Julien v Secretary, Department of Employment and Workplace Relations
[2009] FCA 1051
•18 SEPTEMBER 2009
FEDERAL COURT OF AUSTRALIA
Julien v Secretary, Department of Employment and Workplace Relations [2009] FCA 1051
SOCIAL SECURITY – whether Centrelink was right to deduct retirement benefits paid to the appellant by the United States Social Security Administration from his Newstart Allowance pursuant to Schedule 13 of the Social Security (International Agreements) Act 1999 (Cth) – whether the appellant’s United States pension is exempt as it is superannuation – definition of the term “benefit” in Schedule 13 – “benefit” comprehends a United States social security benefit – appellant’s benefit was not paid under any of the Australian superannuation guarantee laws specified in Schedule 13 – appeal dismissed.
Social Security Act 1991 (Cth) – s 1237AAD
Social Security (International Agreements) Act 1999 (Cth) – s6, Schedule 13ARCHIE JULIEN v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
QUD 359 of 2008
SPENDER J
18 SEPTEMBER 2009
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 359 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: ARCHIE JULIEN
AppellantAND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
18 SEPTEMBER 2009
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
THE COURT DIRECTS THAT:
1. The respondent to file and serve any submissions concerning costs within 14 days.
2.The appellant file and serve any submissions in response he wishes to make within a further 14 days.
3.The Court will then consider the question of costs on the papers, and then give judgment on that aspect of the matter.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 359 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: ARCHIE JULIEN
AppellantAND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
SPENDER J
DATE:
18 SEPTEMBER 2009
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an appeal from Federal Magistrate Burnett, who dismissed an appeal from a decision of the Administrative Appeals Tribunal (the AAT), which had affirmed the decision of Centrelink that the Secretary, Department of Employment and Workplace Relations was entitled to recover from the appellant, as a debt due to the Commonwealth, the amount of $3,021.50, being an amount that was overpaid to the appellant in relation to his Newstart Allowance.
The appellant says that retirement benefits paid to him by the United States Social Security Administration (US Administration) should not have been taken into account when calculating his entitlement to Newstart Allowance in Australia.
The appellant is acting for himself. The dispute is whether the appellant had been overpaid $3,021.50 in Newstart Allowance. The appellant, in the prosecution of the various appeals from that decision of Centrelink, has boldly added a claim that, as a consequence of the decision of Centrelink, he is entitled to “$15,000 pecuniary, $37,500 aggravated, and $140,000,000 exemplary damages”.
The appellant has been in receipt of a Newstart Allowance from Centrelink since about 23 April 2004. In December 2005, he applied for retirement benefits paid by the US Administration.
In May 2006, the appellant was advised by the US Administration that he was entitled to retirement benefits and was paid US$3,950.00 in arrears in respect to the period 1 December 2005 to 30 April 2006. He has since been paid on-going payments of $US790.00 per month.
On 5 June 2006, the appellant advised Centrelink of the advice from the US Administration.
On 28 July 2006, Centrelink determined that the lump sum US Retirement Benefit payment had to be taken into account when calculating the appellant’s entitlement to a Newstart Allowance, and that the appellant had been overpaid Newstart Allowance during the period 1 December 2005 to 30 April 2006 in the amount of $3,021.50. That was the amount which Centrelink was required to recover.
The issue is whether Centrelink was required, in calculating whether there had been an overpayment of Newstart Allowance, to take into account the lump sum US Retirement Benefit payment that had been made to the appellant.
For the reasons which follow, no error has been shown in the judgment of Burnett FM that Centrelink was entitled to recover, as a debt due to the Commonwealth, an amount of $3,021.50, being the amount that was overpaid to the appellant in relation to his Newstart Allowance.
I am also satisfied that Burnett FM was correct in concluding that there was no miscarriage in the exercise of the Administrative Appeals Tribunal’s (the AAT’s) discretion to refuse a waiver of the lump sum pursuant to s 1237AAD of the Social Security Act 1991 (Cth) (the SS Act).
The History of this Litigation
The appellant has been in receipt of Newstart Allowance since about 23 April 2004. After the US Administration advised the appellant by letter that he was entitled to retirement benefits, the appellant notified Centrelink of this advice on 5 June 2006. Centrelink then made the decision referred to above, that the Secretary, Department of Employment and Workplace Relations was entitled to recover $3,021.50.
Following internal Centrelink reviews, on 29 September 2006 the appellant appealed to the Social Security Appeals Tribunal who, on 17 November 2006, affirmed the original decision of Centrelink of 28 July 2006.
On 19 December 2006, the appellant appealed to the AAT, who, on 27 July 2007, affirmed the original decision of Centrelink.
On 21 August 2007, the appellant filed a Notice of Appeal in the Federal Court of Australia.
On 12 October 2007, I ordered the matter be transferred to the Federal Magistrates Court pursuant to s 44AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
On 15 October 2008, the Federal Magistrates Court dismissed the appellant’s appeal.
On 31 October 2008, the appellant filed a Notice of Appeal in the Federal Court of Australia.
The two grounds of appeal specified in that Notice of Appeal are:
1.Appellant receives a US retirement pension, a graduated portion of which has been, and is being wrongfully deducted from Appellant’s Australia pension administered by Centrelink, in contravention of the Social Security (International Agreements) Act 1999, et al.
2.Appellant respectfully submits that the Magistrate’s decision contains several reversible errors.
The orders sought in that Notice of Appeal are:
1.that as a matter of law, all the Appellant’s US Social Security Administration retirement pension payments are not deductible from applicant’s Centrelink pension.
2.that Centrelink must immediately stop all deductions of applicant’s US Social Security Administration retirement pension from applicant’s Centrelink pension.
3.that Centrelink must return to applicant all deductions already made, in aggregate about $5,000 per year for three years = about $15,000.
4.that Centrelink must further compensate applicant with Aggravated Damages in an amount calculated at 2.5 times the amount of all deductions illegally made, for pain and suffering caused by the official oppression, government malice, abuse of authority, and attendant frustration, harassment, vexation, loss of amenity, and mental anguish that Centrelink has inflicted upon appellant, an amount of about $15,000 x 2.5 = $37,500.
5.that the Court will maintain jurisdiction until its orders are fulfilled, or appealed.
On 17 December 2008, the matter came before me for directions, and for the hearing of a Notice of Motion which sought to join a number of respondents to the proceedings. I dismissed the Motion seeking joinder of various non-parties and made the following orders:
1.The appellant have leave to file and serve an Amended Notice of Appeal, identifying with specificity the grounds of appeal, by 4.00 pm on Friday, 23 January 2009.
2.The powers and functions necessary for the settling of the appeal book index and the preparation of the appeal book, as set out in Order 52 rule 28A of the Federal Court Rules, are delegated to the District Registrar.
3.The matter be adjourned for hearing on a date and time to be set, to be communicated to the parties by the District Registrar.
4. The costs of today be reserved.
The appellant filed an Amended Notice of Appeal on 23 January 2009.
On 27 January 2009, Deputy District Registrar Baldwin made the following orders:
1.The appeal be listed for hearing on a date to be fixed and advised to the parties.
2.The appellant file an appeal book in accordance with the appeal index settled by the Deputy District Registrar on 27 January 2009. The appeal book is to be filed and served on the respondent on or before 20 March 2009.
3.The appellant file and serve written submissions of no more than 10 pages by 4 pm, 10 clear working days before the date set for hearing of the appeal, together with any copies of any authorities upon which the appellant wishes to rely, with the relevant passages highlighted or otherwise marked.
4.The respondent file and serve short written submissions of no more than 10 pages by 4 pm, 5 clear working days before the date set for hearing of the appeal, together with copies of any authorities upon which the respondent wishes to rely, with the relevant passages highlighted or otherwise marked.
5. The parties have liberty to apply on 7 days written notice to the other party.
A document styled “Second Amended Notice of appeal” was filed on 1 April 2009, and the appellant’s “Submission” was filed on 3 April 2009. This “Second Amended Notice of appeal” occupies some 18 pages, and is diffuse and argumentative. No leave was sought to file this document. The “submission” contains a total of 71 “attachments”, extending to some hundreds of pages.
The grounds of appeal that can be distilled from the “Second Amended Notice of appeal” appear to be:
1.The purpose of the “International Agreement” in Schedule 13 of the Social Security (International Agreements) Act 1999 (Cth) (the SSIA Act) is not to prevent ‘double dipping’ of benefits, and the AAT was wrong to conclude that it was.
2.The appellant’s US pension is exempt from deduction, as it is not a “comparable” benefit.
3. The appellant’s US pension is exempt because his pension is superannuation.
4.The Federal Magistrate erred by upholding the AAT’s decision not to exercise its discretion in not waiving the appellant’s debt due to his special circumstances, and failed to give reasons why he did not consider them “special circumstances”.
5.The Federal Magistrate erred by failing to consider an erroneous issue raised by the respondent which would have shown that the respondent’s claim “was false in all material respects”.
6. There was bias.
7.The AAT failed to resolve the appellant’s claims, and the Federal Magistrate erred by failing to give reasons why this was not a question of law.
8.There was fraud and misconduct on the part of the respondent, and the Federal Magistrate erred by “failing to give reasons why they considered that the overwhelming evidence of Respondent’s fraud and misconduct was unfounded speculation”.
The appellant handed up a further “submission” at the hearing. That document is 15 pages long, and concludes under the heading “Damages”, the following:
Appellant seeks damages in the amount of:
a) $15,000 for $5,000 per year deductions by Respondent over three years,
b) 2.5x in Aggravated Damages in the amount of $37,500
c)Exemplary Damages in the amount $140,000,000 calculated by Centrelink’s 4,000,000 clients, of whom perhaps 1 in 1,000 are similarly situated to Appellant (4,000 clients) that yields wrongful deductions in the amount of $20,000,000 per year, finally multiplied by the seven year imprisonment penalty of violating the Criminal Code Act 1899 (Qld) s 140 Attempting to pervert justice.
The appellant’s core contention is that his US pension is exempt because his pension is “superannuation”. He further complains that the debt determined by Centrelink to exist should have been waived due to his “special circumstances”.
Legislative Framework
The central question on this appeal concerns the construction of the term “benefit”, in the international social security agreement between Australia and the United States of America. The Agreement is Schedule 13 to the Social Security (International Agreements) Act 1999 (Cth) (the SSIA Act).
The terms of the Agreement have the force of law in this country: s 6 of the SSIA Act.
Article 1 of the Agreement defines the term “benefit”. It provides:
Definitions
...
(b)“benefit” means in relation to a Party, a benefit, pension or allowance for which provision is made in the laws of that Party, and includes any additional amount, increase or supplement for which a beneficiary is qualified but, for Australia, does not include any benefit, payment or entitlement under the law concerning the superannuation guarantee;
…
Article 2, relevantly provides:
Scope
1. For the purposes of this Agreement, the applicable laws are:
(a)As regards the United States, the laws governing the Federal old-age, survivors, and disability insurance program:
-Title II of the Social Security Act and regulations pertaining thereto, except sections 226, 226A and 228 of that title and regulations pertaining to those sections,
-Chapters 2 and 21 of the Internal Revenue Code of 1986 and regulations pertaining to those chapters;
(b) As regards Australia,
(i)the Acts forming the social security law insofar as the law provides for, applies to or affects the following benefits:
(A) age pension;
(B) disability support pension for the severely disabled;
(C) pensions payable to widowed persons; and
(D) carer payment.(ii)the law concerning the superannuation guarantee (which at the time of signature of this Agreement is contained in the Superannuation Guarantee (Administration) Act 1992, the Superannuation Guarantee Charge Act 1992 and the Superannuation Guarantee (Administration) Regulations).
The last part of the definition of “benefit” excludes, in relation to Australia, benefits, payments or entitlements under the law concerning the superannuation guarantee. The Australian superannuation guarantee laws in question are expressly identified in Article 2, 1(b)(ii).
The short answer to the appellant’s point is that “benefit” comprehends a payment of a US Social Security benefit, and is not excluded by the qualifying words “for Australia, does not include any benefit, payment or entitlement under the law concerning the superannuation guarantee”. The lump sum payment received from the US Administration was not paid under any of the identified Australian superannuation guarantee laws.
It is irrelevant whether the payment received from the US Administration is of the same nature as payments under the Australian superannuation arrangements, or is different in nature.
The retirement benefits paid by the US Administration fall into the categories of payments referred to in Article 2, 1(a). The payments made by the US Administration are not paid pursuant to any Australian law concerning the Superannuation Guarantee.
Article 17 of the Agreement provides:
Determination of Claims
…
2. Where:
(a)a benefit is paid by the United States to a person in respect of a past period whether by virtue of this Agreement or otherwise; and
(b)for all or part of that period, Australia has paid to that person a pension, benefit or allowance under its social security laws; and
(c)the amount of the pension, benefit or allowance paid by Australia would have been reduced had the benefit paid by the United States been paid during that period;
then
(d)the amount that would not have been paid by Australia had the benefit described in subparagraph (a) been paid on a periodical basis throughout that past period, shall be a debt due by that person to Australia and may be recovered by Australia; and
(e)Australia may recover all or part of that debt under the provisions of the Acts forming the social security law of Australia.
It follows that Burnett FM was right to conclude that:
28.… The payments received by the appellant are a “benefit” for the purpose of Schedule 13 of the SSIA Act. No error can be demonstrated in the approach of the Tribunal in its construction of the agreement. Accordingly the appeal on this ground fails.
The decision of the AAT on the question of waiver shortly concluded:
Since I was not provided with any evidence suggesting Dr Julien’s case was affected by special circumstances, I decline to waive the debt pursuant to s 1237AAD.
No error has been shown to taint this conclusion of the AAT, and Burnett FM was correct in rejecting the appeal to the Federal Magistrates Court in respect of this aspect of the decision of the AAT.
Notwithstanding the extensive claims and arguments advanced by the appellant, Burnett FM was right to dismiss the appeal to the Federal Magistrates Court for the reasons which his Honour gave. The appeal to this Court will be dismissed for the reasons which I have set out above.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate:
Dated: 18 September 2009
The Appellant appeared in person Solicitor for the Respondent: Minter Ellison Lawyers
Date of Hearing: 17 April 2009 Date of Judgment: 18 September 2009
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