Ryan, James v Secretary, Department of Social Security
[1997] FCA 1206
•16 OCTOBER 1997
FEDERAL COURT OF AUSTRALIA
Social security - privilege against self-incrimination - whether the privilege has been ousted by s 1164 of the Social Security Act, either expressly or by necessary implication - construction of a requirement imposed by an officer of the Department of Social Security - universal presumptions that any direction of the Executive is to be given in accordance with law.
Social Security Act 1991 - s 1164
Reid v Howard (1995) 184 CLR 1 - appl.
Refrigerated Express Lines (Australasia) Pty Limited v Australian Meat and Live-stock Corporation (1979) 42 FLR 204 - cons.
C v National Crime Authority (1987) 78 ALR 338 - cons.
R v Home Secretary; Ex parte Doody [1994] 1 AC 531 - cited
R v Home Secretary; Ex parte Pierson [1997] 3 WLR 492 - cited
Re Bedlington and the Minister for Immigration and Multicultural Affairs; Ex parte Chong, Beaumont J, 9 September 1997, unreported - cited
JAMES RYAN V SECRETARY, DEPARTMENT OF SOCIAL SECURITY
NG 919 of 1996
JUDGE:
BEAUMONT J
DATE:
16 OCTOBER 1997
PLACE:
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 919 of 1996
BETWEEN:
JAMES RYAN
APPLICANTAND:
SECRETARY, DEPARTMENT OF SOCIAL SECURITY
RESPONDENTJUDGE:
BEAUMONT J
DATE OF ORDER:
16 OCTOBER 1997
WHERE MADE:
SYDNEY
ORDERS:
Set aside that part of the decision of the Administrative Appeals Tribunal as "directs the Applicant to pursue his compensation rights pursuant to section 1164 of the Social Security Act 1991".
Appeal otherwise dismissed.
No order as to costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 919 of 1996
BETWEEN:
JAMES RYAN
APPLICANTAND:
SECRETARY, DEPARTMENT OF SOCIAL SECURITY
RESPONDENT
JUDGE:
BEAUMONT J
DATE:
16 OCTOBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION
Part 3.14 of the Social Security Act 1991 (“the Act”) deals with "Compensation Recovery". By s 1163(1)(a)(i) it is provided that:
“If a person is or may be entitled to or receives compensation, the following security payments might be affected under this Part:
(a)so far as the person is concerned:
(i)disability support pension;”
By s 1163(2) it is provided that:
“If the person is or may be entitled to compensation and does not take reasonable action to claim or obtain the compensation, the pension, benefit or allowance might not be payable to the person.”
Section 1164 of the Act, which is central to the present litigation, deals specifically with the enforcement of compensation rights. If a person is qualified for a disability support pension and the person is entitled or may, in the opinion of the Secretary to the Department of Social Security (“the Secretary”), be entitled to compensation, and the person has taken no action to claim or obtain the compensation, or no action that the Secretary considers reasonable to claim or obtain the compensation, then the Secretary may require the person to take the action specified by the Secretary (s 1164(2)). The action specified by the Secretary is to be the action that the Secretary considers reasonable to enable the person to claim or obtain the compensation (s 1164(3)). If, under s 1164(2), the Secretary requires a person who is qualified for a pension, benefit or allowance to take action to claim or obtain compensation, the pension, benefit or allowance is not to be granted to the person unless the person complies with the requirement (s 1164(5)). By s 17(1) of the Act a "compensation affected payment" means, relevantly, a disability support pension.
By letter dated 14 December 1995, an officer of the Department of Social Security (“the Department”) wrote to the applicant, James Ryan, as follows:
“I am writing to you about my review of the Department’s decision to cancel payment of Disability Support Pension (DSP).
...
In making my decision, I applied section 1164 and 1168 of the Act. Section 1164 prevents payment of DSP to a person unless they pursue their entitlement to compensation. Section 1168 provides for the rate of DSP to be reduced by an amount equal to the amount of compensation a person receives.
My decision was based on the following findings:
¨ your name is James Ryan;
¨ you are also known as James Williams;
¨ you have an entitlement to compensation (under the name Williams);
¨ the rate of compensation you last received was more than the maximum rate of pension payable.
The evidence on which I based these findings was:
¨ the questionnaire completed by GIO Insurance dated 21 August 1995;
¨ the questionnaire completed by the Tax Office dated 15 August 1995;
¨ photocopies of your group certificates whilst you were employed at Murawina;
¨ statements by employees of Murawina dated 11 December 1995.
As you have an entitlement to workers compensation I consider it reasonable that you pursue that entitlement. Therefore, you are required to pursue that entitlement and no DSP can be paid to you until you have done so.
The rate at which you were last paid compensation was such that you would not be entitled to receive DSP at the same time.
If, after you pursue your compensation entitlement, liability is declined, compensation paid at a lower rate or not paid at all, you may retest your entitlement to DSP.
I have decided DSP is not currently payable to you as you have not pursued your entitlement to compensation. I have therefore affirmed the decision not to pay you DSP.
...”
This decision was affirmed by the Social Security Appeals Tribunal.
Mr Ryan sought review of that tribunal's decision by the Administrative Appeals Tribunal (“the Tribunal”), which decided to affirm the decision under review and further, to direct Mr Ryan to pursue his compensation rights under s 1164. Mr Ryan now appeals to the Court from this decision on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975.
THE REASONS FOR DECISION OF THE TRIBUNAL
The Tribunal stated that the issue was whether the decision of the officer of the Department, conveyed in the letter dated 14 December 1995, to cancel payment of disability support pension to Mr Ryan, was correct.
Having referred to evidence before it that James Williams, who had received workers' compensation benefits, appeared to be the same person as Mr Ryan, the Tribunal said:
“34. As the Tribunal has found on the balance of probabilities that Mr Ryan and Mr Williams are the same person, then the disability support pension payment is a compensation affected payment pursuant to section 17 of the Social Security Act. The consequence of the operation of section 17 of the Social Security Act is that pursuant to section 1164 of the Social Security Act, a person can be required, by the Secretary of DSS, and hence the Tribunal, to take action to claim compensation. The Tribunal noted that the Applicant had been so directed by the Authorised Review Officer.
35. Therefore, pursuant to section 1164 of the Social Security Act, the Tribunal must form a view about Mr Ryan’s application for disability support pension, and where there is a possibility of an option for income through another source such as compensation, then investigations must accordingly be pursued. The Tribunal must therefore take into account after considering the privilege against self-incrimination which was raised before it, whether it is reasonable to direct that Mr Ryan seek compensation for a work-related injury sustained at Murawina which had been paid to him in the name of Williams.”
The Tribunal went on to say:
“38. The Tribunal finds that it is entirely reasonable that Mr Ryan be directed as contemplated by the legislation, to apply for a compensation payment. If the consequent investigations show that he is not eligible for compensation, then he is free to reapply for reinstatement of his disability support pension. The Tribunal will however consider the direction to pursue compensation in the light of submissions made regarding the privilege against self-incrimination.”
The Tribunal then considered, but appeared to reject, a submission advanced on behalf of Mr Ryan, that the requirement or direction that he pursue the claim was unlawful because, according to the submission, it compelled Mr Ryan to incriminate himself. The Tribunal said:
“52. ... Given all the circumstances, the Tribunal finds that it is reasonable, whether the action incriminates Mr Ryan or not, to direct Mr Ryan pursuant to section 1164 of the Social Security Act to make application for compensation.
53. If the GIO finds as a result of its investigations which it would conduct as a result of such an application, that the Applicant is not eligible for compensation, then he would have a right to apply to DSS for reinstatement of his disability support pension, suspended due to the fact that it was in this case, a compensation affected payment.
54. The Tribunal affirms the decision under review, and directs the Applicant to pursue his compensation rights pursuant to section 1164 of the Social Security Act 1991.”
MR RYAN'S GROUNDS OF APPEAL
By his amended notice of appeal, Mr Ryan now relies on the following grounds of appeal:
“4. GROUNDS:
a....
b.The Tribunal was wrong in law in finding that section 1164 of the Social Security Act, 1991 overrode the privilege against self-incrimination.
c.The Tribunal was wrong in law in finding that it was reasonable to direct Mr Ryan to make an application for compensation.
d.The Tribunal was wrong in law in not finding that Mr Ryan was entitled to a disability support pension and that such pension should be paid as from the date of last payment.”
Mr Ryan now seeks the following orders:
“3. ORDERS SOUGHT:
a....
b.... a declaration that section 1164 of the Social Security Act, 1991 does not override the privilege of self-incrimination.
c.An order that the Secretary not direct the Applicant to make an application for compensation under the names James Williams to the GIO.
d.An order that the Secretary pay Mr Ryan his accumulated Social Security benefit plus interest...”
CONCLUSIONS ON THE APPEAL
It has been said of the privilege against self-incrimination that it may be abridged by statute or waived but, that aside “it has generally been accepted that it is without ‘real exception’”. (See Reid v Howard (1995) 184 CLR 1 per Toohey, Gaudron, McHugh and Gummow JJ, at 12). Their Honours went on to say (at 14):
“There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application - a universal right which... protects the innocent and the guilty. There is no basis for accepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated.”
Their Honours added (at 14) that:
“[T]here can be no exception in civil proceedings, whether generally or of one kind or another. Moreover, it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings.”
The question thus arises whether the privilege has been ousted by the provisions of s 1164, either expressly, or by necessary implication.
It is contended on behalf of Mr Ryan, and accepted on behalf of the Department, that a statute may override the privilege, and does so when there is an express ousting by legislation, or where, on its true construction, the statute does so by necessary implication.
It is further common ground, I think correctly so, that s 1164 does not purport to override the privilege. It certainly does not do so by any express provision, and there is nothing in its context or evident purpose which would indicate that any such implication or inference should be drawn. It follows that the present matter should proceed upon the footing that any requirement made pursuant to s 1164(2) should not, and indeed cannot, purport to abridge the privilege.
The next question for consideration is the true interpretation of the requirement given in the present matter by the officer of the Department. It will be recalled that the requirement was expressed briefly and in general terms. It required Mr Ryan "to pursue that entitlement" (to workers' compensation). In my opinion, the requirement must not only be read in the context of its statutory source, namely the provisions of s 1164, but also in the context of the general presumption that reasonable steps only are contemplated (a presumption reinforced in the present context by the provisions of s 1164(3)), and further in the context of the universal presumptions that any direction by the Executive is to be given in accordance with law, and that any administrative procedures are to be undertaken in a manner which is fair and in accordance with the rule of law itself. (See R v Home Secretary; Ex parte Doody [1994] 1 AC 531 at 560; R v Lord President of the Privy Council; Ex parte Page [1993] AC 682 at 701; R v Home Secretary; Ex parte Pierson [1997] 3 WLR 492; Pickering v Deputy Commissioner of Taxation, Cooper J, 5 September 1997, unreported; and Re Bedlington and the Minister for Immigration and Multicultural Affairs; Ex parte Chong, Beaumont J, 9 September 1997, unreported, at 19-20).
It must follow, in my view, that properly construed, the requirement should be interpreted as a requirement that Mr Ryan take all reasonable steps to pursue, in accordance with law, his entitlement, if any, to workers' compensation.
For present purposes, emphasis needs, I think, to be placed upon the ingredient in the requirement, as I construe it, that the steps to be taken must be in accordance with the rule of law. Once that element is recognised, it must follow, I think, that there will be picked up by the direction any privilege available at common law that may be properly claimed by Mr Ryan. To take an extreme example, it could not seriously be suggested, for instance, that any requirement made pursuant to s 1164 which is expressed, as here, in general terms only, would be intended to operate so as to deny any claim of legal professional privilege.
Other aspects of construction could be mentioned in this connection, for instance, the requirement to pursue the entitlement would not be construed as requiring that Mr Ryan do something unlawful, for instance, to perjure himself. As I have said, I do not construe the requirement as calling for any such action. On the contrary, I would give it, as I have done, the benefit of the application of the ordinary presumptions of regularity and that any action be taken in accordance with the rule of law.
It is a common feature of litigation involving contentious aspects of a claim of privilege against self-incrimination that it is difficult to identify, in any abstract or general fashion, the real questions for determination. This underlies the reasoning in the authorities which have held that the privilege cannot be claimed in any general way in a blanket form, but must be taken in a specific fashion (see, for instance, Refrigerated Express Lines (Australasia) Pty Limited v Australian Meat and Live-stock Corporation (1979) 42 FLR 204 per Deane J at 212; see also C v National Crime Authority (1987) 78 ALR 338 per Northrop J at 343).
The present case is a good illustration of the difficulties often encountered in seeking to apply the familiar principles in this area. Although it is possible to offer a construction of the meaning of the requirement imposed by the decision-maker in these proceedings, there is no utility, and certainly no advantage, in this Court endeavouring to pursue further any aspect of the foreshadowed claim of privilege, in the absence of a specific context. Indeed, it would be premature at this stage, and thus inappropriate, to attempt to give a ruling in advance on such a question. It will be a matter entirely for Mr Ryan to decide whether he will seek to claim the privilege, or to waive it, in any response that he may make to the requirement imposed on him.
As I have indicated in the course of argument, I do, however, have difficulty accepting some aspects of the Tribunal's reasons for its decision, as follows:
The subject matter before both Tribunals, the officer of the Department and before this Court, was not a decision to cancel a pension. The provisions of s 1164(5) are self-executing in their operation, in the sense that they do not require, in order that they may operate, the exercise of any free-standing discretion on the part of any officer of the Department. The only relevant decision to be reviewed in the present matter was the decision to make the requirement. That decision was made, as has been noted, pursuant to s 1164(2).
I cannot accept that there was any need for the Tribunal to give its own free-standing, direction to pursue the claim as part of its decision in the present matter. The Tribunal had already affirmed the decision under review. As I have said, that decision should be identified as the decision to make the requirement. Once that decision was affirmed, it was unnecessary for the Tribunal to restate or reinforce that requirement by giving an independent direction. Accordingly, I propose to set aside the Tribunal’s direction.
For reasons which have already been given, I cannot accept that it was open to an officer of the Department to give a direction in the present case that action be taken by Mr Ryan, whether that action incriminated him or not. It will be recalled that in the passage cited above, the Tribunal did mention the existence of the privilege against self-incrimination, but seems to have approached the question of the privilege’s operation in the present circumstances by resort to the different consideration of whether the requirement was a reasonable one. This conflates two separate issues. Whether the direction or requirement was reasonable is certainly an ingredient that must be satisfied before the provisions of s 1164(5) can operate; but the question whether the action incriminates is an entirely different one, springing from common law principles. It calls for separate consideration.
Nonetheless, and for somewhat different reasons, I would affirm the original decision on the basis that the requirement there made, when properly construed, did not, in truth, purport to abridge any lawful privilege.
COSTS
Since I propose to set aside part of the decision made by the Tribunal, but to affirm the decision under review for reasons different from those adopted by the Tribunal, it may be said that each party has enjoyed some success in the litigation. In those circumstances, I think that the fair outcome on costs should be that neither party should receive any award for costs.
ORDERS
I make the following orders:
Set aside that part of the decision of the Administrative Appeals Tribunal as "directs the Applicant to pursue his compensation rights pursuant to section 1164 of the Social Security Act 1991".
Appeal otherwise dismissed.
No order as to costs.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont
Associate:
Dated: 16 October 1997
Counsel for the Applicant: Mr G Corr Solicitor for the Applicant: Friend & Hazard Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 October 1997 Date of Judgment: 16 October 1997
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