Pasla and Secretary, Department of Family and Community Services
[2004] AATA 593
•11 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 593
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V04/31
GENERAL ADMINISTRATIVE DIVISION ) Re ANTHONY PASLA Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date11 June 2004
PlaceMelbourne
Decision 1. The application to issue certain summonses is refused.
2. The application shall be listed for hearing.
(Sgd) J Handley
Senior Member
PROCEDURE – application to issue summonses to witness to produce documents – intended witnesses were the Secretary, Department of Family and Community Services and the Governor-General – documents sought relate to the power to make the decision under review and the authority of the Governor-General to give assent to legislation – application refused – submission that Tribunal Member in conflict of interest – Direction that application for review be fixed for hearing
Social Security Act 1991 (C’th)
Student Assistance Act 1973 (C’th)
Administrative Appeals Tribunal Act 1975 (C’th) s25, s33, s40, and s43(2A)
Administrative Appeals Tribunal Regulations (C’th) Reg.15
Commonwealth of Australia Constitution Act s1, s2, s58 and s61Barton v Commonwealth (1974) 131 CLR 477
Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1980) 2 ALD 634
REASONS FOR DECISION
11 June 2004 Mr J Handley, Senior Member 1. In this application Anthony Pasla applies to review a decision made by the Social Security Appeals Tribunal (“SSAT”) on 17 December 2003. The SSAT then decided to affirm a decision previously made by an officer of Centrelink on 13 August 2003 to cancel youth allowance (that was then being paid to him) because he was not then attending an approved institution or course under the combined provisions of the Social Security Act 1991 (“the Act”) and the Student Assistance Act 1973 (“the SA Act”).
2. Although not strictly relevant for the purposes of these Reasons, Anthony Pasla was a full time student at the Swinburne University (“Swinburne”) in Melbourne prior to 8 August 2003. From that date he was enrolled as a full time student with Brescia University (“Brescia”) in the United States of America (“the USA”). The enrolment in Brescia was made possible by Anthony Pasla being awarded an athletic scholarship of 12 months duration.
3. The respondent has apparently decided that Brescia and or the course undertaken at that institution is not approved within the meaning of the above legislation. Accordingly a challenge is made by these proceedings to those decisions.
4. Anthony Pasla continues to reside in the USA and attend Brescia. He has appointed his parents, Gheorghe (“Mr Pasla”) and Dorina Pasla, to be his Attorney’s under a Power executed by him on 29 July 2003. Mr Pasla initiated the appeal at the SSAT and lodged the application for review in these proceedings.
5. The application was listed for hearing on 24 March 2004. The Member constituting the hearing decided to adjourn the hearing until a number of documents were lodged by both parties. Additionally, it appeared that Mr Pasla was making an application under the Freedom of Information Act 1982 (“the FOI Act”) upon Swinburne to obtain certain documents. It was envisaged that the documents would not be available prior to the date of hearing or, if the documents were withheld that an appeal would be lodged against that decision.
6. When the applicant’s representative lodged a Statement of Facts and Contentions (in anticipation of another listing for hearing) it became apparent that he was applying to have a number of summons to witness issued. He was then seeking to have a summons issued and served upon Mr Mark Sullivan, Secretary, Department of Family and Community Services, Mr Paul Simmons from the Mornington Office of Centrelink and upon “Mr Michael Jeffrey” Governor-General of Australia.
7. A Directions Hearing was convened on 1 June 2004 to consider the relevance of the summonses sought to be issued by Mr Pasla.
8. In documentation lodged by Mr Pasla prior to 1 June 2004 (refer letter of 11 March 2004) Mr Pasla sought to rely on s24F of the Crimes Act 1914 (Cth). Additionally he sought to rely on the provisions of the International Covenant on Civil and Political Rights and the Convention Against Discrimination In Education.
9. In relation to the summons sought to be issued upon Mr Mark Sullivan, Mr Pasla has sought from him “books documents or things” with respect to “your head of power and authority to stop the youth allowance to my son Anthony Pasla”. With respect to the summons upon Major-General Jeffrey, Mr Pasla has sought “books documents or things”, from him, with respect to “your head of power to act as a G/G and your office authority to gave [sic] royal assents to the Acts relating to the hearing.”
10. A draft summons was not prepared by Mr Pasla with respect to Mr Simmons. Mr Pasla indicated at the Directions Hearing that in the event that Mr Sullivan gave evidence that he would not call Mr Simmons.
11. In his Statement of Facts and Contentions (page 2) Mr Pasla (in part) recorded the following:
I believe that the AAT is a competent, independent and impartial tribunal established by law, as requested by the International Covenant on Civil and Political Rights
The Centrelink have no authority to act and defend this matter.
I will not accept at the hearing evidence from Centrelink from any Act, which is not assented on the name of the Queen, [sic] as requested by the Australian Constitution 1900. All the Acts assented in the name of The Queen of Australia are nul [sic] and void
As you would appreciate, attempting to pervert the course of justice is a serious matter. People must realize that they cannot produce false documents to attempt to influence the administration of justice. Sentences for this type of offence must recognize its seriousness and be such as to act as a deterrent to persons who are minded to engage in this sort of activity.
12. In the remainder of the Statement, Mr Pasla pleaded that there was no “legislative power” in the Parliament to make laws with respect to “education”; that the laws of the Commonwealth and the State do not permit Swinburne “to amend alter or affect any law effecting social welfare or whatever”; that his son is qualified to receive youth allowance by virtue of being a full time student and the Act does not exclude students from receiving youth allowance whilst undertaking full time study overseas. Other matters within the Statement of Facts and Contentions relate to the structure of the course previously undertaken by Anthony Pasla and, having been granted leave of absence from the course, the relationship between Swinburne and other overseas educational institutions; the accreditation of Brescia by United States authorities; the failure by Swinburne to recognise Brescia and the application of the Convention Against Discrimination In Eduction to the circumstances of this application.
13. At the Directions Hearing on 1 June Mr Pasla submitted that the Governor-General has “no authority to sign legislation in the name of the Queen of England”. It followed, upon this submission, that when payments previously being made to Anthony Pasla were ceased, it was in contravention of “the law”.
14. Insofar as Mr Sullivan was concerned, Mr Pasla submitted that a summons should be issued and served upon him because the payments previously being made to his son were made under his name and the decision to cease those payments were also made under his name.
15. At the conclusion of the submissions I delivered Oral Reasons directing that the summonses sought by Mr Pasla should not be issued and that arrangements should be made to forthwith list the application for hearing. When those Directions were made Mr Pasla then sought written Reasons for Decision.
16. Section 43(2A) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) provides that where written Reasons for Decision are not given by the Tribunal, a party to a proceeding may within 28 days from service of the Decision of the Tribunal request a statement in writing of those Reasons and the Tribunal shall within 28 days after receiving the request provide such a statement.
17. There has been some debate previously as to whether Reasons in support of Directions made constitute a “Decision” within the meaning of s43(2A) of the AAT Act. Nonetheless, I am for the purposes of this application prepared to provide these Reasons to explain to Mr Pasla the basis for the Directions made.
18. Section 40(1A) of the AAT Act provides that a presiding Member or a Registrar, District Registrar or Deputy Registrar may summons a person to appear before the Tribunal at a Hearing to give evidence or to produce documents as mentioned in the summons. There does not appear to be, under s40 of the AAT Act or under Reg.15 of the Administrative Appeals Tribunal Regulations, any discretion with respect to the issue of a summons.
19. Nonetheless, s33 of the AAT Act gives the Tribunal broad powers with respect to the conduct of proceedings and is reproduced in the following terms:
(1)In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
(1A)The President may authorise a member to hold a directions hearing in relation to a proceeding.
(2)For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:
(a)where the hearing of the proceeding has not commenced—by a person holding a directions hearing in relation to the proceeding, by the President or by a member authorized by the President to give directions for the purposes of this paragraph; and
(b)where the hearing of the proceeding has commenced—by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.
(2A)Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a)require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b)require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c)require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing.
(3)A direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be varied or revoked at any time by any member empowered in accordance with this section to give such a direction in relation to the proceeding at that time.
(4)An authorization by the President under this section to give directions as to the procedure to be followed at or in connection with the hearing of a proceeding may be of general application or may relate to the hearing of a particular proceeding or particular proceedings or to proceedings included within a class or classes of proceedings.
(5)The President may at any time vary or revoke an authorization under this section.
20. I was of the view that the summonses should not be issued and the persons sought to be summonsed should not be required to give evidence, because for reasons which follow. It would mean that the eventual hearing of the application would not, in the circumstances, “be conducted with as little formality and technicality and with as much expedition” as intended by s33 of the AAT Act. Additionally, I was of the view that as a matter of law, the submissions made by Mr Pasla, particularly with respect to the authority of the Governor-General and the validity of the legislation were without merit. An analysis of these submissions requires consideration of the provisions of the Commonwealth Constitution.
21. The Constitution of Australia was not put in issue by Mr Pasla and for the purposes of this analysis I do not propose to discuss its historical background.
22. Sections 1 and 2 Commonwealth Of Australia Constitution Act is in the following terms.
1. The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called "The Parliament," or "The Parliament of the Commonwealth. "
2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.
23. The above sections indicate that the “Head of State” of Australia is the Queen who appoints a Governor-General to be her representative in Australia. The legislative power of the Commonwealth (of Australia) is vested in the Federal Parliament which is constituted by the Queen, the Senate and the House of Representatives.
24. The exercise of the authorised powers of the Governor-General is found at s61 of the Constitution which is reproduced in the following terms:
61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
25. The Act and the SA Act were Acts of the Commonwealth Parliament, passed by both Houses of the Parliament. On behalf of the Queen, the proposed legislation is presented to the Governor-General who shall exercise powers under s58 of the Constitution which is reproduced in the following terms:
58. When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure. The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.
26. The power of the Parliament to make laws with respect to allowances payable to students is found at s51(xxiiiA) of the Constitution which is reproduced as follows:
(xxiiiA.) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances:
27. In Barton v Commonwealth (1974) 131 CLR 477 Mason J (as he then was) decided that the power under s61 of the Constitution “extends to the execution and maintenance of the Constitution and the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility invested in it by the Constitution.”
28. In all of the circumstances I am satisfied that the person appointed as Governor-General, being the representative of the Queen in Australia at the time of the assent to the Act and the SA Act did so under the powers lawfully authorised under the Constitution. Additionally I am satisfied that the legislation with respect to benefits payable to students have a basis in a lawful power of the Commonwealth Parliament pursuant to s51 of the Constitution.
29. Accordingly I reject the submissions made by Mr Pasla with respect to the summonses he sought to issue and serve upon the Governor-General.
30. The summonses intended to be served upon Mr Sullivan should not be issued. His authority is to be found under the Act and includes appointing authorised review officers or delegates as decision-makers. But the review before this Tribunal concerns the decision made by the SSAT on 17 December 2003. There will not be, nor could there be, under the AAT Act, any review of Mr Sullivan’s authority or powers (refer paragraph 9 earlier).
31. When arrangements were being discussed with both representatives for the likely dates of the hearing of this application, Mr Pasla then submitted that I was in a conflict of interest, having made the Directions refusing the issue of the summonses because I had been appointed a Senior Member of the Tribunal by the Governor-General.
32. Having been appointed as a Senior Member of this Tribunal I did swear an oath of allegiance to the Queen and I have received an instrument of appointment signed by a former Governor-General.
33. Mr Pasla did not explain what he understood to be the conflict of interest he perceived. I assume it either:
(i)related to my refusal to allow a summons to be issued and served upon the Governor-General, being the person who issued an Instrument appointing me to the AAT; or
(ii)The AAT, being established by the AAT Act, and having received the assent of a Governor-General, as the Queen’s representative, is not valid.
These perceptions are unfortunate and are equally not valid.
34. I have dealt with the standing and authority of the Governor-General earlier. The responsibility and role of the AAT may not be understood. Hopefully the following will allay any concern Mr Pasla may have concerning the independence and role of the Tribunal.
35. The authority of Members of the Tribunal to review decisions is found as s25 of the AAT Act. The powers of the Tribunal are mainly found at s40 and in other sections particularly with respect to the administration or procedure of the Tribunal and applications before it. Section 43(1) of the AAT Act provides that the Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing” either affirming, varying or set aside the decision under review.
36. Members of the Tribunal are charged with the responsibility for conducting reviews brought by citizens against decisions made by the Government or its Agencies. Members are required in law to act independently and impartially. They are required to make the correct or preferable decision on the material before them in each application. When reviewing a policy decision of Government, the Tribunal may, in the exercise of that independence, decide not to apply that policy. It may substitute a policy that it adopts or no policy at all. Additionally the Tribunal is entitled to adopt different reasoning from that of a Minister or an Agency in conducting a review. (Refer Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1980) 2 ALD 634). Having regard to the principles found in Re Drake, it has often been said that the Tribunal stands between Government and citizens. This is a symbol of the independence of the Tribunal to act without fetter from Government, Ministers or the bureaucracy and ensures that correct or preferable decisions are made.
37. My “interest” in these proceedings is to ensure that the objectives of the Tribunal and the AAT Act are implemented.
38. As discussed at the Directions Hearing this application will be listed for a hearing on a date to be fixed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior MemberSigned: Holly Weston
AssociateDate of Hearing 1 June 2004
Date of Decision 11 June 2004
Representative for the Applicant Mr G and Mrs D Pasla
Departmental Advocate Mr M Todd
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