McGavin and Secretary, Department of Social Services (Social services second review)
[2023] AATA 2981
•22 August 2023
McGavin and Secretary, Department of Social Services (Social services second review) [2023] AATA 2981 (22 August 2023)
Division:GENERAL DIVISION
File Number: 2023/4010
Re:Lisa McGavin
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date of decision: 22 August 2023
Date of written reasons: 18 September 2023
Place:Perth
The Applicant’s application for an extension of time for the review of decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 1 June 2021 is refused.
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Brigadier AG Warner, AM LVO (Retd), Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – substantive matter reduction of Family Tax Benefit part A on basis that immunisation requirements not met – significant length of delay – awareness of appeal rights and explanation for delay – merits of substantive application – prejudice – alternative avenues of relief – oral reasons given at the interlocutory hearing – Applicant made a request for written reasons – extension of time application refused
LEGISLATION
A New Tax System(Family Assistance) Act 1999 (Cth) – ss 61B(3)
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(2), 29(7)
CASES
Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381
Re Grafton and Commonwealth (1988) 16 ALD 533
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248
Secretary, Department of Family and Community Services and Roberts [2003] AATA 269
Selvidge v Director of Professional Services Review [2010] FCA 965
Zizza v Federal Commissioner of Taxation [1999] FCA 848
SECONDARY MATERIALS
Family Assistance Guide
Family Assistance (Immunisation Principles and Vaccination Schedules (DSS) Determination 2018
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
18 September 2023
INTRODUCTION
The Applicant’s substantive application seeks review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (the AAT1).
The reviewable decision of the AAT1 dated 1 June 2021 (AAT1 decision) affirmed an earlier decision of an authorised review officer (ARO) of the Department of Human Services, now Services Australia (Centrelink), dated 29 October 2020 to reduce the Applicant’s rate of Family Tax Benefit (FTB) part A on the basis that relevant immunisation requirements had not been met.
FTB is a two-part payment that helps eligible families with the cost of raising children. FTB part A is a payment that is paid per child and the amount paid depends on family circumstances. Part B is a payment that is paid per family and can be paid to a single parent carer, a grandparent carer, or a member of a couple with one main income and is subject to an income test.
On 8 June 2023 the Applicant applied for an extension of time to lodge an application for review of the AAT1 decision dated 1 June 2021. The Respondent opposes the granting of an extension of time.
The extension of time application was heard by telephone in an interlocutory hearing on 22 August 2023. The Applicant was self-represented and Ms M Cornish of Services Australia represented the Respondent.
At the conclusion of the interlocutory hearing, the Tribunal gave oral reasons for its decision to refuse the Applicant’s application for an extension of time. By email that day, the Applicant requested a written statement of those reasons, and stated in the email: “I won’t be taking the department to court, it’s a dead entity, I can pursue legal action against the public servant personally on an individual basis.” The reasons which follow are distilled from the edited transcript of the oral reasons given on 22 August 2023.
In a further email dated 29 August 2023, the Applicant expressed frustration that she had not received the requested written reasons for the Tribunal’s decision on 22 August 2023, and asked that the member be reminded that he was working for “[t]he people, the Commonwealth, not the Australian Government” and that he should “makes [sic] an effort to adhere to the correct Constitution”. The Applicant also stated:
It is obvious to me now, I have to go straight to the Federal Police to report the three public servant/s for failure to adhere to the Commonwealth of Australia Constitution Act 1900 UK.
BACKGROUND
In notices dated 27 August 2020 and 30 September 2020 (Exhibit R1, Attachment B) Centrelink wrote to the Applicant pursuant to section 61B(3) of the A New Tax System (Family Assistance) Act 1999 (Cth) (the Act) advising her that its records indicated that her son was not up to date with his immunisations and that this meant the immunisation requirements for FTB were not met.
The notices further advised the Applicant what she needed to do, advising that she needed to ensure her son was up to date with his immunisation by 28 October 2020, and that if this had not occurred her FTB part A would be reduced by $29.40 per fortnight. Alternatively, other options were advised relating to whether the Applicant’s son had already been immunised, or if there was a valid medical reason for not being fully immunised and the possibility of medical exemptions.
In a notice dated 29 October 2020 (Exhibit R1, Attachment C), Centrelink advised the Applicant that her rate of FTB part A for her son was reduced by $29.40 per fortnight from 29 October 2020 because the relevant immunisation requirements had not been satisfied. This notice also advised the Applicant that the reduction would continue until the immunisation requirements were satisfied.
On 6 November 2020, the Applicant contacted Centrelink and sought review of the decision to reduce her rate of FTB, with Centrelink affirming this decision on the same day (Exhibit R1, Attachment D and E).
On 15 April 2021, the Applicant applied to the AAT1 for review of the 29 October 2020 FTB rate reduction decision. On 22 April 2021, an ARO affirmed the 29 October 2020 FTB rate reduction decision, finding that the Applicant’s rate of FTB had been correctly reduced from that date as the immunisation requirements had not been met and no approved exemption was applicable (Exhibit R1, Attachment F).
On 1 June 2021, the AAT1 affirmed the decision under review (Exhibit R1, Attachment A), finding that:
·The Applicant and her son did not meet the legislative immunisation requirements;
·There was no oral or documentary evidence to indicate the Applicant’s son met any of the exemptions for the immunisation requirement; and
·The Applicant’s rate of FTB was correctly reduced from 29 October 2020 as the immunisation requirements were not met and no approved exemption was applicable.
On 4 June 2021, the AAT1 dispatched the decision to the Applicant via email, with a covering letter detailing the Applicant’s appeal rights (Exhibit R1, Attachment G).
On 8 June 2023, the Applicant applied for review of the AAT1 decision in the General Division (the AAT2) of the Administrative Appeals Tribunal (Exhibit R1, Attachment H).
RELEVENT LEGISLATION AND PRINCIPLES
The payment of FTB is governed by the Act, the Family Assistance (Immunisation Principles and Vaccination Schedules) (DSS) Determination 2018, and the Family Assistance Guide. The relevant provisions are laid out in the Secretary’s Outline of Submissions (Exhibit R1 at [32] to [44]).
Pursuant to s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, s 29(7) permits the Tribunal to “extend the time for the making by that person of an application to the Tribunal … if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.
The Tribunal has a broad discretionary power to grant an extension of time and it has been customary for the Tribunal to be guided by the principles enunciated in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), in which the Federal Court set out a series of factors that might be of relevance under similar provisions in the judicial review context. In Hunter Valley, Wilcox J pointed out (at [348]) that the “prescribed period of twenty-eight days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained…”.
These principles have been modified and elaborated on in later authorities and are well-known. They include:
·Delay – the length of the delay and whether the applicant seeking an extension of time can demonstrate an acceptable explanation for the delay;
·Prejudice – any prejudice that might be suffered were an extension to be granted;
·Merits – the merits of the substantive application; and
·Fairness – consideration of fairness between the applicant and other persons in a similar position.
Further authorities also guide the Tribunal’s considerations. In Brown v Federal Commissioner of Taxation [1999] FCA 563 (Brown), Hill J stated (at [59]) that, in the taxation context, the Tribunal should be “guided by what the justice of the case requires”. In Zizza v Federal Commissioner of Taxation [1999] FCA 848, Katz J said that in determining the question of whether an extension of time should be granted, the Tribunal should weigh together all relevant factors.
ISSUE
The Applicant has applied for an order extending the time within which her application for review may be lodged. The Tribunal must decide whether it is reasonable in all the circumstances for such an order to be made.
HEARING AND EVIDENCE
At the conclusion of the Respondent’s opening submissions, the Applicant stated (transcript/9):
You can’t force vaccinate and you can’t coerce. It’s not safe and effective. I’m a vaccine injury myself. I got type 1 diabetes from it. No one is listening. It’s all about what you guys think you can do and get away with and I’ve absolutely had a fucking gutful of it. So I’m leaving this stupid AAT hearing. I am done. You are not listening and it’s inhuman.
The Applicant then disconnected from the hearing. After a short adjournment, the Tribunal contacted the Applicant. The Applicant apologised for her behaviour and confirmed that she wanted the hearing to proceed to a decision but wanted no further part in the proceedings (transcript/11).
The Tribunal had before it the following evidence:
·Applicant’s submission dated 19 July 2023 (Exhibit A1);
·US Case – Ref 1:18 – cv – 03215 – JMF 2018 (Exhibit A2);
·Applicant’s freedom of information (FOI) request to the Department of Human Services dated 16 August 2022 (Exhibit A3);
·FOI LEX 45373 decision dated 15 September 2022 (Exhibit A4);
·Secretary’s Outline of Submissions, including Attachments A-J, dated 12 July 2023 (Exhibit R1); and
·the Applicant’s oral submissions.
CONSIDERATION
In this matter, the Respondent submits that the relevant factors for consideration are the length of delay; awareness of appeal rights and explanation for the delay; prospects for success; prejudice to the parties and the general public; and alternative avenues of relief (Exhibit R1, para [18]).
Length of delay
The length of delay involved in a case will be a relevant consideration. In relation to the importance of statutory time limits, the Federal Court in Selvidge v Director of Professional Services Review [2010] FCA 965 repeated the long established view and stated at [6]:
Time limits for bringing applications or appeals are prescribed for good reasons. While the court has power to extend the period of 28 days provided under s 11 of the ADJR Act [Administrative Decisions (Judicial Review) Act 1977 (Cth)], it should not do so without good reason. In the absence of such a reason an extension should not be granted even if to do so would not cause prejudice to the respondent.
In her application for an extension of time dated 13 June 2023, the Applicant states that she received the AAT1 decision on 4 June 2021, and the evidence is that the AAT1 decision was sent to her via email on 4 June 2021 (para [14] above). This makes the due date for requesting further review 2 July 2021. In the circumstances where the Applicant requested AAT2 review of the decision on 8 June 2023, this request for review is almost two years out of time and therefore requires an exercise of the Tribunal’s discretion under section 29(7) of the AAT Act.
This is a very significant delay, and of the kind that the Tribunal and courts have found to warrant refusal of an extension of time. The Tribunal notes that even in matters where the delay is not considered to be lengthy, the Tribunal has found that “brevity of the extension sought does not, however, lead automatically to an order extending the time” (Secretary, Department of Family and Community Services and Roberts [2003] AATA 269 at [16]).
The consideration of this factor weighs against the granting of an extension of time.
Awareness of appeal rights and explanation for the delay
It is to be expected that an applicant for an extension of time would normally provide an acceptable explanation for the delay: Comcare v A’Hearn (1993) 45 FCR 441, 444.
In her application for an extension of time, the Applicant outlined her reasons for seeking an extension of time as follows:
The Commonwealth of Australia Constitution Act 1900 UK is the rule book for creating laws in Australia. The correct procedure and protocol was not followed in Federal Parliament, that is not my doing. That is the work of politicians of the day. I have taken the necessary action to seek legal advice. I have taken the legal steps to obtain the evidence to support my claim.
The Constitution is in place to protect all Australians. I have the right to use the Constitution in legal contract.
[The child] is protected by The Commonwealth of Australia Constitution Act 1900 UK. As his mother, I am simply putting the evidence to the claim, bringing this to the Department’s attention and as it is a legal requirement that the Department adhere to the correct procedure at law. The Department is Centrelink. Concerns over safety were raised. No doctor or politician can guarantee safety.
The Applicant offered no further explanation before the Tribunal.
The cover letter sent by the Tribunal with the AAT1 decision includes reference to the Applicant’s right of appeal and clearly conveyed to the Applicant that (Exhibit R1, Attachment G):
You may apply to the AAT for second review of the decision. An application for second review must be made online or in writing. Information about how to apply is available at or by calling us on 1800 228 333.
There are time limits for making an application for review (28 days after giving of the documents setting out the terms of the AAT’s decision).
It appears that the Applicant was seeking evidence and advice, but that should not have prevented her lodging an appeal. The Applicant has not put on any evidence that she was unaware of her appeal rights. In these circumstances the Applicant’s explanation is unsatisfactory.
The Tribunal notes that in the often-quoted cases of Re Grafton and Commonwealth (1988) 16 ALD 533; Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248; and Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381, the Tribunal declined to grant an extension of time as it was satisfied that the applicant in each case was fully aware of the right to seek review of the decision in question and did nothing.
The Tribunal finds that the unsatisfactory and largely irrelevant explanation for the near two-year delay in this matter weighs heavily against the granting of an extension of time.
Prospects of success of substantive application
The Respondent contends that “the Applicant’s substantive application is without merit and has no reasonable prospects of success” (Exhibit R1, para [30]).
It is not necessary for the Tribunal to conduct a merits review of the substantive application in these interlocutory proceedings. However, it is appropriate that the Tribunal consider the merits of the proposed appeal as part of the process of determining whether an extension of time should be granted. It may be that the stronger the apparent merits, the more likely that an extension of time would be appropriate: Brown at [29], [38] per Hill J.
Various authorities inform the Tribunal that it is neither necessary or appropriate to do anything other than gauge the apparent merits of the proposed case, that the merits should be assessed in a fairly rough and ready way, and that the grounds should be examined at a reasonably impressionistic level. That said, in light of the High Court’s recent judgement in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, the Tribunal is not prevented from looking at the matter on more than an impressionistic level.
In her application for review, the Applicant claims the AAT1 decision is wrong because (Exhibit R1, Attachment H):
I have further documentation, a freedom of information document I obtained from the legal branch of the department of human services (social services). It is greatly appreciated, the AAT review my case again, as this document is evidence of my case at Law, I am correct in my standing. Vaccination is not mandatory. The legal branch confirm that no instrument exists, that purports to the Australian government or the department of human services having authority to supersede section 51 23a (xxiiia). The department can not by Law with hold family assistance.
Before the Tribunal, the Applicant submitted that the Centrelink decision dated 29 October 2020 was not based on law, and she questioned whether the Respondent was operating under the “Commonwealth of Australia Constitution Act 1900 UK or are you going from the Ausralian Constitution” (transcript/9).
Because the relevant immunisation requirements were not met as at 28 October 2020, the Applicant’s rate of FTB was reduced from 29 October 2020. While at all times respecting the Applicant’s personal stand and views in this matter, the Tribunal has looked carefully at the legislative framework, the Applicant’s submissions and the detailed analysis at para [31] to [45] of Exhibit R1. The Tribunal is of the view that previous decision-makers acted within the relevant legislative and policy framework. Further, in the absence of new evidence contrary to the Applicant’s evidence to the AAT1 on 1 June 2021 that the immunisation requirements were met as at 28 October 2020, the Applicant’s substantive application has very limited prospects of success.
It follows that consideration of this factor weighs heavily against granting an extension of time.
Prejudice
As a general proposition, it is in the public interest that there is an end to the appeal process.
The Respondent cites Von Doussa J in Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 (Kuljic) in contending that the Secretary would suffer prejudice if the application were granted by way of incurring significant litigation costs defending an appeal with no merit. As stated in Kuljic: “…it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the cost of defending a pointless appeal”.
In this case, where the substantive application has very limited merit, there is nothing before the Tribunal to dissuade it from the view that it is in the public interest that there is an end to the appeal process. Time limits are imposed to ensure that there is an orderly and predictable conclusion to the process, and that the public interest and the interests of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that this should occur. The Tribunal’s broad consideration of this factor of prejudice weighs against the granting of an extension of time.
Alternative avenues of relief
The Respondent accepts that there is no alternative avenue of relief that the Applicant can rely upon and that this weighs in the Applicant’s favour (Exhibit R1, para [49]). Although the Tribunal agrees with the Respondent’s contention, in circumstances where the Tribunal has found that the Applicant’s substantive application has very poor prospects of success, little weight can be given to this consideration.
CONCLUSION
The Tribunal accepts that the Applicant is genuine and passionate in her beliefs and the prosecution of her application before the Tribunal.
However, the Tribunal determines that it is not reasonable to grant an extension of time in all the circumstances where there is a delay of almost two years, the Applicant has not provided a satisfactory explanation for that very significant delay, and the substantive application has very limited prospects of success in the absence of further relevant and compelling evidence.
DECISION
The Applicant’s application for an extension of time for the review of the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 1 June 2021 is refused.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member
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Associate
Dated: 18 September 2023
Date of hearing and oral decision: 22 August 2023 Applicant: Self-represented Respresentative for the Respondent: Ms M Cornish Solicitors for the Respondent: Services Australia
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