JACK MULDER and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2012] AATA 295
[2012] AATA 295
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4226
Re
JACK MULDER
APPLICANT
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT
DECISION
Tribunal M D Allen, Senior Member
Date 30 March 2012 Date of written reasons 14 May 2012 Place Sydney For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.
............[sgd]............................................................
M D Allen, Senior Member
CATCHWORDS
SOCIAL SECUIRTY – Newstart Allowance – application of income test - reduction in payment – deemed income from investments –order made pursuant to Proceeds of Crime Act 1982 - decision under review affirmed
LEGISLATION
Social Security Act 1991: ss 9, 1068, 1121; Division 1K of Part 3.10
Proceeds of Crime Act 2002: s 18
CASES
Fischer v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) 114 ALD 6528661
REASONS FOR DECISION
M D Allen, Senior Member
14 May 2012
At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals TribunalAct 1975, requested the Tribunal to furnish to him a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision,
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision.
I certify that the following paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member.
..........[sgd]..............................................................
Associate
Dated 14 May 2012
Date(s) of hearing 30 March 2012 Applicant In person Solicitors for the Respondent Mr T Giugni, Australian Government Solicitor EXTRACT OF TRANSCRIPT PROCEEDINGS
(1)MR ALLEN: At the outset, I believe it should be noted for the transcript, that although I said I would adjourn to 12 o’clock, and it’s now approximately 4 minutes past 12, the applicant, Mr Mulder, is not present. I intend, however, to deliver my decision.
(2)The application was made the fourth day of November, 2011. The Applicant sought review of a decision of the Social Security Appeals Tribunal, which decision affirmed a prior determination by Centrelink, to reduce the rate of Newstart Allowance paid to him due to deemed income from investments. Section 1068 of the Social Security Act 1991, provides for the calculation of the rate of Newstart Allowance paid to a person.
(3)That allowance is subject to an income test; see Module G. This income test provides for a reduction in the rate of Newstart Allowance if a person has an ordinary income in excess of $62 per fortnight. Pursuant to the deeming provisions, in Division 1K of Part 3.10 of the Social Security Act 1991, a person with financial assets is deemed to receive ordinary income from those assets at specified rates. Deemed ordinary income is included in a person’s other ordinary income in applying the income test under section 1068 of the Social Security Act 1991.
(4)The term “financial assets” is defined in section 9 of the Social Security Act 1991, inter alia, as:
(a) available money; or
(b) deposit money; or
(c) a managed investment; or
(d) a listed security; or
(e) a loan that has not been repaid in full; or
(f) an unlisted public security; or
(g) gold, silver, or platinum bullion; or
(h) an asset-tested income stream.
(5)Section 9 further provides that ‘deposit money’ means money that is deposited in an account with a financial institution, which definition is wide enough to cover the moneys howsoever obtained.
(6)The Applicant declined to give evidence in this matter, but did make statements from the Bar table. I have taken those statements into account, together with the contents of a letter written by the Applicant to the Tribunal, which later became exhibit A1 in these proceedings. These documents, together with the documents prepared for the Tribunal, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, enable me to find:
(1)The Applicant received the sum of $125,000. The Applicant claims this sum was a loan from his brother, but the Respondent does not necessarily accept this. I do not regard the source of the moneys as material in these proceedings.
(2)The sum of $125,000 was deposited in a term deposit account in the Applicant’s name with the National Australia Bank, being account number [ - ].
(3)On 4 February 2011, by order of the Supreme Court of NSW, and pursuant to section 18 of the Proceeds of Crime Act 2002, the Applicant, and any other person, were restrained from disposing or dealing in any way with the funds, including interest, of the said account.
(4)Notwithstanding the Applicant’s inability to access the said National Australia Bank account, either as to capital or interest, the Respondent has continued to deem the Applicant as receiving income from the said account.
(7)Section 1121 of the Social Security Act 1991, allows for the value of an asset to be reduced by the value of a charge or encumbrance over the asset. This provision does not apply for the purpose of the deeming provisions under the Social Security Act 1991, division 1B, part 3.10, see Katzmann J in Fischer v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) 114 ALD 652, where her Honour said, commencing at paragraph 58:
“On its face the section now provides that the value of an asset is to be reduced by the value of any charge or encumbrance over it for the purposes of calculating the value of a person’s assets for the purposes of the Social Security Act, except for the purpose of deeming income from the financial assets with which division 1B is concerned. Thus, in the context of this case, for purpose of deeming income from the applicant’s shares, the value of those shares is determined without reducing it by the value of the margin loan.”
(8)At paragraph 59, her Honour continued:
“The words of the section do not admit of any alternative construction, let alone the one the applicant contends for. Senator Patterson’s remark clarified the purpose of the amendment was to put it beyond doubt, that it was the gross value of an asset which was to be used for the purpose of deeming income from financial assets and there was to be no set off for any charge or encumbrance upon it.”
(9)In any event, the restraining order, pursuant to section 18 of the Proceeds of Crime Act 2002, does not impose a charge or encumbrance over the funds frozen by that order. No argument was addressed to me by the Applicant as to the correctness, or otherwise, of the calculations of the amount by which his Newstart Allowance has been reduced. These calculations were addressed by the Social Security Appeals Tribunal in its decision and in the absence of any submissions by the Applicant, that the said calculations were incorrect, I have accepted their accuracy.
(10)Mention was made by the Respondent in the Statement of Facts, Issues and Contentions lodged by Centrelink as to payments to the applicant pursuant to the hardship provisions in the Social Security Act 1991. As the Applicant has not made any application for payment under those provisions, I do not have jurisdiction to consider whether or not the Applicant might be entitled to any such payment.
(11)I would only mention for the purposes of completion that the Applicant asked that these proceedings be adjourned to allow him to obtain legal representation. My reasons for refusing such an adjournment can be found in the transcript, where I dealt with the Applicant’s several applications. Suffice it to say, for these reasons, there has been no notification to the Tribunal by Legal Aid NSW that it was representing the Applicant, and the Applicant has had ample notice of the dates of this hearing, a previous hearing of 5 March having been vacated because he was appearing in another court. There was no material before me to indicate that the Applicant had engaged a legal representative and that that representative had failed to appear as instructed. The decision under review is affirmed.
0
0
0