Lind; Secretary, Department of Family and Community Services
[2003] AATA 242
•13 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 242
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/354
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Applicant
And
MOIRA LIND
Respondent
DECISION
Tribunal The Hon C R Wright QC., (Deputy President)
Date13 March 2003
PlacePerth
Decision The decision under review is affirmed.
[Sgd The Hon C R Wright QC]
Deputy President
CATCHWORDS
Social Security - newstart Allowance - 18% rate reduction for 26 weeks - newstart allowance activity test breach - casual employment - decision affirmed.
Social Security Act 1991- ss68, 72, 244, 245, 630AA
Social Security (Administration) Act 1999 – ss3, 23
Pearce & Geddes Statutory Interpretation in Australia 5th Edition, Chapter 7
Re Secretary, Department of Family and Community Services and Mark Quinn (2002) AATA 81
Secretary, Department of Family and Community Services and Hosie (2003) AATA 47
Georgoussis v The Medical Board of Victoria (1957) VR 671
Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 54 ALR 57
REASONS FOR DECISION
13 March 2003 The Hon C R Wright QC., (Deputy President) Background
1. Ms Lind was receiving newstart allowance when she undertook casual employment with Caltex from 1 November 2000 to 15 November 2000. On or about 24 August 2000 the applicant sent Ms Lind a letter containing a notice advising her of information which she was required to give to the applicant, including the period in which it was to be provided. The notice also required Ms Lind to advise when she commenced employment. Ms Lind had received similar notices to the same effect on previous occasions. On 18 June 2001 a Centrelink officer decided that Ms Lind had declared neither her employment with Caltex, nor the income from her employment. The officer in Centrelink also decided that Ms Lind should serve a rate reduction of 18% from 18 June 2001 for 26 weeks because of an activity test breach.
2. Ms Lind asked that this decision be reviewed by an authorised review officer in Centrelink. On 17 July 2001 an authorised review officer in Centrelink affirmed the decision to impose the 18% rate reduction period.
3. On 13 August 2001, Ms Lind lodged an appeal with the Social Security Appeals Tribunal (SSAT) against the authorised review officer’s decision.
4. The SSAT decision was given on 3 September 2001.
5. The SSAT found that:
(a)Ms Lind was receiving newstart allowance when she worked for Caltex for the period 1 November 2000 to 15 November 2000.
(b)Ms Lind earned $792.00 from this work but failed to advise of this employment or declare the income on her fortnightly claim forms for that period as required by the notice of 29 August 2000.
6. The SSAT considered legal submissions made by the Department as to the effect of legislative provisions contained in the Social Security Act 1991 (“the SS Act”) and the Social Security (Administration) Act 1999 (“the Admin Act”).
7. The SSAT took the view that the penalty provided for in s630AA of the SS Act could not apply to Ms Lind as she had not been required to provide relevant information pursuant to a notice issued under the provisions of the SS Act, but rather pursuant to a notice issued under s68 of the Admin Act.
8. As a consequence the SSAT ruled that the newstart allowance activity test breach of 18% June 2000 for 26 weeks could not be applied.
9. The applicant now seeks to review the SSAT decision. The facts found by the SSAT and the other facts stated above were not in dispute.
The Issues
10. The applicant’s submissions were reduced to writing and supplemented by oral argument presented by Mr Ellis. The respondent did not attend the hearing in person, but was in touch throughout proceedings by telephone link. She was not legally represented and did not seek to make submissions on the question of law central to the review.
11. To understand the applicant’s closely reasoned argument it is desirable I think, to set forth the written submissions in full. They were as follows:
“Secretary’s Submissions
The central issue in this matter is the affect [sic] of the phrase ‘a provision of this Act’ in the closing line of subsection 630AA(1) of the Social Security Act 1991, as amended from time (the SS Act) to time and the requirement to advise the Secretary of earnings.
Section 630AA states:
(1) If a person:
(a)refuses or fails, without reasonable excuse, to provide information in relation to a person’s income from remunerative work (the failure); or
(b)knowingly or recklessly provides false or misleading information in relation to the person’s income from remunerative work (the provisions of information):
when required to do so under a provision of this Act, a newstart allowance is not payable to the person.
(2) If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:
(a)if the failure or the provisions of information is the person’s first or second activity test breach in the 2 years immediately before the day after the failure or the provision of information – an activity test breach rate reduction period applies to the person; or
(b)if the failure or the provision of information is the person’s third or subsequent activity test breach in the 2 years immediately before the day after the failure or the provisions of information – an activity test non-payment period applies to the person.
The requirement to advise the Secretary of such information as earnings is contained in a letter-notice to the Applicant, or in the regular forms that she is required to give to the Secretary, both of which are authorised by section 68 of the Social Security (Administration) Act 1999, as amended from time to time, (the Admin Act).
Section 68 states:
(1) Subsection (2) applies to a person to whom a social security payment is being paid.
(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:
(a) inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii)the person becomes aware that a specified event or change of circumstances is likely to occur;
(b)give the Department a statement about a matter that might affect the payment to the person of the social security payment.
(3) Subsection (4) applies to a person who is the holder of a concession card.
(4) The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:
(a) inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii)the person becomes aware that a specified event or change of circumstances is likely to occur;
(b)give the Department a statement about a matter that might affect the person's qualification for the concession card.
(5) An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or change of circumstances might affect the payment of the social security payment or the person's qualification for the concession card, as the case requires.
Prior to the introduction of the Admin Act on 20 March 2000, the requirement to provide this information, insofar as Newstart Allowance was concerned, was to be found in section 658 of the SS Act.
The Social Security Appeals Tribunal (SSAT) decided that as section 630AA says ‘… when required to do so under a provision of this Act’ the notice must also be issued ‘under this Act’ and that as the relevant notices were issued by way of section 68 of the Admin Act, not the SS Act, the requirements of section 630AA were not satisfied. The Tribunal construed the words strictly.
With respect, the Secretary says that the Tribunal has wrongly interpreted the section in question. He says that sections 244 and 245 of the Admin Act admit the interpretation that once the Admin Act came into being, it, and the surrounding amendments to the SS Act, gathered in all the various provisions of the previous SS Act at that point and rolled them into the new ‘Social Security Law’ as enacted by these various changes. Further, that by these two sections it was intended that there would be no alteration to the pre-existing state of affairs by the introduction of the Social Security Law and that it should be applied mutatis mutandis where one can find a provision with the same general effect.
244. A reference in:
(a)a provision of a law of the Commonwealth or a Territory enacted before 20 March 2000 (whether or not the provision has come into operation); or
(b) an instrument or a document;
to a provision of the 1991 Act that has been repealed by the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 is, on and after 20 March 2000, to be construed as a reference to the corresponding provision of this Act.
245. (1)If one provision of the 1991 Act and one provision of this Act have the same legal effect, the 2 provisions correspond to each other.
(2) If:
(a) a provision of the 1991 Act has a particular legal effect in relation to a number of payment types; and
(b) a provision of this Act has that legal effect in relation to one or more, but not all, of those payment types;
the provisions correspond to each other, for the purpose of subsection (1), in relation to the payment types referred to in paragraph (b).
(3) In this section:
legal effect includes conferring the power to issue an instrument.
payment type means a pension, benefit or allowance.
The Secretary says therefore that the words ‘a provision of the [sic] Act’ in section 630AA relate to those provisions of the Act which were previously enacted prior to the Admin Act and which gave the Secretary power to issue a notice requiring the recipient to provide information relevant to their social security entitlements.
That section 244 of the Admin Act allows the broad reference to a provision of the SS Act provided in section 630 AA to be treated as though it were a reference to section 68 of the Admin Act in that it is the corresponding provision to the now repealed 658 of the Act as it stood prior to the Admin Act.
In the alternative, the Secretary says that the definitions of ‘social security law’ in both the SS Act and the Admin Act when applied in relation to the requirements of notices in sections 72 and 68 of the Admin Act and section 630AA, means that once such notices are identified as notices under the Social Security Law, they are notices that require the applicant to do something – to give information – under a provision ‘of this Act’.
Section 72 of the Admin Act sets out the requirement for notices issued under section 68, including the requirement to specify that a notice is an information notice given under the social security law.
Section 72 states:
(1) A notice under this Subdivision:
(a) must be given in writing; and
(b)may be given personally or by post or in any other manner approved by the Secretary; and
(c)must specify how the person is to give the information or statement to the Department; and
(d)must specify the period within which the person is to give the information or statement to the Department; and
(e)must specify that the notice is an information notice given under the social security law.
Social security law is defined in the Admin Act as:
3.(3) A reference in this Act to the social security law (other than the reference in section 4) is a reference to this Act, the 1991 Act and any other Act that is expressed to form part of the social security law.
(4) A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the 1991 Act or any other Act that is expressed to form part of the social security law.
These subsections are mirrored in the Act, which states:
23(15) A reference in this Act to the social security law is a reference to this Act, the Administration Act and any other Act that is expressed to form part of the social security law.
23(16) A reference to this Act to a provision of the social security law is a reference to a provision of this Act, the Administration Act or any other Act that is expressed to form part of the social security law.
The secretary says that as the requirements to provide the information issued to Ms Lind identify themselves as notices issued under social security law, they have affect [sic] in applying the provisions of any social security law, which includes the SS Act by way of being an integral part of that social security law, and therefore by section 630AA.
The Secretary’s general interpretation of the inter-relationship between these two Acts, and s630AA, has been approved in the matter of QUINN W2001/342.
For all the above reasons the Secretary says that the Tribunal’s decision dated 31 August 2001 should be set aside and that the decision of the Authorised Review Officer confirming the decision to impose a Newstart Allowance activity test breach of 18% for the period 18 June 2001 for a period of 26 weeks, be affirmed.
Lastly, the Secretary would advise that one of the similar cases, SUZOR, a Queensland matter and decision by Mr SM Beddoe to the effect of Quinn’s case, has been challenged in the Federal Court. The matter was referred to the Federal Magistrate. It has been heard, but there is no decision to date.”
12. The decision in Secretary, Department of Family and Community Services and Mark Quinn (AATA 81 of 2002) referred to in the Secretary’s submissions was delivered by Deputy President Forgie on 12 February 2002. It contained a detailed analysis of the Secretary’s argument, which in all essential respects was the same as the argument presented at the present review hearing. In addition DP Forgie considered the general legislative purpose to be seen in SS Act, the Admin Act and other pieces of ancillary legislation and she also discussed the principles of statutory interpretation applicable to penal provisions contained in legislation generally. DP Forgie accepted the submissions advanced by the Secretary that the words "this Act" as appearing in the SS Act may now be read as applying to the “social security Law” as that expression is defined in the SS Act and the Admin Act.
13. Since the hearing of the present matter my attention has also been directed to a decision by Member Ms J Cowdroy in Department of Family and Community Services and Hosie delivered on 17 January 2003 in which Deputy President Forgie’s decision in Quinn was considered and followed.
14. The weight of these decisions and the decision of Senior Member Beddoe in Suzor (referred to in the Secretary’s submissions) is considerable and there is the added attraction that the outcome of each case has allowed the continued effectiveness of the Department’s administrative steps to regulate and impose appropriate sanctions upon welfare recipients who fail to provide required information. Unfortunately I am unable to concur in the conclusions reached in these past decisions. I shall attempt to explain why.
Discussion and Conclusion
15. On several occasions in the past where there has been a legislative purpose to combine an earlier piece of legislation with a later statute, the text of one or both of the acts has been expressed as requiring that they “be read and construed as one” or that they “be read together” or, perhaps, that they are “incorporated”.. When this phraseology has been used the acts are regarded as effectively amalgamated. This process has sometimes led to problems very similar to those presently under discussion. Such problems have received the attention of the authors of Pearce & Geddes “Statutory Interpretation in Australia” 5th Edition in Chapter 7 and, more particularly, in paragraph 7.31. The learned authors say this:
“Problems of interpretation in incorporated Acts
[7.31] It can be expected that when two pieces of legislation are notionally amalgamated, there may be difficulties in fitting all the provisions together. The courts will try to read the Acts in such a way that effect can be given to all sections, but this may not be possible and resort must then be had to the approaches set out previously in this chapter. Particular difficulties in this process of amalgamation have been caused by the expression ‘under this Act’. Does such a reference in one of the Acts include the other Act also? There are two major Australian authorities and they are not easy to reconcile.
In Georgoussis v Medical Board of Victoria [1957] VR 671 Smith J said that when an Act is passed containing a direction that it shall be read and construed as one with an earlier Act, expressions such as ‘under this Act’ appearing in the earlier Act had, in the absence of some indication to the contrary, to be given an extended application as from the date of the later Act as to cover things done under the later Act. So decisions taken under the later Act were capable of being appealed against pursuant to a power to appeal against decisions ‘under this Act’ provided for in the earlier Act. The other relevant case is Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 54 ALR 57. The Television Stations Licence Fees Act 1964 (Cth) provided that the Broadcasting and Television Act 1942 (Cth) ‘is incorporated and shall be read as one with this Act’.. A section of the Broadcasting and Television Act allowed the Tribunal to seek information relating to matters ‘relevant to the operation of this Act’. Information was sought that was relevant to matters dealt with in the Licence Fees Act but not the Broadcasting and Television Act. The Tribunal claimed that the incorporation provision was sufficient to extend the power to seek information to matters dealt with in the Licence Fees Act. Lockhart J was not prepared to accept this. So to read the provisions would be in effect to amend the Broadcasting and Television Act. Georgoussis' case was distinguishable on the basis that the later Act was to be read with the earlier, not vice versa as in this case.
There is clearly a distinction in fact between the two cases but whether that is sufficient to constitute a distinction in principle is questionable. The earlier decisions talk in terms of amalgamating or writing together the Acts concerned. The intention is, in effect, to produce a new consolidated piece of legislation. In these circumstances it would not seem to matter in which Act the incorporation provision is included and the references to ‘this Act’ should be read as referring to the Acts as amalgamated. Be that as it may, Lockhart J’s judgment indicates that a present a distinction is to be drawn between references to ‘this Act’ in the incorporated and the incorporating Acts. It is a matter of which drafters of legislation need to be particularly aware.”
16. In my view the absence of these classic formulations weakens the argument advanced by the applicant which, as Mr Ellis freely conceded amounts to the proposition that the words in the SS Act, “this Act” are now otiose and that the words therein, “a provision of this Act”, must now be read as if they were “a provision of the social security law”.
17. In my opinion the mere adoption by the legislation of the compendious description “social security law” to identify a number of Acts with comparatively long titles and a broadly common subject matter cannot lead to this conclusion. Nor can the consideration that a serious lacuna will become evident in the enforcement provisions of the current legislation if the applicant’s approach is not adopted. One must always seek to give a sensible interpretation to statutory provisions and not adopt one which may frustrate the supposedly evident will of parliament, but sometimes such a consequence cannot be avoided if the language used and sensible rules of construction applied thereto are unable to achieve that purpose.
18. Regrettably that is the conclusion to which I have come in this case. I cannot see that ss244 and 245 can or do produce the effect contended for by the applicant. Section 244 provides that Commonwealth legislation enacted before 20 March 2000 and containing a reference to any provision of the SS Act which was repealed by the International Agreements Act is now to be construed as if it were a reference to a "corresponding" section of the Admin Act. Section 245 then merely provides definition and meaning to the phrase "corresponding section of this Act". I have no difficulty with the argument put that ss655A, 656, 657 and 658 of the SS Act in fact “correspond” with ss75(2) and (3) and s68 of the Admin Act, but I do not accept that this effectively incorporates the specific words “under a provision of this Act” into the Admin Act so as to allow the conclusion contended for by the applicant. Both Acts in my opinion still retain their identities as separate and distinct Acts and must be construed accordingly.
19. Neither the SS Act nor the Admin Act contain provisions incorporating the one into the other using the standard phraseology or formula used in the legislation discussed in the cases referred to in Geddes and Pearce, i.e. that one Act “should be read and construed as one” with the other, or that both Acts are “incorporated” or are to be “read together”.. As a consequence, it must be observed that the 2 pieces of social welfare legislation, now under discussion, have not been amalgamated or incorporated with each other in the sense discussed in Pearce and Geddes unless that result has been achieved by other means. In effect the applicant submits that it has.
20. In Georgoussis v The Medical Board of Victoria (1957) VR 671 @ 675, Smith J said:
“The view expressed by Lord Selborne has frequently been referred to with approval in subsequent cases: compare Re Kedwell and Flint & Co., [1911] 1 K.B. 797; Hart v Hudson Brothers, Limited, [1928] 2 K.B. 629; West Midlands Joint Electricity Authority v Pitt [1932] 2 K.B. 1; 96 J.P. 159, 169; Phillips v Parnaby [1934] 2 K.B. 299; Pratt v Cook, Son and Co., [1939] 1 K.B. 364; R v Folkestone and Area Rent Tribunal [1951] 2 All E.R.9; Williams v Tooth & Co Ltd (1939), 39 S.R. (N.S.W.) 46, 53; Perpetual Trustee Co (Ltd) v Wittscheibe (1940), 40 S.R. (N.S.W.) 501, 510; Cadbury Fry Pascall Pty Ltd v Federal Commissioner of Taxation (1944), 70 C.L.R. 362 at p.388. Of these cases, Pitt’s case, supra, is perhaps the one most directly in point here. It is true that in Kirkness v John Hudson & Co Ltd [1955] A.C. 696 it was made clear by the House of Lords that what Lord Selbourne said cannot be regarded as authority for holding that a provision for reading two Acts together can cause expressions in the earlier of the two Acts to be construed as meaning and having always meant something which, in their original context, they were not fairly capable of meaning. And any other view would involve, in effect, allowing the later Act to operate to amend the earlier retrospectively by mere implication. But the decision does not appear to me to cast any doubt upon the view that when an Act is passed containing a direction that it shall be read and construed as one with an earlier Act expressions such as “under this Act” appearing in the earlier Act must, in the absence of some indication of an intention to the contrary, be given an extended application as from the date of the later Act so as to cover, as from that date, things done under the later Act. The view that they should be given such an extended application appears to me to be supported by the cases already referred to and also by several other cases relating to the construction of similar expressions appearing in the later of two Acts; compare Read v Joannon (1890), 25 Q.B.D. 300; Willingale v Norris [1909] 1 K.B. 57; Charing Cross West End and City Electricity Supply Co v London Hydraulic Power Co., [1918] 3 K.B. 442; [1914] 3 K.B. 772.”
21. These principles were not doubted by Lockhart J in Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 54 ALR 57. He referred to the general rule of construction in these terms at p.62:
“It is not uncommon to find in an Act a provision that an earlier Act is incorporated and shall be read as one with the later Act. The effect of such a provision is to transpose the earlier into the later Act or to write every provision of the earlier Act into the later Act as if they had been actually printed into it. It is a rule of construction of statutes, but it cannot be used in effect to amend the provisions of the earlier Act which is to be read as one with the later Act. Sometimes an Act provides that it is incorporated and shall be read as one with an earlier Act. The effect is the same, namely, to transpose the later into the earlier Act: see generally the Canada Southern Railway Co v International Bridge Co (1883) 8 App Cas 723, per Lord Selbourne at 727; Osborne v Commonwealth (1911) 12 CLR 321, especially per Barton J at 342 and 343; ; Perpetual Trustee Co (Ltd) v Wittscheibe (1940), 40 S.R. (N.S.W.) 501; Cadbury Fry Pascall Pty Ltd v Federal Commissioner of Taxation (1944), 70 C.L.R. 362, per Williams J at 388, and the cases there cited: Tasman Timber Ltd v Minister for Industry and Commerce (1983) 46 ALR 149.”
22. A little further on in his judgment, after referring to the passage from Georgoussis reproduced in paragraph 20 hereof, he said (at p.63-64):
“The Georgoussis case does not, in my view, assist the respondent’s argument. First, because the provisions there under consideration were Acts which amended the Principal Act, and second, because it was the later amending Acts which were to be read as one with the principal Act, not vice versa as applies in the present case. These two considerations distinguish the Georgoussis case from the present case.
…
It is permissible, when applying s3 of the Licence Fees Act, to transpose the provisions of the Broadcasting and Television Act into the Licence Fees Act; but not in effect to amend the Broadcasting and Television Act in the process; and this is really what the respondent is seeking to do. The primary argument of the respondent is that the duty of the licensee which is imposed by s106(4)(b), when incorporated in the Licence Fees Act, is to furnish to the Tribunal information with respect to the activities or affairs of the licensee, relevant not only to the operation of the Broadcasting and Television Act, but also operation of the Licence Fees Act. Hence, so the argument proceeds, it is in aid of the Minister’s powers under s7 of the Licence Fees Act that the Tribunal seeks to obtain the information the subject of the request. The argument continued that the Tribunal is obliged to assemble that information by virtue either of s106A(1)(a) or s106A(1)(c) (the latter provision relating to the performance of the Tribunal’s functions under s16(1)(h). The information thus procured is available to the Minister to enable him to perform his functions under s7 of the Licence Fees Act.
The fallacy in this argument is that one cannot read the expression “this Act” in s106(4)(b) of the Broadcasting and Television Act other than as what it says. It cannot be read as if it meant “this Act and the Television Stations Licence Fees Act 1964”. To so construe the provision would be to pass beyond interpretation and enter the impermissible field of amendment.”
23. Having regard to the principles discussed in both Georgoussis and Amalgamated Television Services and other matters mentioned above, and particularly in the absence of an “amalgamation” or “incorporation” clause or specification contained in either or both Acts now under discussion, I have been unable to accept that the respondent’s argument should succeed. This does not mean that I accept the approach of the SSAT that a strict interpretation of the penal provisions in s650AA provides justification for the outcome achieved. It is rather a case of concluding that to achieve the result contended for by the Secretary I would have to, in effect, amend s650AA by ascribing to it a meaning which the plain words will not bear and which cannot be implied under the rule of construction referred to in Georgoussis and Amalgamated Television Services. If, as is fairly obvious, this results in a void or hiatus in the legislation it is, to use the words of Lockhart J “a problem which may attract the attention of Parliament”.
24. In consequence therefore, the decision under review is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed: .........(sgd V Wong).......................................
AssociateDate/s of Hearing 5 February 2003
Date of Decision 13 March 2003
Counsel for the Applicant Mr S Ellis
Solicitor for the Applicant Advocacy & Administrative Law Team,
Centrelink
Counsel for the Respondent In person
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