Mueller and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1455
•22 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1455
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200700047
GENERAL ADMINISTRATIVE DIVISION ) Re JOHAN MUELLER Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr KS Levy RFD, Senior Member Date22 June 2007
PlaceBrisbane
Decision The Tribunal determines that:
(1) It has jurisdiction to consider the application to review the decision of Centrelink and the Social Security Appeals Tribunal (in relation to this claim); and
(2) The decision under review is set aside; and
(3) The original decision of the Department is affirmed. That is, Mr Mueller is not qualified for the payment of pension bonus as he has not satisfied the statutory requirements for such payment.
...............[Sgd]...........................
Senior Member
CATCHWORDS
SOCIAL SECURITY – pension bonus application rejected by the respondent – whether the Administrative Appeals Tribunal has jurisdiction to review the decision – whether the applicant satisfies the statutory requirements to qualify for the pension bonus scheme
Administrative Appeals Tribunal Act 1975 (Cth) s 29, 31, 33, 37
Social Security (Administration) Act 1999 (Cth) s 11, 17, 22, 126, 135, 142
Acts Interpretation Act 1901 (Cth) s15AA
Statute Law Revision Act 1981 (Cth)
Social Security Act 1991 (Cth) ss 92A, 92CPalgo Holdings Pty Ltd v Gowans [2005] HCA 28
Project Blue Sky ABA (1998) 153 ALR 490
Ross v R (1979) 141 CLR 432
Ward v Nicholls (1988) 16 ALD 353
Quinn and Australian Postal Corporation (1992) 15 AAR 519
Nisha and Secretary, Department of Family and Community Services (2003) 74 ALD 172
Farmer and Secretary, Department of Social Security (1993) 31 ALD 262REASONS FOR DECISION
22 June 2007 Dr KS Levy RFD, Senior Member Introduction
1. Johan Mueller sought payment of pension bonus, and his application for this was rejected by the Department of Families, Community Services and Indigenous Affairs. Subsequently, the Social Security Appeals Tribunal (SSAT) declined to determine the matter on the basis of lack of jurisdiction. Mr Mueller now seeks a review of that latter decision.
Issues
2.The following questions must be determined by this Tribunal –
(i)Does this Tribunal have jurisdiction to review the decision of the SSAT, and therefore the decisions of the original decision-maker and the Authorised Review Officer?
(ii)If the answer to (i) is “yes”, is Mr Mueller qualified for the payment of pension bonus?
Evidence
3.The following evidence was admitted:
Exhibit 1 – Statement by Johan Mueller headed “Copy to SSAT 10-01-07”
Exhibit 2 – The T documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 3 – The respondent’s Statement of Facts and Contentions.
4.A summary of evidence is as follows:
(i)Mr Mueller worked for the same firm from 6 June 1976 until he retired on 6 November 2003.
(ii)Mr Mueller turned 65 years of age in April 1998, but worked for a further 5½ years. He said he would have worked longer had the company not ceased its operations.
(iii)On retirement, he did not apply for the age pension. He thought (incorrectly) he was not entitled to it because of the level of savings he had accumulated. He therefore lived off the interest of his own savings for almost 3 years until he applied and was subsequently granted age pension on 21 September 2006.
(iv)He was not aware that there was a pension bonus scheme as he had seen no reference to it in the media.
(v)The claim form for age pension includes the pension bonus scheme. Mr Mueller did not complete the section dealing with the pension bonus scheme entitlement.
(vi)He was advised by letter dated 19 October 2006 that he was not entitled to claim the pension bonus as he did not make an application within 13 weeks of reaching the age of entitlement for age pension and also, because he did not claim the age pension or pension bonus within 13 weeks of ceasing work.
(vii)He then sought a review of the decision on 18 October 2006. It was referred to an Authorised Review Officer who affirmed the original decision on 16 November 2006.
(viii)Mr Mueller then appealed to the Social Security Appeals Tribunal. On 10 January 2007 that Tribunal determined that it did not have jurisdiction to hear Mr Mueller’s appeal. It is that decision which this Tribunal is now asked to review in accordance with s 29(1) of the Administrative Appeals Tribunal Act 1975.
Findings Of Fact
5.The following findings of fact are made:
(i)Mr Mueller worked until he was 70½ years of age (approximately).
(ii)When he reached 65 years of age and with skilled labour not being easy to acquire, he decided to remain in the employment of his long term employer for a further period. He worked for a further 5½ years and retired at 70½ years of age.
(iii)Mr Mueller did not apply for the pension or pension bonus until he reached 73 years of age. As he owned his own home and had accumulated some savings, he believed he probably would not be entitled to any pension.
(iv)Mr Mueller’s beliefs in relation to his entitlement to age pension were misplaced. He would have been entitled to age pension and, potentially, pension bonus had he applied earlier. Mr Mueller has not sought at any time to be a burden to the social security system.
Consideration
6. I have considered Mr Mueller’s oral evidence, as well as his documentary material, together with the submissions and written material submitted on behalf of the Secretary, Department of Families, Community Services and Indigenous Affairs. I have also taken account of the relevant statutory and case law in answering the issues referred to this Tribunal.
Issue 1: Does the Administrative Appeals Tribunal have jurisdiction to review this decision of the Social Security Appeals Tribunal?
7. The SSAT determined that it did not have power to review the decision made by Centrelink, on the basis that no decision had been made to grant or refuse a pension bonus. Specifically, it said that letters from an Authorised Review Officer outlining why a pension bonus cannot be paid were insufficient to effectively constitute a decision for the purpose of review.
8. The Secretary contends that a decision had been made and referred me to the letter of the decision-maker dated 19 October 2006 which reviewed the original decision made. The original decision rejected the claim for pension bonus having regard to -
(i)Mr Mueller did not register for the pension bonus scheme within 13 weeks of reaching the statutory age for aged pension (12 April 2000); and
(ii)He did not claim age pension within 13 weeks of ceasing work on 6 November 2003.
(iii)The original decision was reviewed by an Authorised Review Officer (ARO) on 23 October 2006.
9. Section 142 of the Social Security (Administration) Act 1999 provides specific power of review by the SSAT where a decision has been reviewed by the Secretary, CEO or an ARO under ss 126 or 135. A decision was made by the Secretary, or the Secretary’s delegate, and a further review was conducted by an ARO. I am, therefore, of the opinion that there is present a reviewable decision. On this basis, there was power for the SSAT to review the decision. However, as that Tribunal has declined jurisdiction, a fundamental question implicated here is whether I have power to review the original decision in light of the determination by the SSAT that it did not have such jurisdiction.
10. In considering that question, it is important to consider the role and function of this Tribunal. Section 31 of the Administrative Appeals Tribunal Act 1975 empowers the Tribunal to determine whether persons have interests which are affected by the decision under review. However, whether that “decision” is to be regarded only as a decision of the intermediate Tribunal or an administrative decision of an original decision-maker is not stated specifically. Additionally, s 33 of that Act, empowers this Tribunal to determine its own procedures, subject to the Act and regulations, for the purpose of dealing with applications as expeditiously and as informally as possible.
11. It would appear that in interpreting those provisions of the Administrative Appeals Tribunal Act 1975 a broader interpretation has been intended and, therefore, that this Tribunal does have jurisdiction to review the decision submitted by the applicant in this case. To determine otherwise would seem to undermine the intention of Parliament in empowering this Tribunal to afford applicants with a mechanism whereby decisions can be reviewed so as to arrive at the correct or preferable decision in a relatively summary, and inexpensive, manner.
12. The above interpretation is supported by s 15AA of the Acts Interpretation Act 1901 (Cth) which provides as follows:
“Regard to be had to purpose or object of Act
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
13. That section, enacted by the Statute Law Revision Act 1991, facilitated or produced a refinement of the previous “literal” approach to interpretation as the primary interpretive method, but with modification of that approach using the ‘golden rule’ or ‘mischief rule’ in those cases where ambiguity was extant. The purposive approach is now regarded as the correct approach to statutory interpretation and has been consistently reinforced by the High Court of Australia (see Palgo Holdings Pty Ltd v Gowans[2005] HCA 28 at 40). The High Court of Australia has also clarified that a statute needs to be read in context so as to ensure that there is an internal consistency to interpreting its provisions and so that they “….. are intended to give effect to harmonious goals” (Project Blue Sky v Australian Broadcasting Authority (1998) 153 ALR 490 at 590 per McHugh J, where he cited Gibbs J in Ross v R (1979) 141 CLR 432 at 440).
14. Specific application of this approach to questions to be determined by the Administrative Appeals Tribunal have been considered by Wilcox J in Ward v Nicholls (1988) 16 ALD 353 where his Honour said that it would be “a very odd situation” if an intermediate review Tribunal had found, in error, that it did not have jurisdiction to consider a decision of an original decision-maker, thereby preventing a merits review by this Tribunal. Similar sentiments were expressed by O’Connor J in Quinn and Australian Postal Corporation (1992) 15 AAR 519 where it was also stated that in these cases, it was important to consider whether statutory power was available for a respondent to reconsider decisions of its own motion. The Tribunal was also referred to Nisha and Secretary, Department of Family and Community Services (2003) 74 ALD 172 where the Tribunal there determined that it had jurisdiction to review a decision of the SSAT in circumstances identical to this case. In Nisha’s case, the Tribunal referred also to the authorities above as well as to Farmer and Secretary, Department of Social Security (1993) 31 ALD 262 at 270 to 271, where Deputy President Johnson (as he then was) also concluded that the SSAT does not bind this Tribunal and that the Administrative Appeals Tribunal must determine for itself whether it has jurisdiction to review an application before it.
15. The statutory provisions of the Administrative Appeals Tribunal Act 1975 in relation to its ability to determine its own procedures and practices, the proper statutory interpretation of those provisions and the authorities mentioned previously are ample justification for a conclusion that this Tribunal does have adequate jurisdiction to deal with the application made by Mr Mueller.
Issue 2 – Is Mr Mueller qualified for payment of pension bonus?
16. Section 92A of the Social Security Act 1991 makes it generally clear that the pension bonus scheme was designed for those people who are qualified for an age pension but who deferred claiming that pension. In those circumstances, a person needed to register to be a member of the pension bonus scheme and then accrue credits for a number of bonus periods while deferring their entitlement to age pension. To accrue a bonus period, the person needs to pass a work test for that period (a one year period), with the work test requiring demonstration that the person has worked for at least 960 hours during that year or bonus period. While pension bonus is a social security payment, a person must first make an application or a claim. In this case, the person must submit a ’claim for age pension’ in terms of s 11 of the Social Security (Administration) Act 1999 (“the Act”).
17. There are special requirements in relation to claims for pension bonus and these are dealt with in s 17 of the Act. Section 17(1)(a) requires a claim for pension bonus to be attached to a claim made for aged pension and lodged together with that claim for age pension (See T6 folio 34 to 56). It is regrettable that Mr Mueller was not aware of his previous entitlement to pension bonus as he was required by law to have applied for the pension bonus within 13 weeks of his last pension bonus year. His last bonus year was 2003 – the year he ceased working. Therefore, he needed to have applied within 13 weeks of ceasing work on 6 November 2003. He did not do so and therefore does not satisfy s 22 of the Act.
18. Instead, he applied for age pension in 2006, three (3) years after ceasing work and when he was aged 73 years. He was advised at that time also that he was not eligible for pension bonus. He was entitled to and was granted the age pension, but was not then entitled to the pension bonus under s 22 of the Act.
19. The Secretary’s advocate also referred me to s 92C(b) of the Social Security Act 1991. That subsection refers to one of the pre-conditions for qualifying for pension bonus as being “the person has not received an age pension at any time before making a claim for pension bonus”. Therefore, it was submitted that even if Mr Mueller applied today with a fresh application for pension bonus, he would now be precluded also because he has been in receipt of age pension. He does not satisfy s 92C(b) of the Social Security Act 1991 and therefore cannot qualify for pension bonus either now or since the time of his application for age pension. In terms of his current eligibility for pension bonus, he is not so qualified as he does not satisfy s 17 of the Social Security (Administration) Act 1999 as he is presently in receipt of age pension.
20. In all the circumstances, despite Mr Mueller having diligently worked for many years (and may at one time even have been eligible for pension bonus), it is unfortunate that he did not register for the pension bonus scheme when he turned 65 years and that he did not apply for the pension bonus within 13 weeks of ceasing work in 2003. His honesty and diligence are noteworthy but in the circumstances presented by him, unfortunately, his application is unsuccessful.
21. I therefore determine that:
(i)This Tribunal has jurisdiction to deal with the application to review the decision of the SSAT which decided that it did not have jurisdiction to review this application;
(ii)The decision of the SSAT is set aside;
(iii)Mr Mueller is not qualified for the payment of pension bonus as he has not satisfied the statutory requirements for such payment.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member.
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 4 May 2007
Date of Decision 22 June 2007
Applicant Mr Mueller, himself
Respondent Mr B Avery, departmental advocate
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