Kerferd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 148
•10 March 2009
CATCHWORDS – SOCIAL SECURITY – child care benefit – requirement to notify change of circumstances – refusal to accept advice relating to child care benefit in form advised in notice a decision – whether decision made by Centrelink under authorising legislation or by a Centrelink officer acting as delegate of the Secretary - whether advice of sort required – whether final decision – decision reviewable.
A New Tax System (Family Assistance) Act 1999 s 22, 42(1)
A New Tax System (Family Assistance) (Administration) Act 1999 ss 3(1), 49(1) and (2), 49C(1), (2), (3) and (4), 49G, 50(2), 50C, 50F, 50G, 56C, 57(2), 104, 105, 108, 109A, 109C, 154(1), 158, 159(1), (2) and (3), 194(1), 111(1), 200, 201A, 201B, 204A, 219TSI , 221
Administrative Appeals Tribunal Act 1975 ss 3(1) and (3), 25(1), (3), (4) and (6),
Administrative Decisions (Judicial Review) Act 1977 ss 3(1)(a), 3(2)(a) and (g), 3(5), 5, 6
Commonwealth Services Delivery Agency Act 1997 ss 3, 6, 6A, 7(1) and (2), 8(1), 8A, 12(3)
Safety, Rehabilitation and Compensation Act 1988 s 37(7)
Social Security Act 1991 ss
Social Security (Administration) Act 1999 ss 235
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; (1990) 21 ALD 1; (1990) 64 ALJR 462; (1990) 94 ALR 11
Australian Postal Corporation v Forgie (2003) 130 FCR 279; (2003) 76 ALD 578; (2003) 202 ALR 63; [2003] FCAFC 223
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; (1979) 41 FLR 338; (1979) 24 ALR 307
Director-General of Social Services v Hales (1983) 78 FLR 373; (1983) 47 ALR 281
Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230; (2001) 68 ALD 107; (2001) 189 ALR 109
Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225; (1992)28 ALD 50; (1992) 111 ALR 1
Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269; (1996) 41 ALD 193; (1996) 136 ALR 153
Lees v Comcare (1999) 56 ALD 84; (1999) 29 AAR 350;
McLean Brothers & Rigg Ltd v Grice (1906) 4 CLR 835
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; (1985) 59 ALJR 824; (1985) 61 ALR 609
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 72 ALJR 841; 153 ALR 490
Trajkovski v Telstra (1998) 81 FCR 459; (1998) 153 ALR 248
Ward v Nicholls (1988) 20 FCR 18; (1988) 16 ALD 353; (1988) 84 ALR 471
DECISIONS AND REASONS FOR DECISIONS [2009] AATA 148
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/3185
GENERAL ADMINISTRATIVE DIVISION )Re:DAVID KERFERD
Applicant
And:SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 10 March 2009
Place: Melbourne
Decision:The Tribunal:
remits to the Authorised Review Officer for review the decision made or conveyed to the applicant by the Customer Support Officer on 4 February 2008 to refuse to accept the applicant’s oral advice that his daughter’s child care provider had changed for review.
S A FORGIE
Deputy President
REASONS FOR DECISIONS
When Mr Kerferd received a letter from a Family Assistance Office (FAO) advising him that he had been assessed as being entitled to the maximum rate of Child Care Benefit (CCB) and his daughter’s child care provider changed, he telephoned that office. The letter had told him that if there were any changes in his circumstances, including his child’s being enrolled in a new child care service, it was important that he tell the FAO about the changes. How he was to tell the office, was also set out in the letter when it stated “You can tell us about these changes by writing, calling, going online, or visiting any of our Family Assistance Offices.”[1]
A telephone number was provided.[2] When Mr Kerferd made his telephone call, the Client Services Officer (CSO) who took his call told him that his dealings with the office had to be in writing and that enquiries had to go through another officer called Dave Schulz.[3]
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 618
[2] T documents at 619
[3] Mr Schulz is referred to as both Dave Schulz and John Schulz.
Mr Kerferd was disappointed that the CSO would not take a note of the information he wanted to give and approached the Social Security Appeals Tribunal (SSAT) to review the decision. The SSAT referred it to an Authorised Review Officer (ARO) for review. The ARO noted that he had powers delegated to him by the Secretary[4] under s 235 of the Social Security (Administration) Act 1999 (SSA Act) and s 109C of the A New Tax System (Family Assistance) (Administration) Act 1999 (FA Administration Act). As no decision had been made on 4 February 2008 with regard to Mr Kerferd’s entitlement to CCB, the ARO decided that he did not have jurisdiction in the matter.
[4] The Secretary must be the Secretary for Education, Employment and Workplace Relations as the Minister for Education, Employment and Workplace Relations administers the FA Act and the FA Administration Act insofar as it relates to CCB, child care tax rebate, child care services and registered carers: Administrative Arrangements Order.
When Mr Kerferd applied to the SSAT for review of the ARO’s decision, it took a similar approach to that of the ARO. If the ARO had jurisdiction to review that decision, so did it. It identified one decision that the ARO had jurisdiction to review as a decision made under s 108 of the FA Administration Act. Section 109A(1) of the FA Administration Act provides that a person affected by such a decision may apply to the Secretary for its review. In order to be a decision of the sort made under s 108, the SSAT said, it had to have a character or quality of finality and be a determination that resolved an actual substantive issue. The decision made by the CSO was an action or step along the way towards making a determination of that sort but was not itself a decision of that sort. As it was not a decision determining
Mr Kerferd’s entitlement to CCB, it could not be reviewed by an ARO. As review by the ARO is a pre-requisite to review by the SSAT, it did not have jurisdiction to review it either.
I have decided that the ARO did have jurisdiction to review the decision. The decision regarding the way in which Mr Kerferd was to give information was not a step in the reasoning process leading to a determination of whether or not he was eligible for or entitled to CCB or the rate to which he was entitled. It was part of the way in which information is gathered prior to the making of such a determination. Under s 57 of the FA Administration Act, the Secretary of the administering Department, the Department of Education, Employment and Workplace Relations (Secretary), had to approve a manner of notification that a person was to use when notifying a change of circumstances. The FAO’s letter contained written notification of the manner of notification approved by the Secretary. The CSO’s advice to Mr Kerferd is to be taken as a variation of the manner of notification approved by the Secretary or as the communication of another officer’s variation of that manner. Whether or not the officer’s varying the Secretary’s approval of the manner of notification had authority to do so matters not. There was a decision in fact that had the effect of preventing Mr Kerferd from providing the information in accordance with the Secretary’s approval. An approval or variation of an approval is a decision and it was a decision made by an officer under the family assistance law. As it was not excluded from review by s 108(2) of the FA Administration Act, it was reviewable by the ARO and, once reviewed, reviewable by the SSAT and this Tribunal.
BACKGROUND
Centrelink’s formal title is the CommonwealthServices Delivery Agency. It was on 1 July, 1997 by theCommonwealth Services Delivery Agency Act 1997(“CSDA Act”). That legislation provides that Centrelink’s Chief Executive Officer may enter arrangements with the principal officer of a Commonwealth authority for the provision of Commonwealth services.[5] The expression “Commonwealthservice” is defined to mean “... aservice, benefit, program or facility for some or all members of the public that is provided for by the Commonwealth, whether under an enactment or otherwise”.[6] Arrangements may include arrangements for doing anything incidental or related to the provision of the Commonwealthservices e.g. making specified employees or classes of employees available to exercise powers or perform functions delegated to them under specified enactments.[7] Such arrangements have been entered into between the principal officer of the Department of Family and CommunityServices(“DFCS Department”) and the Chief Executive Officer ofCentrelinkin relation to pensions, benefits and allowances paid or payable under the Social Security Act 1991 (SS Act).
[5] CSDA Act, s 7(1)
[6] CSDA Act, s 3
[7] CSDA Act, s 7(2)
Mr Kerferd has spoken with Centrelink’s Client Service Officers (CSOs) on a range of matters over the years. A view has now been taken in Centrelink that Mr Kerferd’s matters should be referred to one particular officer. This is reflected in a note recorded in Centrelink’s computer records, which read in part:
“Customer’s situation is complex and no enquiries should be answered and no action should be taken. You must refer to John Schulz, Area Business Manager F&CC and VIC Spectrum …”[8]
The note was dated 22 August 2007 and its expiry date noted as 23 August 2011.
[8] T documents at 614
On 16 October 2007, another note was entered on Centrelink’s computer records. It read in part:
“… Centrelink Specialist Officer actioned record on 16 October 2007 regarding Family Tax Benefit. Information was obtained via Internal. Document created by HVB on 16 October 2007.
All interactions by customer must be in writing and addressed as per previous alerts.
John Schulz
ABM F&CC Area North central Vic”[9]
[9] T documents at 616
Family Assistance Offices (FAOs) have been set up as units within three much larger Commonwealth agencies: Medicare Australia offices, Centrelink Customer Service Centres and Australian Taxation Office in various locations throughout Australia. They have responsibilities for the day to day administration of Commonwealth legislation relating to the payment of various pensions, allowances and benefits which affect families. The Camberwell Family Assistance Office (Camberwell FAO) is located within a Centrelink office.
On 18 December 2007, the Manager of the Camberwell FAO, wrote to Mr Kerferd advising him that he was entitled to a maximum rate of Child Care Benefit (CCB) for each of his children in approved care. The Manager outlined the nature of the benefit and the manner in which it is calculated and concluded the letter with the following statement:
“On the back of this letter you will find important information about the things you have to tell us and about your right to privacy. This information sometimes changes so it’s important to read it. If there are any changes in your circumstances it is important to update your information with the Family Assistance Office. If you have any questions, would like more information or want to comment on our service please call us on the number shown in the Contact information section on the back of this letter.”[10]
[10] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 617
On either the back or the front of the letter, it is hard to tell from the unformatted copy in the T documents, but appearing after the signature block was the statement “This is an information notice given under family assistance law.”[11] It then proceeded to advise Mr Kerferd of his rights before advising him of the information he had to tell the FAO about. The latter advice read in part:
“… WHAT YOU MUST ALSO TELL US … You must tell us if any of your children: … are enrolled in a new child care service; leave a child care service; …”[12]
The letter went on to say:
“… HOW TO TELL US You can tell us about these changes by writing, calling, going online, or visiting any of our Family Assistance Offices. Not telling us or giving false or misleading information is a serious offence. If you are not sure about the information you need to provide, please contact us as soon as possible. …”[13]
[11] T documents at 617
[12] T documents at 618
[13] T documents at 618
On 4 February 2008, Mr Kerferd telephoned the Camberwell FAO on the number shown on the letter. That number began with the numbers “13” (the 13 number). He wanted to advise the Camberwell FAO that his daughter’s after school care provider had changed. A CSO recorded their conversation in the following way:
“Cus contacted to adv ccp [child care provider] number. Read through the alert documents one of which states that the cus dealings must be in writing, the other requests that enquiries go through Dave Schulz [sic]. Adv cus that
I would have to contact David to confirm whether I would be able to accept the information over the phone, cus stated that he did not want to speak with David so I stated that I would speak with him and confirm whether the update was actionable. Cus started discussing appeals again. Contacted David (HVB) who adv that was able to take the update of CCP [Child Care Provider] only, over the phone. Cus is not FTB/Cur so claim form would be required in any case. Cus stated that he would lodge an appeal in regards to not being able to lodge information via phone, then terminated call.I have issued CCB [Child Care Benefit] Claim form to customer for completion.”[14]
[14] T documents at 620
After their telephone conversation, the CSO wrote a letter dated 4 February 2008 to Mr Kerferd. It was written on the Camberwell FAO’s letterhead and included the 13 number as before. It read:
“Thank you for contacting us on 4 February 2008 please find enclosed the following form(s):
FA002CLAIM FOR CCB TO REDUCE FEES FOR 2007-2008 INCOME YEAR
CI011INFO ABOUT CLAIMS FOR FTB, MPY, MIA, CCB, HCC (for a foster child)
When returning information to Centrelink, please ensure your reference (as shown at the top of this letter) is clearly printed on any form(s).
Please return the completed form(s) to us at the address shown above. If we can be of any further assistance to you, please call the number at the top of this letter.
This is an information notice given under the family assistance law.
If you would like to talk about this letter please phone us on the number at the top of the letter.”[15]
[15] T documents at 621
Also on 4 February 2008, Mr Kerferd contacted the Social Security Appeals Tribunal (SSAT) to ask it to review the CSO’s refusal to accept details of his daughter’s after school care provider over the telephone and insistence on his communicating in writing and lodging a claim form. The SSAT referred the matter to an Authorised Review Officer (ARO).
The ARO decided that he did not have any jurisdiction to review the refusal or the requirements conveyed by the CSO on 4 February 2008. He did so on the basis that no decision had been made regarding Mr Kerferd’s entitlement to Child Care Benefit (CBB). Therefore, there was no decision for him to review and so no jurisdiction. The ARO wrote to Mr Kerferd on 19 February 2008 explaining that:
“As an Authorised Review Officer I have the delegated powers to review decisions made under Social Security Law (section 235 of the Social Security Administration Act) and Family Assistance Law (section 109C of the Family Assistance Administration Act). As no decision was made on 4 February 2008 with regards to your Child Care Benefit entitlement, there is no decision for me to review and, as such, I have no jurisdiction in this matter.”[16]
[16] T documents at 623
When Mr Kerferd applied to the SSAT for review of the ARO’s decision, it said that the issue that it had to decide was whether the “decision … made by Centrelink on 4 February 2008 … is capable of being reviewed by this Tribunal.”[17] It also noted that Mr Kerferd had raised two further issues: whether the CSO was correct in refusing to accept details of the change in his daughter’s after school care provider and whether he could receive Family Tax Benefit (FTB).
[17] T documents at 608
In relation to the first issue, the SSAT decided that “… it did not have jurisdiction in relation to the matter under appeal”.[18] In light of that, it told
[18] T documents at 606
Mr Kerferd, “the appeal is not successful”.[19] It reached that decision after analysing the issue in this way:
[19] T documents at 606
“22. The Tribunal notes that Mr Kerferd also raised as an issue as to his entitlement to Family Tax Benefit. Mr Kerferd’s entitlement to Family Tax Benefit was not before the Tribunal for it to include in its consideration of
Mr Kerferd’s appeal.23. The issue to be determined is whether the matter that Mr Kerferd wants to be reviewed is a decision. The Tribunal notes that the definition of the word ‘decision’ in section 3 of the FA Administration Act states that ‘decision’ has the same meaning as in the AAT Act.
24. In interpreting the meaning of ‘decision’ as it is used in the relevant legislation, the courts have used a narrow construction. Specifically, the High Court in Australian Broadcasting Tribunal v Bond (1990) concluded that ‘decision’ as it appears in the AAT Act should be interpreted narrowly. Mason J provided reasons, which indicated that a ‘decision’ must have the ‘character or quality of finality, an outcome reflecting something in the nature of a determination …’. Deane J said that it must be a determination resolving an actual substantive issue. In that case, the High Court concluded that acts done preparatory to the making of a decision could not be regarded as ‘decisions’.
25. The Federal Court has determined that the making of a decision requires an overt act, which displays an element of conclusiveness, (
Evans
v Friemann (1981) 35 ALR 428). There must be a sense of finality, in the sense that there is some real or practical effect, some action or refraining from action, (Century Metals and Mining NL v Yeomans (1988) 85 ALR 29).
26. Having carefully considered the information provided to the Tribunal, the Tribunal considers that the refusal of a customer services officer to accept or record a change in the details of Mr Kerferd’s daughter’s child care provider from information provided by telephone does not have the qualities of a ‘decision’ for the purposes of the relevant legislation. The customer services officer’s refusal to accept the details provided by Mr Kerferd was not of sufficient substance so as to be properly regarded as a decision and the Tribunal considers that it was only something, which was done preparatory to the making of a ‘decision’, Mr Kerferd having been advised to provide the necessary information in writing.
27. The Tribunal, therefore, concludes that the refusal of the customer services officer to accept change in the details of Mr Kerferd’s daughter’s child care provider cannot be reviewed by an authorised review officer.
28. The Tribunal is a creature of statute and its power to review decisions is restricted by the legislation conferring jurisdiction on the Tribunal. The Tribunal finds in this case that there is no decision before it which has been or is capable of being reviewed by an authorised review officer. The existence of a decision and review of the decision is a pre-requisite to the right to apply for review by this Tribunal. The Tribunal, therefore, determines that it lacks jurisdiction to hear the application lodged by Mr Kerferd.”[20]
CONSIDERATION
[20] T documents at 610-611
Administrative Appeals Act 1975: identifying the scope of the Tribunal’s jurisdiction generally
Like the SSAT, the AAT is a creature of statute and its powers and authority to act must be found in statute whether expressly or implicitly. The starting point for its jurisdiction is found in s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act). That section establishes the framework in which an enactment,[21] other than the AAT Act, provides that an application may be made to the Tribunal for the review of a decision. Section 25(1) provides:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; ….”
Section 25(4) provides the necessary corollary to this sub-section when it provides that the “... Tribunal has power to review any decision in respect of which application is made to it under any enactment.” The general powers of the Tribunal are found in other provisions of the AAT Act.
[21] An “enactment” is defined by s 3(1) of the AAT Act to mean, among other things, an Act.
The remaining ten sub-sections of s 25 go on to refine the general proposition made in s 25(1) and to provide that an enactment may modify the operation of any particular provision of the AAT Act. Of particular interest in this case is s 25(6) which provides:
“If an enactment provides for applications to the Tribunal:
(a)that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and
(b)those sections and subsections have effect subject to any provisions so included.”
There are three matters that are apparent from s 25 generally and
ss 25(1) and (3) specifically. The first is that Parliament intended that the Tribunal’s power of review be defined and circumscribed by the enactment providing for that review. The second is that Parliament intended that the Tribunal’s power be in relation to a “decision” made in the exercise of powers conferred by an enactment although it need not be the same enactment as that which gives the Tribunal power to review the decision. The third is that the Tribunal only has power to review a decision in respect of which an application has been made “under an enactment”.
A.Tribunal’s power defined and circumscribed by enactment providing for review
Turning to the first, the intention that the Tribunal’s power of review is defined and circumscribed by the enactment providing that review is underlined by
s 25(3). It permits an enactment to specify conditions subject to which applications to the Tribunal may be made.[22] The upshot for this case is that the Tribunal will only have jurisdiction to review a decision if that decision is of a sort for which an enactment provides for its review. This interpretation is consistent with the statements made by the Attorney-General in his Second Reading speech in the House of Representatives.[23]
B.The enactment may only provide for review of “decisions” made in the exercise of powers conferred by that enactment or another enactment
[22] AAT Act s 25(3)(c)
[23] Hansard, House of Representatives, page 1187
The second matter that is apparent from s 25 is that Parliament intended that the Tribunal’s power of review be in relation to a decision that has been made in the exercise of powers conferred by the enactment. It may be that the powers are conferred by the enactment that gives the Tribunal the power to review the decision or it may be that it is made under another enactment altogether.
The word “decision” is defined in s 3(3) of the AAT Act in very wide terms in the following way:
“Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(a)making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.”
For all its breadth, the definition does not seek to define the word “decision” itself; only to make sure that the actions specified in the seven paragraphs come within it. This was inherent in the judgment of Lockhart J, with whom Sheppard J agreed in Director-General of Social Services v Hales[24] when he said:
“ The definition of ‘decision’ in s 3(3) seeks to embrace them all by its ambulatory character. One cannot therefore look to the definition in s 3(3)
[of the AAT Act] to determine definitively the meaning of the word ‘decision’. It must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review of the Administrative Appeals Tribunal. The multiplicity of statutes which continue to grow and to confer jurisdiction on the Administrative Appeals Tribunal, and the manifold and diverse circumstances which attract the power of the decision maker, all call for a liberal approach to the definition of the word ‘decision’ …It is necessary to examine the Act which confers jurisdiction on the Administrative Appeals Tribunal and the administrative framework in which it operates to determine whether there is a ‘decision’ susceptible of review under the Administrative Appeals Tribunal Act. A pronouncement which alters rights or imposes liabilities is readily classified as a ‘decision’, but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities: Duncan v Defence Force Retirement and Death Benefits Authority and Commonwealth of Australia (1980) 30 ALR 165 at 169-70.”[25]
[24] (1983) 78 FLR 373; 47 ALR 281
[25] (1983) 78 FLR 373; 47 ALR 281at 397; 305-306
The word “decision” was also considered by the High Court in Australian Broadcasting Tribunal v Bond.[26] Their Honours considered the definition of “decision” in s 3(2) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). That definition defines the word, in part and in so far as they are relevant in this case, in the context of its being “… a decision of an administrative character made … under an enactment …”.[27] A reference to the “making of a decision” includes such actions as making, suspending, revoking or refusing to make an order, award, or determination or doing or refusing to do any act or thing.[28]
[26] (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11
[27] ADJR Act, ss 3(1)(a): “decision to which this Act applies”
[28] ADJR Act, ss 3(2)(a) and (g)
Mason CJ observed, that it was:
“... clear that a ‘decision to which this Act applies’ must be a decision of an administrative character, that it may be made in the exercise of a discretion, and that it must be made under an enactment. But these characteristics provide little guidance as to the meaning of the word ‘decision’ upon which the definition in s 3(1) is based.”[29]
[29] (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11 at 335-336; 9; 468; 22 per Mason CJ
His Honour, with whom Brennan J and Deane J agreed, considered the competing policy considerations to be taken into account in determining the compass of the word “decision”. These were:
“On the one hand, the purposes of the A.D.(J.R.) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes.
On the other hand, in so far as the ambit of the concept of ‘decision’ is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen CJ and Lockhart J appeared to emphasize the first of these considerations in Australian National University v Burns … [(1982) 64 FLR 166 at 172; 43 ALR 25 at 30], there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.”[30][30] (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11 at 336-337; 10-11; 468-469; 23
Mason CJ went on to say:
“The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable ‘decision’ is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s 3(2)(g), the instances of decision mentioned in s 3(2) are all substantive in character. Moreover, the provisions in sub-ss (1),(2),(3) and (5) of s 3 point to a substantive determination. In this context the reference in s 3(2)(g) to ‘doing or refusing to do any other act or thing’ (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s 16(1)(b) or in para (e) of Sch 1 or para (a) of Sch 2 to the AD(JR) Act any contrary implication. These exclusions from the AD(JR) Act or from s 13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them.
If ‘decision’ were to embrace procedural determinations, then there would be little scope for review of ‘conduct’, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the ‘conduct’ of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of ‘conduct’ than with the notion of ‘decision under an enactment’.”[31]
[31] (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11 at 337-338; 11; 469; 23-24
Mason CJ made it clear that a reviewable decision need not be one which ultimately determined all of the issues when he referred to Lamb v Moss (1983) 49 ALR 533. He said:
“Lest it should be thought otherwise, I should say that, to the extent in Lamb v Moss that the magistrate decided that a prima facie case had been established and that he would proceed with the committal proceedings, a reviewable decision had been made. That decision was one for which s 41(2) of the Justices Act 1902 (NSW) specifically provided. The decision resolved an important substantive issue to be determined before the ultimate decision could be made under s 41(6) of that Act whether to commit the defendant for trial or discharge him from custody.”[32]
[32] (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11 at 338; 12; 469; 24
Although the definitions of the word “decision” are in similar terms in s 3(1) of the AAT Act and s 3(2) of the ADJR Act, s 3(5) of the ADJR Act refers to “conduct” when it provides that:
“... a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation.”
This relates to s 6 of the ADJR Act which provides for applications to be made for review of conduct related to the making of a decision. That is separate from s 5 which provides for applications to be made for review of decisions. There is no similar provision in the AAT Act.
The fact that the ADJR Act made provision for review of conduct related to making decisions was relevant in the consideration of the meaning of “decision” under the ADJR Act. Mason CJ said that its meaning becomes clear once it is accepted that a “decision” is:
“... one that generally is substantive, final and operative ... In its setting in s 6 the word ‘conduct’ points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. Accordingly, s 3(5) refers to two examples of conduct which are clearly of that class, namely, ‘the taking of evidence or the holding of an inquiry or investigation’. It would be strange indeed if ‘conduct’ were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.
Accordingly, there is a clear distinction between a ‘decision’ and ‘conduct’ engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to ‘conduct’. That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.”[33]
[33] (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11 at 341-342; 14; 471; 27
Even though the AAT Act makes no reference to “conduct,” it seems to me that the principles adopted by the High Court in considering the word “decision” in the ADJR Act should be applied to the interpretation of the same word in the AAT Act. To do so is consistent with their being defined in the two in similar terms. The fact that the Tribunal does not have power to review conduct, as opposed to a decision, does not detract from the similarity. Indeed, it underlines the fact that the word “decision” as it is used in the AAT Act does not extend to conduct itself. That is not to say that regard may not be had to conduct in deciding whether a decision may be made. Paragraphs (f) and (g) of the definition of “decision” in s 3(3) of the AAT Act extend to matters that could, in some circumstances, be regarded as conduct as do the same paragraphs of the definition of “decision” in the ADJR Act. Given the analysis by the High Court, those matters must resolve a substantive issue and have the necessary quality of finality if they are to be regarded as a “decision” within the meaning of the AAT Act. The same conclusion can be reached in relation to other conduct which is not described in those two paragraphs but which shows that a substantive issue has been finally resolved.
C.The Tribunal has power to review a decision in respect of which an application is made under an enactment
I come now to the third matter that arises from s 25(4). It is the provision that complements s 25(1). The effect of s 25(4) is that, if the Tribunal is to have jurisdiction in a particular case, it must be able to find three things. The first is that there has been a decision of the sort I have described above. The second is that there has been an application for review of that decision. The third is that the application is “made to it under an enactment”. The requirement that the application be made “under an enactment” requires a consideration of whether an enactment authorised or permitted the application to be made. This is apparent from the authorities.
Consideration has been given to the meaning of the expression “under an enactment” in various contexts. It was considered in the context of the ADJR Act by Black CJ in Hutchins v Deputy Commissioner of Taxation:[34]
“It is clear that there may be a decision ‘under an enactment’ within the meaning of that expression in the ADJR Act notwithstanding that the enactment concerned does not expressly require or authorise the decision in question but does so impliedly.”[35]
[34] (1996) 65 FCR 269; 41 ALD 193; 136 ALR 153
[35] (1996) 65 FCR 269; 41 ALD 193; 136 ALR 153 at 271; 195; 155
In Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission, [36] Finn J said in the same context:
“ The second quality required of a ‘reviewable decision’ is that it be a decision ‘made under’ an enactment …
This test requires there to be a ‘sufficient connection’ between the text of the statute in question and the decision sought to be reviewed …
This ‘sufficient connection’ requirement itself effects a balance between the policy, on the one hand, of allowing effective redress to persons aggrieved by administrative decision making processes (so enhancing those processes), and that, on the other hand, of protecting the efficient administration of government from impairment by an extended conception of a reviewable decision ...”[37]
[36] (2001) 113 FCR 230; 68 ALD 107; 189 ALR 109
[37] (2001) 113 FCR 230; 68 ALD 107; 189 ALR 109 at 250-251; 125; 127
The notions of a “sufficient connection” and of an implicit authorisation are illustrated by the conclusion reached by Mason, Deane and Dawson JJ (Gibbs CJ and Brennan J dissenting) in Minister for Immigration and Ethnic Affairs v Mayer.[38] This is a case to which the Full Court referred in Australian Postal Corporation v Forgie:[39]
“… That case involved the interpretation of s 6A(1)(c) of the Migration Act 1958 (Cth). Section 6A(1)(c) was to the effect that an entry permit was not to be granted unless one or more of a number of conditions were met, one of them being that ‘the Minister has determined … that he has the status of a refugee.’ Mason, Deane and Dawson JJ … held that the Minister’s decision that the respondent did not have refugee status was made in performance of a function impliedly conferred upon him by s 6A(1)(c) of the Migration Act. It was therefore a decision made ‘under an enactment’ as required by s 3(1) of the ADJR Act.”[40]
[38] (1985) 157 CLR 290; 59 ALJR 824; 61 ALR 609
[39] (2003) 130 FCR 279; 76 ALD 578; 202 ALR 63; [2003] FCAFC 223;
[40] (2003) 130 FCR 279; 76 ALD 578; 202 ALR 63; [2003] FCAFC 223 at 292; 591; 76; [62]
Applying that logic to s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), the Full Court concluded:
“ Likewise under s 37(7), when an employee has refused or failed to undertake a rehabilitation program, rights are to be suspended, unless one element is present, namely a reasonable excuse. There is a direct connection between the text of the statute ‘without reasonable excuse’ and the decision, which the respondent seeks to have reviewed ‘that there is no reasonable excuse’. Since the connection is both direct and explicit, it must easily fall within the notion of a sufficient connection for the purposes of ‘made under’ in the context of the ADJR Act. It follows that it would also be a decision ‘made under s 37’ for the purposes of s 60(1) of the SRC Act.”[41]
What are the Tribunal’s powers when the SSAT’s decision that it does not have jurisdiction appears not to have been made in the exercise of powers under an enactment?
[41] (2003) 130 FCR 279; 76 ALD 578; 202 ALR 63; [2003] FCAFC 223 at 292; 591; 76; [63]
Mr Kerferd applied to this Tribunal for review of the SSAT’s decision. There is no question that it is a “decision” that finally determines a matter. It is a decision in the sense in which that word is used in s 25 of the AAT Act. It puts to an end Mr Kerferd’s quest to have someone consider whether or not the CSO’s refusal to take the information he proffered was correct.
Whether it is a decision made in the exercise of powers conferred by an enactment is more problematic. I know of no express power given under any enactment that authorises a decision of that sort. It could be thought that is an end of the matter because one of the criteria in s 25(1) of the AAT Act has not been satisfied. If it is not satisfied, s 25(2) cannot operate to give it power. It is not an end of the matter, though. There remains a decision that affects Mr Kerferd and of which he has sought review. There remains a decision of the SSAT saying that it has no jurisdiction to review that decision and a decision of the ARO to the same effect.
If that is indeed the case, then this Tribunal has no jurisdiction. Should it be the case that it did have jurisdiction to review the decision and so did the ARO, it would normally follow in matters falling within the Tribunal’s social security jurisdiction that this Tribunal had jurisdiction too.
The solution to the dilemma lies in looking not to the decision that was made by the SSAT regarding jurisdiction but to the decision that it found it did not have jurisdiction to review. If first the ARO, then the SSAT and finally the Tribunal had jurisdiction to review it, then the Tribunal can set aside the decision that the SSAT had no jurisdiction. This approach is consistent with that set out by Tamberlin J in Trajkovski v Telstra.[42] His Honour referred to the principles set out in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[43] and Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services.[44]
[42] (1998) 81 FCR 459; 153 ALR 248
[43] (1979) 2 ALD 1; 41 FLR 338; 24 ALR 307 Bowen CJ, Smithers and Deane JJ
[44] (1992) 111 ALR 1
He continued:
“ The approach adopted in these cases lends support to the proposition that the AAT, in the present case, has the competence and authority to determine whether it has jurisdiction. It is not bound to decline jurisdiction simply because the jurisdictional question cannot be described as a ‘reviewable decision’ and it must consider antecedent matters going to its jurisdiction in order to enable it to perform its primary function. …
Also, there is a line of English authority to the effect that, if a certain state of facts has to exist before a tribunal has jurisdiction, it can inquire into the facts in order to decide whether it has jurisdiction but it cannot give itself jurisdiction by a wrong decision upon those facts. The courts may, by means of proceeding by way of prerogative writ such as certiorari, for example, inquire into the correctness of that decision. The AAT’s decision as to the existence of the state of facts is regarded as collateral because, although the exercise of jurisdiction depends on it, it is not the main question which the tribunal must determine: see R v Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek [1951] 2 KB 1 at 6; R v Kensington and Chelsea (Royal) London Borough Rent Officer; Ex parte Noel [1978] QB1 at 9; Wade, Administrative Law, 6th ed, 1988, pp 283-8; de Smith, Judicial Review of Administrative Action, 4th ed, 1980, at 110 ff.”[45]
[45] (1998) 81 FCR 459; 153 ALR 248 at 468; 256-257
The same conclusion was reached by Wilcox J in Ward v Nicholls[46] although in the context of an application to the Tribunal that it review a decision by the Veterans’ Review Board (VRB) that it had no jurisdiction. The Tribunal had decided that the VRB had not made a decision with the consequence that it had nothing to review and so no jurisdiction. The provisions of the Veterans’ Entitlements Act 1986 relating to review of decisions by the VRB and by this Tribunal are drafted in terms similar to those in the FA Administration Act. Wilcox J said:
“ It would be a very odd situation … if the appointed first instance reviewer, the Veterans’ Review Board, erroneously found that it had no jurisdiction, and the Administrative Appeals Tribunal — which is set up by statute to review on their merits decisions of that Board — was then precluded from considering for itself whether that Board in fact had jurisdiction and, if so, what decision it should have made. There would be a lacuna in the system of administrative review disappointing to those who had laboured to set up the comprehensive system which appears to be provided by the statute. I cannot think that this is right. I think that the true position is that the Veterans’ Review Board is always in the position of having to decide whether to affirm, to vary or to set aside the decision of the Commission, and that, whatever decision it makes, that decision is subject to review by the Administrative Appeals Tribunal.”[47]
[46] (1988) 20 FCR 18; 16 ALD 353; 84 ALR 471
[47] (1988) 20 FCR 18; 16 ALD 353; 84 ALR 471 at 27; 361; 481
Whether or not the Tribunal can go on to review the decision should it find that the ARO and the SSAT had jurisdiction to do so is another question altogether. It would be a decision that had not been reviewed by either the ARO or the SSAT and so the foundation on which the Tribunal’s statutory powers are built would not exist.[48] While it is not necessary to decide that issue, it is open to think that the decision would have to be remitted to the ARO to reconsider.
[48] Lees v Comcare (1999) 29 AAR 350; 56 ALD 84 at 362-363; 94-95
Identifying the decision of which review is sought
Identifying the decision is at the forefront of every decision-maker’s mind. For the primary decision-maker, he or she has to identify it in order to decide what criteria must be satisfied in order to make that decision. In their turn, those criteria dictate what information or evidence is necessary if the decision-maker is to be satisfied of them. For the decision-maker reviewing another’s decision on its merits, the task is the same. When a decision has been made and reviewed in one or more steps, it should generally be possible to see the links between the decision which was made by the primary decision-maker and of which a person sought review within the agency itself and the decision ultimately made. That is so even though the primary or first decision has been varied or even set aside and another substituted. For all that, the links between the first and the last may be twisted but they should form an unbroken chain. It should be possible to trace the changes from the initial or primary decision and see how the initial decision came to be replaced with a decision that may appear quite different in its form and in its effect.
When I try to trace the links between what Mr Kerferd regarded as the initial decision of which he sought review and the decision I am asked to review,
I could look simply to the decision of the SSAT. The SSAT’s decision is that neither it nor the ARO had jurisdiction to “review a decision in relation to Child Care Benefit”.[49][49] T documents at 606
When I look at the matter more deeply, I feel that I am missing some of the links in the chain between the decision of which Mr Kerferd sought review and the SSAT’s decision. I feel that the chain of reasoning leading to its conclusion that it had no jurisdiction is broken. While I realise that it is not my task to review the SSAT’s reasons,[50] and I do not purport to do so in any way, the breaks that I see in the chain have distracted me. They have distracted me to such an extent that I have had difficulty in working out what I was being asked to review and so in working out what jurisdiction I had.
[50] See Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; (1979) 2 ALD 1; (1979) 24 ALR 307 at 367-368; 23-24; 334-336 per Smithers J
My problem stems from the fact that Mr Kerferd sought review of the CSO’s decision not to accept information about the change in his daughter’s child care provider over the telephone.[51] In some senses, the CSO’s decision was a simple restatement of a position previously decided upon by Centrelink. While that was true, each restatement had the effect of concluding Mr Kerferd’s ability to impart information by telephone to a CSO on each particular occasion on which it was uttered. Each restatement represented a decision to implement the policy on that particular occasion. Each decision was a decision finally determining Mr Kerferd’s ability to communicate with Centrelink in a way other than that determined by Centrelink. It terminated the ability that he previously had to communicate information over the telephone and that other recipients, or would be recipients, of CCB continue to have. It may be going too far to describe that ability as a right but it would seem to have been at least a privilege that is now denied to him.
[51] T documents at 555
The ARO identified that decision as the decision he was reviewing but then considered whether he had jurisdiction to consider it in terms of his powers to review entitlements to CCB. As the decision did not relate to Mr Kerferd’s entitlement to CCB, the ARO decided that he did not have power to review it. The SSAT described the decision it reviewed as a decision “not to review a decision in relation to Child Care Benefit because the Centrelink officer does not have jurisdiction”. The SSAT’s statement of the decision made by the ARO does not match the decision actually made by the ARO. It changes a decision not to accept information over the telephone into a decision in relation to CCB. The fact that the information Mr Kerferd wanted to relay was about a matter connected with his entitlement to CCB does not change the decision into one in relation to CCB. It was a decision in relation to the way in which Centrelink would or would not deal with him and not a decision that was relevant in determining his eligibility for or entitlement to CCB.
By analysing the decision in the way it did, the SSAT was able to find that it had no jurisdiction because it was an act preparatory to the making of a decision and could not be regarded as a decision. While I do not agree that the decision of which Mr Kerferd sought review is properly characterised as being in relation to CCB, I have considered whether I would have come to the same conclusion as the SSAT about its jurisdiction were I to do so.
On my reading of Australian Broadcasting Tribunal v Bond, to which the SSAT referred, it seems to me that, if a decision or an act is to be regarded in this way, it must be, as Mason CJ described it:
“A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision …”[52]
[52] (1990) 170 CLR 321; (1990) 94 ALR 11 at 337; 23 and see further [27] above -[54] below
That means that regard must be had to the nature of the ultimate decision and to the matters that must be decided in order to make that ultimate decision. The ultimate decision identified by the SSAT was Mr Kerferd’s entitlement to CCB. Eligibility for CCB is the subject of Division 4 of Part 3 of the A New Tax System (Family Assistance) Act 1999 (FA Act). It is prescribed by reference to different scenarios depending on such matters as the individual claimant’s personal circumstances, those of the child and the care provider. Section 42(1) of the FA Act, for example, provides for conditional eligibility for CCB by fee reduction. That is the sort of CCB paid to Mr Kerferd. Section 42(1) provides in part:
“An individual is conditionally eligible for child care benefit by fee reduction for care provided by an approved child care service to a child if:
(a)the child is an FTB child, or a regular care child, of the individual, or the individual’s partner; and
(b)the individual, or the individual’s partner:
(i)is an Australian resident; or
(ii)…
(iii)…
(c)…”
An “approved child care service” means an approved centre based long day care service, an approved family day care service, an approved in-home care service, an approved occasional care service or an approved outside school hours care service.[53] Each of those approved services is approved under Division 1 of Part 8 of the FA Administration Act and the approval must be in force for it to be regarded as approved. Section 194(1) in that Division provides that a person who operates, or proposes to operate, a child care service “may apply to the Secretary to have the service approved for the purposes of the family assistance law” (emphasis added). There is no obligation upon the person to apply for approval.
[53] FA Administration Act, s 3(1)
There are limitations on eligibility for CCB related to hours[54] or to other matters that are not relevant in this case.[55] An “FTB child” is defined in s 22 of the FA Act in various forms depending on a range of factors such as the age of the child, whether in an adult’s care, whether studying full-time and whether there is a family law order or registered parenting plan in relation to the child.
[54] FA Act, Part 3, Division 4, Subdivision G
[55] FA Act, Part 3, Division 4, Subdivision F
Section 50F of the FA Administration Act provides that:
“If the Secretary is satisfied that the claimant, at the time the Secretary makes the determination, is conditionally eligible under section 42 of the Family Assistance Act in respect of the chid, the Secretary must determine that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child.”
If the Secretary is not so satisfied, the determination must be that the claimant is not entitled.[56]
[56] FA Administration Act, s 50G
It is apparent from these examples that there are a number of decisions that must be made along the way in order to decide whether a person is entitled or not to CCB. In order to make them, a decision-maker must have access to relevant information. Some of that will be gathered from the claim made by the person seeking CCB. Except in special circumstances set out in s 49(2) of the FA Administration Act, s 49(1) requires a person to make a claim for CCB. In doing so, it draws a distinction between eligibility, which is the subject of Division 4 of Part 3 of the FA Act, and entitlement. As s 49(1) says, the only way a person can become entitled to CCB is by making a claim.[57] That form must be accompanied by any documents required by the Secretary as well as information such as details of a bank account as required by s 49G and relevant tax file numbers.[58] Should a person not provide all of the information required by the Secretary, the claim will not be an effective claim but ss 49C(2), (3) and (4) qualify that to some extent.
[57] In the exception provided for in s 49(2), relevant information will be available by means of the report made by the approved child care service to the Secretary.
[58] FA Administration Act, s 49C(1)
Clearly, then, a decision about whether or not a person has given the information required by the Secretary is a step along the way in deciding whether a person has made an effective claim for CCB. Whether or not that person has given information in a form and manner required by the Secretary is a question to be considered and decided as a step along the path to deciding whether a person has made an effective claim. It might be open to argue that a decision about whether the information is sufficient for the claim to be effective has the necessary qualities of finality for, if a claim is not effective, it is taken not to have been made.[59] Even then, if a claim is taken not to have been made, the Secretary will never go on to make a determination of conditional eligibility or of no entitlement under s 50B of the FA Administration Act. That will be the effective decision and the decision regarding insufficiency of information a step along the way.
[59] FA Administration Act, s 50(2)
Information, therefore, is a very important commodity in making decisions or determinations such as these. It continues to be important in making other determinations once a determination of conditional eligibility has been made. They include determinations such as the CCB% and the weekly limit of hours.[60] Information is so important that an individual who has been determined under s 50F to be conditionally eligible for CCB must notify if anything happens that causes him or her to cease to be conditionally eligible or that is likely to have that effect. Once there is a determination of conditional eligibility under s 50F in force in respect of a claimant who is an individual (and Mr Kerferd is such an individual) and anything happens that causes the claimant to cease to be conditionally eligible or the claimant becomes aware that anything is likely to happen that will have that effect, s 56C(1) provides that the individual:
“… must, in the manner set out in a written notice given to the individual under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.”
[60] FA Administration Act, s 50C
Information that is provided in that way will be used in determining whether the individual retains conditional eligibility. For all that, it is hard to see the fact of its being provided or the way in which it is provided or permitted to be provided as a step along the way in the reasoning process towards determining that conditional eligibility. Information is used as part of the reasoning process. Gathering the information is preparatory to the reasoning process or an incidence of the reasoning process in the sense that the reasoning process may reveal that more information may need to be gathered. The way in which information is gathered could compromise the quality of the final decision. There are occasions in the criminal law, for example, in which evidence gathered without a proper warrant may not be used as part of a jury’s reasoning processes in coming to a verdict. That possibility does not mean that the gathering process becomes a step along the way in the reasoning process of the jury. In my view, the two remain separate. Decisions about the gathering process are not steps along the way in the process of determining conditional eligibility or entitlement to CCB.
Did the ARO, and so the SSAT, have power to review the CSO’s decision not to accept information from Mr Kerferd over the telephone?
In general terms, if a “decision reviewer” has affirmed, varied or set aside a decision under Division 1 of Part 5 of the FA Administration Act, a person affected by the decision may apply to the SSAT for review of the decision as affirmed or varied or, if set aside, the decision substituted for that decision.[61] Division 1 of Part 5 provides for review of a decision made by a person other than the Secretary provided that decision comes within the classes of decision specified in that Division. I will return to this below but, for the moment, this is enough to show why I say that, if the ARO had jurisdiction to review the decision, the SSAT had power to review it, or the decision as varied or substituted, also.
[61] FA Administration Act, s 111(1)
I have looked first to the nature of the decision of which Mr Kerferd seeks review. It is a decision as to a procedural matter rather than as to Mr Kerferd’s entitlement to a particular benefit or entitlement be it CCB or otherwise. It is a decision as to the way in which he may not communicate information to the Secretary about his CCB. Considering the matter in general terms, it seems to me that the authority to make such a decision could stem from either one of two pieces of legislation. Given that Mr Kerferd could be regarded as either responding to the letter he had received from Centrelink dated 18 December 2007 or complying with the obligations it set out, it could be found in the law relating to CCB i.e. in either the
FA Act or the FA Administration Act. If it is not found there, authority may be found in the law establishing Centrelink and in the agreement between the Secretary and Centrelink.
A. Commonwealth Services Delivery Agency Act 1997
I will start with CSDA Act. Mr de Uray, correctly in my view, submitted that there is no provision made in that legislation for review of any decisions that may be made under it. He went on to submit that the decision to limit Mr Kerferd’s dealings with Centrelink to written communication is an administrative action more properly related to Centrelink service delivery than the exercise of powers to determine family assistance entitlments under the FA Administration Act.[62] Implicit in the CSDA Act, Mr de Uray submitted, is Parliament’s intention that Centrelink’s service delivery powers and obligations be subject to that legislation. That is to say, “determining a person’s eligibility for, or entitlement to receive or have access to, the services” is not specifically covered by the family assistance law in general or by the FA Administration Act in particular. Rather, it is an administrative act covered by the CSDA Act. He referred to s 6A, which provides that Centrelink’s function is to assist its Chief Executive Officer (CEO), and to s 7, which sets out the CEO’s functions and then said:
“10. The functions of the Chief Executive Officer are more particularly detailed in s 7 of the Services Delivery Act. It is submitted that both the subject matter and ambit of the Services Delivery Act lends weight to the submission that Parliament intended that the Services Delivery Act cover the field regarding the provision of service delivery arrangements. Relevantly, sub-section 7(2) provides that:
[62] Secretary’s Statement of Facts and Contentions dated 26 September 2008, [6]
7 Service arrangements
… (2) Arrangements for the provision of Commonwealth services may include arrangements for doing anything incidental, conducive or related to the provision of the services.
11. Sub-section 7(3)(b) of the Services Delivery Agency Act further provides that arrangements for the provision of Commonwealth services may include arrangements for:
‘determining a persons [sic] eligibility for, or entitlement to receive or have access to, the services’
12. It is submitted that the Tribunal only has jurisdiction to review those decisions expressly provided for in the family assistance law. The decision complained of by the applicant is a decision made not under the family assistance law, but in pursuance of the general functions of Centrelink under the Services Delivery Agency Act; and the Services Delivery Agency Act does not provide for Tribunal review of the performance of those functions.
In other words, if it is accepted that a person’s eligibility for, or entitlement to receive or have access to [Centrelink services] is made pursuant to the Services Delivery Agency Act, it is respectfully submitted that, as a matter of law, the Administrative Appeals Tribunal would be prevented from reviewing any administrative action in relation thereto.[63] This is because the Services Delivery Agency Act does not confer jurisdiction on the Administrative Appeals Tribunal; and the Tribunal does not have an inherent jurisdiction to review or determine the validity of actions taken by the Commonwealth or officers or agencies of the Commonwealth.”[63] “It is of course accepted that the AAT has the competence, authority and responsibility to determine whether it has jurisdiction to review a decision: Re Adams and Tax Agents Board (1976) 1 ALD 251”
I have the impression that these submissions are underpinned by an assumption that the CSDA Act is concerned with services offered or provided by Centrelink in its own right. That is to say, it is not concerned with Centrelink’s delivery of services, for which another agency is responsible but which it has arranged for Centrelink to deliver. This impression is underlined by the reference in [12] of the submissions to “…a person’s eligibility for, or entitlement to receive or have access to [Centrelink services] …made pursuant to the Services Delivery Act”. The words in that quotation that are not in italics are taken from s 7(3)(b) of the CSDA Act but I must query whether s 7(3)(b) is meant to refer to Centrelink services as the submission suggests. Rather, I think, they are referring to the Commonwealth services that are specified in arrangements between the CEO of Centrelink and the principal officer of a Commonwealth authority. In order to understand why I think that, I need to set out what the CSDA Act seeks to achieve.
Centrelink is more formally known as the Commonwealth Services Delivery Agency. It was established on 1 July 1997 by the CSDA Act and comprises its CEO and employees.[64] Centrelink’s functions are to assist the CEO in the performance of the functions conferred on that office.[65] Those functions are:
“(a) the provision of Commonwealth services in accordance with service arrangements , and doing anything included in the arrangements that is incidental, conducive or related to the provision of the services;
(b)any functions conferred on the Chief Executive Officer under any other Act;
(c)any functions that the Minister, by writing, directs the Chief Executive Officer to perform;
(d)doing anything incidental, conducive or related to the performance of any of his or her other functions.”[66]
[64] CSDA Act, s 6
[65] CSDA Act, s 6A
[66] CSDA Act, s 8(1)
The function specified in s 8(1)(a) is the function that is relevant in this case. Its reference to a “Commonwealth service”:
“… means a service, benefit, program or facility for some or all members of the public that is provided for by the Commonwealth, whether under an enactment or otherwise.”[67]
[67] CSDA Act, s 3
In order to fulfil the function specified in s 8(1)(a) and providing the Minister gives written approval, the CEO is authorised to:
“… enter into arrangements with the principal officer of a Commonwealth authority for the provision of the Commonwealth services specified in the arrangements, subject to the conditions specified in the arrangements.”[68]
A “Commonwealth authority” means a Department of State or a body, other than Centrelink itself, established for a public purpose by or under a law of the Commonwealth.[69]
[68] CSDA Act, s 7(1)
[69] CSDA Act, s 3
The arrangements that are specified may include arrangements for doing anything incidental, conducive or related to the provision of the services.[70] Without limiting the arrangements that may be made, s 7(3) specifies that:
“… arrangements for the provision of Commonwealth services may include arrangements for:
(a)making the Chief Executive Officer or specified employees, or employees in specified classes of employees, available to exercise powers or perform functions in connection with the provision of the services (including powers and functions delegated to the Chief Executive Officer or employees under other laws); or
(b)determining a person’s eligibility for, or entitlement to receive or have access to, the services; or
(c)maintaining records related to the provision of the services; or
(d)providing Commonwealth authorities and other persons with information related to the provision of the services; or
(e)undertaking education, compliance, investigation and enforcement activities related to the provision of the services; or
(f)recovering overpayments and other amounts due to the Commonwealth in connection with the provision of the services; or
(g)conducting litigation or proceedings related to the provision of the services.”
[70] CSDA Act, s 7(2)
The CEO may enter a written agreement with the principal officer of a Commonwealth authority about the exercise or performance of the CEO’s powers or functions.[71] Among other powers, the CEO may delegate to an employee all or any of the functions delegated to him or her under another Act.[72]
[71] CSDA Act, s 8A
[72] CSDA Act, s 12(3)
When seen in context, it becomes apparent that the “services” to which s 7(3)(b) refers is a reference to a Commonwealth service that is provided for by the Commonwealth and that, by arrangement with another Commonwealth authority, is delivered by Centrelink. Entitlement to have those Commonwealth services will be determined under rules that have been developed by persons or bodies other than Centrelink. Where Commonwealth services are provided under an enactment, the rules will be found in that enactment or in related enactments. Where they have been provided under a programme of some sort, such as a drought relief programme, they will be found in the programme. When they are found in an enactment, administrative responsibility will have been given to a particular Commonwealth authority under the Administrative Arrangements Order. When they are found in a programme, there will be a Commonwealth authority having responsibility for its administration. The arrangements may well provide that the CEO has delegated authority to decide a person’s entitlement to the Commonwealth services that are the subject of a particular agreement. If permitted, the CEO may well delegate that power to certain officers within Centrelink.
Although I do not have the written arrangements between the Secretary and the CEO, I think it safe to assume that they exist in relation to CCBs provided under the FA Act and the FA Administration Act. CCB is a benefit in name and in substance being “… a payment or other assistance given by a… public agency”.[73] As benefits, they come within the description of “Commonwealth service”. Those parts of the Acts under which they are provided are administered by the Minister for Education, Employment and Workplace Relations. Centrelink officers make decisions regarding person’s entitlements to CCB. It follows that the Secretary of her Department has, as he is entitled to do, entered arrangements with the CEO of Centrelink to deliver the Commonwealth services that are CCBs.
[73] Macquarie Dictionary, 4th edition, 2005, The Macquarie Library Pty Ltd
Under those arrangements, powers given under the FA Act and the
FA Administration Act to decide matters of entitlement will have been delegated to the CEO and then by the CEO to officers of Centrelink. Conceivably, the arrangements could include policies to which Centrelink officers need to have regard in determining a person’s eligibility for or entitlement to receive CCB. Those policies may relate to the type of enquiries that need to be made or information gathered. The arrangements may include policies relating to the exercise of any discretions that are given under the FA Act or the FA Administration Act.
What is clear from a reading of the CSDA Act is that Centrelink becomes the means by which a Commonwealth service such as the CCB is delivered but Centrelink does not become the arbiter of when a person is entitled to that Commonwealth service whether in the form of a CCB or otherwise. That remains a matter that is dictated by the relevant legislation. Centrelink does not become responsible for the enactment or programme under which the Commonwealth service is provided. That remains the responsibility of the Commonwealth authority with which it enters the arrangement. So far as the person in the street is concerned, the Commonwealth service delivered to him or her remains unchanged by a Commonwealth authority’s decision to deliver that service by means of Centrelink rather than through its own officers. It may be that the means by which the Commonwealth service is provided, as opposed to the service itself, is regarded as being enhanced by its being provided by Centrelink rather than by the Commonwealth authority responsible for it. That enhancement might be thought to come from the fact that a person need deal with only that one office in relation to a range of Commonwealth services rather than with a range of Commonwealth authorities as has happened in the past.
No doubt, Centrelink is entitled to set its own rules about the way in which it will deal with certain persons seeking Commonwealth services. In so far as it can do that under the CSDA Act, no provision is made in that legislation for review of those decisions. Any authority that is given to Centrelink to set its own rules must be read as subject to any provisions that are found in the enactments that relate to the Commonwealth services that Centrelink provides and the way in which a person communicates information. In this case, that fact means that I should look to the
FA Administration Act to see whether there are any such provisions and then whether any decisions relating to them may be reviewed.
B.The FA Administration Act: obligation on recipients of CCB to notify changes in circumstances under s 56C
The Secretary wrote a letter to Mr Kerferd dated 18 December 2007.[74] I have already set out the relevant parts but it is worth while doing it again to remind me of the salient points made in the letter. Near the beginning of the letter, was
[74] T documents at 617-619
written the statement:
“Information you should know
On the back of this letter you will find important information about the things you have to tell us …”[75]
[75] T documents at 617
Among the extensive material on the back of the letter was the following:
“WHAT YOU MUST TELL US …
WHAT YOU MUST ALSO TELL US … You must tell us if any of your children: … are enrolled in a new child care service …”[76]
The letter continued:
“… HOW TO TELL US You can tell us about these changes by writing, calling, going online, or visiting any of our Family Assistance Offices. Not telling us or giving false or misleading information is a serious offence. If you are not sure about the information you need to provide, please contact us as soon as possible. …”[77]
[76] T documents at 618
[77] T documents at 618
I have already referred to s 56C of the FA Administration Act and its imposition of an obligation upon an individual to notify of certain changes of circumstances.[78] The individual must provide information of the sort specified in
s 56C in the manner set out in the written notice given under s 57. Section 57(1) provides that the Secretary must approve a manner of notification that a person is to use when notifying the Secretary of a thing under s 56C. The Secretary must notify the person of the approved manner of notification and must do so in writing.[79][78] See [55] above
[79] FA Administration Act, s 57(2)
I have considered whether the letter dated 18 December 2007 is a letter giving notice of the sort provided for in ss 56C and 57. The Secretary has submitted that it is not a notice of that sort because a child’s being enrolled in a different child care service is not relevant to any changes referred to in s 56C.
The submissions made on behalf of the Secretary also made some further observations regarding the letter of 18 December 2007 and I will set them out
in part:
“10 The respondent does not consider that a reference to advising the FAO of a change in a child care service is a legal obligation that can be imposed on the applicant under the family assistance law. Instead, the FAO request this from users of certain child care services for administrative reasons, as it assists the FAO in matching up the identifying numbers of child care services and customers, and determining the services to which they should send notices for the purposes of the service commencing to make fee reductions based on the customer’s CCB conditional eligibility;
11 The language used in the 18/12/07 notice sent to the applicant, which refers to fee reductions, indicates that his child was attending such a child care service. Under s 50M(1) of the Act, as it applies to these services, the respondent must give notices of certain determinations made in respect of a claimant, such as a determination under s 50F that the claimant is conditionally eligible for CCB by fee reduction in respect of a child, to the claimant and to the approved child care service/s that are or will be providing care to the child;
12 When advised by a customer that their child is enrolled in a new child care service, the FAO will send the new service relevant notices of determinations relating to the customer’s conditional eligibility for CCB by fee reduction, their CCB%, limit of hours, schooling % or grandparent rate. These notices trigger the obligations imposed on the service under Part 8A of the Act in respect of that customer, such as an obligation under s 219A (as it applies to these services) to calculate fee reductions for the customer using the determinations received from the FAO, and to charge only reduced fees. Therefore, although this is not a requirement under the family assistance law, it is in the customer’s best interests to advise the FAO if their child is enrolled in a new service, as this is likely to trigger the appropriate notification from the FAO to the service, with the result that the service is likely to commence making fee reductions in respect of the child;
13 Accordingly, the respondent does not consider that any decision to require the applicant to inform the FAO if his child is enrolled at a new child care service, or any notice to this effect, such as the notice dated 18/12/07, is a decision under the family assistance law which is reviewable under the family assistance law.”[80]
[80] Submissions dated 20 January 2009
I must admit to feeling a certain discomfort in attempting to marry a submission describing the letter of 18 December 2007 as an “FAO request” with the statements in that letter to the effect of “WHAT YOU MUST ALSO TELL US” and the statement that “Not telling us … is a serious offence (emphasis added). My level of discomfort increases when I read that a reference to advising the FAO of a change in a child care service is not a legal obligation. If all that is intended to be conveyed is a request for information, the words in which that “request” is couched could only be regarded as a bluff i.e. as an attempt to force a person to provide specified information by pretending that he or she would commit a criminal offence if he or she did not. It would be a misuse or improper exercise of the position that the officers of the FAO exercise on behalf of the Secretary.
It would be but I do not think that it is. What I do think is that the letter was written with the powers in s 56C very much in mind.[81] I have not set out all of the events that are listed in the letter dated 18 December 2007 but they are extensive. The changes of circumstances specified in s 56C are quite particular in that they relate to those that cause the claimant to cease to be conditionally eligible whether they have happened or are likely to happen. A determination of conditional eligibility under s 50F of the FA Administration Act is conditional upon there first being a decision under s 42 of the FA Act that the individual is conditionally eligible for CCB by fee reduction for care by an approved child care service. Circumstances that are relevant in determining an individual’s conditional eligibility are found in Division 4 of Part 3 of the FA Act. In so far as an individual is concerned, they are framed in terms of the criteria that a person must fulfil in order to be conditionally eligible for CCB “for care provided by an approved child care service”.[82] That means that the identity of the child care service is an essential element in an individual’s being conditionally eligible for CCB for conditional eligibility is not conferred in respect of a child service that is not an approved child care service. It is a matter in relation to which the Secretary had power to give a notice under s 56C of the FA Administration Act.
[81] I refer to s 154 below but, for the reasons I will give, I do not think that the letter was intended to be a requirement under that section.
[82] FA Act, s 42(1)
I do not have any evidence that the Secretary approved this notice personally but, in accordance with the presumption of regularity,[83] I have assumed that the notification was given by an officer, presumably of Centrelink, acting under a delegation given under s 221 of the FA Administration Act. Subject to exceptions that do not apply in this case, that section provides that the Secretary may delegate to an officer all or any of the Secretary’s powers under the family assistance law. The family assistance law includes the FA Administration and the FA Act as well as regulations and Schedules 5 and 6 to the A New Tax System (Family Assistance and Related Measures) Act 2000.[84]
[83] McLean Bros & Rigg Limited v Grice (1906) 4 CLR 835 at 850 per Griffith CJ
[84] FA Administration Act, s 3(1)
On one view, the CSO’s decision could be seen as a decision made under s 57 of the FA Administration Act. If that is the case, it would have to be seen as a decision impliedly revoking the manner of notification approved and conveyed to Mr Kerferd in the letter dated 18 December 2007. On another view, the CSO’s actions could be seen as conveying another officer’s decision to revoke the approval of the form of notification previously conveyed to Mr Kerferd.
On yet another view, it may well be that neither the CSO nor the Centrelink officers who imposed the restrictions on the way in which Mr Kerferd could communicate with Centrelink had the provisions of s 57 in their minds at all. Even if that is so, the practical effect of their decisions and actions is to change the manner of notification that had been approved under that section and that had been conveyed to Mr Kerferd. Certainly, their decisions may well relate to a broader range of communications but, for the moment, I am concerned only with determining whether the Tribunal has jurisdiction in relation to only one part of their decision. That was the CSO’s decision not to accept by telephone Mr Kerferd’s information that his daughter’s child care provider had changed.
B.1.The FA Administration Act: provision for review of decisions
The review of decisions is the subject of Part 5 of the FA Administration Act. It provides for a progression of review first internally and then by the SSAT and, finally, by this Tribunal. Subdivision A of Division 1 of Part 5 provides for review of decisions initiated by the Secretary. The effect of ss 104 and 105 is that the Secretary may review any decisions of an officer made under the family assistance law except those decisions listed in s 104(1). The word “decision” is given the same meaning as it bears under the AAT Act.[85]
[85] FA Administration Act, s 3(1) and see [22] above
Subdivision B of Division 1 of Part 5 provides for review of decisions initiated by an applicant. Reading ss 108 and 109A together, a person affected by a decision that, under s 108 may be reviewed under s 109A, may apply to the Secretary for review. Unless an exception set out in s 108(2) applies to the decision:
“A decision of any officer under the family assistance law must be reviewed on application under section 109A …”.[86]
Decisions that are excluded from review include a decision made by the Secretary personally,[87] a decision to give a notice under s 204A regarding the effect of an approved child care service’s actions on entitlements to CCB[88] and a decision under
s 201B to publicise information about sanctions imposed on an approved child care service for breach of conditions under ss 200(1) and 201A(1).[89]
[86] FA Administration Act, s 108(1)
[87] FA Administration Act, s 108(2)(a)
[88] FA Administration Act, s 108(2)(ca)
[89] FA Administration Act, s 108(2)(fa)
What is a “decision of any officer under the family assistance law”? As I mentioned earlier, the term “family assistance law” includes the
FA Administration Act. The meaning that is given to the word “decision” is broad enough to encompass a decision of the sort made by the Secretary when approving a manner of notification that a person is to use to notify of a thing under s 56C or when there is a variation of that approval.
Whether a decision is “under” that legislation depends on whether there is a sufficient connection between it, and in this case, s 57. There is a connection of that sort in this case. The decision regarding the way in which
Mr Kerferd could convey information about the change of his daughter’s child care provider was information of the sort that was encompassed within s 56C. Notification of a change of circumstances required by s 56C is expressly provided for in s 57 of the FA Administration Act. It is a direct, and I consider, a sufficient connection that leads me to find that the decision was made under the FA Administration Act and so under the family assistance law. I am reassured in that conclusion by the fact that Parliament found it necessary to exclude from review a decision such as:
“a decision under section 201B to publicise information about:
(i)the doing of one or more of the things mentioned in paragraphs 200(1)(a) to (h); or
(ii)a suspension under subsection 201A(1)”.[90]
Section 201B is not framed in terms of the Secretary’s making a decision as such. Instead, it is framed in terms of conferring power on the Secretary to publicise certain things should he do them. Power is given under Division 2 of Part 8C of the FA Administration Act to an authorised person to issue an infringement notice in certain circumstances.[91] Again, that power is not framed in terms of a person’s making a decision and yet s 108(2)(g) excludes from review “a decision under Division 2 of Part 8C”.
[90] FA Administration Act, s 108(2)(fa)
[91] FA Administration Act, s 219TSI
I note that the submissions made on behalf of the Secretary seemed to limit reviewable decisions to those that determine a person’s eligibility or entitlement to CCB. A reading of ss 108 and 109A does not lead me that conclusion. Decisions that s 108(2) excludes from the scope of review include a decision to give a notice under s 204A regarding the effect of an approved child care service’s actions on entitlements to CCB[92] and a decision under s 201B to publicise information about sanctions imposed on an approved child care service for breach of conditions under
ss 200(1) and 201A(1).[93] Both are concerned with notices and neither is concerned with a person’s eligibility for or entitlement to CCB. Their exclusion leads me to conclude that decisions regarding other notices provided for in the FA Administration Act are not excluded.[92] FA Administration Act, s 108(2)(ca)
[93] FA Administration Act, s 108(2)(fa)
Mr Kerferd is a person who has been affected by the decision to change the way in which he can communicate information to the FAO.
B.2. FA Administration Act: what if the CSO did not turn his or her mind to s 57 in making or conveying the decision?
The decision retains its character even if the CSO or another officer in Centrelink was unaware of s 57 or, if aware of it, did not turn his or her mind to it. For all practical purposes, it is a decision that varies that made under s 57. This is the effect of principles enunciated by Smithers J in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd. They are that I should look to the substantive effect of the decision, whether it could have been made under an enactment even if it was not consciously made in that way and whether or not it was made with proper authority in the form of delegated power or otherwise. In a different context from the present case, Smithers J illustrated the practical consequences of a decision to revoke a licence made without a legitimate source of power:
“ … It is to be noted also that the subjects of reviews are decisions. If an administrator makes a particular decision in the course of government administration, then whether or not he is authorized to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.
… But to decide to revoke the licence was also itself a decision according to the natural meaning of that term. Such a decision may have serious results for the citizen. No doubt the officers of the department will act upon it. Thus, after the decision in question had been made they would be expected to refuse to permit goods to be entered to the defendant’s warehouse. In this case, also action was taken against the licensee under s 94 of the Customs Act. That action did not necessarily depend upon revocation but in all probability it would not have been taken had the decision to revoke the licence not been made. ...”[94]
[94] (1979) 2 ALD 1; 41 FLR 338; 24 ALR 307 at 23-24; 368-369; 335-336
There is no reason why the same principles should not apply in this case. The decision has prevented Mr Kerferd from being able to comply with his obligations in one or more of the ways in which he had been advised that he could do so. The obligations and the ways had been communicated to him in the FAO’s letter dated 18 December 2007.
C. The FA Administration Act: obligation on recipients of CCB to notify changes in circumstances under s 154
Section 154(1), which appears in Division 1 of Part 6 of the FA Administration Act, provides that:
“The Secretary may require a person to give information, or produce a document that is in the person’s custody or under the person’s control, to a specified agency if the Secretary considers that the information or document may be relevant to either or both of the following matters:
(a)whether the person, or any other person, whom the Secretary has determined to be entitled to be paid family assistance is or was eligible for family assistance, or for family assistance of the amount determined;
(b)whether the person or any other person to whom a payment of family assistance has been made was entitled to the payment.”
The expression “family assistance” includes CCB.[95]
[95] FA Administration Act, s 3(2) referring to FA Act, s 3(1)
Section 158 provides that:
“(1) A requirement under this Division[[96]] must be made by written notice given to the person of whom the requirement is made.
[96] FA Administration Act, Division 1 of Part 6
(2) The notice:
(a)may be given personally or by post or in any other manner approved by the Secretary; and
(b)must specify:
(i)how the person is to give the information or produce the document or records to which the requirement relates; and
(ii)the period within which the person is to give the information or produce the documents or records; and
(iii)the officer (if any) to whom the information is to be given, the document is to be produced or the records are to be produced; and
(iv)that the notice is given under this section.”
In relation to s 154, the submission made on behalf of the Secretary reads:
“5 S 154 is a general power to obtain information from any person which is relevant to a person’s eligibility for family assistance, such as the amount of CCB that the person is eligible for, and the applicable weekly limit of hours. The respondent does not consider that the information about a child being enrolled in a new child care service, as specified in the notice to the applicant of 18/12/07, could be requested under the authority of s 154 as it is not relevant to the applicant’s eligibility for CCB;”[97]
[97] Submission lodged on 20 January 2008
The notice on the back of the letter to Mr Kerferd described itself as an “information notice” and did not refer to either ss 154 or 158. Both sections come within Division 1 of Part 6 of the FA Administration Act. I note that it has the look of a notice requiring Mr Kerferd to give information of the sort required by s 154(1). Information about the identity of the child care service is relevant in determining whether Mr Kerferd was eligible for family assistance in the form of CCB. It is relevant as it must be an approved child care service if he was eligible for CCB by way of fee reduction. That is the sort of CCB that he received.
Certainly, the notice did not refer to s 158 or state, as is required by
s 158(2)(b)(iv) if it is indeed a notice under s 154. Whether it has to in order to be a notice under s 154 depends on the application of the principles set out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority:[98]
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.”[99]
[98] (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490
[99] (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490; at 388-389; 859; 515
This is a case concerned with the proper exercise of a power. That is a power under s 154 that, if properly exercised, imposes an obligation upon the person who receives the notice. Section 154 contains seven subsections each conferring a different power on the Secretary to require the production of information or documents. It is located in Division 1 of Part 6 of the FA Administration Act with other sections giving the Secretary that type of power in different scenarios. Once the Secretary exercises one or other of the powers, an obligation is imposed upon the person who is required to produce the information or documents. That obligation is accompanied by the possibility that failure to comply will lead to conviction and imprisonment for 12 months. That is the effect of s 159(1) although ss 159(2) and (3) and (4) mitigate its strict requirements by providing that it applies only to the extent to which the person is capable of complying with the requirement and it does not apply if the person has a reasonable excuse.
The obligation is not imposed simply because the Secretary requires production. Section 158(1) provides that written notice must be given to the person of whom the requirement is made. Section 158(2)(a) provides that the written notice must be given personally or by post or in such other manner as the Secretary requires. As I have set out above, s 158(2)(b) specifies the information that must be given in the notice.[100]
[100] See [89] above
In view of the specificity of the type of information that that the Secretary may require a person to produce under Division 1 of Part 6 of the FA Administration Act and the serious consequences that follow non-compliance, it seems to me that Parliament has intended that strict compliance with s 158 is required. As the letter dated 18 December 2007 did not state that it was a notice given under
s 158, I do not consider that it can be characterised as such. As it was not such a notice, any decision made in relation to it was not made under either ss 154 or 158 and, in so far as those sections were concerned, not made under the family assistance law.
Conclusion
For the reasons I have given, I have concluded that the ARO did have power to review the decision not to accept the information that Mr Kerferd wanted to convey by telephone. It is not a decision that could be made by a Centrelink officer acting under powers conferred by the CSDA Act. It is a decision that could only be made under the FA Administration Act. As such, it was reviewable by the ARO. Therefore, the decision that the ARO and so the SSAT did not have jurisdiction are not decisions with which I agree. That does not mean that I may review the decision at this stage. To my mind, the decision must be remitted to the ARO to review and, if Mr Kerferd remains dissatisfied with the decision, continue to the SSAT and then to this Tribunal.
For the reasons I have given, I:
remit to the Authorised Review Officer for review the decision made or conveyed to the applicant by the Customer Support Officer on 4 February 2008 to refuse to accept the applicant’s oral advice that his daughter’s child care provider had changed for review.
I certify that the ninety seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Kate Conners Associate
Date of Hearing 3 October 2008 and written submissions 20 January 2009
Date of Decision 10 March 2009
Representative for the Applicant unrepresented
Representative for the Respondents Mr D. Perdon
Legal Services Branch
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