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

[2023] AATA 4213

Masters and Secretary, Department of Social Services (Social services second review) [2023] AATA 4213 (20 December 2023)

Division:GENERAL DIVISION

File Number(s):      2022/9615

Re:Leith Wendy Masters

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

REASONS FOR DECISION

Tribunal:Member Dr C Huntly

Date:20 December 2023

Place:Perth

On 20 September 2023, I made the following decision:

The Tribunal is satisfied that the application for review of the decision has no reasonable prospect of success. The Tribunal dismisses the application pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.

Attached to this statement is a corrected transcript of the oral reasons for decision delivered to the parties in person at the conclusion of the hearing of the matter.

..............[Sgd].........................................................

Member Dr C Huntly

CATCHWORDS

SOCIAL SECURITY – application for extension of time – whether no reasonable prospect of success – decision to reduce Applicant’s Family Tax Benefit – rent assistance – failure to meet immunisation requirements – opposition to vaccination of child – application dismissed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 42B(1)(b)
A New Tax System (Family Assistance) Act 1999 (Cth) – s 6
Social Security Act 1991 (Cth) – s 6
Social Security (Administration) Act 1999 (Cth) – s 179

CASES
Spencer v Commonwealth of Australia [2010] HCA 28

REASONS FOR DECISION

Member Dr C Huntly

20 December 2023

ORAL DECISION OF MEMBER HUNTLY [11.29 AM]

INTRODUCTION

This is an oral decision with reasons with respect to the interlocutory application by the Secretary in the matter of Ms Masters and Department of Social Services (2022/9615).

1. I note that the Administrative Appeals Tribunal (the Tribunal) has jurisdiction to determine this matter under s 179 of the Social Security (Administration) Act 1999 (Cth) given that a decision was made by the Secretary of the Department of Social Services to reduce the Applicant's Family Tax Benefit (FTB) Part A from 17 January 2019.[1]

   [1] T12/137.

   FACTS

2. The Secretary’s decision to reduce the Applicant’s FTB was made as a result of correspondence that had been entered into between the Secretary and the Applicant, relying upon the immunisation records relating to the Applicant's minor son. 

3. The consequence of this decision was that, in addition to the Applicant's FTB being reduced to the basic amount, she no longer qualified for rent assistance. This is recognised as being a matter of genuine concern and significant financial inconvenience to the Applicant and her minor son.

   PROCEEDINGS

4. On 5 July 2022 the Applicant sought an internal review of both the initial FTB decision and with respect to the failure to pay rent assistance.  She also sought recovery of amounts that she had gone without relating to the FTB after the adjustment of her FTB.[2]

   [2] T16/236.

5. On 29 July 2022 an Authorised Review Officer (ARO) affirmed the decision not to pay the rent assistance and affirmed the initial decision with respect to the applicant's FTB payments.[3]

   [3] T12/137.

6. On 31 August 2022, and within time, the Applicant sought AAT1 review of the ARO’s decision and on 7 November 2022 AAT1 affirmed the decision under review.[4]

   [4] T13/143;T2.

7. On 12 November 2022 (and within time), the Applicant applied to the General Division of the Tribunal for a review of the AAT1 decision. I stand in the shoes of the AAT1 for the purposes of the s 179 review of the AAT1 decision and I am satisfied that I have jurisdiction.

   CONTENTIONS

8. In response to the Applicant's application for review, the Secretary lodged a Statement of Facts Issues and Contentions (SOFIC) in which its submission was that the application had no reasonable prospect of success for the purposes of section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), sub-paragraph (b).

9. The test for determining whether or not an application has no reasonable prospects of success has been the subject of discussion in numerous past decisions of the Tribunal and also in different contexts. The same test has been considered by the Federal Court and the High Court. I have been directed to the relevant authorities that are binding on me, by the Respondent, and I do note the underlying theme which is highlighted by French CJ and Gummow J in Spencer v Commonwealth of Australia 2010 HCA 28, where their honours suggest that the relevant test is whether there is a real (rather than fanciful) prospect of success.

10. Essentially, this requires me to consider the propositions put by the Applicant, to determine at a level of first impression, whether or not there is a real prospect of success. 

11. I am very grateful to the Applicant and the Respondent for helping me to understand the background to this application, and in particular, the time taken by both the Applicant and the Respondent in putting forward their propositions with respect to both the facts and the relevant law that both parties would separately regard as being binding on them.

12. I note that Ms Masters at the resumed hearing on the matter held on 20 September 2023, pointed out that effectively she was facing a double penalty because she had chosen, conscientiously, not to have a vaccine injected into her son's body.

13. Ms Masters directed me to the broader landscape in which the decision has been made and asserted her inherent rights and her son's inherent rights to live as they saw fit. For her, as I understand it, this is a matter of significant principle; that she would view herself as submitting to slavery by agreeing to the policy of the government with respect to vaccinations and FTB; and, that she is bearing a cost as a result of not wishing to subject herself to what she sees as slavery by losing the benefits to which other citizens of Australia are entitled.

14. I also understand that Ms Masters has raised significant policy questions about the freedom to decide with respect to an individual's person and a freedom to decide with respect to a parents’ responsibilities for their children.

15. Specifically, I note that in the Applicant's lengthy written submissions filed 10 March 2023 (A1) to the Tribunal on the application over time, she asserts at paragraph 17.2 that:

    Services Australia and Centrelink are guilty of horrific standards of conduct…

    (Original emphasis)

16. I raised my concerns about the conduct of Centrelink and the Secretary with respect to the wording of their original submissions and I am very thankful for the Secretary for taking those concerns I expressed on board which, to some extent, align with the sentiments expressed here by Ms Masters.

17. As to the submission that was not made by the Secretary that the application might be frivolous, I note that Ms Masters has said [at this hearing]:

    If my words and requests in these matters are deemed not to have any serious purpose or value, then I truly am a slave.

18. I have endeavoured throughout the proceeding, to indicate to Ms Masters that her words and requests carry significant weight in my considerations.

19. With respect to the question of whether or not this application was vexatious as causing or tending to cause annoyance, frustration or worry – again, this particular aspect of s 42B was not pressed by the Secretary.

20. As to ‘misconceived’, which Ms Masters has characterised in her submissions as ‘wrongly or badly planned or judged’, typically because of faulty understanding, Ms Masters goes on to say:[5]

    The understanding is that a private corporation exists in our landscape that likes to call itself ‘Government’ and likes to call its statute: ‘Law’.

    There is no misunderstanding about that.

    [5] A1/25.

21. I would prefer to construe the term ‘misconceived’ in these proceedings rather as not understanding or faulty understanding, as a difference of view. 

22. As to ‘no reasonable prospects of success’, Ms Masters submits:[6]

    Success would mean the system of Statutes had been found to be faulty, which it is.

    The perpetuation of this faulty system is a criminal act on multiple counts, as delineated in this case.

    [6] A1/26.

23. Ms Masters also addresses ‘abuse of process’, which is not pressed by the Secretary.[7]

    [7] A1/26.

24. I understand Ms Masters to mean that she takes a different view of the statutory framework that I consider myself to be bound by and I acknowledge that.

25. On this point, Ms Masters says:[8]

    I work in natural health and the idea that I would inject my child with such toxic ‘health products’ is an absurd concept, that has no resemblance to health in any way.

    [8] A1/31.

26. A document which bears the date 3 November 2022 (at items 3 and 4), Ms Masters writes:

    Essentially, in looking at rent assistance since I had moved properties, I became aware that not only am I penalised for not having my child vaccinated with the private concoctions of a vaccine industry, which I deem to be the wickedest version of health possible, leads to child not vaccinated so on base level rate of family tax so therefore not eligible for rent assistance.

27. This is the crux of Ms Masters views on the decision that was made and contrary to her interests by the Secretary.

28. I note that the Secretary is not pressing the vexatious limb of s 42B.

29. In a letter to Centrelink dated 5 December 2022, Ms Masters wrote, at 4.5:

    At my request, a review of that decision has been entered at the AAT and accepted.

30. She also advised at paragraph 5.3 that the father of the child has lost his job and thus there is some child support that is not being paid. We clarified that at the hearing and Ms Masters has updated that information to indicate that child support is being paid on the basis of the capacity to pay of the child's father.

31. I also note in the course of the hearing Ms Masters has indicated that her son is 15 years of age and has some difficulties with socialisation and I acknowledge that this decision has a capacity to impact on the interests of the child. I have tried to weigh that very carefully.

32. The sentiment regarding Ms Masters' sincerely held conscientious opposition to vaccination of children appears again in other places, including the letter to Centrelink dated 31 January 2023 at 4.4.3, where Ms Masters stated:

    Particularly an injectable, into my young child, of unknown substance, marketed as health. No thank you. As a natural practitioner, such a protocol makes no sense at all.

33. I also note that the Applicant has expressed the view in the same letter at paragraph 8: 

    … [that] the Tribunal should view this meeting as a pivotal turning point for humanity and come with an open mind, and a thanks and a prayer that it is they who are at the table of this incredible turning point in history. 

34. I note that the Applicant has asked me to view the video she has referred to in her submissions. I have attempted to access that video and I note that it is not permitted viewing by the Tribunal protocols. I am unable to comment on that, but Ms Masters has explained to me what the thrust and content of the video is, that it is produced in Canada and that it essentially underscores the points that she has made and I hope that I have accurately described what those submissions are.

35. I note also that Ms Masters has expressed a view about s 42B of the AAT Act, which is the dismissal power that I am considering at the moment. She has indicated that her experience is that an equivalent provision shows up a lot in legislative provisions throughout Commonwealth law and that she views the exercise of the power as an act of arrogance and belligerence.

36. I have to have regard to the Tribunal's own objective at s 2A of the AAT Act to provide an avenue of review which is effective and quick. There is no requirement that the review of the Tribunal be perfect, but that it provide substantial justice and it provides a decision that is fair and just in all the circumstances.

37. With respect to the Respondent's case, the Respondent's case is summarised in its submissions and boils down to the fact that there is an immutable requirement at s 6 of A New Tax System (Family Assistance) Act 1999 (Cth), ss 6(2) to 6(6), which outline the immunisation requirements relating to a child.

38. At the hearing Ms Masters made it clear that the requirements of the statute were not acceptable to her and that she objected to the fact that there was no alternative propositions that allow people who are conscious objectors, to live with their own consciences and be without penalty.  I accept that the law, as written, applies a penalty for people such as Ms Masters, who may choose to exercise a conscientious objection to vaccination to the extent that the result of exercising such a conscientious objection would mean not qualifying for the higher rate of FTB and consequentially miss out on rent assistance.

39. At the first hearing of the matter, it became apparent that we did not have the immunisation record for Ms Masters' minor son. We have since received that record and it appears in the Supplementary T-documents.  It is not contested between the parties that Ms Masters' son is not vaccinated.[9]

    [9] S2/13.

40. Under those circumstances, even at an impressionistic level, it is quite clear that this application cannot be successful and further enquiry will not result in clarifying that position any further.

    DECISION

41. For these reasons, I find the application of the Secretary must succeed and the application should be dismissed pursuant to s 42B(1)(b) of the Act.

    END OF ORAL DECISION [11.50]

    ..................[Sgd]................................................

    Associate

    Dated: 20 December 2023

Dated of hearing:	20 June 2023 and 20 September 2023
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Ms D Jones-Bolla, The Australian Government Solicitor