Jackson and Secretary, Department of Social Services (Social services second review)
[2023] AATA 1286
•22 May 2023
Jackson and Secretary, Department of Social Services (Social services second review) [2023] AATA 1286 (22 May 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0680
Re:Joshua Jackson
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:22 May 2023
Place:Canberra
Application refused.
..………..[SGD]………….
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – application for extension of time in which to make an application for review – factors relevant to exercise of discretion – length of delay – explanation for delay – prejudice – merit – alternative remedy – not reasonable in circumstances – application refused
SOCIAL SECURITY – Newstart Allowance – declaration of earned income – overpayment debt – initial calculation of overpayment based on income averaging – subsequent recalculation based on bank statements, estimation of gross income and apportionment to entitlement period – overpayment debt and recovery affirmed by AAT first review – incidents of power exercised – finality of AAT decision – power of Secretary to recalculate the overpayment debt following AAT first review decision – re-exercise of power subject to contrary intention – contrary intention subject to new information or subsequent events not before the decision maker – review power essentially conditioned by ‘sufficient reason’ or application for review – statutory scheme allows for progressive decision making – re-exercise of power triggers fresh review rights
Legislation
Acts Interpretation Act 1901 (Cth), s 33
Administrative Appeals Tribunal Act 1975 (Cth), ss 2, 25, 29, 43
Migration Act 1958 (Cth), ss 501
Social Security Act 1991 (Cth), ss 1062, 1068, 1222A, 1223, 1229A, 1229B, 1229C, 1229E, 1229F, 1233, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth), ss 43, 126, 129, 142, 144, 179, 180, 182
Cases
AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571
Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) AATA 179, 2 ALD 634
Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394
Pham v Commonwealth of Australia [2002] FCA 669
Pham v Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
REASONS FOR DECISION
Mr S. Webb, Member
22 May 2023
Several years ago, Joshua Jackson was paid amounts of Newstart Allowance. At the time he was also earning income from casual employment. Issues arose in respect of his declaration of earnings and overpayment. Following a data-matching exercise with the Australian Tax Office (ATO), an overpayment debt was raised against Mr Jackson on the basis of income averaging. The debt was fully recovered by garnishee. Mr Jackson provided bank statements recording amounts deposited into his bank account by his employer during the relevant period. The amount of the overpayment debt was recalculated and reduced on the basis of the bank statement records. Mr Jackson exercised his review rights. The amount of the recalculated overpayment debt was affirmed by an Authorised Review Officer (ARO) and, subsequently, by the Tribunal in an AAT first review decision.
Presently, more than 3 years later, following the Royal Commission into the Robodebt Scheme, Mr Jackson cavils with the debt. He has applied for review of the AAT first review decision and for grant of an extension of time in which to do so.
The Respondent Secretary does not oppose this application.
The Secretary’s legal representative informed me a new Departmental policy was promulgated in December 2022 in respect of assessing income from a claimant’s bank records, under which records from Mr Jackson’s previous employer/s would be obtained. The Secretary explained it would be desirable for Mr Jackson’s debt to be recalculated under the new policy, as this might increase or decrease the amount of the overpayment debt. In the Secretary’s submission, however, it is not open for Mr Jackson to apply to the Secretary for the debt amount to be recalculated as the bar on further consideration of matters decided by the Tribunal continues to apply. The only option open to Mr Jackson in the circumstances, the Secretary asserts, is to apply to the Tribunal for review of the AAT 1st review decision, albeit more than 3 years out of time.
In Mr Jackson’s submission, if the Secretary is correct about the binding nature of the AAT 1st review decision, then he should be granted an extension of time in which to apply for 2nd review by the Tribunal as, otherwise, no alternative remedy exists.
This assertion requires close consideration of the correct construction and operation of the review provisions in the social security law before dealing with the extension of time Mr Jackson is seeking.
Facts
In the period from 13 February 2015 to 21 May 2015, Mr Jackson was in receipt of Newstart Allowance. He was also employed by Scentre Group on a casual basis. He was required to report his income from employment fortnightly. Mr Jackson attempted to report his earned income on 12 and 26 March 2015 but, on each occasion, there was an error, and his earned income was not applied. Mr Jackson was informed of the error. He alleges he then contacted Centrelink and provided his earned income information by telephone. There is no record of this occurring. Mr Jackson reported amounts of earned income on 9 April 2015, 23 April 2015, 7 May 2015 and 21 May 2015. It is not clear if Mr Jackson reported his gross or net income from employment.
On 26 March 2015, Centrelink raised an overpayment debt against Mr Jackson in the amount of $214.71 on the basis his income from employment was not taken into account in the period 28 February 2015 to 12 March 2015.
Centrelink obtained information from the ATO which suggested Mr Jackson’s income in 2015 was higher than the income he declared. Mr Jackson asserts he then provided information to Centrelink in respect of his earned income in the period 13 February 2015 to 21 May 2015.
On 3 November 2016, Centrelink decided to raise and recover an overpayment debt for which Mr Jackson was liable in the amount of $3,414.45 for the period 13 February 2015 to 21 May 2015 (debt period)(primary decision). In all likelihood the amount of the debt was calculated using income averaging based on the information obtained from the ATO.
On 25 July 2019, the debt was fully recovered by way of garnishee on Mr Jackson’s tax refund. I understand the amount recovered was $3,532.88, which included an amount of accrued interest charges.
On 12 August 2019, Mr Jackson provided Centrelink with bank statements which recorded amounts deposited into his bank account by his then employer, Scentre Group, during the debt period. It is likely the deposited amounts were net weekly income payments, although this has not been conclusively established.
On 23 August 2019, Centrelink reviewed Mr Jackson’s overpayment debt and decided to revise the amount of the debt to $2,485.82 during the debt period (review decision) and to apply an interest charge of $87.42. Mr Jackson was refunded an amount of $959.64, being the difference between the recovered amount and the revised debt and interest charge amounts. The factual basis on which the debt amount was recalculated in the review decision is not clear.
Mr Jackson requested review of this decision.
On 30 September 2019, an ARO decided to affirm the review decision Mr Jackson had a recoverable Newstart Allowance debt in the amount of $2,485.82 during the debt period to which an interest charge of $87.42 applied (ARO decision).
On 1 November 2019, Mr Jackson applied for AAT first review by the Tribunal.
On 13 December 2019, the Tribunal of first review decided to affirm the ARO’s decision (AAT 1st review decision). The Tribunal had before it 249 pages of documents provided by Centrelink which have not been adduced thus far in these proceedings. Mr Jackson attended the AAT first review hearing and gave oral evidence. The AAT 1st review decision does not particularise any submissions Mr Jackson made during the hearing. In its decision, the Tribunal stated:
… The Tribunal acknowledges that Mr Jackson attempted to report his income to Centrelink on a regular basis but overall it appears he underreported his income in the relevant period.
…
On the basis of the evidence, the Tribunal finds that Mr Jackson was overpaid newstart allowance in the period under review because he did not declare all of his income and that the overpayment amounted to $2,485.82 for the period 13 February 2015 to 21 May 2015.
The Tribunal did not set out with any particularity the basis of its finding Mr Jackson under-reported his earned income during the debt period, the material on which the amount of the overpayment was calculated, or the evidence on which it was satisfied the amount of the debt was correct. This notwithstanding, the Tribunal decided under s 1223(1) of the Social Security Act the overpayment amount (which had already been recovered) was a debt due to the Commonwealth, which was recoverable. The Tribunal decided there were no grounds to write off the debt under s 1236 of the Social Security Act, or to waive recovery of the debt under s 1237A or s 1237AAD of that Act.
The Tribunal did not address issues relating to the application and calculation of the interest charge under s 1229A or s 1229B or exemptions provided for in s 1229E and s 1229F of the Social Security Act. It did not refer to the issuing of a garnishee notice under s 1233.
On 3 February 2023, Mr Jackson lodged an application for review of the AAT 1st review decision with an application for an extension of time in which to do so. In his application, Mr Jackson stated:
This has been going on for years and caused me a lot of stress and anxiety throughout the process. I would have preferred not to have revisited this case, however learning more about how unlawful it was and how other people in my situation received their money back, I do just want to resolve it and truly understand how I owe $2,500. I have been told many conflicting pieces of information. I was also waiting for a positive outcome from the class action. To no avail.
… The decision was made back in 2019 I was not entitled to a robo-debt refund for withholding amount of around $2,500, however considering the information that has been presented since then and the royal commissions current investigation into the unlawful activities associated with the robo-debt, I have decided to revisit the case as many people I have spoken to are in the same situation and I believe the amounts were not correctly calculated. I have not been provided with detailed information. Just a statement to say I owed. I feel robbed.
…Today 03/02/2023 I was told from Centrelink representative that the shortfall was only under $500 which was paid back and from looking at my account and the reporting amounts, around $2,500 should have been paid back to me. Which I have been saying for years now.
After speaking to a Centrelink representative today that said the pay slip review was not correct and could not see any evidence as to why around $2,500 was withheld and could not see or explain why I would not have received it back. He also said he could not go into it further as the AAT was superior to his level and was unable to help me without giving any explanation as to how or why the AAT had come to the decision of withholding the amount. As he could see that I was owed around $2,500 but did not want to go against the decision of the AAT.
I want to appeal to the Tribunal to review my case in light of new information about robo-debt and that it was deemed illegal.
…
I want to know why I am being told that I am not entitled to a refund because I had my case heard through the Tribunal. Why should I be penalised?
On 24 February 2023, the Secretary informed the Tribunal Mr Jackson’s application for an extension of time would not be opposed.
On 7 March 2023, the Secretary informed the Tribunal:
The amended debt was calculated based on bank statements provided by the Applicant on 12 August 2019 (which showed amounts credited to the Applicant by ‘Scentre Group’ on a weekly basis), and therefore the amended debt does not rely on ATO averaged employment income information. The weekly amounts were apportioned into the Centrelink fortnightly entitlement period.
As a result of recent policy changes regarding income assessment methodology (relevantly, including the methodology used to assess income amounts contained in bank statements), the Secretary anticipates the debt under review will need to be further recalculated.
Information provided on behalf of the Secretary during the interlocutory hearing suggests the debt amount of $2,485.82 was calculated on the basis of Mr Jackson’s net weekly income paid into his bank account by Scentre Group during the debt period. The calculation proceeded on an estimation of his gross weekly income. The estimated gross amount thus obtained was then converted to a daily amount, although the denominator applied has not been identified, and then apportioned to the particular fortnightly Newstart entitlement period.
Issues
For the purposes of s 29(7) of the Administrative Appeals Tribunal Act 1975 (AAT Act), it is necessary to determine if it is reasonable in all the circumstances to grant Mr Jackson an extension of time in respect of his application for review of the AAT 1st review decision.
In this context, it is relevant to consider if other remedies are available to Mr Jackson and, in particular, if the Secretary has power to review the primary determination even though it has been subject to review and affirmed by an ARO and by the Tribunal of first review. For this reason, it is necessary to consider the Secretary’s power to review a decision under the Social Security (Administration) Act 1999 (Administration Act) and the limiting effect, if any, of an AAT 1st review decision.
Secretary’s power to review
The Secretary argues once the Tribunal has made a decision in respect of an overpayment debt, addressing the amount of the debt raised and the non-recovery provisions set out in Part 5.4, Chapter 5 of the Social Security Act 1991 (Social Security Act), the decision is binding and, subsequently, the Secretary has no power to recalculate the debt or to consider the applicability of non-recovery provisions in respect of it. This is so, the Secretary asserts, even where the circumstances of the debtor have changed or where new information relevant to the calculation of the overpayment debt or to the applicability of the non-recovery provisions has come to light.
Mr Jackson argues it is unfair for a person in his circumstances to be treated differently than others who, in the context of the Robodebt Royal Commission, obtained relief from alleged overpayment debts which were unlawfully calculated and raised. He asserts obtaining a fair and equitable outcome should not depend on the Tribunal granting him an extension of time, when more than 3 years have elapsed. This is especially so, he contends, where the debt calculation which was affirmed by the ARO and the Tribunal at first review relied upon estimations of his gross earnings and averaging to obtain a daily rate which could then be apportioned to payment periods for Newstart Allowance.
Review provisions
The Administration Act provides for review of decisions made under the social security law. There are 4 kinds of review.
The first is under s 126. This section confers a broad discretion on the Secretary to review a decision of an officer under the social security law if there is sufficient reason to do so:
(1) The Secretary may review, subject to subsection (2), a decision of an officer under the social security law if the Secretary is satisfied that there is sufficient reason to review the decision.
(2) The Secretary may review a decision:
(a) whether or not any person has applied for review of the decision; and
(b) even if an application has been made to the AAT for review of the decision.
(3) The Secretary may:
(a) affirm a decision; or
(b) vary a decision; or
(c) set a decision aside and substitute a new decision.
(4) If:
(a) the Secretary sets a decision aside under subsection (3); and
(b) the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.
The discretion is not conditioned by an application for review and, as can be seen, it is available for exercise even if an application has been made to the AAT for review of the decision.
The second kind of review is under s 129. A person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision:
(1) Subject to subsections (3) and (4), a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.
(3) …
(4) A person may not apply under subsection (1) for review of:
(a) a decision made by the Secretary himself or herself; or
(c) …; or
(d) …; or
(da) …; or
(db) …; or
(dc) …; or
(f) a decision made by the Chief Executive Centrelink himself or herself in the exercise of a delegated power.
(5) A reference in this section to a decision of an officer under the social security law includes a reference to a determination that the Secretary is taken, by virtue of a provision of the social security law, to have made.
The right of a person to apply for review is not limited or disapplied where an application has been made for review of a decision by the Tribunal.
Where an application is made under s 129 for review of a decision, s 135 applies:
(1) Subject to subsection (3) and subsection 127(1), if a person applies under section 129 for review of a decision, the Secretary, the Chief Executive Centrelink or an authorised review officer must:
(a) review the decision; and
(b) do one of the following:
(i) affirm the decision;
(ii) vary the decision;
(iii) set the decision aside and substitute a new decision.
(2) …
(3) An authorised review officer may not review a decision relating to the exercise of the Secretary’s power under section 181 of this Act.
(5) If:
(a) a person sets aside a decision under subsection (1); and
(b) the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.
As can be seen, where a person applies for review of a decision under s 129, the section requires the Secretary, the Chief Executive Centrelink or an ARO to review the decision and do one of the things set out in s 135(1)(b). While the powers thus conferred on an ARO are limited by s 129(3), no such limit applies to review by the Secretary or the Centrelink Chief Executive.
The third kind of review is AAT first review under s 142:
(1) Subject to section 144, application may be made to the AAT for review (AAT first review) of:
(a) a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or
(b) a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.
(4) For the purposes of subsection (1), the decision made by the Secretary, the Chief Executive Centrelink or the authorised review officer is taken to be:
(a) if the Secretary, the Chief Executive Centrelink or the authorised review officer affirms a decision—that decision as affirmed; and
(b) if the Secretary, the Chief Executive Centrelink or the authorised review officer varies a decision—that decision as varied; and
(c) if the Secretary, the Chief Executive Centrelink or the authorised review officer sets a decision aside and substitutes a new decision—the new decision.
For present purposes, it is not necessary to refer to the exclusions set out in s 144 which are not relevant in this case. Clearly enough, where, at any time, the Secretary (or an ARO) makes a decision in exercise of the review power under s 126 or s 135 of the Administration Act, application may be made for AAT 1st review of the decision.
The fourth kind of review is AAT second review under s 179:
(1) Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
(2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a) if an AAT first review affirms a decision—that decision as affirmed; or
(b) if an AAT first review varies a decision—that decision as varied; or
(c) if an AAT first review sets a decision aside and substitutes a new decision—the new decision; or
(d) if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT—the directions or recommendations of the AAT.
While s 142(4) and s 179(2) set out the decision which is taken to be before the Tribunal on AAT first review and AAT second review, respectively, provision is made in s 182 for this to be changed should an officer decide to vary the decision or substitute a new decision after an application for AAT first review or AAT second review has been made:
(1) If an officer varies or substitutes a decision after an application has been made to the AAT for AAT first review of the decision, the application is taken to be an application for review of the decision as varied or substituted.
(2) If an officer varies or substitutes a decision after an application has been made for AAT second review in relation to the decision:
(a) the AAT is taken, on AAT first review, to have varied or substituted the decision under review in the way the officer did; and
(b) the application is taken to be an application for AAT second review of the decision as varied or substituted.
(3) If the person who made the application does not want the AAT to review the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.
It appears s 182(2) proceeds on the basis an officer may vary or substitute a new decision in place of a decision made by the Tribunal on AAT first review and, where this occurs, the AAT is taken to have varied or substituted the decision under review in the way the officer did.
In the Secretary’s submission, there is clear power for the Secretary to review a decision under s 126 after an application has been made for review of a decision. The power is available for exercise where an application has been made for AAT first review or AAT second review. Nevertheless, the Secretary argues the power is limited to the extent s 126 does not allow him to revisit a decision made by the AAT on first review in circumstances where no application for AAT second review is on foot. The power conferred by s 126, so the argument goes, cannot be construed in a manner which allows the Secretary to review and to ‘override’ an AAT first review decision (or an AAT second review decision) as this would not be consistent with the legislation and it would run counter to the basic principles underpinning the external merits review scheme.
The Secretary’s argument runs on two legs. The first is in respect of the binding effect of a Tribunal decision, whereby the Secretary must give effect to the decision unless and until the decision is set aside. The second is in respect of an inherent intention not to allow re-exercise of power by a decision maker where the power has been exercised by the Tribunal under s 43(1) of the AAT Act.
Binding effect
It has often been said the Tribunal steps into the shoes of the person who made the decision under review and makes a fresh decision on the materials placed before it. In so doing, under s 43(1) of the AAT Act, the Tribunal is able to exercise all of the powers conferred upon the previous decision-maker and is subject to the same constraints. Importantly, the scope of the Tribunal’s review is determined by the statutory question posed for determination by the primary decision-maker:
The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision.[1]
[1] Frugtniet v Australian Securities and Investments Commissions [2019] HCA 16, per Kiefel CJ, Keane and Nettle JJ at [51].
A factual decision of the Tribunal is made at, or in respect of, a point in time on materials and information then available, addressing the same statutory question as the previous decision-maker. As will appear, should new information come to light or subsequent events occur, questions may arise about the correctness or the enduring effect of the Tribunal’s decision, and the re-exercise of power. Nevertheless, a Tribunal decision must be given effect by the department or government agency with administrative responsibility for the legislation under which it was made. Under s 43(6) of the AAT Act, the effect of a Tribunal decision to vary the decision under review or to set aside and substitute a new decision is not optional:
A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
In this manner and to this extent, a factual decision of the Tribunal is final, subject only to appeal to the Federal Court on a point of law.
Questions of validity may impose upon the threshold of legal effectiveness of a Tribunal decision.
Such questions might arise in any one of the circumstances Smithers J discussed in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (Brian Lawlor),[2] namely where there is an invalid delegation of power, where the administrator acts under dictation, in bad faith, takes into account irrelevant considerations, or fails to have regard to relevant considerations, acts unfairly or acts inconsistently with the law. Where a decision of the Tribunal is affected by jurisdictional error and the legislation does not expressly give legal effect to such a decision, the proposition the decision has legal effect unless and until it is set aside must be approached with caution.[3]
[2] [1979] FCA 21 at [51].
[3] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (Bhardwaj), per Gaudron and Gummow JJ, with whom McHugh J agreed, at [50]-[54].
While the affectation of legal rights and liabilities requires a legally effective decision, there is a difference between the decision in fact made, the steps taken to implement the decision by officers of the particular department or government agency acting in accordance with statutory, policy or procedural requirements and the consequent legal effects of those actions.[4] Where the decision in fact is made without legislative authority and statutory power or in excess of jurisdiction it is void and no decision at all: it is a nullity without legal basis or effect.[5] Such a conclusion may be reached, in retrospect, by a Court on judicial review, or by the decision-maker (as occurred in Bhadwaj’s case) should a clear jurisdictional error be identified. Until such a finding is made, while a decision in fact may be voidable, it has practical effect in the administrative context in which it is made, at least to the extent of the steps taken to implement the decision and the legal consequences of those steps being taken.
[4] Brian Lawler, per Smithers J at [60].
[5] Bhardwaj, per Gaudron and Gummow JJ at [51].
It does not follow, and it should not be assumed, a Tribunal decision in fact may be treated as provisional,[6] or it may be revisited without authority on grounds of perceived error[7] or changed circumstances.[8]
[6] Ibid, per Kirby J (in dissent) at [121]-[123].
[7] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394 at [83].
[8] Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9, per Gleeson CJ, McHugh, Gummow and Hayne JJ at [29]-[30].
The effect of a decision of the Tribunal is subject to applicable provisions of the legislative scheme under which it is made.
Tribunal decisions have an administrative character. This is so because the Tribunal is a statutory review body established within the administration of government. It is not a Court. When the objectives of the Tribunal in s 2A of the AAT Act are read with s 25 and s 43, the administrative nature of the Tribunal’s function and powers in the review of government administrative decisions can clearly be understood. Nevertheless, the Tribunal is vested with statutory authority to determine issues with legally binding consequences[9] and to make administrative decisions which affect people’s rights.[10]
[9] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 at [161].
[10] Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792 at [20].
The Tribunal has no inherent jurisdiction and exercises jurisdiction conferred upon it by legislation to review decisions made under enactments in the purported exercise of powers conferred, where the enactment provides for an application for such review to be made and the particular decision is reviewable by the Tribunal. While the Tribunal conducts business in a court-like manner, according to the judicial model[11], the Tribunal’s review does not proceed on principles applicable to judicial review, rather it is required to make decisions in reference to standards of good government:
55. …The very absence of guidelines as to the exercise by the Tribunal of its powers of review is a most significant feature supporting a conclusion that review is to proceed by reference to the standard of good government. It is a short step to infer that the overriding purpose of the Act is to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task.
56. It is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review. In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.[12]
[11] Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12, per Brennan J at [161].
[12] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (Brian Lawlor) [1979] FCA 21 per Smithers J at [55]-[56].
Whatever the conception of ‘good government’ might embrace in the form of standards or requirements, it can be accepted:
[The Tribunal] is obliged to act judicially, that is to say with judicial fairness and detachment. It is subject to the same general restraints to which the administrative officer whose decision is under review was subject, namely that the relevant power must not be exercised for a purpose other than that for which it exists . . . that regard must be had as to the relevant considerations, and that matters absolutely apart from the matters which by law ought to be taken into consideration must be ignored". Thus natural justice must be afforded to the applicant.[13]
[Citations removed.]
[13] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85, per Smithers J at [12] citing Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, at p 589.
It can also be accepted consistency from case to case is desirable:
In proceedings before the court the question for its determination is whether, on the material before the Tribunal, the decision which the administrative decision maker made was the correct or preferable. The Act offers little specific guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. It is, however, plainly desirable that, conformably with the ideal of justice in the individual case, there be consistency in the treatment of the individual from one case to the other. It is inevitable that the desirability of such consistency will lead to the mergence of general principles of administrative practice and to the Tribunal's being conscious of the fact that subsequent administrative decision makers and Tribunals are likely to look to what is said in one case for guidance as to general principles of administrative practice to be applied in subsequent cases.[14]
[Citations removed.]
[14] Ibid, per Deane J at [11].
The desirability of consistent treatment, one case to another, guided by general principles of administrative practice conforms to conceptions of ‘good government’.[15] It is for this reason, in many cases, the Tribunal adheres to relevant non-binding administrative or operational policies unless there is a good reason not to do so. Furthermore, drawing guidance from a Tribunal decision in respect of general principles of administrative practice which might be subsequently adopted or applied in cases of like kind may have a desirable normative effect on government administrative decision-making. This notwithstanding, just as the Tribunal does not have power to determine legally binding principles of law, it does not have power, generally, to determine principles of administrative practice with binding effect.
[15] Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) AATA 179, 2 ALD 634.
The enduring effect of a Tribunal decision is conditioned by the nature of the decision and the statutory power exercised, and it may be affected by any subsequent exercise of power.
Where the legislation provides for a progressive approach to administrative decision-making in the circumstances of any case, in which the Tribunal’s decision is one decision in a continuum of government administrative decision-making, and where further related decisions may subsequently be made in the exercise or re-exercise of statutory power, the effectiveness of a Tribunal decision, as distinct from the decision in fact, is necessarily conditioned by such developments. For example, a decision of the Tribunal might have effect at a point in time or for a period but not otherwise - it might be overtaken by subsequent events or by the subsequent exercise of statutory power to make decisions in response to changed circumstances or new information.
Just as the Tribunal must make the correct or preferable decision on the materials placed before it when answering the same statutory question as the primary decision-maker, a subsequent decision-maker with authority and power to address the same statutory question would be required to take account of changed circumstances or new information which was not available to the Tribunal or to the primary decision-maker.
Relevantly in this case, Part 2.12, Chapter 2 of the Social Security Act provides for progressive decision-making in respect to a person’s entitlement to Newstart Allowance and the rate of Allowance calculated under s 1068 and Benefit Rate Calculator B which is periodically payable under s 43 of the Administration Act. The progressive nature of decision-making is reinforced by provisions for the review of decisions under s 126, s 135, s 142, s 179 and s 182.
Re-exercise of power – principle and construction
The question posed is whether, following the AAT 1st review decision, the Secretary has power to recalculate the amount of the overpayment debt raised against and recovered from Mr Jackson. The recalculation of an overpayment debt involves the re-exercise of power on review under s 126 (or s 135 consequent to an application being made under s 129) of the Administration Act.
Consequently, as a matter of principle and construction, it is necessary to determine if the applicable legislative scheme, including the social security legislation and the AAT Act, provides for such a re-exercise of power, or if it discloses an intention contrary to the general prescription set out in s 33(1) of the Acts Interpretation Act 1901 (Interpretation Act):
(1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.
In Minister for Immigration and Border Protection v Makasa (Makasa)[16], the High Court said:
50. Looking to the generic operation of the AAT Act, an intention not to allow further re-exercise of a power by a primary decision-maker after re-exercise of that power by the AAT under s 43(1)(b) or (c)(i) of the AAT Act on review of an earlier exercise of power by the primary decision-maker is inherent in the nature of the merits review function for which it is the design of s 43 of the AAT Act to make provision. The merits review function of the AAT is "to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review". The function of the AAT, in other words, is "to do over again" that which was done by the primary decision-maker. The function would be reduced to a mockery were the subject-matter of the decision made by the AAT on review able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the AAT in the conduct of the review.
51. The object of s 43(6) of the AAT Act, in deeming a decision made by the AAT under s 43(1)(b) or (c)(i) in variation of or substitution for the decision under review to be a decision of the primary decision-maker, is to bring finality to the administrative decision-making process. Like any other legal fiction, the deeming effected by s 43(6) of the AAT Act cannot be taken to have a legal operation beyond that required to achieve the object of its enactment. Section 43(6) cannot be taken so far as to be read as requiring an exercise of power by the AAT to be treated as no more than an exercise of power by the primary decision-maker which the primary decision-maker is able by operation of s 33(1) of the [Interpretation] Act simply to re-exercise.
[Citations removed.]
[16] [2021] HCA 1.
The inherent intention the High Court identified in the generic operation of the AAT Act not to allow further unqualified re-exercise of power once the power under s 43(1)(b) or (c)(i) has been exercised is not at large. The Court was dealing with a question relating to the re-exercise of power under s 501(2) of the Migration Act 1958 (Migration Act) and whether that legislative scheme contained an intention contrary to the general prescription in s 33(1) of the Interpretation Act.
The Court did not discuss the intention in reference to the exercise of power by the Tribunal when affirming a decision under review (s 43(1)(a)). There is a question whether affirming a decision on review under s 43(1)(a) amounts to a re-exercise of power, such that the inherent intention of the AAT Act not to allow re-exercise of power by the primary decision-maker might apply.
Necessarily, the question whether the legislation discloses, expressly or impliedly, an intention contrary to s 33(1) of the Interpretation Act requires close examination of the particular legislative scheme and the powers exercised in the particular circumstances. That is what the High Court did in Makasa’s case and concluded:
… nothing in the legislative scheme indicates an intention to displace the application of s 33(1) of the [Interpretation] Act to the power conferred by s 501(2) of the Act to the extent that subsequent events or further information not previously before the Minister or a delegate provide a different factual basis upon which to form a reasonable suspicion that a visa holder does not pass the character test.
The legislative provisions of the social security legislation which are engaged in Mr Jackson’s case are substantially different than those the High Court addressed under the Migration Act in Makasa’s case.
I have not been taken to any provision of the Social Security Act or the Administration Act which disapplies s 33(1) of the Interpretation Act. Nonetheless, the operation of s 33(1) is modified by preconditions to and limits upon the re-exercise of power under the statutory provisions for review of a decision in the Administration Act. Review of a decision under s 126 is essentially preconditioned by the Secretary being satisfied there is sufficient reason to do so. Review of a decision under s 135 is essentially preconditioned by an application for review. Review of a decision by the Tribunal is confined to the kinds of decisions set out in s 142(1).
The Secretary contends it is from the AAT Act and the legislative scheme for independent merits review of decisions made under the social security law an intention arises to prevent re-exercise of power in respect of a decision the Tribunal has determined on review. As I comprehend the Secretary’s submission, in the context of the social security law and the Administration Act in particular, where power has been exercised by the Tribunal under s 43(1) of the AAT Act, subject to appeal, the power is not available to be re-exercised, as this is not consistent with the terms of the legislative scheme and it would result in a circular mechanism of unending review.
As a general proposition, I do not accept this is correct. Even if such a contrary intention was to be inferred from the generic operation of the AAT Act, extending the principled reasoning of the High Court in Makasa’s case to the social security legislative scheme, there is nothing in the legislative scheme to suggest an intention to prevent re-exercise of power under s 126 or s 135 where new information or subsequent events establish a different factual basis than was before the Tribunal.
This conclusion is reinforced by s 182 of the Administration Act:
(1) If an officer varies or substitutes a decision after an application has been made to the AAT for AAT first review of the decision, the application is taken to be an application for review of the decision as varied or substituted.
(2) If an officer varies or substitutes a decision after an application has been made for AAT second review in relation to the decision:
(a) the AAT is taken, on AAT first review, to have varied or substituted the decision under review in the way the officer did; and
(b) the application is taken to be an application for AAT second review of the decision as varied or substituted.
(3) If the person who made the application does not want the AAT to review the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.
As can be seen, s 182(2) is engaged in circumstances where an officer varies or substitutes a decision after an application has been made for AAT second review of an AAT first review decision.
Section 182 is a deeming provision. The deeming effected by engagement of the section cannot be taken to have a legal operation beyond that required to achieve the object of its enactment.
In submissions, the Secretary focuses on the effect of s 182 once engaged, whereby the decision under review is taken to be the decision as varied or substituted, and argues the purpose of the provision is to preserve the Tribunal’s supervisory review role. While this may be accepted, the object of the section is illuminated by the need being met. The need s 182 meets is to ensure the currency and utility of AAT first or second review where power conferred by s 126 or s 135 is exercised after an application for AAT review has been made.
When plainly read in the context of the provisions for review of a ‘decision’, s 182 does not limit the availability of power to review a ‘decision’ under the terms of s 126 or s 135, rather it deems the effect of such exercise after an application for AAT review has been made. The deeming effect of s 182 ensures AAT first or second review proceedings address the most recent change to any decision under review. The conjunction ‘if’ admits a choice in the exercise of power to review a ‘decision’ which, where exercised, preconditions the deeming effect of s 182(1) and (2). Where the precondition is met, the deeming effect of the s 182(1) or (2)(a) applies.
The statutory text does not limit the availability or the exercise of review powers under s 126 or s 135 to circumstances where an application for AAT first or second review has been made. Had the Parliament intended to limit the review powers in this way, it would have been a matter of simplicity to expressly do so in the statutory text.
No different conclusion can be drawn when the text and objects of s 126 and s 135 are considered. These sections provide for review of a ‘decision’ where the essential preconditions are met. The Secretary must be satisfied there is sufficient reason to exercise the review power under s 126. An application is required under s 129 as an essential precondition to the exercise of power under s 135. The clear purpose of these provisions is to authorise a progressive approach to decision-making either where there is a sufficient reason or where a person exercises their entitlement to review. One of the clear objects of these review powers is to enable new information or changed circumstances and subsequent events which are relevant to a ‘decision’ to be taken into account where there is a sufficient reason to do so or where a person affected by the ‘decision’ applies for review.
A construction of this kind is consistent with the purposes of the review provisions and the over-arching purposes of the social security legislative scheme to provide decision-making and review powers capable of addressing the wide variety of cases, circumstances and events which arise when determining benefits, allowances, entitlements and related matters in any case.
Furthermore, the deeming effect of s 182 intersects with s 26 of the AAT Act, which restricts the power of a decision-maker once an application has been made to the Tribunal for review:
(1) Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:
(a) if regulations made for the purposes of subsection 25(2) (which deals with Norfolk Island) did not authorise the making of the application—the enactment that authorised the making of the application expressly permits the decision to be altered; or
(aa) …; or
(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.
(1A) ….
(2) A reference in subsection (1) to the alteration of a decision is a reference to:
(a) the variation of a decision; or
(b) the setting aside of a decision; or
(c) the setting aside of a decision and the making of a decision in substitution for the decision set aside.
Clearly enough, one of the purposes of s 182 of the Administration Act is to ensure, where an application for AAT first or second review has been made and the power under s 126 or s 135 is subsequently exercised, the AAT review is in respect of the decision as varied or substituted. This construction is entirely consistent with and it is reinforced by the express terms of s 126(2).
The plain language of s 126, s 129, s 135 and s 182 reveals the intention of the Parliament to authorise a progressive approach to decision-making under the social security legislative scheme, in order to ensure that new information and subsequent events relevant to a ‘decision’ are able to be taken into account in the assessment of any case where there is sufficient reason to do so or a person affected exercises their right to apply for review of the ‘decision’.
The unending circularity of review the Secretary contends would arise should further re-exercise of power be permitted is not consistent with the express terms of s 126(1). The Secretary’s discretion to review a decision under s 126(1) is essentially preconditioned by the Secretary being satisfied there is sufficient reason to review the decision. There are 2 steps. First, in order to enliven the discretion, the Secretary must be satisfied there is sufficient reason to review the decision and, secondly, when deciding to exercise the discretion the Secretary must be satisfied it is reasonable and appropriate to do so, having regard to all the relevant circumstances and taking into account all relevant considerations.
While the term sufficient reason is not given any special meaning, it can readily be understood to require a reason sufficient to satisfy the Secretary a review is required in the particular circumstances of any case in the context of the legislative scheme, which includes review under the AAT Act. Without more, simply disagreeing with a decision of the Tribunal on the same facts and information is unlikely to meet the first threshold of a sufficient reason capable of satisfying the Secretary and it would likely be contrary to binding authority on the basis of Makasa, at least.
In the wide variety of circumstances which might arise in the diversity of cases under the social security legislative scheme, it may well be new information or subsequent events establish a different factual basis for the re-exercise of power than was previously considered. It is also conceivable in the multitude of decisions made on a daily basis under the legislative scheme a decision might be affected by error capable of correction on review. Whether or not any such matters might be sufficient reason to review the decision is a matter for the Secretary’s satisfaction. It is also germane to observe, where the Secretary decides to exercise the discretion to review, any resulting decision would trigger further review rights under s 129 or s 142. The prospect of further review, itself, might weigh against exercise of the discretion without sufficient reason or in a manner which might be unwarranted or inappropriate.
Re-exercise of power in this case
Doing the best with the scant materials presently available in Mr Jackson’s case, it is probable power was initially exercised by decision-makers under the debt provisions of the Social Security Act, relying on data-matching with the ATO and income averaging. The resulting primary decisions were subsequently reviewed, probably under s 126 of the Administration Act, and the debt amounts were revised. The decisions resulting from this review (which are not before the Tribunal in these proceedings) were subsequently affirmed by an ARO under s 135(1)(a) and (b)(i) of the Administration Act. The ARO’s decision was the subject of review under s 142(1)(a) of that Act in which the Tribunal decided to affirm the ARO’s decision under s 43(1)(a) of the AAT Act (the AAT 1st review decision).
It is to be noted, by operation of s 142(4)(a) of the Administration Act, for the purposes of AAT first review, the decision of the ARO to affirm the primary decision is taken to be ‘that decision as affirmed’. In other words, by affirming the primary decision, the ARO is taken to have re-exercised the power of the primary decision-maker to make a fresh decision. The same conclusion can be drawn in respect of the AAT 1st review decision. By operation of s 179(2)(a), for the purposes of AAT second review, the AAT 1st review decision to affirm the ARO’s decision is taken to be ‘that decision as affirmed’.
In effect, the ARO and the Tribunal of first review were each authorised to re-exercise the powers originally exercised, probably under s 1223, s 1229A or s 1229B (pursuant to a notice issued under s 1229 and with regard to exemptions under s 1229E and s 1229F) and s 1233 of the Social Security Act, by the primary decision-maker. It may be assumed the Secretary, the ARO and the Tribunal of first review had power to exercise or re-exercise power to waive recovery of the alleged debt, in whole or in part, on grounds of sole administrative error (s 1237A) or special circumstances (s 1237AAD).
The Tribunal of 1st review decided the amount of the debt determined by the ARO (who affirmed the Secretary’s review decision, probably made under s 126) was correct (albeit without any detailed analysis or findings in respect of the statutory method for calculating a debt in each of the instalment periods within the overall debt period). The Tribunal also considered and made findings the debt could not be written off under s 1236 of the Social Security Act, and recovery of the debt could not be waived, in whole or in part, under s 1237A on grounds of administrative error or s 1237AAD on grounds of special circumstances. It is not clear on the present materials if the ARO or the Secretary on first review addressed and made decisions under these non-recovery provisions, although that is possible.
The power to determine and raise the alleged overpayment debt owed to the Commonwealth by Mr Jackson is set out in s 1223 of the Social Security Act as it stood at the time the debt was originally raised. It requires the comparison of two factual matters: the amount of Newstart Allowance paid to Mr Jackson during a period; and the amount of Newstart Allowance to which Mr Jackson was entitled during that period, applying the steps set out in s 1062 and the Benefit Rate Calculator B at the end of s 1068. Where the decision-maker is satisfied Mr Jackson was paid an amount to which he was not entitled, by operation of s 1222A and s 1223(1) the amount is a debt due to the Commonwealth and the debt is taken to arise when the person obtained the benefit of the payment.
Benefit Rate Calculator B and related provisions in s 1068 and s 1068-A1 to s 1068-J9 set out the method for calculating a person’s Newstart Allowance entitlement during an instalment period. Under s 1068-A1, the rate of benefit is a daily rate worked out by dividing the fortnightly rate calculated under Benefit Rate Calculator B by 14. Benefit Rate Calculator B includes an Income Test, set out in Module G. The first step in the Income Test is to work out the person’s ordinary income on a fortnightly basis. The terms income and ordinary income are defined in s 8(1) of the Social Security Act:
income, in relation to a person, means:
(a) an income amount earned, derived or received by the person for the person’s own use or benefit; or
(b) a periodical payment by way of gift or allowance; or
(c) a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8).
ordinary income means income that is not maintenance income or an exempt lump sum.
[Notes excluded.]
The conception of ordinary income is further explained in s 1072:
A reference in this Act to a person’s ordinary income for a period is a reference to the person’s gross ordinary income from all sources for the period calculated without any reduction, other than a reduction under Division 1A.
Note 1: For ordinary income see subsection 8(1).
Note 2: For other provisions affecting the amount of a person’s ordinary income see section 1073AA (work bonus), section 1073K (seasonal horticultural work income exemption), sections 1074 and 1075 (business income), Division 1B (income from financial assets (including income streams (short term) and certain income streams (long term)) and Division 1C (income from income streams not covered by Division 1B).
As can be seen, the first question posed in the Income Test in Module G of Benefit Rate Calculator C is the amount of Mr Jackson’s gross ordinary income from all sources for the period. This is a question of fact which requires evidence of Mr Jackson’s gross income during each fortnightly period. I will assume Mr Jackson was notified of his obligation to inform Centrelink of any change in his earned income while receiving Newstart Allowance (notices of such kind are not presently before the Tribunal). Whether or not Mr Jackson’s assertion he provided all relevant information about his earning in casual employment during the debt period to Centrelink is correct, I understand the Secretary at first review under s 126 and the ARO, on subsequent review under s 135, proceeded on the basis of the bank records Mr Jackson provided, which set out weekly amounts deposited by Scentre Group into his bank account. There are obvious factual questions about the nature of such deposits which go to the amount of Mr Jackson’s gross ordinary income during each fortnightly period during the overall debt period. Are the payments amounts of earned income? Are the payments net or gross amounts? To what period does each payment relate?
On the present materials, including the AAT 1st review decision, the answer to these questions is not apparent. The Tribunal of 1st review set out amounts reported by Mr Jackson on 9 April 2015, 23 April 2015, 7 May 2015 and 21 May 2015 and observed:
These figures closely match some but not all of the amounts Mr Jackson received as income over that period. The Tribunal acknowledges Mr Jackson attempted to report his income to Centerlink on a regular basis but overall it appears he underreported his income in the relevant period.
On this material it appears the Tribunal of first review was comparing Mr Jackson’s reported income with amounts of income he received over that period. The material on which the Tribunal of 1st review relied when making this finding has not been identified and the Tribunal did not set out detailed reasons for the finding Mr Jackson had been overpaid $2,485.82 during the debt period for the conclusion. Mr Jackson is concerned he has not been provided an explanation how this amount was calculated. Having examined the available scant materials, I understand his concern.
If the material the Tribunal of 1st review alluded to was in the form of pay slips provided to Mr Jackson by his then employer, Scentre Group, one would expect the Secretary to be aware of this, but no such disclosure has been made.
In these proceedings the Secretary has not asserted the calculation of Mr Jackson’s alleged overpayment debt was based on pay slip information setting out his earned income, but rather the calculation proceeded on the basis of bank statement information. If that is correct, the calculation of Mr Jackson’s ordinary income during the fortnightly periods within the overall debt period would have required a number of assumptions to be made about the nature of the amounts deposited in Mr Jackson’s bank account by Scentre Group, including whether they were net amounts of earned income in respect of hours worked on days within a particular period and, if so, an estimation of the gross amount of income during that period.
If this is correct, it is likely the power to calculate and raise the alleged overpayment debt against Mr Jackson during the debt period was re-exercised by the Secretary, the ARO and the Tribunal of first review on the basis of factual findings derived from assumptions and estimates. There are serious questions about the lawfulness of proceeding to calculate a person’s debt under Benefit Rate Calculator B in such a manner and the re-exercise of power on such unsafe grounds. As no party has questioned the validity of the debt calculation decisions, I will proceed on the assumption they were validly made.
Nevertheless, these are relevant matters which bear upon the legitimacy of a further re-exercise of the power under s 126 or s 135 to review the primary decision under s 1223.
In conclusion on this issue, the Secretary is authorised to re-exercise power to review and recalculate the alleged debts raised against Mr Jackson where new information or subsequent events establish a different factual basis for the exercise of power under s 1223, applying the Income Test in Benefit Rate Calculator B, than was previously considered. The same can be said in respect of the interest charge raised as a debt under s 1229C of the Social Security Act, the decision to recover the debts by issuing a garnishee notice under s 1233 of that Act, and the decision the non-recovery provisions in s 1237A and s 1237AAD are not applicable.
The Secretary may also be authorised to review the alleged debts raised against Mr Jackson on grounds of error. If the decisions made by the Tribunal of first review and the ARO to affirm the alleged debts proceeded on unsupported assumptions, estimations, inferences or apportionments when applying the Income Test in Benefit Rate Calculator B, the validity of doing so may raise doubts about the lawfulness of the debt thus raised and recovered from Mr Jackson. It is difficult to comprehend how the income test in Benefit Rate Calculator B can be applied without the necessary facts on which it turns being established by sufficiently probative information capable of supporting a reasonable inference at least. The Secretary is obligated to ensure the legal basis of the debt raised against and recovered from Mr Jackson.
Should new information establish error in the primary determination, or should subsequent events establish a different factual basis than was previously before the Tribunal, notwithstanding the debt and related matters of recovery were affirmed by the ARO and the AAT 1st review decisions, it would be open to the Secretary to correct the error or address the new facts on review by re-exercising power to recalculate the debt and, if necessary, re-engage the non-recovery provisions. The Secretary could do so on his own motion under s 126 of the Administration Act or on receipt of an application by Mr Jackson under s 129 of that Act.
Extension of time
In a case of the present kind, where an application for review of the AAT 1st review decision is made under s 179 of the Administration Act and s 25 of the AAT Act, the Tribunal has authority to re-exercise power previously exercised by the primary decision-maker and subsequently by the Secretary, the ARO and the Tribunal of 1st review. The difficulty with this is Mr Jackson did not apply for AAT second review within the period of 28 days prescribed in s 29(2) of the AAT Act and now requests the grant of an extension of time of more than 3 years under s 29(7):
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
As can be seen, exercise of discretion to extend the time for Mr Jackson to make an application for review of the AAT 1st review decision is preconditioned by satisfaction that it is reasonable in all the circumstances to do so.
Wilcox J set out relevant but not exhaustive considerations[17] in Hunter Valley Developments Pty Ltd v Cohen,[18]which may be summarised as follows:
(a)An acceptable explanation for the delay provided by the prospective applicant, and the length of the delay. The absence of a satisfactory explanation may not always be determinative.
(b)Whether an applicant has rested on their rights and taken no action to seek review or to communicate an intention to challenge the decision. The public interest in the timely review of administrative decisions must be weighed against any public interest in the delivery of fair and just decisions.
(c)Any prejudice to the respondent or unfairness to another person. The absence of prejudice does not weigh for the grant of additional time.
(d)The relative merits of the application should it be allowed, albeit at a very high level. An application which lacks any reasonable prospect of success may not be allowed to proceed.
(e)Alternative avenues for relief.
[17] Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]; Mentink v Minister for Home Affairs [2013] FCAFC 113, per Griffiths J (as he then was) at [35]-[39]; Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [18]-[19]; Pham v Commonwealth of Australia [2002] FCA 669 at [11]; and Pham v Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109.
[18] (1984) 3 FCR 344 at 348-350.
An extension of time beyond the prescribed 28 period which applies in this case will not be granted unless the Tribunal is positively satisfied it is reasonable to do so and there is a good reason to do so.
There is no controversy about these matters, as the Secretary has not opposed Mr Jackson’s application for an extension of time. Nevertheless, these are matters for the Tribunal to decide.
Delay
There is no suggestion Mr Jackson was not informed, or did not comprehend, the 28 day period in which he could apply for AAT second review of the AAT 1st review decision.
Even though Mr Jackson may have been somewhat distracted by other events, it is probable he chose not to apply for review within the prescribed period.
Mr Jackson’s explanation for the delay in lodging an application for review of the AAT 1st review decision is not compelling. The thrust of his explanation is he was hoping to obtain relief from processes relating to or consequent upon the Robodebt Royal Commission. No compelling explanation has been given for the delay of more than 3 years in applying for review of the AAT 1st review decision other than the assertion Mr Jackson was informed by Centrelink officers and officers of the Secretary’s Department, the Secretary had no power to recalculate the debts raised against him in 2019, and his only remaining option to challenge the debt is to apply to the Tribunal and seek additional time in which to do so.
For reasons I have explained, there are reasons to doubt the information Mr Jackson was given about the inability of the Secretary to recalculate the debts is correct. Nevertheless, I accept Mr Jackson acted on the information he was given.
In the circumstances, considering Mr Jackson’s explanation, the length of the delay of more than 3 years weighs against the grant of an extension of time.
Failure to act
Mr Jackson asserts he has cavilled with the debt raised against him for many years. It is possible he did, but there is no probative material to support his assertion.
On the available materials, and having heard Mr Jackson, it is not clear to me Mr Jackson took any action to alert the Secretary he intended to challenge the debts raised against him after being given the AAT 1st review decision on 13 November 2019 until lodging the present application on 24 February 2023.
In his own submissions, Mr Jackson states I would have preferred not to revisited this case. This suggests he rested on his rights for some time, at least, and revisited the case after learning more about how unlawful it was by telephoning Centrelink on 3 February 2023. It is likely Mr Jackson did not consider seeking further review of the AAT 1st review decision until he was informed doing so was his only option.
These considerations weigh against exercising the discretion to grant additional time.
Prejudice
The Secretary does not assert prejudice will result should the extension of time be granted.
To my mind, the passage of more than 3 years may well prejudice the parties. The Tribunal of first review found Mr Jackson under-reported his earned income during the debt period. It may be more difficult to obtain records relating to the debt period in 2015 in respect of Mr Jackson’s declaration of earned income (or his actual income) from Scentre Group and his interactions with Centrelink officers.
Furthermore, if Mr Jackson is granted an extension of more than 3 years in the circumstances, unfairness may be caused to other people in similar circumstances who accepted and did not seek to extend the prescribed time limit for applying to the Tribunal.
This consideration weighs against the grant of an extension of time.
Relative merits
It is not necessary to say much about the relative merits of Mr Jackson’s case.
The Secretary accepts the debt was calculated on incomplete information about Mr Jackson’s ordinary income during the overall debt period. The Secretary suggests the debt should be re-calculated, applying the Departmental policy which I understand came into effect in December 2022. Under the policy, payment records would be sought from Mr Jackson’s previous employer, Scentre Group, and should further information be provided, the amount of the debt would then be re-calculated. I accept the desirability of doing so.
This prospect is far from certain. Even if additional relevant information was to be produced, it is not clear if the amount of Mr Jackson’s alleged overpayment debt would be increased or decreased in retrospect.
All that I have heard in this case suggests the method used to calculate the amount of Newstart Allowance Mr Jackson was paid in excess of his entitlement in the fortnightly periods during the overall debt period was flawed. First, the calculation proceeded on the basis of data from the ATO and income averaging. Secondly, on review by the Secretary, the calculation proceeded on the basis of incomplete information, where factual gaps were traversed by assumptions, estimates, inferences or apportionments. Subsequent reviews by the ARO and the Tribunal of first review do not appear to have adopted any different debt calculus.
Considering these matters, it is likely the debt amount would not be substantiated if the application is allowed to proceed: the amount of the debt might increase or decrease, depending on the evidence produced.
This weighs in favour of granting the extension of time.
Alternative relief
For reasons I have explained, the Secretary has power to recalculate the debt raised against Mr Jackson should new information or subsequent events provide a different factual basis for doing so which was not previously considered. Alternatively, if the previous decisions made when applying the Income Test in Module G of Benefit Rate Calculator B are affected by error, the Secretary could exercise discretion to review the debt decision afresh and correct the error.
It is open for Mr Jackson to test this by applying to the Secretary under s 129 for review of the debt decisions, although it must be accepted doing so does not guarantee a positive result.
With regard to non-recovery powers under part 5.4 of Chapter 5 in the Social Security Act, as Mr Jackson has fully repaid the debt raised against him, the write-off provisions in s 1236 have no application. It may be open for him to apply to the Secretary under s 129 of the Administration Act and seek relief under s 1237AAD if special circumstances have arisen since the AAT 1st review decision was made which have not previously been considered.
These considerations weigh against the grant of further time in which to apply for review of the AAT 1st review decision.
It is not clear if Mr Jackson wants to press for relief under s 1237A, in respect of administrative error. If he does, unless new information establishes a different factual basis to that considered and addressed in the AAT 1st review decision or a rectifiable error of substance, it is unlikely to be amenable to further review by the Secretary.
Even though alternative remedies may be open, I accept there is some uncertainty about such matters for Mr Jackson. In circumstances where no error is alleged and no new information or subsequent events of relevance establish a different factual basis for the re-exercise of power under s 1223, s 1229A or s 1229B, s 1233, s 1237A or s 1237AAD of the Social Security Act in the context of further review under s 126 or s 135 of the Administration Act, there may be no alternative remedy or relief available if the extension of time is not granted. If established, this weighs for exercise of the discretion to grant addition time.
Overall, I am not persuaded this consideration weighs in favour of granting the extension of time Mr Jackson is seeking.
Conclusion
This is an unusual case.
It may not be reasonable or appropriate for the Tribunal to allow an application of this kind, more than 3 years out of time, where Mr Jackson has not provided an adequate explanation of the delay in seeking review of the AAT 1st review decision. This is reinforced in circumstances where relevant factual information in respect of Mr Jackson’s actual ordinary income in fortnightly periods during the overall debt period, not previously considered, might be obtained and applied, and apparent errors may be rectified, by other means available to Mr Jackson and the Secretary.
Alternatively, it may be reasonable and appropriate to grant Mr Jackson the additional time he seeks if he is not able to access other avenues for relief and where there are questions about the lawfulness of the debt calculation applied by previous decision-makers.
For the reasons I have explained above, there are alternative remedies open to Mr Jackson and the Secretary in this case.
Considering all the relevant circumstances, on balance, I am not positively satisfied it is reasonable or appropriate to exercise the discretion to grant Mr Jackson additional time in which to make an application for review of the AAT 1st review decision on 13 December 2019.
His application for an extension of time under s 29(7) of the AAT Act is not made out.
Decision
Application refused.
138. I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
....................[SGD].....................
Associate
Dated: 22 May 2023
Dates of hearing
22 March 2023, 18 April 2023
Date final submissions received
12 April 2023
Solicitor for Applicant:
Self-represented
Solicitor for Respondent:
Mr T Hillyard, Sparke Helmore Lawyers
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