Pearce v Minister for Finance
[2020] FCCA 1291
•22 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PEARCE v MINISTER FOR FINANCE | [2020] FCCA 1291 |
| Catchwords: MCKENZIE FRIEND – Whether person acting as McKenzie Friend has right of audience. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(e), (f), (i), 5(1), 5(1)(e) & (g),16 |
| Cases cited: Santos v State of Western Australia (No.2) [2013] WASCA 39 Collins v Department of Finance and Deregulation [2011] FMCA 240 |
| Applicant: | GEORGINA PEARCE |
| Respondent: | MINISTER FOR FINANCE |
| File Number: | ADG 216 of 2018 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 10 April 2019 |
| Date of Last Submission: | 15 April 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 22 May 2020 |
REPRESENTATION
| The Applicant: | Mr A Pearce as McKenzie Friend |
| Counsel for the Respondent: | Mr T Galvin |
| Solicitors for the Respondent: | Maddocks |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 216 of 2018
| GEORGINA PEARCE |
Applicant
And
| MINISTER FOR FINANCE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) in relation to decisions of a Delegate of the Minister for Finance made on 8 May 2018 and 8 November 2018. Those decisions declined to authorise an act of grace payment to the applicant under s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) (‘the PGPA Act’). The payment sought was in the amount of $12,510 in lieu of the amount of Parental Leave Payment (‘PLP’) it is asserted she would have been entitled to under the Paid Parental Leave Act 2010 (Cth) (‘PPL Act’) had she correctly completed the FA100 application form used by the Department for the purpose of assessing eligibility for the PLP. The applicant relies on her Further Amended Initiating Application having filed her original Initiating Application on 1 June 2018 and two subsequent Amended Applications on 6 December 2018 and 26 February 2019.
For reasons that will become apparent, the decision of the Delegate dated 8 November 2018 is the operative decision for the purpose of this application.
I permitted the husband of the applicant to appear as her McKenzie Friend with a right of audience. Representation in this Court is covered by s 44 of the Federal Circuit Court of Australia Act 1999 (Cth) (‘the FCCA Act’). That section provides that a party to a proceeding before the Court is not entitled to be represented by a person unless that person is entitled to practice as a barrister or solicitor or both in a Federal Court or, under the Regulations to the FCCA Act the person is taken to be an authorised representative, or another law of the Commonwealth authorises the other person to represent a party. The husband of the applicant did not fall within any of the stipulated categories. Nonetheless, it is within the jurisdiction of this Court to permit a person to appear as a McKenzie Friend. It is well-established that the usual role of a McKenzie Friend is limited to providing support to an unrepresented party. That usually involves them being present at court and sometimes sitting at the bar table to provide assistance with notetaking and to act as a sounding board for any forensic decisions that need to be made.[1] In the ordinary course, the role of McKenzie Friend has not extended to acting as an advocate or representative.[2] It is not necessary for present purposes for me to address the policy reasons underpinning the cautious approach which has been traditionally taken in that regard. Authority exists to the effect that a court may, in appropriate circumstances, make an order permitting a person acting as a McKenzie Friend to make oral submissions on behalf of another person.[3] Significant caution must still be taken before permitting such a course. In this matter, I gave leave for the husband of the applicant to make oral submissions on her behalf. He has previously been admitted as a legal practitioner but at the time of hearing was not practising. It is obvious from both the grounds of application and the outline of submissions he had prepared that he had put considerable thought and preparation into the case for the applicant. There was no doubt in my mind that he would be capable of presenting the case to the best of his ability on behalf of the applicant. He clearly had her best interests at heart. The applicant wanted him to speak on her behalf. Finally, it was quite apparent that in the event that he was not permitted to speak on behalf the applicant that she would not, at the time of the hearing, be capable of addressing the Court herself. No objection was taken to me giving leave for this purpose.
[1] Santos v State of Western Australia (No.2) [2013] WASCA 39 [10].
[2] Collins v Department of Finance and Deregulation [2011] FMCA 240 [40].
[3] Nepal v Minister for Immigration and Border Protection [2015] FCA 366.
Grounds of Application
The grounds of application are lengthy and highly particularised. It is necessary to set them out verbatim. They are as follows:
“The Applicant applies to the Court to review the decision of the Respondent in its Act of Grace, request - Decision dated 8 May 2018 and Act of Grace Request - Decision dated 8 November 2018 (together, Decision) (set out in Attachment A), not to authorise an act of grace payment to the Applicant in accordance with section 65 of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act).
Details of claim
1.The Applicant is aggrieved by the decision because the act of grace payment has not been authorised, despite the Requests for Discretionary Financial Assistance under the PGPA Act - Resource Management Guide No. 401 (Guide) supporting an act of grace payment being made to the Applicant.
2.The Applicant was entitled to receive Parental Leave Pay (PLP) in accordance with the Paid Parental Leave Act 2010 (Cth) (PPL Act), and submitted an application in time, but did not receive the PLP because she filled out the application incorrectly due to her disability.
Grounds of application
1.The making of the Decisions was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, pursuant to section 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), because the Respondent:
(a)took irrelevant considerations into account in the exercise of a power, pursuant to section 5(2)(a) of the ADJR Act, as set out in paragraphs 2 to 12 (inclusive) of these Grounds of application; and
(b)failed to take relevant considerations into account in the exercise of a power, pursuant to section 5(2)(b) of the ADJR Act as set out in paragraphs 13 to 23 (inclusive) of these Grounds of application.
2.The making of the Decisions involved an error of law, whether or not the error appears on the record of the decision, pursuant to section 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), because the Respondent's reasoning when determining the Decisions applied the PPL Act, section 65 of the PGPA Act and case law authorities interpreting section 65 of the PGPA Act amount to an error of law.
3.The making of the Decisions were otherwise contrary to law, pursuant to section 5(1)(i) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), because the Respondent's reasoning when determining the Decisions was contrary to the PPL Act, section 65 of the PGPA Act and case law interpreting section 65 of the PGPA Act.
Irrelevant, error of law and contrary to law considerations included
Proper application of the PPL Act considered to deny payment:
4.The Decision considered that the PPL Act does not have provisions taking into account special circumstances or allowing an extension of time.
5.The Decision ultimately held that legislation has been applied appropriately and therefore not produced an unintended, anomalous, inequitable or otherwise unacceptable result.
6.Legislation being applied correctly is irrelevant, error of law and contrary to law for determining if special circumstances exist to authorise an act of grace payment pursuant to the framework in the Guide (Special Circumstances).
7.The Guide sets out that "the act of grace mechanism is generally a remedy of last resort and is not used when there is another viable remedy available to provide redress in the circumstances giving rise to the application".
8.Legislation being applied correctly is therefore a requirement to be allowed to make an act of grace application, not a relevant consideration for determining if Special Circumstances exist.
Whether disability is a special circumstance considered to deny payment:
9.The Decision held that the Applicant's "disability is not a special circumstance for the purpose of granting an act of grace payment".
10.Examples of special circumstances that make it appropriate to approve an act of grace payment are set out in paragraph 10 of the Guide.
11.The elements of the example from the Guide being relied on by the Applicant are addressed in paragraphs 13 to 23 (inclusive) of these Grounds of application.
12.Whether the Applicant's disability is a special circumstance is irrelevant, error of law and contrary to law for determining if Special Circumstances exist.
Other matters considered to deny payment:
13.The Decision considered that "the factors against granting an act of grace payment in this instance" are:
(a)the Department of Human Services (OHS) did not contribute to the failure to lodge an effective claim for PLP in the legislated time period;
(b)there is no evidence that the OHS engaged in discrimination;
(c)the PPL Act provides for a period of time in which to make a claim for the PLP; and
(d)authorising a payment outside the applicable legislative contravene the explicit intentions of Parliament in relation to the PLP,
(together, Irrelevant Factors)
14.Relying on the Irrelevant Factors to deny payment of the PLP is irrelevant, error of law and contrary to law for determining if Special Circumstances exist.
Relevant considerations not included
Other legislative frameworks allowing an extension of time were not sufficiently considered
15.The Decision did not sufficiently give weight to other legislative frameworks and, in doing so, applied reasoning involving an error of law and contrary to law.
16.Other legislative frameworks are relevant considerations to determine if the PPL Act has had an unintended, anomalous, inequitable or otherwise unacceptable result, and therefore if Special Circumstances exist.
17.Other legislative frameworks provide for disability and/or error to grant extensions of time, including the legislation referenced in the Applicant’s submission to the Respondent dated 27 September 2017 (set out in Attachment 8), and therefore demonstrate that an inequitable impact and Special Circumstances exist in the Applicant's matter.
The inability to adequately control a disability not sufficiently considered
18.The Decision held that the Applicant did not nullify the control she had over the events leading to the circumstances under review, because she did not seek assistance. In doing so, the Decision failed to consider that the Applicant does not have the ability to adequately control her dyslexia itself, to determine if Special Circumstances exist.
19.The position that the Applicant should have sought assistance contradicts her right to autonomy and breaches numerous articles of the Convention on the Rights of Persons with Disabilities, but in particular article 3(1).
20.The Decision conceded that the Applicant does “not have the capacity to control (her) dyslexia” (Decision's Control Concession).
21.For Special Circumstances to exist, the Guide requires the circumstances to be outside the parameters of events for which the Applicant had the capacity to adequately control.
22The Decision's Control Concession satisfies that requirement.
The broad intentions of the PPL Act not sufficiently considered
23.The Decision failed to sufficiently consider whether the Applicant's circumstances are consistent with what could be considered to be the broad intentions of the PPL Act, to determine if Special Circumstances exist and, in doing so, applied reasoning error of law and contrary to law.
24.The Applicant was entitled to receive the PLP in accordance with the PPL Act and submitted an application in time, but did not receive the PLP because she filled out the application incorrectly due to her disability.
25.The broad intentions of the PPL Act therefore support payment of the PLP to the Applicant.
Orders sought
1.An order pursuant to section 16(1)(d) of the ADJR Act directing the Respondent to authorise payment of the PLP to the Applicant in the amount of $12,510.
2.An order for reimbursement of court filing fees and annual leave taken from employment to attend court hearings, pursuant to rule 16.01 of the Federal Circuit Court Rules 2001.
3.An order for payment of interest, pursuant to rule 26.01 of the Federal Circuit Court Rules 2001.”
Background
The background to this matter is not in dispute. It is somewhat complicated but has been thoroughly summarised in the written submissions of the respondent. I have re-produced that summary verbatim:
“7.The Applicant’s application for an act of grace payment arose out of a decision not to grant the Applicant a Parental Leave Payment (PLP) by the Department of Human Services (DHS). The eligibility requirements for a PLP payment are set out in the Paid Parental Leave Act 2010 (Cth) (PPL Act), which is administered by the Family Assistance Office (part of the Department of Social Services (DSS), but administered by the DHS since July 2011).
8.On 29 May 2014 the Applicant completed a FA100 form,1 following the birth of her first child. Both the Applicant and her husband, Mr Adam Pearce, signed the FA100 form and lodged it with DHS. In the FA100 form, the Applicant gave the following responses to certain relevant questions:
(a)In response to question 3, which asked ‘Which payments do you want to claim?’, the Applicant selected only the Family Tax Benefit (FTB) option. The PLP and Baby Bonus options were not selected by the Applicant.
(b)In response to question 35, which asked “Are you claiming Parental Leave Pay or Baby Bonus for any child?’, the Applicant selected the option ‘No (Go to 107)’. Due to this answer, the Applicant did not respond to any questions between questions 36 and 106.
(c)In response to question 124, which asked ‘Are you claiming Parental Leave Pay or Baby Bonus for this child?’, the Applicant selected the option ‘No’.
(d)In response to question 137, which asked ‘Are you claiming Parental Leave Pay only for this child?’, the Applicant selected the option ‘No’.
(e)In response to question 249, which listed boxes for the attachment of documents in relation to PLP, the Applicant did not select any boxes.
9.On 29 May 2014 Mr Pearce also completed a FA101 form.2 Again, both the Applicant and Mr Pearce signed the FA101 form and lodged it with DHS. In the FA101 form, Mr Pearce selected the following options in response to question 1 ‘Which payment(s) and/or service do you want to claim for your newborn child?’: FTB and Medicare Enrolment. Mr Peace did not select the option for PLP.
10.On 19 June 2014 DHS sent the Applicant a letter which notified her of the decision of the Secretary to reject her application for FTB.
11.On 25 November 2016 the Applicant lodged a completed FA100 form following the birth of her second child, in which the Applicant made a claim for a PLP.
12.On 23 December 2016 DHS granted the Applicant’s claim for a PLP in relation to her second child.
13.On 8 March 2017 the Applicant contacted DHS to enquire as to why she was not eligible for a PLP in respect of her first child, in response to which she was informed that she did not make a claim for a PLP in relation to that child.
14.On 23 March 2017 the Applicant applied to DHS for review of the decision not to grant her a PLP for her first child.
15.On 27 March 2017 an Authorised Review Officer (ARO) of DHS affirmed the decision not to grant the Applicant a PLP for her first child because:
(a)she did not make an effective claim for a PLP in accordance with section 56 of the PPL Act;
(b)she was out of time to make a claim for a PLP pursuant to section 60 of the PPL Act; and
(c)there are no provisions in the PPL Act to allow an extension of time to lodge an effective claim for a PLP in respect of her first child.
16.On 12 April 2017 the Applicant applied to the Administrative Appeals Tribunal (the AAT) for external merits review of the ARO’s decision.
17.On 7 June 2017 the AAT affirmed the ARO’s decision.
18.On 27 June 2017 the Applicant submitted an application to the Respondent for an act of grace payment pursuant to subsection 65(1) of the PGPA Act. The Applicant requested ‘the legislated paid parental leave amount’ that she claimed should be paid to her on the basis that the PPL Act has had an inequitable impact on her circumstances because it failed to recognise special circumstances in relation to her disability (dyslexia). The Applicant claimed that her dyslexia led to her incorrectly complete the FA100 form, in circumstances where the PPL Act does not make any allowance for seeking an extension of time to claim a PLP on the grounds of error and/or disability.
19.On 8 May 2018 a delegate of the Respondent (the first delegate) made a decision not to authorise an act of grace payment under subsection 65(1) of the PGPA Act.
20.On 1 June 2018 the Applicant commenced the present proceedings.
21.On 22 June 2018 the Respondent notified the Applicant that it had made a decision to reconsider its decision of 8 May 2018.
22.On 8 November 2018 another delegate of the Respondent (the second delegate) made a decision upon reconsideration, not to authorise an act of grace payment under subsection 65(1) of the PGPA Act.
C SECOND DELEGATE’S DECISION OF 8 NOVEMBER 2018
23.The second delegate decided not to authorise an act of grace payment under subsection 65(1) of the PGPA Act, as the second delegate was not satisfied that special circumstances existed in relation to the Applicant’s situation.
24.In particular, the second delegate:
(a)found that the Applicant did not submit an effective claim for a PLP within the required legislative period, because the completed FA100 and FA101 forms submitted by the Applicant and Mr Pearce did not have the relevant fields selected, nor was the required documentation and information provided;
(b)found that DHS applied the legislation in the PPL Act correctly to the Applicant’s situation, noting that there are no provisions in the PPL Act that allow applicants to seek an extension of time to submit a claim for a PLP or for the Secretary to accept any out of time application;
(c)considered that the manner in which the Applicant and Mr Pearce completed the FA100 and FA101 forms demonstrated to DHS that the Applicant did not wish to claim a PLP;
(d)concluded that DHS, in the circumstances, was not required to inform the Applicant of her potential eligibility for a PLP when making a decision regarding her entitlement to the FTB;
(e)concluded that there was no evidence to indicate that DHS’ advice was deficient, or that an act of DHS otherwise contributed in any way to the failure to make an effective claim for a PLP within the legislative timeframe;
(f)did not consider that an act of DHS caused an unintended or inequitable result to the Applicant, but rather the non-payment of a PLP was cause by the failure of the Applicant and Mr Pearce to make an effective claim for a PLP within the legislative period;
(g)found that it was the clear intention of Parliament in making the PPL Act that ‘[a]ll parental leave payments be received before the child’s first birthday’;
(h)noted that the timeframe in which to make a claim for a PLP was significant, in excess of 14 months, which would appear to be of sufficient duration to enable any person who had difficulty understanding the requirements of making a claim for a PLP to seek clarification and assistance, therefore preventing disadvantage;
(i)found that DHS had applied the PPL Act as intended by Parliament and did not accept that the PPL Act had had an unintended, anomalous, inequitable or otherwise unacceptable impact on the Applicant’s circumstances, whether because of an inability to extend the time period for applying for a PLP or otherwise;
(j)considered that the accessibility measures put in place by DHS provide accessibility in relation to its services, and that those measures were available to the Applicant at the time she completed the FA100 form;
(k)noted that the Applicant did not complete the FA100 form autonomously, as Mr Pearce also signed the form, and in doing so declared that the contents of the form were complete and correct;
(l)noted that Mr Pearce completed and signed the FA101 form in which he, despite selecting FTB and Medicare Enrolment, did not select the option under the same question for a PLP;
(m)stated that it appeared that the Applicant and Mr Pearce made a decision when completing these forms not to make a claim for a PLP, noting the considerable information available within the FA100 and FA101 forms in relation to a PPL and the clear and consistent selection of fields by both the Applicant and Mr Pearce in relation to those forms; and
(n)found that the Applicant’s disability was not a special circumstance for the purpose of granting an act of grace payment.”
(Citations removed)
The applicant relied on two affidavits sworn by her.[4] The first affidavit makes reference to the decision of the Department of Finance dated 8 May 2018 and a letter sent to a member of Federal Parliament. The second makes reference to the same decision and letter together with an undated submission to the Department of Finance and the second decision of the Department dated 8 November 2018. She also relied on the Resource Management Guide No. 401, Requests for discretionary financial assistance under the Public Governance, Performance and Accountability Act 2013.[5]
[4] Applicant’s Affidavits filed 1 June 2018 and 6 December 2018.
[5] Exhibit A1.
The respondent relied on the affidavit of a solicitor setting out the facts and documents on which the respondent relied.
In addition, both parties relied on some further materials which were put on by the respondent, by consent, after the conclusion of the hearing. Both parties provided further written submissions, with leave, after the hearing had concluded.
Submissions
Applicant’s submissions
It is not disputed that the applicant has dyslexia. It is submitted that this caused her to incorrectly fill out the FA100 Form to which I have referred above. That is, of itself, a request for a review into the merits of the decision, complaining as it does about a factual finding made by the Delegate.
The submissions of the applicant were distilled to three separate propositions. Firstly, it was submitted that the making of the decision was an improper exercise of the power conferred by the Act by virtue of having taken irrelevant considerations into account or failing to take relevant considerations into account. Secondly, it was submitted that the decision involved an error of law irrespective of whether such error appeared on the face of the record. Thirdly, it was submitted that the decision was otherwise contrary to law.
It was submitted that it was incorrect of the Delegate to consider whether the PLP could be paid pursuant to the PPL Act. Rather than considering whether an act of grace payment could be authorised pursuant to the PGPA Act. Another way of putting that submission might be to suggest that the Delegate had asked the wrong question. The applicant referred the Court to s 65(1) of the PGPA Act which provides that an act of grace payment may be authorised even though the payment is not authorised by law. That being the case, the applicant submits that such a payment may be authorised even when the provisions of the PPL Act have been applied correctly and in circumstances where no extension of time to submit an application or correct an error in an application is allowed for under that Act. The applicant took particular issue with a passage in the Decision of 8 November 2018 which I will set out below:
“Although it is my role to determine whether there are any special circumstances that warrant granting your request for an act of grace payment, in performing this role it is necessary for me to consider the application of the legislation to your circumstances. This consideration aids me in forming a view as to whether the reason why you were not granted a PLP, with respect to your first child, was because of an act of DHS, or because the applicable legislation had an unintended, an anomalous, inequitable or otherwise unacceptable impact on your circumstances.”[6]
[6] Annexure ‘D’ Affidavit of Frances Bradshaw, p 7 of Annexure, p 21 of Affidavit.
It is submitted that whether the PPL Act had an anomalous, inequitable or otherwise unacceptable impact was an irrelevant consideration. The applicant concedes that she did not receive a PLP because the PPL Act did not authorise payment to her due to the erroneous filling out of the FA100 Application Form. Rather, the applicant submits that the correct consideration for an act of grace payment under s 65(1) of the PGPA Act was whether ‘special circumstances’ existed because the PPL Act was anomalous, inequitable or otherwise unacceptable for not allowing an extension of time in the case of error and additionally in her circumstances, in the case of a disability namely dyslexia.
For that reason, the applicant submitted that the Delegate undertook a line of reasoning which was inconsistent with the express provisions of s 65(1) of the PGPA Act. In effect, the applicant submitted that the respondent gave no consideration to the fact that an act of grace payment can be authorised in circumstances not otherwise be authorised by law. There was no consideration of the applicant’s circumstances against the terms of that section. The applicant submitted that whilst that section of the PGPA Act was summarised in the decision, the Delegate really paid only lip service to it but did not engage in a process of reasoning which could properly be said to have applied s 65(1). That proposition could be demonstrated, it was submitted, in a passage of the decision where the Delegate set out reasons for the applicant not being granted a PLP and commenced with the following:
“In this regard, I note that the PLP is governed by the PPL act, as in force at 29 May 2014. Section 13(1) of the PPL act provides that the Secretary must make a determination in relation to an effective primary claim for a PLP for a child. Section 55(1) of the PPL Act sets out when a claim for a PLP is ‘effective’ for the purpose of section 13(1).”[7]
[7] Ibid, 8
After this passage the Delegate gave lengthy consideration to the operation of the PPL Act. It was contended that this demonstrates a lack of weight given to the proper considerations for an act of grace payment. This was because the Delegate concluded erroneously that only payments authorised by the PPL Act could be the subject of an act of grace payment. Further, it was an irrelevant consideration to take into account the findings of the AAT in relation to the merits review concerning the failure to make the PLP payment. That the Delegate did so demonstrates that she operated on the basis that only a payment authorised by law could be subject to an act of grace payment, contrary to the express wording of s 65(1). It was unnecessary for the Delegate to do so because the AAT decision had established that matter. The AAT decision could not be seen as binding on the Delegate. That decision was a factor in favour of the exercise of the discretion to make an act of grace payment, not against it. This was a material error, it was submitted, because in fact, the application of the PPL Act had had an anomalous, inequitable or unacceptable impact on the applicant.
The reasoning represented an improper exercise of power, an error of law or a contravention of law contrary to ss 5(e), (f) and/or (i) of the ADJR Act.
Further, it was submitted that the Delegate was in error in the finding that “both the claim for, and the receipt of a PLP, are restricted to the period between just prior to the birth of the child and the child’s first birthday. There are no provisions permitting payments to be made outside this period.”[8] It was submitted that both ss 87 and 92 of the PPL Act provide for the PPL period in which the PLP is able to be paid to be extended after an internal review. There is no time limit stipulated on when an internal review can be undertaken and for that reason there is no time restriction on when a PPL period can be extended. The effect of the applicant’s submission was that this was a material error of law. The error was material because the respondent expressly relied on it as a consideration in aid of denying an act of grace payment. That can be demonstrated in the following passage:
“I do not consider that (the factors in favour of an act of grace payment)….outweigh factors against granting an act of grace payment in this instance. These factors being:
·DHS did not contribute to your failure to lodge an effective claim for a PLP in the legislated time period;
·there is no evidence that DHS, in requiring you to complete an application or in processing your application, engaged in discrimination;
·a significant period is provided in which to make claim for PLP and to rectify any misunderstandings in relation to PLP; and
·authorising a payment in lieu of a PLP outside the applicable time frame would be contrary to the explicit intentions of Parliament in relation to the PLP.”[9]
[8] Ibid, 10.
[9] Ibid, 12.
The fourth dot point above was wrong because PPL Act expressly allows the PLP to be paid outside of the PPL period.
It was submitted that the judgment of Weinberg J in Toomer v Slipper[10] supported that submission. As in Toomer’s case the Delegate in the subject decision repeatedly construed the term ‘special circumstances’ in a manner that was too narrow and confined herself to a consideration of whether or not the PPL Act had been correctly applied and regarded that as dispositive of the question of whether there had been an unintended, anomalous, inequitable or otherwise unacceptable impact on the circumstances of the applicant. This meant that the respondent did not consider whether an anomalous, inequitable or otherwise unacceptable impact had occurred by virtue of the correct application of the PPL Act by the Department of Human Services (‘the DHS’).
[10] [2001] FCA 981.
In the course of the lengthy written submissions filed by the applicant, an additional particular was raised in passing, although not pleaded in the grounds of application. It was contended that the decision of the Delegate was unreasonable, and that the exercise of the discretion had miscarried as a result. I have given consideration to that submission.
Respondent’s submissions
The respondent submitted that it is well-established that any ground as to relevancy will only find traction on judicial review where a decision-maker was either bound to take a consideration into account, but fails to do so, or where the decision-maker was forbidden from taking a consideration into account, but nevertheless does so. Those questions can only be answered by reference to s 65(1) of the PGPA Act which is non-prescriptive of the matters which must or must not be taken into account. The discretion has been held to be broad and unfettered. Limited guidance is found in RMG 401 which states that ‘special circumstances’ and ‘appropriate’ are matters for the decision-maker to assess. Paragraph 10 of RMG 401 provides a non-exhaustive list of examples of ‘special circumstances’ which might make it appropriate to approve an act of grace payment.
The respondent submitted that nothing in the PGPA Act forbade the Delegate from considering whether or not the PPL Act had been properly applied or indeed any of the matters taken into account by the Delegate. It was further submitted that the Delegate was not required under the PGPA Act to give any consideration or weight to other legislative frameworks that provided for disability, the granting of extensions of time, the inability of the applicant to control her disability, or to the broad intentions of the PPL Act to determine whether special circumstances existed because these were not considerations that were required to be taken into account by s 65(1). It was submitted that the matters taken into account by the Delegate were all matters directly relevant to her consideration of s 65(1) and the type of matters identified at paragraph 10 of RMG 401.
With respect to the applicant’s argument based on ss 87, 92 and 203 of the PPL Act, the respondent submitted that the power under s 203 of the PPL Act does not extend to enlarging the maximum PPL period start day or the maximum PPL period end day beyond the limits of s 11 of the PPL Act. The respondent maintained that the earliest day on which a person’s PPL period can start is the day a child is born and the latest it can end is the day before the child’s first birthday. Section 203 does not authorise the Secretary to do otherwise. Further, ss 87, 92 and 203 of the PPL Act only comes into play if an effective PLP claim has already been made. Finally, even if the Delegate was incorrect in her summary of the effect of the PPL Act, such error would not amount to an error of law in the relevant sense because the PPL Act was not the source of power under which the decision-maker was operating.
Consideration
This Court has jurisdiction under the ADJR Act to determine grievances based on certain stipulated grounds with respect to decisions to which that act applies.[11] The powers of the Court in respect of applications for review are conferred by s 16 of the ADJR Act. It is not necessary for present purposes to set that section out in detail here.
[11] ADJR Act s 5(1).
The operative decision for the purpose of these proceedings is the decision of 8 November 2018, which amounted to a reconsideration of the application. The decision of 8 May 2018 was superseded and irrelevant for the purpose of this application.
The power to make an act of grace payment is conferred on the Minister by virtue of s 65(1) of the PGPA Act which provides as follows:
“Act of grace payments by the Commonwealth
(1)The Finance Minister may, on behalf of the Commonwealth, authorise, in writing, one or more payments to be made to a person if the Finance Minister considers it appropriate to do so because of special circumstances.
Note 1: A payment may be authorised even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability.
Note 2: Act of grace payments under this section must be made from money appropriated by the Parliament. Generally, an act of grace payment can be debited against a non-corporate Commonwealth entity's annual appropriation, providing that it relates to some matter that has arisen in the course of the administration of the entity.
(2)An authorisation of a payment must be in accordance with any requirements prescribed by the rules.
(3)Conditions may be attached to a payment. If a condition is contravened, the payment is recoverable by the Commonwealth as a debt in a court of competent jurisdiction.
(4)An authorisation of a payment is not a legislative instrument.”
As submitted by the respondent, three elements must be satisfied before an act of grace payment will be made.[12] Firstly, a consideration of whether there are ‘special circumstances’. Secondly, if there are special circumstances, the decision-maker must consider whether it is appropriate to authorise a payment or payments because of the special circumstances. Thirdly, in the event that the decision-maker regards it appropriate to make a payment then the respondent may, but is not obliged, to exercise the discretion to authorise a payment or payments. The terms ‘appropriate’ and ‘special circumstances’ are not defined in the PGPA Act. Limited guidance is found in RMG 401 which states that ‘special circumstances’ and ‘appropriate’ are matters for the decision-maker to assess. The discretion has been described as obviously very broad. The discretion is enlivened by a finding of ‘special circumstances’.[13]
[12] Dennis v Minister for Finance [2017] FCCA 45 [41].
[13] Ibid [40].
It has been accepted by this Court, and I accept, that authorities decided with respect to the discretion conferred by s 33 of the Financial Management and Accountability Act 1997 (‘the FMA Act’), which s 65(1) of the PGPA Act replaced, are relevant to considering the exercise of the discretion under s 65(1).[14]
[14] Op cit [42].
As noted by Jarrett J in Dennis’[15] case, there are at least four decisions of the Federal Court that are of assistance. The line of authority on s 33(1) of the FMA Act began with the authority cited by the applicant, Toomer v Slipper in which Weinberg J discussed the discretion in these terms:
“The expression ‘special circumstances’ has been the subject of extensive judicial consideration. However, there does not appear to have been any occasion on which that expression has been considered in the context of s 33(1) of the FMA Act.
In Wu v Attorney General (1997) 79 FCR 303 at 307, Burchett J dealt with an interlocutory motion for the grant of bail in which the meaning of the expression ‘special circumstances’ arose for determination. His Honour referred to Jess v Scott (1986) 12 FCR 187, a case involving an application to extend time in which to file a notice of appeal, in which the Full Court discussed a number of decisions concerning the terms ‘special circumstances’, and ‘special reasons’, terms which were treated as having essentially the same meaning. The Court said that ‘special reasons’:
"... is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served."
[15] Op cit.
Burchett J went on to say:
"The same principle was applied to the expression ‘special circumstances’, in relation to an application for release from an implied undertaking, in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578-579, where it was pointed out that the word "special" derives almost all of its meaning from its context. See also Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 at 132-133..."
The statutory context in which the term ‘special circumstances’ arises in the present case is one in which the Minister is given a discretion to authorise the making of act of grace payments where such payments “would not otherwise be authorised by law or required to meet a legal liability”. There are any number of circumstances which may give rise to a claim for a payment of this type. It is impossible to anticipate the situations in which such payments may be warranted. The discretion vested in the Minister is obviously broad.
The respondent said in the letter of denial that the power to approve act of grace payments under the FMA Act was only to be exercised where it was considered that the application of Commonwealth legislation had produced unintended, anomalous, or inequitable results, or where because of its direct role in a particular situation the Commonwealth considered that it had a moral responsibility to redress the circumstances of the individual concerned. He concluded that none of these factors were present in Mr Toomer's case. That conclusion was plainly open upon the totality of the material before him. There is nothing in the formulation of ‘special circumstances’ adopted by the respondent which strikes me as being too narrow, or otherwise erroneous in law.”[16]
[16] Op cit [28]-[32].
In Croker v Minister for Finance and Deregulation[17] Robertson J followed Toomer v Slipper without qualification.
[17] [2011] FCA 1188.
Similarly, Edmonds J applied Toomer v Slipper in Simeon v Minister for Finance and Deregulation[18] and made the following remarks in relation to the question of weight to be applied to a consideration and the effect of the relevant Departmental policy guide:
“Ultimately, the discretion under s 33 of the FMA Act is to be exercised having regard to whether there are special circumstances. Although there are policy guidelines (Finance Circular No 2009/09, replacement and update to Finance Circular No 2006/05) that provide guidance in assessing applications for act of grace payments, the weight to be attributed to evidence, such as the UNSW report, was ultimately a matter for the Minister.”[19]
[18] [2012] FCA 286.
[19] Ibid [24].
The above passage emphasises a matter that is to be accepted in administrative decisions of this kind. Policy guidelines are a guide only, to assist in the decision making process. They are not a code that binds the decision-maker. The decision making power remains as provided for in the relevant legislation.
Finally, in Tomson v Minister for Finance and Deregulation,[20] Rares J made the following remarks in a passage that emphasizes the unfettered nature of the discretion:
“The discretion conferred on the Finance Minister by s 33(1) of the FMA Act is enlivened if she “considers it appropriate because of special circumstances” to authorise one or more payments to a person. Critically, the section authorises such a payment notwithstanding that it is not made under any law or to satisfy a legal liability. The Parliament did not circumscribe the breadth of the discretion it conferred on the Finance Minister in s 33(1) except to require her to consider that the making of the payment be “appropriate” because of “special circumstances”.[21]
[20] [2013] FCA 664.
[21] Ibid, [33].
The above authorities demonstrate the legal context in which the discretion came to be exercised. It should be noted that the decision of Warwick FM, as he then was, in Clement v Minister for Finance and Deregulation,[22] on which the applicant relied extensively in her written submissions, followed the decision of Weinberg J in Toomer v Slipper.
[22] [2009] FMCA 43.
I accept the submission of the respondent that a fundamental problem with the ground as to a failure to take into account a relevant consideration or taking into account irrelevant considerations is the principle identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[23] and which can with respect, be regarded as very well established. Failing to take into account a relevant consideration can only be made out where a decision-maker fails to take into account a consideration that they are bound to take into account when making the decision. The factors that a decision-maker is bound to consider are determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it may be necessary for the court to decide whether those factors are exhaustive or simply inclusive.[24] The same principle applies where it is alleged that irrelevant considerations have been taken into account.[25] The principle demonstrates the inherent difficulty in making out a ground based on either relevancy or irrelevancy in circumstances where the discretion conferred by statute is unfettered. That is so even where, as here, the Department has published guidelines for the assistance of decision-makers. Mason J went on to observe, in a passage that has been very frequently cited:
“The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.”[26]
(citations omitted)
[23] (1986) 66 ALR 299.
[24] Ibid.
[25] Ibid.
[26] Ibid, 309-310.
The question of unreasonableness is provided for in s 5(1)(g) of the ADJR Act as a facet of the improper exercise of power referred to in s 5(1)(e) of that Act.
Given the unfettered nature of the discretion, it could not be said that the Delegate took an irrelevant consideration into account when considering whether the PPL Act had in the first instance been properly applied. That question itself may have had relevance to whether she was being asked to make an act of grace payment in circumstances where such was not otherwise permitted by law or in circumstances where another remedy was available. Similarly, it was of obvious relevance to the question of special circumstances for the Delegate to consider the existence and extent of the applicant’s dyslexia. It was relevant to her consideration for the purpose of assessing whether special circumstances existed to consider if the DHS had in some way, through its procedures or requirements, contributed to the failure to lodge an effective claim for the PLP within the prescribed time limit and also to consider if the DHS had in some way discriminated against the applicant on the basis of her disability. Had any of those factors been present, they would have had obvious relevance to a consideration of whether special circumstances existed. The same can be said of the Delegate taking into account the intention of Parliament when establishing the time limits for making such a claim. The fact that time limits were built into the procedure to apply for the PLP suggests that it would be an ordinary incident of the failure to make an effective application within time for an otherwise eligible person to be excluded from the benefit. As submitted by the respondent, all of those matters had a logical connection to the exercise of the discretion. All of them had relevance to the question of whether the actions of the DHS and the operation of the PPL Act had an unintended, anomalous, inequitable or otherwise unacceptable impact on the applicant, the very considerations referred to in RMG 401.
As to relevant considerations alleged not to have been taken into account, I accept the submission of the respondent that it was not an error for the Delegate to have failed to take into account provisions in other Commonwealth legislation to provide for extensions of time to make applications in circumstances where a person has a disability when considering the question of special circumstances. What may be provided for in other Acts of Parliament in relation to other subject matter could not be said to be relevant to the special circumstances or otherwise of the applicant, particularly in light of what was conceded to be a decision made in the proper operation of the PPL Act. Further, the contention that the Delegate failed to sufficiently take into account the inability of the applicant to adequately control a disability cannot be sustained. Firstly, it is a complaint about weight, which was a matter for the Delegate. Secondly, by its terms, this particular acknowledges, properly so, that the Delegate did consider this matter.
The applicant’s contention that the Delegate took irrelevant considerations into account and failed to take relevant considerations into account cannot succeed and the ground must be dismissed. The Delegate did not engage in an improper exercise of power in that respect. It cannot be said that the decision of the Delegate was so unreasonable that no reasonable decision-maker acting reasonably could have come to the same decision.[27]
[27] Ibid, 310.
Further, I am satisfied that the Delegate did not make an error of law in exercising the discretion conferred by s 65(1) of the PGPA Act. In particular, I accept the submission of the respondent that the Delegate was not in error in concluding that the power under s 203 of the PPL Act does not extend to enlarging the maximum PPL period start day or the maximum PPL period end day beyond the limits of s 11 of the PPL Act. As submitted by the respondent, even had she done so, the PPL Act was not the operative legislation for the purpose of the discretion she was exercising. This review is against the exercise of her discretion under the PGPA Act. Nor could the decision of the Delegate be regarded as otherwise contrary to law.
The applicant has a deeply heartfelt grievance at the chain of circumstances that resulted in her not having received the PPL after the birth of her first child. It is most unfortunate that she did not. Given the fact that the PPL was readily available to parents all over the country in a similar position to the applicant and her husband, and given the vast amounts of money presumably expended by the Commonwealth under the scheme to benefit parents, her dissatisfaction is understandable. That is not the test on judicial review and it does not, given the unfettered discretion to approve act of grace payments, mean that the Delegate exercised her power improperly, made an error of law or made a decision that was otherwise contrary to law.
This application must be dismissed.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 22 May 2020
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