Mackay and Secretary, Department of Social Services (Social services second review)

[2023] AATA 148

Mackay and Secretary, Department of Social Services (Social services second review) [2023] AATA 148 (14 February 2023)

Division:GENERAL DIVISION

File Number(s):      2023/0306

Re:Tracey-Anne Mackay

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member K Millar

Date:14 February 2023

Place:Adelaide

The Tribunal refuses the Applicant’s request under section 41(2) of the Administrative Appeals Tribunal Act 1975 for an order staying the operation of the decision that she is subject to the income management scheme.

...........[sgnd]...................................

Senior Member K Millar

Catchwords

STAY ORDER REFUSED – appeal on income management scheme – Respondent’s submission that appeal has low prospects of success – no exemption from income management scheme – stay refusal does not cause financial hardship for applicant – legislation must be applied consistently to reflect public interest – request for stay order refused

Legislation

Social Security (Administration) Act 1999

Cases

Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246

Re Scott and Australian Securities and Investment Commission (2009) AATA 798

REASONS FOR DECISION

Senior Member K Millar

14 February 2023

BACKGROUND

1. Ms Mackay has applied for a review of a decision that she is subject to the income management scheme under s 123UCC of the Social Security (Administration) Act 1999 (the Administration Act).

2. Ms Mackay requested a stay of this decision under s 41 of the Administrative Appeals Tribunal Act 1975 (the Act).  On 10 February 2023, a hearing was held to allow the parties to make submissions in relation to the stay. 

3. Ms Mackay did not attend this hearing, and the Secretary sought the dismissal of the application under s 42A(2) of the Act.  The Tribunal declined to dismiss the application and proceeded to hear submissions from the Secretary on Ms Mackay’s request for a stay. 

4. The Tribunal refused the request for a stay, and these are the reasons for this decision.
   STAY APPLICATION

5. Applying to the Tribunal for a review of a decision does not affect the operation of the decision unless an order is made under s 41 of the Act staying or otherwise affecting the operation of the decision.

6. Section 180 of the Administration Act modifies s 41 of the AAT Act to make it clear that the decision that can be stayed is the original decision if at first review of the AAT the decision was affirmed.[1] It further clarifies that where s 41(4) requires submissions on a stay of the decision, the Secretary is the party from whom submissions must be sought.

   [1] See also Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246.

7. Section 41(2) of the AAT Act states:

   The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

8. In Re Scott and Australian Securities and Investment Commission,[2] President Downes J looked at factors that may be relevant in determining whether a stay is appropriate.  Drawing from the factors considered by Downes J, and mindful that Ms Mackay is not represented, the Tribunal advised the parties in the listing notice it was seeking either written submissions before the hearing or oral submissions at the hearing on the following:

   (a)the prospects of success;

   (b)the consequence for the applicant of the refusal of the stay;

   (c)the public interest;

   (d)the consequences for the respondent in carrying out its functions, depending on whether a stay is granted or not; and

   (e)whether the application for review would be ineffective if a stay were not granted.

   [2] (2009) AATA 798.

9. No submissions were received from Ms Mackay. 

10. It was submitted orally on behalf of the Secretary that (in summary):

    ·On the existing information, the application has no prospect of success because the Administration Act does not provide a discretion to exempt the applicant from the income management scheme. On the evidence currently available Ms Mackay is a person subject to the income management scheme, and there are no legislative exemptions that apply.

    ·The purpose of the income management scheme is to ensure priority needs as defined in s 123TH of the Administration Act are met, and to ensure people who are at risk of financial hardship have this risk mitigated. The refusal of the stay will not itself cause financial hardship if Ms Mackay seeks payment of her priority needs.

    ·There is no evidence that Ms Mackay is unable to approach Centrelink either in person or over the MyGov portal to provide receipts or invoices for her priority needs which can then be paid from her income management account. Expenses such as her car insurance may be met if there is a credit balance which currently exceeds the cost of her priority needs, and the Secretary must not unreasonably refuse this request. It was submitted that is she was reluctant or unwilling to approach Centrelink, this does not make it desirable to grant the stay.

    ·There is a public interest in the legislation being applied in a consistent manner.

    ·None of Ms Mackay’s communications to date suggests that her ability to run litigation would be hampered by the refusal of the stay. 

    ·This matter has been expedited for hearing in April, and the Secretary does not seek any delay. 

11. On the available information, Ms Mackay’s prospects of success are limited, however she may be able to provide information to the contrary at the hearing.  While the Tribunal was concerned about communication from Ms Mackay that that some of her priority needs such as food or electricity are not being met, it is open to her to provide information to Centrelink to allow these expenses to be paid and limit the consequences to her of the refusal of the stay. 

12. As submitted by the Secretary, amounts paid under the income management scheme remain available to Ms Mackay to meet priority needs as defined in s 123TH of the Administration Act, or to meet other needs after her priority needs are met, in accordance with s 123YA of the Administration Act.

13. There is little in the way of consideration of public interest. 

14. If a stay were granted, it would be difficult to again place the Secretary in the position as if it had not been granted, whereas if Ms Mackay is ultimately successful, the funds are preserved for her in the notional income management account.

15. The Tribunal concludes that a stay is not appropriate for the purpose of securing the effectiveness of the hearing and determination of Ms Mackay’s application, and her request for an order staying the decision that she is subject to the income management scheme is refused. 

16. Further directions will be made to list the matter for a telephone directions hearing to determine if Ms Mackay intends to proceed with her application.  

    ORDER

17. The Tribunal refuses the Applicant’s request under section 41(2) of the Administrative Appeals Tribunal Act 1975 for an order staying the operation of the decision that she is subject to the income management scheme.

I certify that the preceding 17 [seventeen] paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

..............[sgnd].........................
           Associate

Dated:  14 February 2023