning given to the word “community” in ordinary parlance, which he said encompasses, amongst other possible meanings, “the public” and “the community at large”.  He referred me to the Department of Communities’ stated purpose on its website: to “strengthen and protect the well-being of Queenslanders, particularly those who are vulnerable and in most need”.[12]

[12] I do not think that this approach assists.  The word “community” takes its meaning from the words around it.  Looked at in that way, it is part of the composite expression “charitable, welfare or community”, the common element of which is that they be not-for-profit.  That is consistent with the interpretation placed on it by the Secretary, set out in the Guide. 

27.     For completeness, I will mention three other submissions.  Mr Davison relied on the principle expressed by Tamberlin J in Secretary, Department of Social Security v Helen Thiele Knight (Federal Court, 23 December 1996, 286/1996) that the Act is beneficial legislation and should be interpreted accordingly. However, his Honour went on to observe that the interpretation of beneficial provisions must be “kept within the confines of the actual language employed and that which is fairly open on the words used”. In this case, the confines of the language used in the definition of “voluntary work” do not allow the interpretation urged by Mr Davison.

28.     Mr Davison referred to the Explanatory Memorandum to the amending Act, which had only mentioned one kind of exclusion, namely that “voluntary work” was not to cover people who merely were providing unpaid work to family, relatives or friends.  The explanatory material does not give any guidance to interpreting the meaning of “organisations” in the definition of “voluntary work”.

29. Mr Davison submitted, also, that the Act did not expressly exclude people such as Ms Holroyd. He said it would be illogical if she would qualify for mobility allowance as a foster carer under the auspices of a charity or a religious group, but not qualify when doing the same work for the State Government. That may well seem to be an anomaly, but I doubt that it was unintended. It is no less anomalous than the situation referred to by Dean J In re Cain (deceased) [1950] VLR 382. The Court observed at 387 that “a gift for carrying on the ordinary activities of a Government department pursuant to a statute … is not a gift for charitable purposes, even if the activities are such that if carried on by private persons they would be charitable”.

30.     For whatever reason, Parliament has seen fit to distinguish activities of volunteering carried out for a government instrumentality, from those undertaken for non-government organisations.

DECISION

31.The Tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.

Signed: .........................[Sgd]...........................................
  Mátyás Kochárdy, Associate

Date of Hearing  27 April 2010
Date of Final Submissions       10 June 2010
Date of Decision  25 August 2010
Solicitor for the Applicant          Mr A Davison, Welfare Rights
Solicitor for the Respondent     Mr M Hawker, Sparke Helmore