Secretary, Department of Family and Community Services v Rogers
[2000] FCA 1447
•16 OCTOBER 2000
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Family & Community Services v Rogers
[2000] FCA 1447
SOCIAL SECURITY - Sole parent pension - benefits paid at rates lower than entitled - what constitutes “notice” for the purposes of s 299 of the Social Security Act 1991 (Cth) - whether the “notice” should contain reasons for decisions.
WORDS AND PHRASES - “notice”.
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth) ss 293, 298, 299(2), (3) & (4)Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138 - Ques
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 - Cited
Sun Alliance and London Assurance Co Ltd v Hayman [1975] 1 WLR 177 (CA) - Cited
Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 (FC) - Appl
Goodyear Tyre and Rubber Co (GB) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857 - Cited
Cresta Holdings Ltd v Karlin [1959] 1 WLR 1055 - Cited
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 - Appl
Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 - Expl
Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 - CitedSECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v ROBYN ANNE ROGERS
Q118 OF 1999COOPER J
BRISBANE
16 OCTOBER 2000
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q118 OF 1999
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF
THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
APPLICANTAND:
ROBYN ANNE ROGERS
RESPONDENTJUDGE:
COOPER J
DATE OF ORDER:
16 OCTOBER 2000
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal be allowed and the decision of the Administrative Appeals Tribunal given on 25 March 1999 be set aside.
2.The case be remitted to the Administrative Appeals Tribunal to be determined according to law and these reasons.
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
Q118 OF 1999
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF
THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
APPLICANTAND:
ROBYN ANNE ROGERS
RESPONDENT
JUDGE:
COOPER J
DATE:
16 OCTOBER 2000
PLACE:
BRISBANE
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal heard in the original jurisdiction of the Court, from the Administrative Appeals Tribunal (“the AAT”) upon questions of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The appeal raises issues as to the proper construction of s 299 of the Social Security Act 1991 (Cth) (“the Act”), and as to the meaning of “notice” in that section.
FACTS
Mrs Rogers was widowed in May 1992. She lodged a claim for a sole parent pension on 11 June 1992. On 25 June 1992 the Regional Manager of the Maroochydore Office of the Department of Social Security (“the Department”) wrote to Mrs Rogers advising her that her sole parent pension entitlement, including additional allowances she was entitled to, was $502.60 per fortnight payable from 18 June 1992. The letter gave details of each of the items which went to make up the sum of $502.60 and included other relevant information relating to the pension and Mrs Rogers’ rights and obligations as a social security benefit recipient.
On 4 August 1992 Mrs Rogers received on her behalf, and on behalf of her two children, compensation paid by the Workers’ Compensation Board of Queensland consequent upon the death of her husband from work-related injuries. The compensation included a weekly allowance of $27.12 for each of the children, such allowance paid quarterly (“the dependent quarterly benefit”).
On or about 31 August 1992 the Workers’ Compensation Board (“the Board”) paid to Mrs Rogers two payments in respect of the dependent quarterly benefit for each of her children. She provided copies of the covering letters from the Board to the Department office at Maroochydore on 4 September 1992.
Mrs Rogers completed a Sole Parent Review form on 1 October 1992. She disclosed the dependent quarterly benefit payment in answer to question 9, “Do you get money from any other sources?” other than paid work. In consequence of her earnings, Mrs Rogers’ sole parent pension was reduced to $384.30 and she was notified accordingly by letter dated 29 October 1992.
On 19 March 1993, Mrs Rogers completed a Sole Parent Review form. She included the dependent quarterly benefit she had received in an amount of $712.86 as money she received from a source other than paid work in answer to question 9 on the form. It was described under the heading “Type of income” as “compensation”.
On 29 March 1993 the Department sent the following letter to Mrs Rogers :
“Dear Mrs Rogers
I am writing to you about your pension payments.
Your pension will be $153.70 per fortnight starting from 8 April 1993.
Your pension has reduced because of a change in your circumstances.Please read the back of this letter. It tells you about your Social Security rights.
If you want to know more please get in touch with us. Our address and phone number are at the top of this letter. Please have the letter with you if you call.
Yours sincerely
Ron Morton
Regional ManagerYour reference number is A984511S
Your Payment Details
Your payment of $153.70 is made up of
Sole Parent Pension $148.50
Pharmaceutical Allowance $5.20Your payments are sent to
COMMONWEALTH BANK OF AUSTRALIA
Duporth Ave Maroochydore 4558
Account number : 710955Your Combined Income Yearly Income
Compensation $2,851.00
Earnings $5,580.00
Bank Interest $2,314.00
Total Income $10,745.00If you would like some help in working out how to make the best use of your money ask your Financial Information Service (FIS) Officer. This service is free. You can phone our FIS Officer on 008 013539. If you want to know more about your pension, please get in touch with us.
WHAT YOU MUST TELL US
Under sections 284 and 285 of the Social Security Act 1991 you must tell us within 14 days (28 days if residing overseas) if any of these things happen, or may happen. You can tell us by writing to us, by phoning or you can come in and talk to us at any of our offices.
Income
if your income, not including maintenance, becomes more than $206.63 per week;
if you start work or recommence work;
if you start any form of profession, trade, business or self employment;
if you claim or receive compensation;
you may get more pension if your income goes down, so tell us of any changes.Assets
if your assets go above $152,250.00;
if the total amount you hold in accounts with financial institutions and in cash increases to more than $42,378.00;
if you start any new accounts;
if you gift assets or sell them for less than their value;
you may get more pension if your assets go down, so tell us of any changes.Other things you must tell us
if you marry or start living with someone as if you are married;
if you or any of your dependants are:
charged with an offence and in custody on remand; or
in gaol after being convicted of an offence; or
charged with an offence and in a psychiatric institution;
if you sell, rent out or dispose of the home you live in;
if you leave your home forever or for more than 12 months.Going Overseas
If you decide to go overseas, you should tell us at least 6 weeks before you leave.Change of Address
If you change your address you should tell us straight away. If your mail is returned to us because you are not at your address your payments may be stopped.YOUR RIGHTS
If you think our decision is not correct, talk to us about it. You can phone us or come in to see us. We will check that all the facts have been looked at and explain why the decision was made. We can also tell you about your rights to see your file.
If you still do not agree, you can talk to an Authorised Review Officer (ARO) who is a senior, independent and expert officer who will:
take a fresh look at your case;
change the decision if it is not correct; and
tell you how you can appeal to the Social Security Appeals Tribunal (SSAT) if you still do not agree.The SSAT cannot review our decision unless it has been reviewed by an ARO first.
Remember, if you do not ask for the decision to be reviewed within 3 months of being told about it, you can only get back payment from the date you ask.
CONFIDENTIALITY
Personal information is treated as confidential and can be given to someone else in very special circumstances only where the Social Security Act 1991 or other Commonwealth legislation allows or requires.”
It would appear that all or part of the wording which appears after the words “Regional Manager” was printed on the back of the letter.
The Department had annualised the quarterly payments of $712.86 and included them as part of the entry for combined yearly income as “compensation” in the amount of $2,851.00. The entry was one of the three entries, the others being “Earnings” and “Bank Interest” which yielded a total income of $10,745.00.
Thereafter, as appears from correspondence to Mrs Rogers, consequent upon each review following her submission of a Sole Parent Review form, the Department included the annual value of the dependent quarterly benefit as part of her combined yearly income as compensation received by her. That situation continued until July 1997.
On 29 July 1997 Mrs Rogers completed another Sole Parent Review form. She again disclosed the dependent quarterly benefit. She again described the sum of $745.68 as “Compensation paid by Work Cover Queensland” paid quarterly. She also included with her Sole Parent Review form, copies of the letters from Work Cover Queensland which accompanied the cheques. Those letters clearly disclosed that the beneficiaries of the dependent quarterly benefit payments were Mrs Rogers’ two children and that no compensation was payable to Mrs Rogers on her own account.
The Department wrote to Mrs Rogers on 25 August 1997 in the following terms :
“Dear Mrs Rogers
I am writing to you about compensation payments your [sic] receive for your children and the effect they have on your Sole Parents Pension.
A recent reassessment of your record shows the compensation you receive has been incorrectly assessed as income for you. Section 1064 of the Social Security Act states that this compensation should only reduce the additional income free area (that you are entitled to because you have children). The net result will be an increase in your Pension and arrears to 29 July 1997. Arrears cannot be paid to you for a period prior to 29 July 1997 as you did not seek a review of the decision to reduce your rate of Pension because of the compensation payments within 3 months of the decision. Section 299(3) prevents further arrears in this situation.
I have made this decision as a delegate of the Secretary under the Social Security Act.
If you think my decision is not correct, you can talk to me about it. You can phone me on (13) 2850 or come in to see me. I will check that all the facts have been looked at and explain why the decision was made. I can also tell you about your rights to see your file.
If you still do not agree, you can talk to an Authorised Review Officer (ARO) who is a senior, independent and expert officer who will :
take a fresh look at your case;
change the decision if it was not correct; and
tell you how you can appeal to the Social Security Appeals Tribunal (SSAT) if you still do not agree.The SSAT cannot review a decision unless it has been reviewed by an ARO first.
You can also complain by writing to or calling the Commonwealth Ombudsman if you feel that the Department has not handled your case properly. “1800” numbers are listed in your local phone book and are available in most states.
Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, you can only get back payment from the date you ask.
If you would like to talk about this letter, please phone David on (13) 2850.
Yours sincerely
David
ASO4
25 August 1997.”Mrs Rogers sought a review of the decision not to pay arrears of the sole parent pension beyond 29 July 1997. The decision was varied by an authorised review officer, under s 299(9), to include arrears for three months from the date that the pension was increased. Mrs Rogers then appealed to the Social Security Appeals Tribunal (“the SSAT”).
The SSAT set aside the decision under appeal and substituted a new decision which provided that arrears were to be payable from 25 June 1992. The SSAT found that Mrs Rogers was not given notice in terms of s 299(3)(b) of the Act with the consequence that the determination was to take effect pursuant to s 299(4) of the Act. The Secretary of the Department appealed from the decision of the SSAT to the AAT.
THE AAT PROCEEDINGS
The AAT concluded that Mrs Rogers was not given notice of the decision in March 1993 to reduce the sole parent pension then payable to her in consequence of the inclusion of the dependent quarterly benefit in her combined yearly income, which figure was used to calculate the rate of pension payable under the Act.
The reasoning of the AAT is revealed in the following extracts from its Reasons for Decision :
“47. The doctrine of procedural fairness has been developed by judges in an attempt to shield from unfairness those potentially affected by the exercise of certain legal, including statutory, power. The material question, in this application, is whether the Department’s decision which resulted in an incorrect assessment of Mrs Rogers’ sole parent pension falls within any of the specific fact situations in which procedural fairness applies (see observations of the Full Federal Court in Century Metals and Mining NL v Yeomans & Anor (1989) 100 ALR 383).
48. The fact situations attracting the obligations of procedural fairness was discussed by the High Court of Australia in Kioa v West (1985) 159 CLR 550. The Tribunal concludes that such a situation exists in Mrs Rogers’ case because her financial interests have been affected in a direct and immediate way rather than simply as a citizen who is affected as other citizens are generally affected.
49. The clearest outline of the fact situations attracting the obligations of procedural fairness are contained in the judgment of Mason J (as he then was) in Kioa v West at 582, 583 :-
‘It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. ... The reference to “right or interest” in this formulation must be understood as resulting to personal liberty, status, preservation or livelihood and reputation, as well as to proprietary rights and interests.’
50. In this regard the Tribunal has considered the Section 299 provisions of the Act (‘Date of Effect of Favourable Determination’). Paragraph (b) of each subsection refers to ‘notice’ being given - in this case to Mrs Rogers, of the ‘making of the previous decision’.
51. The words [sic] ‘notice’ according to the Oxford English Dictionary means ‘to notify, to point out, make mention of.’ In turn, ‘notify’ is defined as ‘to make known, publish, proclaim, to give notice to ...’. The literal meaning of ‘notice’ and ‘notify’ indicates that the terms are inter-related.
52. The Explanatory Memorandum for the Social Security Bill 1990 (Volume 2, Chapter 2) at 245 describes Clause 299 (‘Date of Effect of Favourable Determination’). Each subsection of Clause 299 of the Explanatory Memorandum refers to a sole parent pensioner being ‘notified’ of the decision - rather than ‘notice’ being given as is the case in the Act.
.....
55. It is against the background of the statutory provisions of the Acts Interpretation Act that the Tribunal has considered the meaning of the terms ‘notice’ [of the making of the previous decision] in Section 299 of the Act. The Tribunal makes the observation that the terms ‘notice’ and ‘notified’ have been interchanged between the Act and the Explanatory Memorandum. Moreover, the literal meaning of the terms ‘notice’ and ‘notified’ are clearly inter-related (see paragraph 51).
56. The meaning of the words ‘notified’ has been considered in relation to the phrase ‘notified of the decision’ contained in Section 478 of the Migration Act 1958 in a number of recent Federal Court decisions. In Wang v Minister for Immigration and Multicultural Affairs (1996-1997) 45 ALD 104 at 110, Merkel J stated :
‘... a notification, for the purposes of s 478, must be a notification of the decision which does not or is not calculated to frustrate or negate the entitlement of the person notified of the decision to apply to the Court for its review. Such an implication is consistent with the suggestion of Jenkinson J in Long [Guan Chun v Minister for Immigration, Local Government and Ethnic Affairs (1996) 136 ALR 303] at 307 that s 478(1)(b) and the scheme for judicial review under Pt 8:
... may perhaps be allowed an influence in determining the proper construction of the word ‘notified’, so as to require, for example, that the communication be intelligible to the person adversely affected by the decision.
Intelligibility, in the sense referred to by his Honour will enable the applicant to consider the decision, and if so advised, apply to review it within 28 days of the notification.’
57. The Explanatory Memorandum has been used in order to clarify the meaning of a term in Section 299 of the Act. The Tribunal considers that the meaning it attaches to ‘notice’, in Section 299, has been read in a statutory context in order to identify its proper function in the regulation of the date of effect of determinations. The Tribunal further considers that the approach it has adopted is consistent with the observations of French J on the use of Explanatory Memorandum and the Acts Interpretation Act (see Repatriation Commission and Davis WA G of 1989 FED No 70, 9 March 1990 at paragraph 27).
58. The Tribunal concludes that the meaning of ‘notice’ in the Section 299 provisions of the Act required the Department to notify Mrs Rogers of the decision in a way that would be ‘intelligible’ - to her given that she may be adversely affected by the decision. The Tribunal considers that this meaning is consistent with the purpose of the Act, given its beneficial nature. Furthermore, that this meaning offsets an outcome which is unreasonable in Mrs Rogers’ fact situation.
59. Applying this meaning of ‘notice’ to the specific facts [Tribunal emphasis] of this application, and in particular Table 1, the Tribunal makes the following findings :
·The Departmental notification notices [or advise letters] sent to Mrs Rogers contained information identifying what sources of income were used to calculate her sole parent pension;
·however, there was no indication whether the funds she received from the Workers’ Compensation Board (from the death of her husband) represented an amount based on her proportionate amount only - or the total amount for herself and her two children;
·nor was there a pattern in the entitlement rates received by Mrs Rogers which could be understood in the information provided by the Department as to the basis for the determination of sole parent pension rates in her circumstances [Tribunal emphasis];
·furthermore, there was no information which could be construed as ‘intelligible’ to Mrs Rogers in the Departmental advice letter that would enable her to understand that her Sole Parent Pension was based on the whole or part of the Workers’ Compensation funds;
·as a consequence, Mrs Roberts was adversely affected by the ‘previous decision’ in relation to her sole parent pension entitlement, and was underpaid over a considerable period of time because of Departmental error.
60. Moreover, on further consideration of these findings, the Tribunal concludes that Mrs Rogers has been deprived of a financial interest accrued through a legal right, or the legitimate expectation of a benefit. Mrs Rogers was entitled to know the case made against her in a manner that was intelligible to her. Mrs Rogers was deprived of her correct sole parent pension entitlements. She did not apply for a review on receipt of the Departmental advice letters. This situation arose in Mrs Rogers’ case because the Department’s advice letters were not in the form of an ‘intelligible’ communication, ie, to ensure she understood why she would be deprived of the legitimate expectation of her sole parent pension entitlement.
61. For all of the above reasons, the Tribunal concludes that no ‘notice’ was given to Mrs Rogers in relation to her sole parent pension when the original decision, incorporating Workers’ Compensations [sic] into her Sole Parent Pension entitlements, was made on 8 April 1993. Accordingly, the provisions of subsection 299(4) of the Act apply to Mrs Rogers’ application.
.....63. The Tribunal finds that because Mrs Rogers was not given notice of the decision in relation to her sole parent pension (see paragraph 61), the relevant date for payment of arrears is 8 April 1993 (see paragraph 10).”
The AAT varied the decision of the SSAT to provide that the relevant date from which arrears were to be paid was 8 April 1993 and not 25 June 1992.
THE STATUTORY PROVISIONS
The relevant statutory provisions under the Act are :
“Rate increase determination
293 If the Secretary is satisfied that the rate at which sole parent pension is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
.....
Resumption of payment after cancellation or suspension
298(1) If the Secretary:(a)cancels or suspends a person’s sole parent pension under section 295, 295A or 295AA; and
(b)reconsiders the decision to cancel or suspend; and
(c)becomes satisfied that because of the decision to cancel or suspend:
(i)the person did not receive a sole parent pension that was payable to the person; or
(ii)the person is not receiving a sole parent pension that is payable to the person;
the Secretary is to determine that a sole parent pension was or is payable to the person.
298(2) The reconsideration referred to in paragraph (1)(b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Date of effect of favourable determination
299(1) The day on which a determination under section 293 or 298 (in this section called the ‘favourable determination’) takes effect is worked out in accordance with this section.Notified decision - review sought within 3 months
299(2) If:(a)a decision (in this subsection called the ‘previous decision’) is made in relation to a sole parent pension; and
(b)a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c)the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d)the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision - review sought after 3 months
299(3) If:
(a)a decision (in this subsection called the ‘previous decision’) is made in relation to a sole parent pension; and
(b)a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c)the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d)the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
299(4) If:
(a)a decision (in this subsection called the ‘previous decision’) is made in relation to a sole parent pension; and
(b)no notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c)the person applies to the Secretary under section 1240, for review of the previous decision; and
(d)the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
299(5) Subject to subsections (5A) and (5B), if the favourable determination is made following a person having advised the Department of a change in circumstances, the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
299(5A) If:
(a)the favourable determination is made following the death of the person’s partner; and
(b)the favourable determination is made because the person elects not to receive bereavement payments; and
(c)within the bereavement period:
(i)the person notifies the Department orally or in writing of their partner’s death; or
(ii)the Secretary otherwise becomes aware of the death; and
(d)before the partner’s death, subparagraph 249(1)(a)(iv) (illness separated couple) applied to the person and the person’s partner;
the determination takes effect on the day after the day on which the partner died.
299(5B) If:
(a)the favourable determination is made following the death of the person’s partner; and
(b)before the partner died, the partner:
(i)was not receiving a social security pension or a service pension; and
(ii)was not a long-term social security recipient; and
(c)within the period of 4 weeks that starts on the day after the day on which the partner dies:
(i)the person notifies the Department orally or in writing of their partner’s death; or
(ii)the Secretary otherwise becomes aware of the death;
the determination takes effect on the day on which the partner died.
Favourable determination reversing cancellation due to departure certificate rules
299(6) If the favourable determination is made to reverse the effect of a determination that cancelled or suspended a sole parent pension because the pension ceased to be payable under section 1218, the favourable determination takes effect on the day specified in the favourable determination. The day specified must be a day on or after the cancellation or suspension.
.....
Other determinations
299(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.”ISSUES ON THE APPEAL
The Department submitted that the AAT erred in attempting to introduce concepts of procedural fairness into what is an exercise in statutory construction. It submitted that as a matter of construction, a notice for the purposes of s 299 of the Act did not require that it contain sufficient information to ensure that the recipient understood why she would be deprived of the legitimate expectation of her sole parent pension entitlement. It was submitted that all that was required was clear advice that a decision had been made fixing the rate of payment at a particular sum. In support of these submissions the Department relied upon the observations of Drummond J in Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138, a judgment which was delivered after the AAT decision the subject of these proceedings. On this basis, the Department contended that the letter of 29 March 1993 was a sufficient notice for the purposes of s 299(3) of the Act.
Counsel for Mrs Rogers submitted that she had a legitimate expectation that the benefit to which she was entitled would be paid to her and that procedural fairness demanded that when a decision was made which affected that payment to her disadvantage, that decision should be conveyed to her in a manner intelligible enough to enable her to determine whether or not it should be reviewed. She submitted that the construction contended for by the Department was narrow and pedantic and that it rendered the right to review of the decision inaccessible to persons who have such rights. She also submitted that the construction contended for would exclude the application of the principles of procedural fairness.
CONCLUSION ON THE APPEAL
The word “notice” is not to be construed in isolation. It takes its meaning from its subject matter, the context in which it appears in s 299 of the Act, and, its statutory purpose: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 401 - 402.
A “favourable determination” for the purposes of s 299, is one made under s 293 or s 298 of the Act. In the case of s 293, it is a determination to pay the sole parent pension at an increased rate because the Secretary or his or her delegate is satisfied that the person has been paid at a lesser rate than provided by the Act as applicable to the circumstances of that person. In the case of s 298, it is a determination to resume payment of a pension when it had previously been cancelled or suspended under s 295, s 295A or s 295AA of the Act.
Sections 293 and 298 are contained in Subdivision D of Division 8 of the Act. The subdivisions deal with a number of determinations which may be made by the Secretary of the Department. Those determinations are either characterised by the Act as a “favourable determination” (those made under ss 293 or 298), or an “adverse determination” (those made under ss 295, 295A or 295AA).
Subdivision E of Division 8 of the Act deals with the date of effect of determinations made under Subdivision D. The date of effect of favourable determinations is provided for under s 299. Section 300 deals with the date of effect of adverse determinations.
Subsections 299(2), (3) and (4) of the Act operate where there has been a favourable determination made as a result of an application for review under s 1240 of a “previous decision” as defined. A “previous decision”, for the purposes of subsections 299(2), (3) and (4), is one which is made in relation to a sole parent pension. Where the determination is one made under s 293 of the Act, the previous decision of which review was sought under s 1240 must necessarily have been a decision, the operative effect of which was to cause the sole parent pension to be paid at a rate which is less than the rate provided by the Act, to a person in the circumstances of the pension recipient seeking review. This necessarily follows because it is the matter of which the secretary must be satisfied under s 293 before making a determination, that the rate be increased to the rate specified in the determination.
Where s 293 of the Act is the source of the favourable determination, and that determination results from a review of a previous decision which has had the effect that the sole parent pension recipient has been underpaid from a prior date, subsections 299(2), (3) and (4) operate to fix the date from which the adverse effects of the previous decision shall cease and the favourable determination shall take effect. Subsections 299(2) and (4) provide, if the conditions contained in the subsections are made out, the date of effect of the determination will be the day on which the previous decision took effect. Subsection 299(3) provides that the favourable determination will take effect on the day on which the person sought review. It can be seen that the remedial effect of the favourable determination to negate the adverse effects of the previous decision may vary significantly depending upon the date of effect to be applied by the operation of subsections 299(2), (3) or (4) of the Act.
It is in this context that each of the three subsections raises the issue whether or not a “notice is given to the person to whom the pension is payable advising the person of the making of the previous decision”.
Where no notice of the decision is given (subsection 299(4)), or where it is given and review of the decision is sought under s 1240 of the Act within three months after the notice is given (subsection 299(2)), the date on which the favourable decision takes effect is the date of the previous decision. The policy objective underlying subsections 299(2) and (4) is clear enough; it is that a sole parent pension recipient who is unaware of a decision which adversely affects the rate at which the pension is being paid should not be prejudiced by his or her ignorance of the decision, or by any delay in seeking review under s 1240 of the Act in those circumstances. Similarly, a recipient who has notice of a decision and moves in a timely way to seek review under s 1240 should also not be prejudiced by the previous decision being given any effect to.
A recipient who receives notice of a previous decision as defined, but does not seek review within the three month period, is not denied a right of review under s 1240. Rather, any benefit payable in consequence of the review will not cover the period of the delay, and will only be payable from the date upon which the recipient acted in his or her own interest and sought review under s 1240: s299(3). The policy objective underlying subsection 299(3) is also clear enough. It is that a benefit recipient who is aware of a decision which affects his or her benefit entitlement must seek review within a reasonable time (three months) to provide for the orderly administration of the scheme by the Department by discouraging recipients failing to act in their own interests in a timely manner.
The purpose of the notice required by subsections 299(2) and (3) is to fix the sole parent pension recipient with notice advising that person of the making of a decision in relation to that person’s sole parent pension so that the person may, if he or she is so minded, seek review of the decision under s 1240 of the Act in a timely way in order to negate any adverse effects of the decision on the rate of sole parent pension paid or to be paid to that person.
A notice is a notification, a making known, a communication of some matter from one person to another. In the statutory context, the statute identifies the matter to be notified by the notice. Notice is given when it is received by the person to whom the notice is to be given: the giving and receiving of the notice are two aspects of the same action and are simultaneous. Consequently, the giving of notice ordinarily will require that the person to be given notice actually receives notification of the matter to be communicated. Of course, whether by statute or contract, this two-sided act of giving and receiving of notice may be deemed to be done by some act other than actual receipt of the notification by the recipient: Sun Alliance and London Assurance Co Ltd v Hayman [1975] 1 WLR 177 (CA) at 183, 184, 185.
A requirement that a person be given notice of something does not demand that the matter be brought home to the person’s understanding or knowledge; nor is notice synonymous with knowledge: Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 (FC) at 320, 325, 332 citing with approval Goodyear Tyre and Rubber Co (GB) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857 at 863 and Cresta Holdings Ltd v Karlin [1959] 1 WLR 1055 at 1057-1058. However, notice requires that the matter of which a person is to have notice must be brought clearly to the person’s attention: Goodyear Tyre and Rubber Co at 863; Austin at 146 - 147.
In my view, the matter to be communicated by the “notice” referred to in subsections 299(2), (3) and (4) is the making of a decision in relation to a sole parent pension which is a reviewable decision under s 1240 of the Act. That involves two elements; the fact that a decision has been made and the content of the decision. The subsections make no reference to any requirement that the notice contain reasons or sufficient information for the recipient of the notice to understand the main reason for the decision and so be in a position to know whether or not to exercise the person’s right to seek a review. Nor, in my view, do any principles of procedural fairness require that such a requirement be read into the provisions of s 299.
There is no general rule of the common law or principle of natural justice which requires reasons to be given for administrative decisions even though the decision may adversely affect the interests or defeat the legitimate or reasonable expectations of other persons: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662. The right to reasons for a decision or information explaining the basis for an administrative decision, must be found, if at all, in the Act or some other statute.
The requirement that a notice be intelligible does not introduce a requirement that reasons for the decision communicated by it be given. Nor does it require that sufficient information be given as to the basis upon which the decision was made to enable the recipient to decide whether to seek review of the decision. The requirement that the communication be intelligible, which is referred to in Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164, is not one which requires that reasons for the decision be given or that sufficient information be given for the purposes found by the AAT. Jenkinson J in Long, meant no more than the means employed to communicate the decision must be intelligible to the person to whom the notice is to be given so that that person is informed of the making of the decision and the content of it. In Long, that requirement was met by informing each appellant in the Chinese language that the Refugee Review Committee had decided that she was not a refugee and that she was not entitled to the visa which she sought: at 167 C-E. I do not understand Merkel J in Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 to state the requirement of intelligibility in any different sense.
Finally, the construction of the notice provision in s 299 which I favour, does not deny Mrs Rogers or a person in her position, an effective right of review of the decision to reduce her sole parent pension or of procedural fairness in the exercise of that right.
Section 1240 of the Act gave Mrs Rogers an unfettered right to apply for review of a decision of an officer made under the Act which affected her. This right is additional to the right to apply for review of the decision to the SSAT under s 1247 of the Act or to the AAT under s 29 of the AAT Act. Whether or not the requirements of natural justice require that she be given reasons for the decision after requesting a review under s 1240 so that she may know the case which led to the decision and may thereby more fully exercise her right to a review, is a separate and different question as to the statutory requirements of the notice referred to in subsections 299(2), (3) and (4) of the Act. To the extent that Mrs Rogers has a statutory right to reasons for the decision the subject of the notice, that right is to be found in s 28 of the AAT Act or under s 1244(2)(b) of the Act, or the reasons for the decision on a review under s 1240 which decision is itself reviewable by the SSAT.
I have reached my conclusion as to the proper construction of the phrase “notice is given to the person to whom the pension is payable advising the person of the making of the previous decision” without reliance on the reasoning of Drummond J in Austin. His Honour was concerned with the meaning of that phrase in the mirror provisions dealing with the payment of Newstart Allowance as provided for in ss 660E, 660J and 660K of the Act. Although our reasons are substantially similar in excluding any requirement to provide reasons or information of the type found by the AAT to be necessary to constitute an intelligible notice, I would not limit the content of the notice to a communication to the benefit recipient that a decision has been made to pay him or her a particular allowance at a particular rate. Although that may well be the most common decision, I do not read, for the reasons I have given, the words “a decision ... is made in relation to a sole parent pension” as being limited to a decision to pay the pension at a particular rate. Rather, I construe the phrase as meaning any decision capable of review under s 1240 of the Act which, upon review, leads to a favourable determination under s 293. It would include, for example, a decision in relation to a sole parent pension which is not a decision to pay the pension at a particular rate which however, upon review, reveals that the effect of the decision is that the pension recipient has been, or will be, paid at a lesser rate than that provided for in the Act.
I turn now to the letter sent to Mrs Rogers on 29 March 1993. The letter directed Mrs Rogers’ attention to the subject matter of the communication. The subject matter was her pension payments. She was advised that from 8 April 1993 her pension would be $153.70. The sentence “Your pension has reduced because of a change in your circumstances” conveys to the reader that a decision has been made to reduce her pension to the stated amount for the stated reason. There is an invitation to contact the writer if more information is required. Finally, the letter advised Mrs Rogers what she could do if she thought that the decision was incorrect. It said :
“YOUR RIGHTS
If you think our decision is not correct, talk to us about it. You can phone us or come in to see us. We will check that all the facts have been looked at and explain why the decision was made. We can also tell you about your rights to see your file.
If you still do not agree, you can talk to an Authorised Review Officer (ARO) who is a senior, independent and expert officer who will:
take a fresh look at your case;
change the decision if it is not correct; and
tell you how you can appeal to the Social Security Appeals Tribunal (SSAT) if you still do not agree.The SSAT cannot review our decision unless it has been reviewed by an ARO first.
Remember, if you do not ask for the decision to be reviewed within 3 months of being told about it, you can only get back payment from the date you ask.”
Any reasonable recipient in the position of Mrs Rogers would know upon reading the letter that a decision had been made to reduce her sole parent pension to $153.70 per fortnight from 8 April 1993 because the decision maker believed that there had been a change in her circumstances which required a reduction in the pension. The letter provided sufficient information to enable Mrs Rogers to make a decision whether or not to seek review of the decision if she thought it was wrong. The writer offered to provide an explanation why the decision had been made if Mrs Rogers requested an explanation. She was also clearly advised that if she did not seek review of the decision within three months, she could only get back payment from the date a review was requested.
I am satisfied that the letter of 29 March 1993 was a sufficient notice for the purposes of s 299 of the Act. I am also satisfied that procedural fairness was extended to Mrs Rogers and that she had the opportunity to obtain a full explanation as to the reasons for the decision and to attempt to persuade the decision maker that the decision was incorrect and should be changed. She also had a right to have the decision reviewed and she was clearly advised of this right. There is no want of procedural fairness if that opportunity is not availed of.
The appeal in this Court was argued on the basis that either subsections 299(3) or (4) was the relevant and operative provision. Each of the subsections requires in paragraph (a) that the person applies to the Secretary under s 1240 for review of the previous decision. In Mrs Rogers’ case that is review of the decision communicated to her by letter dated 29 March 1993 advising her that a decision had been made to reduce her pension to $153.70 per fortnight to commence on 8 April 1993. The AAT made no finding that Mrs Rogers made a request for review of that decision pursuant to s 1240 of the Act. The finding made in paragraph 62 of the AAT reasons was that Mrs Rogers telephoned Centrelink on 1 September 1997 seeking a review of the Department’s decision to limit payment of arrears. The AAT treated this request as satisfying the requirements of subsection 299(4)(c) of the Act. This is clearly not correct. It was a request by Mrs Rogers seeking review of a different and later decision of the Department as to the date of effect of the determination made under s 293 on or about 29 July 1997. It was not a request for review of the “previous decision” required by subsections 299(3) and (4).
The question of whether there had been a request for a review under s 1240 of the Act was a live issue before the AAT. Counsel on behalf of Mrs Rogers had submitted that the filing of a Sole Parent Review form on 10 June 1993 constituted a sufficient request for review of the decision to reduce her pension to satisfy the requirements of s 299(2) or s 299(4) of the Act. The Departmental advocate had submitted that there was no request for review made by Mrs Rogers of the previous decision and that the lodgement of completed periodic Sole Parent Review forms does not constitute a request for review under s 1240. In his written submissions the Departmental Advocate had submitted that the date of effect of the determination under s 293 fell to be determined in accordance with s 299(9) of the Act. The issue is canvassed in paragraphs 23 - 27 inclusive and 40 - 43 inclusive of the AAT’s reasons, but was not determined by the AAT.
The proceeding before me was limited to the question whether or not sufficient notice of the decision to reduce the pension of Mrs Rogers, because of the inclusion of the dependent quarterly benefit in the calculation of her combined yearly income, had been given to her for the purposes of s 299(3). The question of whether there was a request for review of that decision under s 1240 of the Act was not argued. That is a matter which can be investigated by the AAT when the matter is remitted, as it must be, having regard to the error made by the AAT as to the requirements of a valid and effective notice for the purposes of subsections 299(2), (3) and (4) of the Act.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate:
Dated: 16 October 2000
Counsel for the Applicant: P E Holmes SC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: C Heyworth-Smith Solicitor for the Respondent: Welfare Rights Centre Date of Hearing: 2 February 2000 Date of Judgment: 16 October 2000
103
8
0