Secretary, Department of Employment and Workplace Relations v Real

[2007] FCA 988

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Employment & Workplace Relations v Real [2007] FCA 988

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS v MICHAEL REAL
QUD 401 OF 2006

KIEFEL J
26 JUNE 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 401 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR FISHER, MEMBER

BETWEEN:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
AND:	MICHAEL REAL Respondent

JUDGE:	KIEFEL J
DATE OF ORDER:	26 JUNE 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The part of the decision of the Administration Appeals Tribunal of 14 September 2006 whereby it set aside the decision of the Social Security Appeals Tribunal dated 27 July 2005 and in substitution decided that the respondent was not subject to any administrative breach reduction for the period from 18 November 2005 to 17 February 2006, be set aside.

2.The matter be remitted to a Tribunal, differently constituted, for determination according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 401 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR FISHER, MEMBER

BETWEEN:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
AND:	MICHAEL REAL Respondent

JUDGE:	KIEFEL J
DATE:	26 JUNE 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. When this mater was called on for hearing this morning there was no appearance for Mr Real.  He had communicated with the Court concerning his proposal to apply for an adjournment on the basis of his ill health.  He suffers from diabetes, related and other symptoms.  He has consistently been advised that he needs evidence concerning his condition, and his inability to appear because of it, if he is to seek an adjournment.  More recently, the questions necessary to be put to a doctor, including whether he was able to appear by telephone, were set out for him in an email from a Deputy District Registrar.  Mr Real has not put forward evidence sufficient for that purpose.  He has provided various clinical file notes, and letters written over the years relating to his condition, but none currently, and none which suggest an inability to attend to this hearing by some means.  He has declined an offer of a video link facility to Mackay, where he says he presently is.  He has not notified the Court of a telephone contact number, when requested to do so, so that he might be contacted for the purpose of the hearing this morning.  I will have the bundle of communications placed with the file and marked A.  I infer that he does not intend to participate in these proceedings.  For these reasons I proceeded to hear the matter in his absence.

2. This appeal concerns two decisions on the part of the Administration Appeals Tribunal:  that an administrative rate reduction period did not apply to the respondent because he had a reasonable excuse for failing to comply with the applicant’s notice of 24 August 2005; and that the respondent’s principal home for the purpose of rent assistance after 22 November 2004 was his property at Toowoomba.  The appeal relating to the second decision is not now pressed. 

3. The applicant’s letter of 24 August 2005 required the respondent to attend an interview with Salvation Army Employment Plus on 6 September 2005. Section 63(3) of the Social Security (Administration) Act 1999 (Cth) provides for the giving of a notice by the Secretary that a person is required to attend at a particular place, for a particular purpose. If a notice is reasonable, and the person does not comply with its requirement, then a Newstart allowance is not payable, and an administrative breach reduction period applies to the person: see s 63(5). If, however, the Secretary is satisfied that the person had a reasonable excuse for not complying with the requirement, then the Secretary may determine that the Newstart allowance is payable, or the reduction period does not apply to the person: see s 63(9). In the result, a decision was made to apply the reduction from 18 November 2005 to 17 February 2006.

4. It may be inferred from the reasons, and earlier decisions are consistent with this, that the respondent had not been aware of the letter of 24 August 2005, and had a habit of not reading correspondence from Centrelink.  Indeed, the view he took of Centrelink strongly suggests that he did not intend to open correspondence and that he had something more than disdain for communications from Centrelink.  The respondent gave a number of reasons for his non-attendance on the day in question.  Principal amongst them was his state of health.  He said that on three occasions on which Centrelink had written, he was too ill to pick up his mail.  Sometimes it took him days to pick up his mail because of his physical conditions, and that he could not specify the day when he had collected the mail. 

5. The excuses put forward by the respondent were not specifically directed to the appointment in question, on 6 September 2005.  The Tribunal made no findings about them.  What appears to have occurred is that the Tribunal found some objective evidence to indicate that the respondent had in fact been working on that day.  It then proceeded to consider whether that fact provided a reasonable excuse for his not attending the interview.  The question the Tribunal posed for itself was: does Mr Real have a reasonable excuse for not attending the relevant interview on 6 September 2005?  It found that he did have, because he was working. 

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 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.

7. It follows, in my view, that the Tribunal was obliged to consider what the respondent said was the reason for his non-attendance.  It may be expected that this would involve his state of mind, but I do not think it is correct to frame the statutory enquiry by reference to it.  It simply requires a consideration of the excuse put forward.  That is not how the Tribunal approached the matter.  The respondent did not say that he failed to attend because of his employment.  The Tribunal inferred that that was a possible excuse.  It had not however occurred to the respondent, so it is a little difficult to say it was his reason for not attending the interview.  It follows, in my view, that the Tribunal misunderstood the question posed by the statute and its decision is liable to be set aside on account of that error.

8. The question, then, is what to do concerning whether the matter ought to be remitted; I have discussed this with counsel for the applicant.  If the position were one where there was simply no evidence of an excuse being proffered, I would be inclined to make orders which would conclude the matter.  However, there are findings which have not been made by the Tribunal.  It did not deal with the other aspects of the respondent’s evidence. 

9. Regrettably, particularly having regard to the amount involved, it would seem necessary that the matter must be reconsidered by a Tribunal freshly constituted for that purpose to determine the matter according to law.  I leave it to the applicant to determine whether that is warranted in this particular case.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:        26 June 2007

Counsel for the Applicant:	Mr B Dube
Solicitor for the Applicant:	Spark Helmore Lawyers
For the Respondent:	No Appearance
Date of Hearing:	26 June 2007
Date of Judgment:	26 June 2007