Ryan and Secretary, Department of Employment and Workplace Relations

[2006] AATA 494

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 494

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/46

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN HENRY RYAN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date7 June 2006

PlaceHobart

Decision The Administrative Appeals Tribunal has no jurisdiction to determine the appeal.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security benefits - disability support pension (DSP) -international payments - China - postal communication - email - contact address - itinerant person - jurisdiction - SSAT - AAT.

Administrative Appeals Tribunal Act 1975 and Amendments - ss25,43

Social Security Act 1991 and Amendments - s8

Social Security (Administration) Act 1999 - ss63, 68, 72, 144, 179, 181, 196, 236

Electronic Transactions Act 1999 - s13

Electronic Transactions Regulations 2000 - Schedule 1

Social Security Guide

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 LD 60

Re Drake (No 2) (1979) 2 ALD 634

Walker v Secretary, Department of Social Security (1997) 48 ALD 528

Re Walsh and Secretary, Department of Family and Community Services (2002) AATA 881

Re Butler and Secretary, Department of Family and Community Services and Anor (2005) AATA 763

REASONS FOR DECISION

7 June 2006	Associate Professor B W Davis AM (Part-time Member)
Decision Under Review

1.      The decision under review is a decision of the Social Security Appeals Tribunal (SSAT) dated 10 March 2005 that it had no jurisdiction to determine an appeal against a decision of Centrelink to send notices under Social Security Law to the applicant by post.

Issues

2.1      Does the Tribunal (AAT) have jurisdiction to review the matter before it; and

2.2If the Tribunal has the jurisdiction, is it able to exercise the power and discretions conferred upon the original decision-maker; and

2.3If the Tribunal is able to exercise the power and discretions in this matter, is there a decision before the Tribunal to be reviewed; and

2.4If there is a decision to be reviewed, is it the correct and preferable decision that notices issued under Social Security Law should be sent by post rather than e-mail?

Legislation

3.        As this case is essentially an issue of jurisdiction and its application, several statutes, regulations and policies are involved, the principal elements being as follows:

Administrative Appeals Tribunal Act 1975 and Amendments

Social Security Act 1991 and Amendments

Social Security (Administration) Act 1999

Social Security Guide

Standard of Proof

4.        A question of standard of proof will only be raised if there is a specific decision to be reviewed.    It would be determined on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Background

5.        The applicant, John Henry Ryan is currently in receipt of Disability Support Pension (DSP).   He left Australia in February 2000 and now resides in China where he is principally itinerant.    On 2 October 2002 he consented to Centrelink corresponding with him via electronic mail (email).

6.        On 23 March 2004 Centrelink sent Mr Ryan an email requesting him to supply a current postal address.    Until early 2004 the applicant’s postal address had been a post office box in Fremantle, Western Australia.     After an exchange of emails Mr Ryan supplied a contact address in China on 9 May 2004, but warned mail deliveries were unreliable in Chinese provinces.   Then on 20 May 2004, Mr Ryan emailed Centrelink essentially querying the law in respect of his obligation to supply a postal address.    He claimed to be itinerant and wished to ascertain the discretion which Centrelink had applied to correspond with him via e-mail until that point in time.

7. On 24 May 2004, a Centrelink officer responded via email, advising that this mode of communication was not approved by the Secretary of the Department of Family and Community Services under s196(2) of the Social Security (Administration) Act 1999, as a means for the transmission of customer specific information.    The officer advised some communication could be conducted via email, but any automatic letter or questionnaire generated by the Centrelink  computer system would be sent by post and if a reply was not received, then benefit payments could be suspended.

8.        On 26 August 2004 Mr Ryan emailed Centrelink registering, amongst other things, his concern that he might not have received all letters despatched by post from Australia, the fact that correspondence was addressed in English rather than Chinese, and raised further objections that Centrelink continued to require a postal address, when there was no guarantee of correct delivery in China.

9.        On 26 August 2004 the original decision-maker replied via email, reassuring him records appeared to show he had received all correspondence sent by post, explaining that the Centrelink computer system cannot handle Chinese characters and reiterating it was a statutory requirement to provide an up to date postal address for correspondence.

10.      On 24 November 2004, Mr Ryan requested the Secretary to reconsider the decision to withdraw from the agreement to communicate via email rather than post.   The matter was referred to an Authorised Review Officer (ARO) who on 26 November 2004 affirmed the original decision.     Mr Ryan then appealed to the Social Security Appeals Tribunal (SSAT) on 22 December 2004.   The ARO had indicated Centrelink was bound by law on several aspects of Mr Ryan’s case and because of privacy and confidentiality requirements, as well as systems securing concerns, there were matters which could not be dealt with by e-mail and must be communicated via post.

11.      The SSAT hearing conducted in Hobart on 10 March 2004 resulted in that Tribunal deciding it had no jurisdiction to determine the appeal.    The SSAT had considered a wide range of factual evidence, as well as a range of statutory provisions and extant policy.    Mr Ryan had not been present at the hearing, being in China, but his representations were given careful consideration.   The SSAT concluded it did not have the jurisdiction or power to intervene or amend statutory provisions and specified procedures and in any event there was no specific decision identified which might cause the SSAT to decide whether it should be set aside, amended or affirmed.

12.      On 27 April 2005 Mr Ryan lodged a request for review with the Administrative Appeals Tribunal.

The AAT Hearing

13.      The AAT hearing was conducted in Hobart on 18 May 2006, the applicant being self-represented and giving evidence by telephone.   Ms Michelle Baulch appeared for the respondent.     No witnesses were called.

14.      After being affirmed Mr Ryan argued there was no rational reason to conduct communications by post and email, when email had sufficed before and given the unreliability of Chinese postal services there was a risk letters would go astray and he could be inadvertently disadvantaged, even faced with some prospect his DSP benefits might be suspended.

15.      Mr Ryan said he was awaiting a secure cash withdrawal card from the Westpac Bank, but it was essential the pin number was also secure.    He thought some mail sent to his Kumning postal address had been returned to the bank.    He had cheques for perhaps $17,000 in Australia, but lacked the confidence to tell his brother to forward any of it, because it could go astray.   He had been stranded in Kumning, but would leave as soon as feasible.   Communication would have to continue via email, as it was the only practical method for him.   

16.      He was asked if security was such a problem, why he had not returned to Australia to gain access to his money, he replied “it is not feasible”.   Under further questioning he agreed his Centrelink payments were continuing and there had been no interruption as far as he could tell, but he was unaware whether had received all mail or not.

17.      In closing submissions counsel for the respondent pointed out that various provisions existed in the Administrative Appeals Tribunal Act 1975 and the Social Security Administration) Act 1999 dealing with the review of decisions and means of communication between the Department (DEWR) and its clients.    Section 68 of the Administration Act identifies the Secretary’s power to obtain information, s72 deals amongst other things with how a notice may be given to a client, s192 deals with the Secretary’s power to request information or a document be produced, s196 deals with how a notice under s192 is to be given.   Certain information must be given in person or by post and email has not been approved by the Secretary for the purposes of these sections (See ss72(2)(b)(i) and 196(2)(a)) of the Administration Act, for further explanation.

18.      The respondent drew attention to the fact that under s144 of the Administration Act some decisions cannot be reviewed by the SSAT and the AAT can only review a decision where a particular enactment provides for such review.   The respondent argues that in Mr Ryan’s case, the SSAT not only did not have jurisdiction to amend existing statutory provisions and policy about communication between the parties, but that in any event there was not a specific decision identified which would cause the SSAT to intervene and decide whether it should be set aside, amended or affirmed.    The respondent referred the Tribunal to DEWR’s Statement of Facts and Contentions, which analysed these matters in some detail.

19.      The respondent concluded by stating neither the SSAT or AAT had jurisdiction to determine the matter and there was a lack of power to exercise the powers and discretions of the decision-maker in this regard.   Finally, there was not an identified decision the tribunals could respond to.

Analysis

20.      As earlier noted the principal issues for the Tribunal to determine are:

(a)      whether the Tribunal has jurisdiction to review the matter before it; and

(b)if the Tribunal does have jurisdiction, whether it is able to exercise the powers and discretions conferred on the original decision-maker; and

(c)if there is a decision to be reviewed should it be set aside, amended or affirmed.

21.      In resolving these questions the Tribunal is required to conduct a de-novo review of all available evidence, consider statutory and policy provisions and any relevant prior case determinations which might serve as precedent.

22.      Prior to providing to the issue of jurisdiction, the Tribunal notes some general provisions of the Administration Act which deal with communication between the parties (Department and client).    In general Centrelink’s customers are free to communicate with it by any means, whether in person, by mail, phone, facsimile or by email.    However due to important privacy and security considerations, Centrelink is not permitted to communicate with its customers by email in all instances.   In addition, certain communications provided for under Social Security Law must occur in the manner prescribed by law, that is in person or by post to an identified address.

23.      Under ss72(1)(b) and 196(2)(a) of the Administration Act the respondent is required to issue certain requests for information from customers or third parties in writing and the requests are to be given in person or by post or in any other manner approved by the Secretary.    The Department contends that email has not been approved as a means of giving a notice under these sections.

24.      In addition s63(2) of the Administration Act deals with the Secretary’s power to require a person to attend an office of Centrelink, contact Centrelink, attend a particular place for a particular purpose or give information to the Secretary, and to give the person a written notice to that effect.   Section 63(7) provides that the notice is given by sending it as prepaid post, addressed to the person at the postal address last known to the Secretary.    Section 236 of the Administration Act provides that a notice of decision is taken to be given it is delivered personally, left at the person’s place of residence or business, or sent by post to the person’s postal address.   It is evident that the emphasis throughout is on written communication and contact via a personal postal address; email is not provided for as a means of giving notice of a decision.

25.      For email to be approved as a means of giving notice under ss72(1)(b) or 196(2)(a) of the Administration Act, the approval must be given by a person holding an appropriate delegation.    As shown in the delegation instrument dated 13 June 2002, such powers are not delegated to any Centrelink staff or other persons and thus reside with the Secretary.    No decision to approve email for the purposes of ss72(1)(b) or 196(2)(a) has been made.

26.      The respondent has conceded that notwithstanding these provisions, staff have in the past, communicated with Mr Ryan via email in circumstances where this should not have occurred.   No doubt it occurred in an effort to provide good customer service and in a situation where the client regarded Chinese postal services as unreliable, however Centrelink now recognises it needs to be more discerning as to what can be despatched by email and what must be sent to a postal address.    The Tribunal recognises the difficulties face by Mr Ryan to secure effective postal services, but it is his personal choice to reside in China and be itinerant as well.    Section 68 of the Administration Act clearly requires the client to keep Centrelink informed of any change of address and what that address is, while s81 of the Administration Act provides that if such information is not provided, a person’s benefit payment may be cancelled or suspended.

27. The applicant has claimed that s9 of the Electronic Transactions Act 1999 permits him to request that all communication, including the issuing of notices, be conducted by email only. The respondent contends the cited Act has no influence on Mr Ryan’s case, as Schedule 1 of the Electronic Transactions Regulations 2000 at item 133 specifically exempts ss62 to 77 and ss191 to 198 of the Administration Act from ss9, 10 and 11 of the Transactions Act.

28 To summarise all of the above, it is clear that Social Security Law, in the form of various sections of the Administration Act preclude all communication being solely by email and require both the client and Centrelink to communicate some information in writing and to a specified postal address.    A combination of email and post is acceptable, provided all statutory and policy provisions are met with regard to privacy and security safeguards.

The Jurisdictional Issue

29.      The respondent contends that the Tribunal (AAT) does not have jurisdiction in relation to decisions to issue notices under s68 or 192 of the Administration Act.   The AAT does not have power to deal with every matter under Social Security Law, it can only review decisions where that power has been conferred by a specific enactment (section 25 of the AAT Act) and can only exercise powers and discretion conferred by a relevant enactment upon the person who made the decision subject to review (s43 of the AAT Act).   Section 179 of the Administration Act sets out some rights for review by the AAT, but section 181  provides that the AAT may only review a decision that has already been reviewed by the SSAT.

30.      In the current case the SSAT decided it did not have jurisdiction to review the matter or any associated decision with it.    Having reviewed all available evidence and statutory and policy provisions, the Tribunal accepts the

SSAT’s view and affirms its decision.   Under s181 of the  Administration Act this means the AAT itself also lacks jurisdiction to deal with the matter under review.

Decision

31.      The Administrative Appeals Tribunal has no jurisdiction to determine the appeal, it follows DEWR may communicate with John Henry Ryan by any means it considers appropriate, given statutory and policy provisions and safeguards.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)       

Date/s of Hearing  18 May 2006
Date of Decision  7 June 2006
Counsel for the Applicant         Applicant represented himself
Solicitor for the Applicant           
Counsel for the Respondent     Ms Michelle Baulch
Solicitor for the Respondent     Centrelink