Scanlan and Secretary, Department of Social Services (Social services second review) - [2022] AATA 4351

Scanlan and Secretary, Department of Social Services (Social services second review) [2022] AATA 4351 (15 December 2022)
Division:GENERAL DIVISION
File Number(s): 2021/0353
Re:Ms Chelsea Scanlan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Deputy President Dr P McDermott RFD
Date:15 December 2022
Place:Brisbane

I decline the applicant’s request for confidentiality and affirm the decision under review.
...................[SGD]..........................................
Deputy President Dr P McDermott RFD
Catchwords
Whether the payment of Jobseeker payment was validly cancelled – failure of applicant to comply with information notices seeking information and documents – an information notice can request information and documents concerning past eligibility of a social security benefit – information notice seeking information and documents can seek information about a business conducted for an applicant for Jobseeker payment – reasonable excuse for noncompliance with information notices
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
An Applicant and Australian Prudential Regulation Authority [2005] AATA 1294
Ibarcena and Department of Family and Community Services [2000] AATA 1141
Le and Secretary, Department of Education, Science and Training [2006] AATA 208
McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284.
Scanlan and Secretary, Department of Social Services [2021] AATA 4332
Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988
Tennant and Secretary, Department of Social Services [2014] AATA 92
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
15 December 2022
INTRODUCTION

Ms Chelsea Scanlan (‘the applicant’), lodged her application with this Tribunal on

13 January 2021.[1] The applicant operates ‘Friends of the Reef Associates’ (‘FRA’) as a sole trader and seeks the review of a decision of the Social Services and Child Support Division (‘SSCSD’) of the Tribunal dated 9 December 2020.[2] The decision of the SSCSD affirmed the decision of an Authorised Review Officer (‘ARO’) dated 4 September 2020 to cancel the applicant’s Jobseeker Payment.[3] The applicant was initially granted Newstart Allowance on 11 July 2012.[4]
[1] Exhibit A, T-Documents, T1.
[2] Exhibit A, T-Documents, T2.
[3] Exhibit A, T-Documents, T12.
[4] Exhibit A, T-Documents, T15.
ISSUES
The issue for my determination in this matter is whether the applicant’s Jobseeker Payment was correctly cancelled by the respondent.
The law
The relevant law for my consideration in determining whether the applicant’s Jobseeker Payment was correctly cancelled is contained in the Social Security Act 1991 (Cth) (‘the Act’), and the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’).
The respondent is empowered by s 192 of the Administration Act with a general power to obtain information. Relevantly, s 192 of the Administration Act provides:
192General power to obtain information
The Secretary may require a person to give information, or produce a document, to the Department if the Secretary considers that the information or document may be relevant to one or more of the following:
(a) the question whether a person who has made a claim for a social security payment is or was qualified for a social security payment;
(b) the question whether a social security payment is payable to a person who is receiving the payment;
(c) the question whether a social security payment was payable to a person who has received the payment;
(d) the rate of social security payment that is or was applicable to a person;
…
(k) an inquiry or investigation into a matter mentioned in any of the above paragraphs.
The requirements of a valid request for information are set out in s 196 of the Administration Act, which provides:
196Written notice of requirement
(1) A requirement under this Division must be made by written notice given to the person of whom the requirement is made.
(2) The notice:
(a) may be given personally or by post or in any other manner approved by the Secretary; and
(b) must specify:
(ia) a description of the information or document to which the requirement relates; and
(i) how the person is to give the information or produce the document to which the requirement relates; and
(ii) the period within which the person is to give the information or produce the document to the Department; and
(iii) the officer (if any) to whom the information is to be given or the document is to be produced; and
(iv) that the notice is given under this section.
Note: The notice may describe the information or documents by class (see subsection 33(3AB) of the Acts Interpretation Act 1901).
(3) For the purposes of subparagraph (2)(b)(ii), the period must not end earlier than 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of the social security law, to specify a shorter period.
Section 631 of the Act provides:
631 Situations where jobseeker payment not payable for failure to comply with certain requirements
A jobseeker payment is not payable to a person if the person refuses or fails, without reasonable excuse, to comply with a requirement made of the person under section 67, 68 or 192 of the Administration Act.
Subsection 80(1) of the Administration Act further provides:
80 Cancellation or suspension determination
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable (other than because of the operation of Division 3AA);
the Secretary is to determine that the payment is to be cancelled or suspended.
background
The applicant was initially granted Newstart Allowance on 11 July 2012. Correspondence dated 20 June 2019 was issued to the applicant, notifying her that she had an amount payable to the respondent of $2,812.23 arising from overpayment between
[5] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, Attachment A.
[6] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, Attachment A
28 September 2014 and 19 June 2018.[5] On 17 September 2019, the respondent wrote to the applicant to advise that her debt amount had been changed based on further information provided. The correspondence of 17 September 2019 states that based on the information provided, there had not been an overpayment.[6]
By way of correspondence dated 10 September 2019, the respondent issued a notice
(‘s 196 notice’) to the applicant pursuant to section 196 of the Social Security (Administration) Act 1999 (the ‘Administration Act’). This notice requested that the applicant provide a number of documents which went to her eligibility to receive Newstart Allowance. These documents were required to be submitted by the applicant on or before
[7] Exhibit A, T-Documents, T17.
24 September 2019. The s 196 notice informed the applicant that her failure to comply with the request for documents by that date could result in her Newstart Allowance payments being ceased.[7]
The s 196 notice dated 10 September 2019 requested the following:
You need to provide the following information by 24 September 2019:
·a completed MOD(F) form for Business detail and all supporting documents
·profit and loss statement for the period of 01 January 2018 to 01 September 2019 for [the applicant][8]
·your full 2017-2018 personal income tax return
·your full 2018-2019 personal income tax return.[9]
[8] The applicant is registered as a sole trader.
[9] Exhibit A, T-Documents, T17, page 442.
The applicant did not provide the requested documents by 24 September 2019.
On 5 March 2020, the applicant’s Newstart Allowance payment was stopped as the respondent’s records indicated she had not attended a required appointment.[10]
[10] Exhibit A, T-Documents, T17.
On 20 March 2020, the applicant was transferred to the Jobseeker payment.[11]
[11] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions.
On 5 June 2020, the respondent wrote to the applicant to advise her that her payment had been suspended due to the applicant not having provided the requested information. This suspension was then lifted on 17 June 2020.[12]
[12] Exhibit A, T-Documents, T17.
A further s 196 notice was sent to the applicant on 18 June 2020, requesting the following be provided on or before 2 July 2020:
You need to provide the following information by 02 July 2020:
·Profit and loss statement for the period 23 March 2020 to 19 June 2020 for FRIENDS OF THE REEF ASSOCIATES
·Balance sheet for FRIENDS OF THE REEF ASSOCIATES for the period 23 Mar 2020 to 19 Jun 2020.[13]
[13] Exhibit A, T-Documents, T17, page 455.
As with the s 196 notice dated 10 September 2019, the s 196 notice of 18 June 2020 placed the applicant on notice that her payment may be stopped if the requested information was not provided.[14]
[14] Exhibit A, T-Documents, T17.
On 1 July 2020, the applicant provided a Profit and Loss Statement form (SU580) relating to FRA for the period of 1 February 2019 to 23 February 2020.[15] The SU580 form completed by the applicant shows that FRA was trading throughout this period, and that despite being registered as a sole trader, the applicant indicated that FRA was a joint partnership. The applicant further stated that FRA operated at a $10,054.33 loss.[16] The applicant hand-wrote a caveat when signing the SU580 form, stating that the information was complete and correct “to the best of [her] knowledge with out the accountant tax return” (sic).[17] The applicant did not provide a copy of the balance sheet for FRA.
[15] Exhibit A, T-Documents, T8.
[16] Exhibit A, T-Documents, T8.
[17] Exhibit A, T-Documents, T8, page 245.
On 2 July 2020, the applicant’s payment was suspended due to her failure to provide the documentation as requested by the s 196 notice of 18 June 2020.[18] Following this suspension, the applicant provided an SU580 form for the period of 23 February 2020 to

30 June 2020, on the same day her payment was suspended.[19]
[18] Exhibit A, T-Documents, T17.
[19] Exhibit A, T-Documents, T9.
On 3 July 2020, the respondent reinstated the applicant’s payment.[20]
[20] Exhibit A, T-Documents, T17.
On 6 July 2020, the applicant’s payments were again suspended, due to her failure to provide the information as requested.[21]
[21] Exhibit A, T-Documents, T17.
On 16 July 2020, the respondent issued a further s 196 notice, requesting a number of documents from the applicant by 7 August 2020.[22] This further s 196 notice stated:[23]
[22] Exhibit A, T-Documents, T17.
[23] Exhibit A, T-Documents, T17, page 471.
As discussed in our conversation on 16 July 2020, provide the following documents to assist Services Australia establish your entitlement to Job Seeker Payment by 7 August 2020. The documents requested can be uploaded, posted or returned to a service centre.
Your Full Personal Tax Returns for the 2012/2013 financial year, the 2018/2019 financial year, and all the tax returns in between. Full Tax Returns for Friends of the Reef Associates for the 2012/2013 financial year, the 2018/2019 financial year, and all the tax returns in between.
A Module F completed for any self employment or partnership or joint venture you have been involved in since 11 July 2012.
A Profit and Loss (P&L) statement from May 1 2020 - July 1 2020 for Friends of the Reef Associates. Evidence to support the income declaration on the P&L such as any communication from the ATO regarding Jobseeker, and receipts from customers
Evidence to support the expenses declaration on the P&L such as invoices, bank statement, e-mails, etc.
Unedited Bank Transaction summaries for all accounts you own or have access to from 1 Jan 2020 – 1 July 2020.
Proof of Enrolment for any study you have undertaken from 11 June 2012 to now.
Your current lease agreement.
This is a notice given under section 196 of the Social Security (Administration) Act 1999.
On 7 August 2020, the applicant’s payment was again suspended for her failure to comply with the respondent’s request for the provision of information relating to the applicant’s eligibility for Jobseeker payment.[24]
[24] Exhibit A, T-Documents, T17.
On that same day, the applicant attended the Cairns Aplin Service Centre and provided a number of, but not all requested documents.[25] I should note, that the documentation provided by the applicant on 7 August 2020 contains contradictory information. The applicant stated in the MOD F form that FRA commenced operation on

1 December 2019 and ceased on 30 January 2020.[26] The assertion of the applicant that FRA ceased operation on 30 January 2020 is not supported by the Profit and Loss Statement that the applicant lodged on 1 July 2020, that documentation indicates that FRA was operating until 23 February 2020.[27]
[25] Exhibit A, T-Documents, T10.
[26] Exhibit A, T-Documents, T10.
[27] Exhibit A, T-Documents, T10.
The suspension on the payment of Jobseeker payment was lifted on 10 August 2020.[28] The respondent then issued a further s 196 notice on 11 August 2020, requesting a number of documents be provided by 31 August 2020, stating:[29]
As discussed in our conversation of 11 August 2020 further documentation is required to determine your entitlement to current and previous payments.
A detailed list of expenses claimed in the 2018/2019 income tax return for the Friends of the Reef Associates.
Module F for Friends of the Reef Associates as you have advised that you did not have a business partner.
Profit and Loss statements period 1: 7 May 2020 to 7 August 2020 Period 2: 7 February 2020 to May 2020
Confirm with ATO lodgement or non lodgement of tax returns for the financial years 2012 to 2018 If tax returns lodged, full tax return and detailed expenses to be provided
Details of the contractor paid by the business in 2018,2019 and 2020.
These documents are required to be lodged by 31 August 2020.
[28] Exhibit A, T-Documents, T17.
[29] Exhibit A, T-Documents, T17, page 471.
On 21 August 2020, a further s 196 notice was issued to the applicant, stating:[30]
[30] Exhibit A, T-Documents, T17, page 473.
Request for information - Second request
We are writing to ask for more information to help us make the right decision about your JobSeeker Payment.
Our records show that we have not received a reply to our request of 16 July 2020. If you have replied within the last 14 days, please ignore this letter.
What you need to do
You need to provide the following information by 04 September 2020:
• your full 2012-2013 personal income tax return
• your full 2013-2014 personal income tax return
• your full 2014-2015 personal income tax return
• your full 2015-2016 personal income tax return
• your full 2016-2017 personal income tax return
• your full 2017-2018 personal income tax return
• your full 2018-2019 personal income tax return
• statement/s for all your bank accounts showing the account holder’s name and account balance as at 21 August 2020 and all transactions from 23 March 2020 to 21 August 2020.
The applicant did not provide this documentation as requested. On 1 September 2020, the respondent cancelled the applicant’s Jobseeker payment. The applicant’s payment was cancelled on the basis that she had not provided the information and documentation as requested by the respondent. The decision to cancel the applicant’s Jobseeker payment forms the original decision under review.[31]
[31] Exhibit A, T-Documents, T17.
It is not in dispute that the applicant did not comply with the requirements of the s 196 notices issued pursuant to s 192 of the Administration Act.[32]
[32] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions; Exhibit D, Applicant’s Statement of Facts, Issues and Contentions.
The applicant sought review of the decision to cancel her Jobseeker payment and on

4 September 2020 an ARO conducted a review of the decision to cancel the applicant’s Jobseeker payment and affirmed the cancellation.[33]
[33] Exhibit A, T-Documents, T12
The applicant sought review of the decision of the ARO by the SSCSD of the Tribunal and on 9 December 2020, the SSCSD affirmed the decision under review.[34]
[34] Exhibit A, T-Documents T2.
On 13 January 2021, the applicant sought review of the decision of the SSCSD by this Tribunal.[35]
[35] Exhibit A, T-Documents, T1.
On 27 September 2021, this Tribunal held an interlocutory hearing by telephone to determine the applicant’s application for confidentiality, pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). On 22 November 2021, I handed down a decision on the applicant’s confidentiality request.[36]
[36] Scanlan and Secretary, Department of Social Services [2021] AATA 4332.
By way of email correspondence dated 29 March 2022, the applicant made a further application for confidentiality. The application dated 29 March 2022 provided a rationale largely consistent with the previous request for confidentiality.[37] At the outset of the hearing, I advised the applicant that the confidentiality issue would be dealt with as part of the substantive decision on the matter. Noting the applicant’s submissions on this issue remain essentially unchanged, in Scanlan and Secretary, Department of Social Services,[38] I relied upon decisions of Deputy President Forgie[39] and Senior Member Creyke[40] which emphasise the importance of there being public scrutiny in the decision-making processes of the Tribunal. In An Applicant and Australian Prudential Regulation Authority[41] it was emphasised that the principle that the Tribunal conduct its hearings in public is a fundamental principle enshrined in s 35(1) of the AAT Act. The applicant has not put forward cogent reasons for the exercise of the discretion under s 35(2) of the AAT Act.I again decline the application of the applicant for confidentiality.
[37] Exhibit F, Applicant’s Current Confidentiality Request.
[38] [2021] AATA 4332.
[39] Le and Secretary, Department of Education, Science and Training [2006] AATA 208.
[40] Tennant and Secretary, Department of Social Services [2014] AATA 92.
[41] [2005] AATA 1294, [58]-[59].
A hearing by Microsoft Teams was held in this matter on 11 April 2022, the applicant was self-represented, and gave evidence under affirmation.
Respondent’s contentions
The respondent contends that the key issue before this Tribunal that requires determination, to determine whether the applicant’s Jobseeker payment was correctly cancelled, is whether her non-compliance with the s 196 notices is justified by a ‘reasonable excuse’.[42]
[42] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions.
The respondent contends that the s 196 notices, issued pursuant to s 192 of the Administration Act give the respondent the power to request documents or information relevant to the question of the applicant’s qualification for social security payments.[43]
[43] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions.
The respondent further remarked:
the Secretary notes the Applicant submitted to the AAT1 three key reasons why she had a reasonable excuse for failing to comply with the notice:
• Firstly, her previous year’s income tax returns were not relevant to her current eligibility for jobseeker payment. She had provided her 2018/2019 financial year tax return only as this was relevant to her current eligibility for jobseeker payment;
• Secondly, it was not reasonable for the Agency to look into her past entitlement to social security payments given that it had recently done so and advised by letter dated 19 September 2019 that she had no debt3; and
• Thirdly, the Agency letters failed to clearly specify why the documents in question were needed.[44]
[44] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, page 6.

The respondent further remarked that s 192 of the Administration Act does not limit requests for information or documents to only documents that are relevant to the applicant’s current eligibility for social security payments.[45] The respondent therefore contends that they were entitled to request the applicant’s personal tax returns, dating back to the 2012-13 financial year, given that the applicant commenced receiving Newstart Allowance in July of 2012.[46]
[45] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions.
[46] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions.
The respondent additionally noted the applicant’s contention that the respondent, through correspondence dated 17 September 2019, had decided there had not been any overpayment, and therefore had no entitlement to further examine her eligibility.[47] In response, the respondent contends that it is clear, that given the respondent had made a number of further requests for documents, that the investigations were ongoing.[48] The respondent referenced a file note dated 11 August 2020 indicating that the applicant had the differences between unemployment and underemployment explained to her.[49]
[47] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions.
[48] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions.
[49] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions; Exhibit A, T-Documents, T15.
The respondent contends that the applicant’s reasons for not providing the required documentation does not constitute a reasonable excuse, and therefore the decision under review should be affirmed.[50]
[50] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions.
Applicant’s contentions
The applicant provided a number of submissions to the Tribunal, in which she made contentions regarding the correctness of the decision of the respondent to cancel her Jobseeker payment.[51] I have endeavoured to outline the submissions of the applicant.
[51] Exhibit D, Applicant’s email submission dated 7 March 2022; Exhibit C, Applicant’s reply to Respondent’s Statement of Facts, Issues and Contentions; Exhibit E, Applicant’s Reply.
The applicant additionally contends that the issue before the Tribunal is:[52]
… whether the applicant provided enough information reasonably available, that the information requested could be provided within the circumstances or factual basis of the client and if there were any valid excuses for the perceived non-compliance with the notices of request for the provision of documents or information.
(Sic)
[52] Exhibit D, Applicant’s email submission dated 7 March 2022.
The applicant contends that she did not receive the June 2019 s 196 notice (‘notices not received argument’).[53] The applicant stated:
The June 2019 letter of request for documents is not in my T-documents, the applicant makes submission (sic) that this is because there was no notice and that documents provided as listed around 20^th June T-Bundle 2 A5 are those agreed between the applicant and clerk to replace the requirement of tax documents requested or other documents listed in letters that the applicant could not provide.[54]
(Sic)
[53] Exhibit D, Applicant’s email submission dated 7 March 2022.
[54] Exhibit D, Applicant’s email submission dated 7 March 2022.
Further, the applicant contends that the dates of the documents, in particular, the requested tax returns, sought by the respondent were unreasonable (‘unreasonableness argument’). The applicant stated:[55]
Due to the provision of a Centrelink Services debt notice at T documents bundle 2 A2 the range of dates within which documents could have been sought should have been September 18^th 2019 – August 2020. The notice clearly states that it replaces previous notices for this account.[56]
(Sic)
[55] Exhibit D, Applicant’s email submission dated 7 March 2022.
[56] Exhibit D, Applicant’s email submission dated 7 March 2022.
The applicant further contends that because she was not told the reason the documents were required and that the notices do not specify which section of the Administration Act is being applied (‘invalid notices argument’). In this regard, the applicant stated:[57]
The applicant was never told [why] these documents were required such as being for a specific purpose or needed to verify [the applicant’s] claim. The notices do not state the sections of the [Administration Act] that are being applied.
[57] Exhibit D, Applicant’s email submission dated 7 March 2022.
The applicant further contends that she had already provided some of the documentation required of her by the respondent, and that she was unable to obtain some of the documents required (‘information already provided argument’).[58] In relation to this, I note the following submission from the applicant:[59]
These documents are listed on the letters as being requested, for most of the years they had already received the documents requested because the request of tax documents is mostly required for the registration of a new services applicant or change of circumstances where it would be relevant to request the previous year’s tax return, at the time of request [the applicant] did not have access to all these documents due to the fact that they are requested for past the date required for being held in administration storage, the tax office did not have available copies due to a problem with their records system and [the applicant] had already sought a method of document provision for approved review of [her] payment or income data for the purpose of assessing if [she] had been eligible for payments since 2012/13 or over payed.
These documents originally requested were part of a review of the payment data randomly selected through a data analysis of the Centrelink system, this analysis correctly found that records of [her] payments and income did not match, after further review and cooperation from the applicant with the provision of redacted bank statements detailing income payments, it was found that errors had occurred in the data administration system for the allocation of declared earnings.
(Sic)
[58] Exhibit D, Applicant’s email submission dated 7 March 2022.
[59] Exhibit D, Applicant’s email submission dated 7 March 2022.
The applicant further contends that she is not required to provide all documents listed in the s 196 notices (‘no obligation argument’).[60] In this regard, I note the following submission from the applicant:[61]
The applicant is not strictly liable for being required to provide the exact document or date range requested by the Centrelink Services Department. The applicant is required to provide enough relevant information for the officer to make a relevant reasonable determination, that they can be sure the information would be available for the applicant to the provide, that the applicant is capable of complying and has not got a reasonable excurse for non-compliance.
…
The applicants’ non-compliance to provide (all) the requested documents should not enliven the cancelation of payments or services where the applicant has provided information relevant to what has been requested and where notices state that the previous requested information is no longer required.
(Sic)
[60] Exhibit D, Applicant’s email submission dated 7 March 2022.
[61] Exhibit D, Applicant’s email submission dated 7 March 2022.
The applicant has further contended that the respondent is unable to request or require information from the applicant that examines her past eligibility, rather than her present eligibility.[62] The applicant has conceded that her refusal to provide her income tax returns was not reasonable, however, contends that this information may not be provided as she does not consider it reasonable to do so (‘breach of confidentiality and privacy argument’).[63] In this regard, I note the following submission from the applicant:[64]
The applicant claims that she did not refuse to supply income tax returns, as stated above, the applicant provided those most relevant to her current claim as this is what was in question, the clerk was assessing if the applicant was eligible for the payment being claimed for in September as being unemployed, the clerk was challenging the fact that the applicant was unemployed purely on the basis that there was a business registration. During the tribunal call the attendant on the phone was cross examining [the applicant] and being quite offensive about [her] business operations causing me to become offended and states that her response may have been misleading and incorrect. The applicant states that she should have expanded her remark by explaining that current investigation of the law or professional advice provided she had reason to believe that the request from Centrelink for tax returns and especially data of business return was not a legal request and was acting outside of legal authority or beaching data management privacy.
…
The applicant claims she provided relevant tax information, returns and documents for the claim being made in August/September.
The applicant believed that the information request was a breach of law in tax, administration and privacy...
The applicant believes the statement [that she has refused to provide documentation readily available to, or accessible by her] to be misleading to the extent that she was being uncooperative and withholding information to make the facts appear as though she was in breach of the services administration act.
(Sic)
[62] Exhibit D, Applicant’s email submission dated 7 March 2022.
[63] Exhibit D, Applicant’s email submission dated 7 March 2022.
[64] Exhibit D, Applicant’s email submission dated 7 March 2022.
The applicant has further contended that the powers under s 192 of the Administration Act to obtain information have been incorrectly used by the respondent (‘incorrect exercise of power argument’).[65] With respect to this, the applicant submitted:[66]
The applicant makes respectful submission that the far-reaching powers and authority for the Centrelink Services clerks should have been applied with full consideration for the direction and provisions under the act and the surrounding facts of the clients circumstances.
…
The applicant provided the clerks powers as much information reasonably available as requested, to provide for the clerks power of determination under Part 5 of the Social Security (Administration) Act 1999 (the Administration Act) this is evidenced in the T-document bundle 4-11 where it can be affirmed from the explanation of decision made on 4^th September 2020 by Services Australia.
(Sic)
[65] Exhibit D, Applicant’s email submission dated 7 March 2022.
[66] Exhibit D, Applicant’s email submission dated 7 March 2022.
The applicant has made a further contention that the s 196 notices were unlawful and did not follow the correct process, therefore she was under no obligation to comply with them (‘unlawful notice argument’).[67] In relation to this, the applicant submitted:[68]
Centrelink Services claim or lead belief that the applicant has only ever provided a tax return for 2018/2019. The statement leads belief that as at 1^st September 2020 the applicant had only ever provided a tax return statement for the years 2018/2019. The tax information was not provided because the request did not follow the required procedure under Part 5 of the Social Security Administration Act 1999 (the Administration Act) being that as the applicant had already given concern and reference to her information privacy under law, the request was a breach of Privacy Law and Tax Administration Law, request for provision of these documents should have come from an authorised officer of a minister who should have consulted with the information Commissioner to ensure gaining clearance for the request of information that relate to privacy functions. The Centrelink services officer was informed by the applicant that she could not comply with the requests being made over the telephone for documents or information about the business because it was not a registered company, It had not been receiving money enough for declaring at tax return and was not required by law to make declaration at tax return until the law was passed in 2018/2019 making it mandatory.
The applicant never received a request from the information commissioner, minister or authroised information officer in written request for the documents protected by law and held as private. The tax office said that the information was protected and that the department of client could make application under the freedom of information act in writing, I informed the offers this is what I been told.
…
The directions of the Part 5 of the Social Security (Administration) Act 1999 (the Administration Act) are made in an enabling act being that they devolve far reaching powers and allowances upon the administration service of the government agency being Centrelink Services, these powers however are to be administered in accordance with the rules of law specifically in this point information, privacy and tax. Where there is a conflict between an enabling act and a rule of law, the act proving the rule of law prevails as authority in the matter.
The applicant makes respectful submission that she was not reasonably required to provide all the tax documents or even at all because it was a breach of tax law, information privacy and data management but could have provided information relevant to the request such as mod f and in office details.
(Sic)
[67] Exhibit D, Applicant’s email submission dated 7 March 2022.
[68] Exhibit D, Applicant’s email submission dated 7 March 2022.
The applicant has advanced an argument that the differing notices were unrelated to each other (‘the unrelated and malicious notices argument’), stating:[69]
The inquiries for the applicants’ affairs were separate and not resultant from each other or running alongside each other in any associated way, the applicant has made issue with this above by identifying concerns for the potential malice in the use of notices being weaved together in information request. The inquiries were different in nature, one being an investigation of the applicants personal executive employment income from employers initiated by a data review that found inaccuracy in data information of the clients file, the second being a review update of the clients file for the purposes of compliance with legislative file administration under the acts and the third being a review of the clients business ( potential corporate dealings ) including but not limited to income received by the business or its operating structures.
The directions of the document issued on the 17th September 2020 were not followed by the centrlink services clerks.
…
Previous notices issued by Centrelink Services reviews have been incorrectly relied upon to support the account investigation and provide circumstantial evidence that the applicant was deliberately breaching Social Security Act 1991 and Social Security (Administration) Act 1999 (the Administration Act) without giving consideration for the facts provided by the applicant, that reliance upon these notices facts was incorrect because they should have been held as having no further effect for request of information as directed by the letter of notice.
(Sic)
[69] Exhibit D, Applicant’s email submission dated 7 March 2022.
The applicant has also made submissions in relation to her overall eligibility for Jobseeker payment (‘the eligible for payment argument’). In this regard, the applicant stated:[70]
The Social Security Act 1991and Social Security (Administration) Act 1999 (the Administration Act) provide for a jobseeker to be classified as unemployed even where they are working or conducting an activity.
The applicant contends that contrary to the Federal Court of Australia noted in McAuliffe v Secretary, DSS (1991) 23 ALD 284, the case of the business work she was conducting should have been considered as an activity under the Commonwealth Act, Social Security Act 1991 satisfying the activity test and not occasioning her to be held as employed.
The applicant makes respectful submission that she was unemployed for the purposes of receiving the Jobseeker payments, she had assisted with the investigations of Centrelink Services, provided enough relevant information to assist the determination of her business activity and should have had her business dealings held as conducting an activity as an unemployed Jobseeker.
[70] Exhibit D, Applicant’s email submission dated 7 March 2022.
At the hearing in this matter, the applicant made submissions consistent with those above, and confirmed under cross-examination that the documents requested by the respondent had not been provided. The applicant further provided closing submissions, which attached a copy of the response she had received in relation to her human rights complaint.
consideration
At the outset, I would like to thank the parties for their efforts to assist the Tribunal in this matter. Both parties have conducted themselves in a respectful and constructive fashion, for which I express my gratitude.
As it is not in contention that the applicant failed to provide the respondent with the requested documents, the only issue for my determination is whether the applicant had a reasonable excuse for not providing the documents which were required to be produced pursuant to s 196 of the Administration Act and therefore, whether the respondent’s decision to cancel the applicant’s Jobseeker payment is the correct and preferable decision. I do not accept the invalid notices argument that has been contended by the applicant.
Reasonable excuse
The cancellation of the applicant’s payment would not be valid if the applicant had a valid excuse for not providing the required documentation to the respondent. I have found assistance from the remarks of Kiefel J (as she then was) in Secretary, Department of Employment and Workplace Relations v Real[71] (‘Real’), in which her Honour remarked at [6]:
The applicant’s basic contention is that the reference to the respondent being at work is irrelevant. The question posed by the section, properly understood, required the Tribunal to consider the respondent’s state of mind in relation to attendance at the interview. It is directed to the reason the respondent had at that time and not what the Tribunal later finds could have provided an excuse. The applicant’s argument may state the question for the Tribunal rather broadly. It is, however, correct to observe that the discretion given to the Tribunal is circumscribed. It is not whether the Tribunal considers that, in all the circumstances, the respondent should be excused. It is whether the Tribunal is satisfied about the reason proffered by him which justifies his non-compliance with the notice. It is whether the Tribunal is satisfied about the reason proffered by him which justifies his non-compliance with the notice. It is necessary, for s 63(9) to operate in favour of a person, that a Tribunal be given a reason or reasons why the person did not do as they were required to do. The evident purpose of the provision is to encourage co-operation by a recipient of a social security benefit in connexion with employment.
[71] [2007] FCA 988.
I do not consider that the reasons provided by the applicant for her noncompliance with the s 196 notices to be reasonable.
I now examine the applicant’s other primary contentions, as defined above.
Breach of confidentiality and privacy
I do not accept the applicant’s contention that the s 196 notices issued to the applicant by the respondent constitute an invasion of her privacy. Section 192 of the Administration Act does not provide any limitations in this regard, and provides broad, general powers to obtain information. The applicant’s contention that the respondent should have consulted with the relevant Minister and the Information Commissioner is not supported by reference to any legislation, or policy documents.

The applicant’s belief that the information requested by the respondent would amount to a breach of her privacy if she were to provide it to the respondent is not one supported by the relevant legislation, nor any relevant case law in the matter.
Further, I do not accept the submission of the applicant that the issuance of the notices was done in breach of ‘Privacy Law and Tax Administration Law’, the applicant who has undertaken legal studies has not identified which provisions of Privacy Law and Tax Administration Law have been breached.
Notices not received
The applicant has contended that she did not receive a number of the s 196 notices. It is unclear from the applicant’s submissions whether it is her contention that the s 196 notice of 11 August 2020 and the second request for the same information dated 21 August 2020. I consider it prudent to examine this potential contention from the applicant.
The written notices under s 192 of the Administration Act have been given to the applicant under s 196 of that Act which enables documents to be served by post. Subsection 29(1) of the Acts Interpretation Act 1901 (Cth) (‘the AIA’) provides:
29 Meaning of service by post
(1) Where an Act authorises or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
In the absence of evidence to the contrary, and pursuant to subsection 29(1) of the AIA, the s 196 notices are deemed to have been delivered.
Unlawful notices
I consider the unlawful notices and invalid notices arguments advanced by the applicant to be substantially similar. I do not accept the applicant’s contention that the Administration Act is enabling legislation. The Administration Act is an Act and has the full force of the law.
Having outlined the requirements for a valid s 196 notice above, I consider the respondent has issued these notices in a valid and lawful way and the applicant was under an obligation to provide the requested information.
Information already provided
I do not accept the contention of the applicant that she had provided enough information to the respondent for them to determine her eligibility for Jobseeker. This contention appears to be borne from a mistaken belief that the respondent can no longer examine her past eligibility to receive Newstart allowance. However, s 192 of the Administration Act expressly enables the respondent to seek information on “the question whether a social security payment was payable to a person who has received the benefit”. Further, s 193 of the Administration Act expressly enables the respondent to request a person to produce a document that is relevant to the person’s financial situation. This Tribunal has previously ruled that Centrelink was justified in issuing a notice to a person to request a copy of the person’s taxation return in order to determine the appropriate rate of social security.[72]
[72] Ibarcena and Department of Family and Community Services [2000] AATA 1141.
I consider the applicant’s contentions in regard to the notices being unrelated to any ongoing investigations, unreasonable and malicious to be borne from the same mistaken belief. It is evident to me that the applicant has sought to define the parameters of any investigation of her eligibility for social security.
Eligibility for Jobseeker payment
I do not accept the submission of the applicant that it was sufficient for her to provide her tax return for the 2018/2019 financial year in order for the respondent to determine her eligibility for Jobseeker payment. The information and documentation sought by the respondent is relevant to examining the eligibility of the applicant to receive Jobseeker payment which is intended to benefit those persons who ‘throughout the period are unemployed’ (s 593 of the Act). While the Federal Court of Australia has previously held that a self-employed person running a business cannot be regarded as unemployed irrespective of whether they are making a profit,[73] the Act now enables a person who works to be paid Jobseeker payment.
[73] McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284.
Where an applicant for Jobseeker payment has undertaken some work, the Secretary may nevertheless treat that person as being unemployed under s 595 of the Act. The respondent in asking the applicant to provide information and documentation of the income and expenses of FRA has made a legitimate request. The applicant has complained that the respondent has not informed her why such information was required: however, there is no requirement under the information gathering provisions in Division 1 of Part 5 of the Act for a person to be informed why that information and documentation is required. The respondent who has extended previous indulgences to the applicant was in my view acting in the interests of the applicant. The information and documentation requested by the respondent may have provided a basis for the favourable exercise of the discretion under

s 595 of the Act.
Was the decision to cancel the applicant’s Jobseeker payment correct?
As I have already mentioned in these reasons, it is not in dispute that the applicant failed to comply with the s 196 notices issued to her by the respondent. As I have found that the applicant’s reasons for noncompliance were not reasonable, I must now turn to whether the applicant’s payment was cancelled in accordance with the law.
It is clear from the information provided, that the respondent’s ongoing investigation into the applicant’s eligibility for their social security payment was continuing to be examined, even after correspondence was issued to the applicant, advising her that there had not been an overpayment. It is evident that the respondent’s investigations were ongoing as the applicant continued to be sent further s 196 notices requesting additional information and documentation from her.
Section 631 of the Act provides that a person’s social security payment is not payable if they have failed to comply with certain requirements, inclusive of the requirement to provide documents or information under s 192 of the Administration Act. Subsection 80(1) of the Administration Act provides that where the respondent is satisfied that the social security payment is not payable, the respondent is to suspend or cancel the payment. I consider that this process has been validly followed.
conclusion
The applicant had failed to fully comply with the s 196 notices sent on 16 July 2020, 11 August 2020, and 21 August 2020 which requested information and documentation. It is apparent on the face of it from these notices that they were issued under s 196 of the Administration Act. In my view the respondent did extend an indulgence to the applicant by issuing several notices because each notice gave her a further 14 days to provide the information.
The applicant did not comply with the s 196 notices and by operation of section 631 of the Act, the applicant’s Jobseeker payment was no longer payable. Despite the passing of time since the cancellation decision, the applicant has still not complied with the requirements of the notices. I have found that there was no reasonable excuse for the application in not complying with the notices.
Irrespective and separately from the s 196 notices, the applicant had an ongoing obligation, under s 68 of the Administration Act, to advise the respondent of certain changes in his circumstances. The applicant was required under several notices given to her by the respondent pursuant to subsection 68(1) of the Act to inform the respondent of events or changes in her circumstances affecting her Jobseeker payment. The applicant was informed of her obligation to inform the respondent of suck events or changes in her circumstances by the notice that the respondent had sent on 6 April 2020 as well as by later notices such as on 17 June 2020, 2 July 2020, 3 July 2020, 6 July 2020, 7 August 2020 and 10 August 2020. The applicant does not appear to have informed the respondent of changes such as her involvement in FRA and the times when she claims that the business is operating.
decision
I decline the applicant’s request for confidentiality and affirm the decision under review.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.............[SGD]................................
Associate
Dated: 15 December 2022

Date(s) of hearing: 11 April 2022

Date final submissions received: 30 August 2022

Advocate for the Respondent: Mr Chris Murphy

Solicitors for the Respondent: Services Australia

Date(s) of hearing:	11 April 2022
Date final submissions received:	30 August 2022
Advocate for the Respondent:	Mr Chris Murphy
Solicitors for the Respondent:	Services Australia