MANIKANTAN and Secretary, Department of Education (Social services second review) - [2022] AATA 4051

MANIKANTAN and Secretary, Department of Education (Social services second review) [2022] AATA 4051 (24 November 2022)
Division:GENERAL DIVISION
File Number(s): 2017/1959
Re:Kariadeth MANIKANTAN
APPLICANT

AndSecretary, Department of Education
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:24 November 2022
Place:Sydney

The correct or preferable decision is to affirm the AAT1 decision dated 24 March 2017.
................................[SGD]........................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
SOCIAL SECURITY LAW – cancellation of newstart allowance payments – where the applicant failed to into a new employment pathway plan – whether the Secretary could require the applicant to enter into a new EPP – whether the original EPP had expired – whether notice was valid under s 68(2) - whether the applicant failed to meet his mutual reporting obligations – whether cancellation was automatic or manual – decision under review affirmed.
Legislation
Social Security Act 1991 (Cth) s 593, 605, 606
Social Security (Administration) Act 1999 (Cth) s 68, 72, 80, 95

Cases
Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634
Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
24 November 2022

The decision under review was made by the Social Services & Child Support Division of the Tribunal (‘AAT1’) on 24 March 2017. The AAT1 affirmed a decision by an authorised review officer (‘ARO’) made on 29 November 2016 which in turn affirmed an original decision by the Department of Human Services (Department, known as Centrelink) to cancel the Applicant’s (Mr Manikantan) Newstart Allowance (‘NSA’) with effect from 8 October 2016.
On 29 March 2018, the Tribunal (‘AAT2’) made a decision in the matter. On 13 December 2019, the Federal Court set aside the AAT2’s decision made on 29 March 2018 and remitted the matter to the AAT2 to be determined according to law.
Background
The Respondent’s Statement of Facts, Issues and Contentions contained a useful summary of the factual background of this matter, much of which is replicated below.
Mr Manikantan first received NSA on 16 December 1996. Since approximately 2004, Mr Manikantan was frequently receiving NSA, with regular suspensions or cancellations due to overseas absences.
On 23 July 2015, Mr Manikantan entered into a “Job Plan”, which would expire on 24 August 2016. The Job Plan had been negotiated with a service provider called “The Salvation Army Employment Plus” (TSAEP).
On 29 July 2016, TSAEP emailed Mr Manikantan. The email notified him that he must attend an appointment with TSAEP on 12 August 2016 “in return for Newstart Allowance”. The email:
(a)set out the time and place of the appointment;
(b)stated that:
(i)the purpose of the appointment included reviewing and agreeing to updates to his Job Plan;
(ii)“If you do not attend this appointment and enter into or review your Job Plan as required, your payment may be stopped by Centrelink.”
(c)said that :
(i)“This is a notice under Social Security Law.”
(ii)at the appointment “We will discuss the services and assistance that we can provide you with, including those that are already part of your Job Plan …”.
Mr Manikantan attended the appointment with TSAEP on 12 August 2016. He followed up the meeting with an email stating that it had been ‘unproductive’.
On 12 August 2016, TSAEP wrote to Mr Manikantan notifying him that he must attend an appointment with TSAEP on 16 August 2016 “in return for Newstart Allowance”. The letter contained many of the same particulars as the letter sent on 29 July 2016.
On 15 July 2016, Mr Manikantan wrote to both TSAEP and the Department regarding TSAEP’s “explicit refusal” to comply with the terms of the previous EPP signed by a previous consultant at TSAEP.
The Job Plan dated 16 August 2016 was for the period 17 August 2016 to 19 December 2016, and stated that it “an Employment Pathway Plan, for the purposes of the Social Security Act 1991.”
Mr Manikantan attended the appointment with TSAEP on 16 August 2016.
Mr Manikantan made hand-written changes to the Job Plan of 16 August 2016.
On 16, 17 and 22 August 2022, Mr Manikantan emailed TSAEP. On 22 August 2016, TSAEP emailed Mr Manikantan to notify him regarding his attendance at an appointment with TSAEP on 31 August 2016 “in return for Newstart Allowance”.
The letter of 22 August 2016 was filed with the Tribunal but was missing its second page. The Respondent asserts that it is likely that the second page of the letter would have been the same as that of TSAEP’s earlier letter dated 12 August 2016.
The letter of 22 August 2016:
(a)set out the time and place of the appointment with TSAEP;
(b)stated that:
(i)the purpose of the appointment included reviewing and agreeing to updates to his “Job Plan”;
(ii)“If you do not attend this appointment and enter into or review your Job Plan as required, your payment may be stopped by Centrelink”; and
(c)said “This is a notice under Social Security Law.”
On 24 August 2016, Mr Manikantan’s existing Job Plan expired.
On 24, 30 and 31 August 2016, Mr Manikantan emailed TSAEP with respect to the appointment on 31 August 2016.
The proposed Job Plan that was discussed at the meeting on 31 August 2016 was for the period 31 August – 12 December 2016, and stated that it was “an Employment Pathway Plan, for the purposes of the Social Security Act 1991.”
Mr Manikantan attended the meeting on 31 August 2016. Mr Manikantan emailed TSAEP regarding the meeting later in the day.
On 1 September 2016, TSAEP and Mr Manikantan exchanged emails regarding a further appointment on 12 September 2016.
On 6 September 2016, TSAEP wrote the “Participation Report – Failure to Enter into/Vary Job Plan/EPP” for the Department in relation to the meeting with Mr Manikantan on 31 August 2016.
On 7 September 2016:
(a)the Department wrote to Mr Manikantan about his NSA;
(b)Mr Manikantan wrote to the Department at T26/201 about his travel plans.
On 2 October 2016, the Department wrote to Mr Manikantan. The letter relevantly said:
(a)that if he got a “Reporting Statement”, Mr Manikantan must report changes in circumstances on his reporting day;
(b)that the letter “was an information notice given under the social security law”.
On 3 October 2016, the Department wrote to Mr Manikantan with a Reporting Statement.
The Reporting Statement dated 3 October 2016:
(a)required Mr Manikantan to report every two weeks during the “Reporting Period”, which relevantly included the first and second reporting dates on 21 October 2016 and 4 November 2016, (bolding in the original):
(b)required Mr Manikantan to report for each Reporting Period:
oIf you participated in activities as detailed in your Job Plan, including:
· approved activities you participated in; and
· any exemptions you had during the period.
On 5 October 2016, TSAEP requested Mr Manikantan to attend an appointment on 17 October 2016 (before the first reporting date of 21 October 2016). A meeting did not happen on 17 October 2016.
On 17 October 2016:
(a)TSAEP notified Mr Manikantan that he was required to attend an appointment on 25 October 2016 for the purpose of negotiating and agreeing to a Job Plan;6
(b)Mr Manikantan wrote to TSAEP at T26/204-208 about the proposed appointment on 25 October 2016.
The proposed Job Plan for discussion on 25 October 2016 was for the period of 25 October 2016 – 27 February 2017, and was in much the same form as the previous proposed Job Plan.
On 21 October 2016, Mr Manikantan purported to make a report for the period of 8 October 2016 – 21 October 2016. The report was successfully submitted, however the Department notified Mr Manikantan that his report “could not complete automatically because [he had] outstanding Mutual Obligations Requirements”.
On 22 October 2016, the Department wrote to Mr Manikantan notifying him that his NSA had been suspended from 22 October 2016 because he “did not attend your activity or an appointment”. The letter provided the following information about his Job Plan:
Job Plan and Mutual Obligation Requirements
A Job Plan is an Employment Pathway Plan under the Social Security Act 1991.
Mutual Obligation Requirements means the same as Activity Test or participation requirements under the Social Security Act 1991. On 25 October 2016, Mr Manikantan attend an appointment with TSAEP. At the appointment, Mr Manikantan made hand-written changes to the proposed Job Plan, which he also signed. He followed this meeting up with an email to TSAEP.
On 29 October 2016, TSAEP wrote the “Participation Report – Failure to Enter into/Vary Job Plan/EPP” for the Department in relation to the meeting with Mr Manikantan on 25 October 2016.
On 1 November 2016, the Department wrote to Mr Manikantan about his NSA.
On 3 November 2016, Mr Manikantan wrote two letters to the Department in reply to the Department’s letter of 1 November 2016.
On 4 November 2016, Mr Manikantan wrote to the Department purporting to report for the period from 22 October 2016 to 4 November 2016.
On 7 November 2016, Mr Manikantan’s NSA was cancelled. On that day, the Department wrote to Mr Manikantan notifying him that his NSA had been cancelled from 8 October 2016 “because you have not reported”. Again, the letter provided the following information about his Job Plan:
Job Plan and Mutual Obligation Requirements
A Job Plan is an Employment Pathway Plan under the Social Security Act 1991.
Mutual Obligation Requirements means the same as Activity Test or participation requirements under the Social Security Act 1991.
On 9 November 2016, Mr Manikantan wrote to the Department requesting an internal review of the cancellation decision made on 7 November 2016.
On 18 November 2016, Mr Manikantan wrote to the Department purporting to report for the period from 5 November 2016 to 18 November 2016.
On 29 November 2016 an ARO affirmed the cancellation decision, and supplied Mr Manikantan with the decision statement.
On 2 December 2016, Mr Manikantan wrote to the Department purporting to report for the period from 19 November 2016 to 2 December 2016.
On 16 December 2016, Mr Manikantan wrote to the Department purporting to report for the period from 3 December 2016 to 16 December 2016.
On 29 December 2016, Mr Manikantan wrote to the Department purporting to report for the period from 17 December 2016 to 30 December 2016.
On 13 January 2017, Mr Manikantan wrote to the Department purporting to report for the period from 31 December 2016 to 13 January 2017.
On 27 January 2017, Mr Manikantan wrote to the Department purporting to report for the period from 14 January 2017 to 27 January 2017.
Mr Manikantan has provided an email chain with respect to “Record of Job Search Efforts”.
On 24 March 2017, the AAT1 affirmed the ARO’s decision.
On 29 March 2018, the AAT2 affirmed the AAT1’s decision.
On 13 December 2019, the Federal Court set aside the AAT2’s decision.
On 6 May 2022 and 10 June 2022, this Tribunal heard the matter, followed by written closing submissions from both the Respondent and Mr Manikantan. I have had regard to all the material and submissions filed by both parties in this matter.
Law and policy
The relevant legislation is contained in the:
(a)Social Security Act 1991 (Act);
(b)Social Security (Administration) Act 1999 (‘Administration Act’);
(c)Social Security (Employment Pathway Plan Requirements) Determination 2015 (No. 1) (‘Determination’), which commenced on 1 January 2016.
Section 605 of the Act provides that:
605Newstart Employment Pathway Plans—requirement
(1) If a Newstart Employment Pathway Plan is not in force in relation to a person, the Secretary may require the person to enter into such a plan if:
(a) the person is receiving, or has made a claim for, a newstart allowance; or
…
(2) If a Newstart Employment Pathway Plan is in force in relation to a person, the Secretary may require the person to enter into another plan instead of the existing one.
…
(3) The Secretary is to give a person who is required to enter into a Newstart
Employment Pathway Plan notice of:
(a)the requirement; and
(b)the places and times at which the plan is to be negotiated.
Section 606 relevantly provides:
606 Newstart Employment Pathway Plans—terms
Suitable requirements
(1) … a Newstart Employment Pathway Plan that is in force in relation to a
person is to contain one or more terms (the requirements) that:
(a)the person is required to comply with; and
(b)the Secretary regards as suitable for the person.
…
Approval of requirements
(2) The requirements in a plan are to be approved by the Secretary.
(3) In considering whether to approve the requirements in a plan that will be in force in relation to a person, the Secretary is to have regard to:
(a) the person’s capacity to comply with the requirements; and
(b) the person’s needs.
(4) In having regard to a person’s capacity to comply with the requirements of a plan; the Secretary is to take into account, but is not limited to the following matters:
(a) the person’s education, experience, skills and age; and
(aa) the impact of any disability, illness, mental condition, or physical condition of the person on the person’s ability to work, to look for work or to participant in training activities; and
(b) the state of the local labour market and the transport options available to the person in accessing that market; and
(c) the participation opportunities available to the person;
(d) the family and caring responsibilities of the person;
(e) the length of travel time required to comply with the requirements; and
(f) the financial costs (such as trave lcosts) of complying with the requirements; and the person’s capacity to pay for such costs; and
(g) any other relevant matters that the Secretary aor the person considers relevant in the circumstances.
…
Section 593 of the Act provides:
593 Qualification for newstart allowance
(1) … a person is qualified for a newstart allowance in respect of a period if:
(a)the person satisfies the Secretary that:
(i)     throughout the period the person is unemployed; or
…
(b)in the case of a person to whom subparagraph (a)(i) applies— throughout the period, or for each period within the period, the person:
(i)     satisfies the activity test; or
(ii)    is not required to satisfy the activity test; and
(c)if subsection 605(1) applies to the person, at all times (if any) during the period when a Newstart Employment Pathway Plan is not in force in relation to the person, the person is prepared to enter into such a plan; and
(d)if subsection 605(1) or (2) applies to the person, at all times during the period when a Newstart Employment Pathway Plan is in force in relation to the person, the person is prepared to enter into another such plan instead of the existing plan; and
(e)if the person is required by the Secretary to enter into a Newstart Employment Pathway Plan in relation to the period, the person enters into that plan; and
(f)while the plan is in force, the person satisfies the Secretary that the person is complying with the requirements in the plan; and
(g)throughout the period the person:
(i)     is at least 22 years of age and has not reached the pension
(ii)    age; and
(iii)   is an Australian resident …
Section 68(2) of the Administration Act provides:
68 Person receiving social security payment …
(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 any or all 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 one or more statements about a matter that might affect the payment to the person of the social security payment;
Section 72 of the Administration Act provides:
72 Provisions relating to notice
(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:
(i) in the case of a notice under section 68 that requires the giving of more than one statement, each relating to the payment of the social security payment in respect of a period--the date by which the person is to give each statement to the Department; or
(ii) in any other case--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.
(2) A notice under this Subdivision is not invalid merely because it fails to comply with paragraph (1)(c) or (e).
Section 95 of the Administration Act provides:
Automatic cancellation--failure to provide statement under subsection 68(2)
(1) If:
(a)a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and
(b)the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and
(c)the person does not comply with the notice so far as it relates to a particular period;
then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person on and from a day specified in the determination.
(3) The day specified under subsection (2) may be before or after the making of the determination.
The Guide to Social Security Law (‘Guide’) contains the relevant policy. The Tribunal accepts that it should apply policy unless there are cogent reasons not to do so.[1]
[1] Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634
Notably, Instruction 3.11.2 of the Guide provides:
Job seekers should be encouraged to consult with their employment services provider or the digital services contact centre, as appropriate, to identify appropriate activities they are interested in, or may prefer to undertake, to meet their mutual obligation requirements. While delegates will take job seekers' interests and preferences into account wherever possible, delegates of the Secretary of the Department of Employment and Workplace Relations have the final decision on what should be included in a job seeker's Job Plan.
The same part of the guide provides that:
Failure to enter into a Job Plan
If the job seeker refuses to enter into a Job Plan without good reason, this refusal will be reported to Services Australia and will result in compliance action. The job seeker will be required to attend a further appointment to enter into a Job Plan. If job seekers repeatedly refuse to enter a Job Plan without good reason their payment may be cancelled by Services Australia until they do enter into a Job Plan.
The Issue
The Respondent’s Statement of Facts, Issues and Contentions contained a detailed breakdown of the issues in this matter, namely:
(a)whether Mr Manikantan was on an existing Job Plan on 31 August 2016 when Mr Manikantan attended an appointment with TSAEP about a new Job Plan;
(b)whether the Secretary could, on 31 August 2016 or at any other material time until 7 November 2016, require Mr Manikantan to enter into a “Newstart Employment Pathway Plan” within the meaning of subsections 605(1) and (2) of the Act (EPP),in circumstances where Mr Manikantan did not agree with the terms of the proposed EPP;
(c)whether the EPP proposed by TSAEP on 31 August 2016 (and rejected by Mr Manikantan on that day) satisfied the reasonableness test for an EPP;
(d)whether the Reporting Statement dated 3 October 2016 should be interpreted as referring to:
(i)the EPP dated 23 July 2015; or
(ii)an EPP that Mr Manikantan was still to enter into on 3 October 2016 in accordance with an obligation since 22 August 2016 to enter into the EPP proposed by TSAEP on 31 August 2016,
(e)whether Mr Manikantan reported to the Department in accordance with his reporting obligations in the Reporting Statement dated 3 October 2016:
(i)on 21 October 2016; and
(ii)on 4 November 2016,
(f)whether Mr Manikantan’s NSA was lawfully cancelled on 7 November 2016;
(g)whether the cancellation on 7 November 2016 was:
(i)a “manual” cancellation under section 80(1) of the Administration Act; or
(ii)an “automatic” cancellation under section 95(1) of the Administration Act,
(h)if the cancellation was under section 95(1) of the Administration Act, whether there are special circumstances within the meaning of section 95(2) of the Administration Act.

The Applicant’s various written submissions, and his oral submission at hearing, also whilst differently expressed, essentially encapsulated the issues above all of which have to be decided in order to determine whether or not the Applicant’s NSA was lawfully cancelled..
I note that at the hearing, it was expressly agreed by the parties that the crux of the issue to be determined was whether Centrelink followed the correct procedure when cancelling the applicant’s Newstart allowance (NSA) on 7 November 2016, with effect from 8 October 2016.
Evidence of the Applicant
The applicant provided the Tribunal with several voluminous submissions, in addition to giving very lengthy evidence before the Tribunal over a period of two days, including in response to cross-examination by counsel for the respondent. He also made lengthy written final submissions, and submissions in response to the respondent’s final submissions.
The applicant said that he had himself worked at Centrelink as an Executive Level 1 previously and said that he was accordingly familiar with Centrelink procedures.
He said to his last job was in 2020 and that he is currently unemployed.
The applicant also agreed that he had made a number of overseas trips, which he said were to India over the last few years.
The applicant said the fundamental questions in the case was whether the decision of 7 November 2016 was correct. In his opinion, it had been made in error and that Centrelink had not followed proper procedures.
In the applicant’s view, the cancellation of his benefits was made under the wrong section of the Act and should have been made under s 615 of the Administration Act. The respondent was said to have acted in a way that was not consistent with the law and had, accordingly, made an error of law.
He also asserted that his failure to enter into an EPP should have been addressed using the ‘compliance framework’ contained in s42E of the Administration Act, and that the Respondent had failed to present any evidence that he had failed to enter into an EPP when required.
The applicant agreed that during the relevant period he had worked with the same service provider and that he had entered into a Job Plan in 2016. He acknowledged historical jobs plans which he entered into on 23 July 2015, but said that that Job Plan did not expire on 24 August 2016. He said that when he signed the Job Plan in July 2015 he was in Australia and that he went to India on 21 April 2016.
He acknowledged an email from the service provider of 29 July 2016, and said that he met with the provider in August 2016 but that it was an entirely unproductive meeting. He acknowledged however that the 2015 Job Plan allowed the service provider to direct him to enter into a new job plan. He said that he had however objected to the direction on 12 August 2016, because he said that it did not add in any way to his job search. In any event, however, the applicant agreed that the provider had “the last say”.
He said that he had never been given sufficient notice of meetings and that the consultant had told him that he was not required to give him any particular period of notice. In his opinion, the agency was just creating work for itself and not assisting him in any way and that the provider had failed to comply with its obligations in relation to communication with Centrelink and that the provider was not complying with his Job Plan.
He again said that he felt that he was being “blackmailed” in the meeting of 16 August 2016. He objected to the consultant referring him to cleaning jobs.
Under cross-examination, the applicant was taken through a number of emails between himself and the provider. He also said he had provided relevant material to the provider but there was no written evidence in relation to that material.
When questioned about the letter sent to him on 22 August 2016, and in particular the requirements set out on the second page of that letter including the requirement to review the plan and update the Job Plan, the applicant said he got the letter but could not say when he actually received it. He said that in any event the provider had told him about it.
He said the Job Plan been discussed on 31 August 2016 and that the provider was required to make notes of the meeting.
The applicant said that he had been unemployed for 12 years, and that he had never said that he was only willing to take up senior roles such as managing director.
When questioned by counsel for the respondent, the applicant acknowledged that the letter contained a direction to enter into a new job plan. The applicant said, however, that his requests were in his view reasonable. He said that the letter at should have directed him to enter into a new plan under section 605 of the Administration Act, but that it did not.
He said however that he continued to adhere to what he said in his letter. When referred to his email of 31 August 2016, he said that at that time he was not prepared to make any changes and that the provider had to seek input from him before submitting a new plan to Centrelink. The applicant said that he was willing to negotiate and that he signed a new Job Plan with his own hand along with hand-written changes. He had not signed the new Job Plan because in his view it was not useful.
When questioned as to whether he had looked for work, the applicant said that he had looked for work even when he was travelling to India. He said that he had submitted job applications through a third-party, including job applications in various states of Australia and for different positions, most of which were at a senior level.
When referred to a letter from the Department dated 3 October 2016 which referred to his failure to enter into a new plan, the applicant said that he had become aware of a ‘possible activity test failure’ before he left for India and that that letter came after he told Centrelink he was going overseas. He said that he agreed that the letter acknowledged the need for him to enter into a new Job Plan. In his view, however, he had ‘the last say’ as to the Job Plan that he would enter into. The applicant had acknowledged that notice of the appointment was given to him under section 68(2), although he appeared to suggest that the letter did not refer to any conditions he was required to fulfil.
During cross-examination, the applicant was referred to a highlighted version of section 606, which the applicant had attached to a letter he had sent to TSAEP regarding an invitation to attend an appointment on 17 October 2016. The applicant agreed that he had highlighted certain portions of s 606 to demonstrate to TSAEP what he believed was required under that section.
The applicant acknowledged that he had a legal responsibility to report on activities as detailed in his Job Plan but said that in his view the Job Plan of 2015 was still in place.
He was directed to the fact that the Job Plan gave the provider the right to require him to enter into a new Job Plan, and that on 22 August 2016 the applicant was given a direction by the provider to enter into a new job plan. The applicant said however that entering into a new EPP was ‘outside the Job Plan‘’ and that he reported accordingly with the job plan dated 23 July 2015. He said that he had no obligation to report on whether he had entered into a new job plan under the provisions of the 2015 Job Plan.
The applicant unequivocally acknowledged the purpose of the meeting was to enter into a new employment pathway plan, but said that notices were not for entry into a new plan at all. In relation to the Job Plan provided by TSAEP for the purposes of a meeting with the applicant, the applicant said he agreed to attend the meeting although he had not signed the plan.
The applicant said that he attempted to report in line with the requirements of the reporting statement, and acknowledged a document from Centrelink saying his report could not be processed. However, he stated that he did not fail to meet mutual obligation requirements as he had tried to report.
The applicant agreed that on 22 October 2016, he received a letter from Centrelink which suspended his payments because of his failure to meet his Mutual Reporting Obligations, including his obligation to enter a Job Plan. When referred to the provider’s report of 31 August 2016, the applicant said that he agreed with what was written except for the fact that he did not threaten to sue the provider. There were handwritten changes made by the applicant to the proposed Job Plan, which he said meant that he was prepared to be flexible ‘is as long as it was helpful’ and that nothing could be done until there had been proper negotiation with him and the provider had included his recommendations. He confirmed that he would participate in negotiations if in his opinion it was going to be useful to him and help him to get a job.
The applicant said that while he was unemployed, he lived off of his savings and that he spent his time looking for a job. The applicant says he only had to give a statement that he complied with his reporting requirements, and that he did not need to do anything else although he could not give any reasons as to why this was so.
The applicant said that he submitted to the provider the reports, but that they were not for the purpose of preparing for the hearing before AAT1. He said that all of his job applications were via Seek, and that he did not apply directly. Although he had applied for a number of jobs for which he did not appear to have relevant qualifications, the applicant said that he was in his view suited for those positions including positions all over Australia.
He said he was prepared to agree to a job plan which in his view, ‘is helpful to him’.
With regard to s 605, in relation to mutual obligations, the applicant said that the respondent did not have ‘jurisdiction’ to require him to do anything under this section, and said that section 42E of Part 3, Division 3A of the Administration Act should have been applied in relation to the various questions he had been asked by Counsel for the respondent. In his written submissions, the applicant further submits that:
…without exercising the compliance framework under Part 3, Division 3A of the SSAA 1999, a compliance failure of sufficient seriousness to affect payment of NSA cannot be determined nor enforced even if sections 605 (1) & (3) of the SSA 1991 were properly applied.
Consideration
This matter has had a long history before the Tribunal. At one level, the issues to be resolved are not complex. However, the decision on the matter has been made more difficult by the applicant’s wide focus and a desire to canvas issues, perhaps with some repetition, that are not directly relevant to the decision. As a result, the matter took two days in addition to the Tribunal receiving final submissions in writing. In this regard, I note that the applicant’s submissions ran to 100 pages, about a third of which could best be characterised as evidence rather than final submissions. The respondent objected to this material but I have accepted the applicant’s submissions, on the basis that the material that could be regarded as evidence does not affect the decision in the matter.
At the outset of the hearing, it was agreed between the Tribunal, the applicant and the counsel for the respondent that the issue to be determined was whether Centrelink followed the correct procedure when cancelling the applicant’s Newstart allowance (NSA) on 7 November 2016, with effect from 8 October 2016.
The applicant said to the Tribunal, at the beginning of the hearing:
The fundamental question before this tribunal as the applicant understands it, in a sense, is based upon the material before this tribunal whether or not the decision of the secretarial delegate, dated 7 November 2016, to cancel the applicant’s social security benefits with the effect from 8 October 2016, is correct or the preferred decision. That answer, the applicant would submit, is an emphatic no. As explained, my intent is to establish that the decision is in error, so it is not sustainable.
…
The applicant has been apparently penalised for not agreeing to take part in what could be called a commercial activity for the provider, without any benefit to the applicant, and instead of dealing with the records according to the compliance framework under the social security law, Centrelink - a delegate of the Secretary - imposed administrative actions one after another against the applicant…
…
Claiming to rely on one or more of these alleged failures in various combinations and indeed without validation or verification, the Department assessed through the Secretary suspended the applicant’s payments on 22nd and subsequently cancelled it all together on 7 November. That is the brief context of this matter before this tribunal. The applicant’s plan is to establish the unsustainability of all of these allegations of failures and in turn the decisions of the tribunal, which is AAT1, and request this tribunal to set them aside and grant the remedy he has sought. That is the plan, and the first allegations is failure to enter into an employment pathway plan; this being the core of the entire sequence I believe we need to establish.
Although the applicant appears to have lost focus on this issue during the course of the hearing and in his submissions, it remains, originally as agreed, the issue to be determined.
I have carefully examined a range of other arguments raised by the applicant, none of which in my view have much bearing on the central issue. I do not propose to canvas all of those arguments at length, because to do so is otiose, and would in my view result in a judgment that is much longer than necessary and detract from the decision to be made by the Tribunal.
In determining the issue in this matter, it is important to have regard to the decision of the Federal Court in Kronen and the Secretary, Department of Education, Employment and Workplace Relations 2009 FCA 1268 and similar authorities relied upon by both the Applicant and the Respondent at hearing.
In Kronen, the Federal Court stated relevantly as follows at [38] – [39]:
[38] Central to this trio is Mr Kronen’s conception of what is signified by the words “to be negotiated” in s 605(3). What is clear is that the level of permissible compromise and of required mutual agreement that this formula might otherwise suggest when used in other contexts, is radically curtailed in this statutory setting. Whether one can say that the ordinary meaning of “negotiate” is what is intended here (albeit what can be negotiated is limited by the Act and its purposes), hence the meaning is a question of fact: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (proposition 2); or that its meaning and hence proper construction is contrived by its legislative settings, hence are questions of law: Pozzolanic, 287 (propositions 1 and 4), what is clear is that Mr Kronen misapprehends the latitude the Act gives him. Elblematic of this was his presenting Maxima with negotiation procedures which included referral to an independent panel if any terms could not be agreed.
[39] If Mr Kronen is to qualify for a newstart allowance, he was required, in the circumstances, enter into an activity agreement: s 593(1)(e); he was required to undertake one or more activities that the Secretary regarded as suitable for the person: s 606(1); the terms of the agreement were to be approved by the Secretary. In this scheme, the “right to negotiate” could be illusory in quite some degree for some purposes and especially when the Secretary (or a delegate) takes decisions or actions in effectuation of the purposes of the Act itself. This is not to say that there was no room for discussion, accommodation and compromise. Rather, it is to recognise that the actual terms of the negotiation itself were something in relation to which the Secretary, acting reasonably and in good faith, could ultimately dictate, approve or disapprove, if there was to be an agreement.
Further, it is necessary to go through the evidence in order to establish whether or not Centrelink followed the correct procedure. Central to the issue is the employment provider’s letter dated 22 August 2016. In his evidence, Mr Manikantan confirmed that although the second page of that letter was missing, it was in fact identical to the second page of an earlier letter dated 12 August 2016. It is also of note that in his reply submissions, dated 15 July 2022, Mr Manikantan states the following:
The Respondent mistakenly claims [Paragraph 9 of the RFS dated 05 July 2022] that the second page of the letter from the provider to the Applicant dated 22 August 2016 is missing. All the letters from the provider to the Applicant during July – October 2016 have been filed on behalf of the Secretary on 23 August 2017 [T – Supplement (R3)] and both the pages of this letter are part of the documents before this Tribunal [Pages 11 & 12 of the T – Supplement (R3)].
When cross-examined, Mr Manikantan said that he had been prepared to sign the unaltered job plan on 23 July 2015 but that he was not prepared to sign a replacement job plan on 16 August 2016, although it was basically the same. The applicant made hand-written changes to the plan, and insisted that the employer service provider had to accept those changes on Centrelink’s behalf even though those changes significantly altered the standard form job plan tabled by the employment service provider on 16 August 2016.
I agree with the Respondent’s contention that it was for the Secretary to determine the reasonableness of the job plan that the applicant was required to enter into, and it was not a matter that fell within the discretion of the applicant It was difficult not to form an impression during his evidence that the applicant felt he was above the normal requirements of a job plan, and in particular that he was suited to only very senior level jobs.
I have reviewed both the signed job plan dated 23 July 2015, and the proposed job plan of 16 August 2016. I note that they are largely in the same form, although the latter proposed job plan included an added compulsory requirement of attending the premises of TSAEP three days a week.
I accept, and I note that the applicant accepted at hearing, that it is for Secretary to ultimately determine and approve the contents of a job plan, and what is ‘reasonable’. I accept the Respondent’s submission that TSAEP’s appraisals of the job plans as reasonable, as discussed in the ‘Participation Report – Failure to Enter into/Vary Job Plan/EPP’ dated 6 September 2016 and 29 October 2016 respectively, should be given appropriate weight.
The applicant apparently did not consider the job plan as suitable for him, and made such submissions orally and in writing, however conceded that the Secretary had the last say in what was considered suitable.
I find that the proposed EPP meets the reasonableness test, as outlined in section 606 of the Act and in relevant portions of the Guide.
I note there was some discussion as to whether the applicant could be required to enter into an EPP in circumstances where he did not agree with the terms. I find that, while s 605 does contain a reference to ‘negotiating’, the final substance of the job plan is to be determined by the Secretary. There was some reference to the principles of contract law, however, as discussed below these are not relevant.
In his evidence to the Tribunal, Mr Manikantan agreed that if he had been required under s 68(2) of the Administration Act to enter into a new job plan to vary or replace the job plan dated 23 July 2015, he would have signed the unaltered job plan as proposed by the employment service provider. He claimed, however, that no such section 68(2) notice was ever served on him.
This argument cannot however be sustained because the reporting statement dated 3 October 2016 was in my opinion, a valid s 68(2) notice. In particular, it satisfied the statutory criteria set out in s 72 of the Administration Act for a valid s 68(2) notice, both in form and in substance.

The requirement to enter into a new job plan when required by the employment service provider was:
(i)included in the words “participated in activities as detailed in your Job Plan” at the top of the fourth page of the reporting statement dated 3 October 2016; and
(j)included in the words “I agree … to do other preparatory activities as directed by my provider” in the Job Plan dated 23 July 2015.
Mr Manikantan insisted that a group of emails was submitted to the employment service provider from time to time were in accordance with the reporting statement notice dated 3 October 2016. However, there was no evidence before the Tribunal that such emails had ever been given to the provider and importantly, the applicant conceded in his evidence that he had never supplied these emails to Centrelink despite the fact that the notice required him to do so.
Under cross-examination, the applicant was questioned about further documents. In particular, the applicant’s attention was drawn to three contemporaneous letters, dated 30 August 2016, 7 September 2016, and 17 October 2016 in which he acknowledged at that time that the employment service provider’s notices were issued pursuant to s 605 of the Act. At the hearing on 10 June 2022, the respondent submits, the applicant resiled from his acknowledgments in the letters referenced above. Mr Manikantan’s contentions of those letters was well summarised by the respondent as follows:
(a)Mr Manikantan agreed that he had entered into the original Job Plan on 23 July 2015;
(b)he disputes that the Job Plan dated 23 July 2015 expired on 24 August 2016;
(c)he disputes that the notice dated 22 August 2016 to enter into a new Job Plan was pursuant to section 605 of the Social Security Act 1991;
He disputes that the notice dated 3 October 2016 was a reporting statement under section 68(2) of the Administration Act .I find, however, that those contentions were not relevant, and that Centrelink followed the correct procedure which ultimately resulted in the cancellation of the applicant’s NSA on 7 November 2016. These steps, which are set out in more detail above in the Background to this matter, are as follows:
(a)on 22 August 2016, Centrelink served a notice under section 605 of the Act on Mr Manikantan requiring him to enter into a new Job Plan;
(b)on 3 October 2016, Centrelink served a reporting statement under section 68(2) of the Administration Act on Mr Manikantan requiring him to provide a statement of how he had complied with the approved activities under his Job Plan, including:
(i)the requirement on 22 August 2016 to enter into a new Job Plan; and
(ii)his job search activities as specified in the Job Plan dated 23 July 2015.
(c)the notice of 3 October 2016 required Mr Manikantan to provide his statements of compliance to Centrelink:
(i)on 21 October 2016;
(ii)4 November 2016; and
(iii)on subsequent dates as specified in the notice.
Mr Manikantan was required by the s 68(2) reporting statement of 3 October 2016 to provide details of how he had complied on each reporting day. It did not allow him to merely state formally that in his opinion, he had complied with the activities with which his job plan required compliance. He needed to provide appropriate evidence of compliance.
Of particular importance, the applicant was required to demonstrate that he had complied with his job search requirements and also the requirement of 22 August 2016 to enter into a new job plan. I do not accept Mr Manikantan’s assertions that the reporting obligations did not include an obligation to enter into a new job plan. This requirement was not contingent on whether or not the job plan of 23 July 2015 was still extant, as s 605(2) of the Act allows the Secretary to require a person to enter into a new EPP while there is an existing EPP in force.
Further, I accept the Respondent’s submissions that it is not material whether the applicant was on an existing EPP on 31 August 2016, as the letter from TSAEP adequately covered both scenarios. Relevantly, the letter stated:
If you do not attend this appointment and enter into or review your job plan as required, your payment may be stopped by Centrelink…This is a notice under Social Security Law.
I am, on the evidence before me, satisfied that the applicant did not have an existing job plan at the date of 31 August 2016. The Department’s record, produced in the T-documents, shows that the applicant entered a job plan on 23 July 2015 that was to expire on 24 August 2016. There is, in evidence, the signed job plan of 23 July 2015.As discussed above, even if the applicant’s job plan dated 23 July 2015 continued to exist past 24 August 2016, the Secretary was able to require him to enter into a new EPP while there was an existing EPP in force.
In this scenario, apart from information submitted by the applicant which was irrelevant, he simply advised on each of the reporting days commencing from 21 October 2016 that in his opinion he had complied with his job search activities. The applicant had not given either Centrelink or the employment services provider copies of the many emails to potential employers over the relevant period but rather seems to have copied and pasted various communications and sent the new ‘report’ to Centrelink on 4 November 2016. The same procedure was followed on each subsequent reporting date. In his evidence to the Tribunal, the applicant said he had given all of the particulars of his job search activities to the employment service provider, but was unable to provide any evidence that he had in fact done so. I accept that one such activity to be reported on was entering into a new job plan, as required under the notice on 12 August 2016 and subsequent dates.
I find that the various emails did not of themselves did not satisfy the applicant’s job search obligations of his job plan of 23 July 2015, but even if they did meet such requirements, the applicant did not adequately report those activities, in particular to Centrelink on 21 October 2016 and 4 November 2016, or on any further dates as required by the notice on 3 October 2016.
I note that the applicant must have been cognisant of his reporting requirements under the notice dated 3 October 2016, as he forwarded communications to Centrelink on each of the relevant dates. This is clearly an acknowledgment that the notice given was a reporting statement under s 68(2) of the Administration Act.
There is some contention as to whether the Applicant’s NSA was lawfully cancelled under either s 80(1) of the Administration Act or under s 95 of the Administration Act. The Respondent contends that, on 22 October 2016, the Secretary made a decision to suspend his NSA on the basis that Mr Manikantan had failed to comply with his EPP obligations as contained within s 593(1)(c) or (d), and s 593(1)(e) and/or (f) of the Act, namely his preparedness to enter into an EPP proposed by TSAEP on 31 August 2016, regardless of whether his 23 July 2015 job plan was still extant, actually entering into an EPP, and satisfying the Secretary that he was complying with the requirements of his EPP.
The Respondent asserts that the suspension under s 80(1) of the Act is not the decision reviewable by the Tribunal, and I accept that contention. The Respondent also asserts that, while not material to the reviewable decision, the suspension under s 80(1) of the Act “is relevant as it throws light on the lawfulness of the cancellation decision on 7 November 2016.”
While I accept that either s 80(1) or s 95(1) may have been invoked to cancel the applicant’s NSA, and that the applicant’s submits that his NSA was cancelled under s 80(1), I note that there is evidence in the T-documents that the previous actions under s80(1) by the respondent were accompanied by a file note, and I accept the Respondent’s submission that a cancellation under s 80(1) would have been accompanied by such a file note.
Section 80(1) requires a positive action by the Secretary to cancel the NSA – such an action would have, in my view been likely to have been accompanied by some internal correspondence and file noting which would have been produced in the T-documents. Cancellation under s 95(1) is automatic, following a failure to comply with a notice under s 68(2), from the first day in the period specified by the notice.
The applicant’s NSA cancellation took effect on 8 October 2016, the same date as the first date in the reporting period of the s 68(2) notice dated 3 October 2016.
I note that the authorised review officer (ARO), when reviewing the cancellation of the applicant’s NSA, referred to the cancellation occurring under s 80(1). It is not unlikely that the ARO may have been mistaken, or confused about the nature of the cancellation given the Applicant’s existing suspension under s 80.
On the evidence available to the Tribunal, namely that the cancellation occurred on the first day of the reporting period specified in the s 68(2) notice, that no file note was made of the cancellation, and that there is no evidence before the Tribunal that the cancellation occurred under s 80(1) other than the ARO’s decision, I find that the cancellation was an automatic cancellation under s 95(1) of the Administration Act.
The applicant’s NSA was subsequently cancelled on 7 November 2016 because he had failed to submit compliance statements in accordance with the notice dated 3 October 2016. In particular, he had not informed Centrelink on the first two reporting dates of 21 October 2016 and 4 November 2016:
(a)about his job search activities as specified in the Job Plan dated 23 July 2015; and/or
(b)that he had entered into a new Job Plan as required by the provider’s notice dated 22 August 2016.
The failure of the applicant to submit compliance statements to Centrelink on these dates was of itself, in my view, sufficient for his NSA to be cancelled on 7 November 2016. However, this was not his only failure to comply. In particular, the applicant’s failure to enter into a new job plan was a serious non-compliance.
In relations to s 95(2) of the Administration Act, special circumstances, I find, having regard to the relevant case law including decisions of this Tribunal and the decision of Besanko J in Angelakos, that no such circumstances exist in this case.
There is no medical evidence put forward by the applicant in this case, and no other evidence of circumstances that could be considered to be ‘out of the ordinary’. To the extent that the applicant seeks to argue that the cancellation of his benefits was unlawful or illegal, constitutes ‘special circumstances’ I reject that argument. In particular, I have already found that the cancellation was lawful and it is unnecessary to canvas it further. To the extent that the applicant made any other argument that may be relevant to the application of special circumstances, any references were at best vague and non-specific.
During his evidence, the applicant argued that the situation was governed by contract law and that the principals of freedom of contract governed the situation between 22 August 2016 and 7 November 2016 so that he could not lawfully be required to enter into a new job plan that was not in accordance with his wishes in order to receive his NSA. Kronen, as referred to above, proves that this contention was wrong.
As noted above, the applicant made a range of other arguments, the most important of which were:
·that the principles of common law contracts would apply to the creation of a Job Plan;
·that the Respondent was required to apply s 42E of Part 3, Division 3 of the Administration Act; and a failure to do so means that the Secretary failed to follow the correct procedure in cancelling the applicant’s NSA.
Those arguments were however in my view are either not directly relevant or of so little weight that they could be discounted.
In particular, the applicant’s alleged knowledge of Centrelink procedures and his work history at Centrelink does not affect the weight to be given to his submissions, nor is it useful or relevant to canvas other sections of the Act which clearly do not apply in the current case.
Fundamentally, this was not a particularly complex issue but it is made complex by the myriad of issues raised by the applicant’s propensity to try to deflect attention from the relevant section to other sections or concepts which were not relevant in determining that matter. This comment includes but is not limited to his arguments regarding contract law, procedures to be followed, which sections were relevant, and implied notions of fairness. It is quite clear that the relevant sections to this matter are those referenced above.
Mr Manikantan raised an issue of compensation for costs and also a costs order made by the Federal Circuit Court against the Respondent in proceedings before that Court. I have looked at these matters but they are not relevant to a decision on the matters before the Tribunal, and as such I make no orders in this regard.
Given the history of the matter, I set out below the answers to each of the questions posed under the heading ‘Issues’ in this decision in turn. The more detailed reasoning is to be found above:
(a)The applicant did not have an existing job plan at 31 August 2016;
(b)The Secretary could, at any time, require the applicant to enter into a new EPP in circumstances where the applicant did not agree with the terms
(c)The proposed EPP for consideration on 31 August 2016 passed the reasonable
(d)In light of the above, the reporting statement dated 3 October 2016 was referring to the EPP that the applicant had not yet entered;
(e)the applicant did not report to the Department on 21 October 2016 and 4 November 216 in line with his reporting obligations;
(f)On 7 November 2016, his NSA was lawfully cancelled;
(g)It was an automatic cancellation under s 95(1) of the Administration Act; and
(h)There are no special circumstances within the meaning of 95(2).
Decision
The correct or preferable decision is to affirm the AAT1 decision dated 24 March 2017.

I certify that the preceding 138 (one hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

..........................[SGD]..............................................
Associate
Dated: 24 November 2022

Date(s) of hearing: 6 May & 10 June 2022

Date final submissions received: 15 July 2022

Applicant: Self-represented

Counsel for the Respondent: Dr. S Thompson

Solicitors for the Respondent: Sparke Helmore Lawyers

Date(s) of hearing:	6 May & 10 June 2022
Date final submissions received:	15 July 2022
Applicant:	Self-represented
Counsel for the Respondent:	Dr. S Thompson
Solicitors for the Respondent:	Sparke Helmore Lawyers