Secretary, Department of Social Security v Jordan
[1998] FCA 604
•4 JUNE 1998
FEDERAL COURT OF AUSTRALIA
SOCIAL WELFARE AND SERVICES - social security – recovery of payment where person said to be ineligible – meaning of the words ‘full-time course of education’ in the Social Security Act 1991 (Cth) – factors to consider in deciding whether a student is enrolled in a full-time course – waiver of debt – special circumstances
ADMINISTRATIVE LAW – whether comments made by the Senior Member during the course of the AAT hearing could give rise to a reasonable apprehension of bias
WORDS AND PHRASES – “full-time study” – “full-time course of education”
Administrative Appeals Tribunal Act 1975 (Cth) – s 33
Social Security Act 1947 (Cth) – s 136
Social Security Act 1991 (Cth) – ss 531, 613, 1223, 1237A, 1237AAD
Casey v Repatriation Commission (1995) 60 FCR 510 - cited
Director-General of Social Services v Thomson (1981) 53 FLR 356 – cited
Gaisford v Hunt (1996) 71 FCR 187 - cited
Harradine v Secretary, Department of Social Security (1989) 25 FCR 35 – considered
Khadem v Barbour (1995) 21 AAR 555 – cited
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 - cited
Livesey v New South Wales Bar Association (1983) 151 CLR 288 – followed
Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375 – cited
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 - cited
Re Murfet and Secretary, Department of Social Security (1993) 17 AAR 102(note) - cited
Re McKnight and Secretary, Department of Social Security (unreported, 2 November 1994) - cited
Re Secretary, Department of Social Security and Cheary (1993) 17 AAR 97 - cited
Re Lander and Secretary, Department of Social Security (unreported, 26 April 1996) - cited
Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543
Secretary, Department of Social Security v Hales (French J, 16 March 1998, unreported) - cited
Webb v The Queen (1994) 181 CLR 41 - cited
SECRETARY, DEPARTMENT OF SOCIAL SECURITY v KOSTA JORDAN
NG 443 of 1997
SECRETARY, DEPARTMENT OF SOCIAL SECURITY v XUAN JIANG
NG 455 of 1997
HILL J
SYDNEY
4 JUNE 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 443 of 1997
NG 455 of 1997BETWEEN:
SECRETARY, DEPARTMENT OF SOCIAL SECURITY
APPLICANTAND:
KOSTA JORDAN
RESPONDENTNG 443 of 1997
AND
BETWEEN:
SECRETARY, DEPARTMENT OF SOCIAL SECURITY
APPLICANTAND:
XUAN JIANG
RESPONDENTNG 455 of 1997
JUDGE(S):
HILL
DATE OF ORDER:
4 JUNE 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
Each of the applications be dismissed
The applicant in each matter pay the costs of the respondent in that matter
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 443 of 1997
NG 455 of 1997BETWEEN:
SECRETARY, DEPARTMENT OF SOCIAL SECURITY
APPLICANTAND:
KOSTA JORDAN
RESPONDENTNG 443 of 1997
AND
BETWEEN:
SECRETARY, DEPARTMENT OF SOCIAL SECURITY
APPLICANTAND:
XUAN JIANG
RESPONDENTNG 455 of 1997
JUDGE(S):
HILL
DATE:
4 JUNE 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Secretary, Department of Social Security (“DSS”), appeals against two decisions of the Administrative Appeals Tribunal (“the Tribunal”). The appeal to this Court is brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and is an appeal “on”, that is to say an appeal limited to, a question of law.
At the request of all parties, the two matters were heard together because, although the factual circumstances differed, they were said to raise the same legal question. For the sake of convenience, I shall refer to the first proceedings (NG 443 of 1997) as the Jordan matter and the second proceedings (NG 455 of 1997) as the Jiang matter.
BACKGROUND FACTS
It is common ground that both respondents were enrolled in university courses during 1995 and were at the same time receiving social security benefits. It is convenient to consider the situation of each of the respondents in turn. The facts are taken from the reasons of the Tribunal, although in some respects presently immaterial, there was a challenge by the applicants to some findings. That challenge is dealt with later in these reasons.
Mr Jordan
Mr Jordan attended the University of Wollongong in the early 1980s receiving a Bachelor of Commerce degree. He is an accountant by profession although from 1991 onwards he was largely unemployed and decided in early 1993 to upgrade his qualifications by enrolling in a Master of Business Administration degree (“MBA”) at the University of Wollongong. During 1993 and 1994 the university enrolment record shows that Mr Jordan completed a number of subjects during the summer, autumn and spring sessions. The relevant year for present purposes is 1995. During that year Mr Jordan was only enrolled in the autumn session of the course. He initially enrolled in four subjects being Managerial Finance, Quality Management, Accounting for Managers and Introduction to Quality Concepts. Mr Jordan later withdrew from one of those subjects, Managerial Finance. Quality Management was a repeat subject from the previous year.
During the 1995 year, including the period in which he was enrolled as a candidate for the MBA degree, Mr Jordan was in receipt of the job search allowance. The Secretary sought to recover what it claimed was an overpayment of $1893.99 paid to Mr Jordan between 27 February and 24 May 1995. The Secretary argued that Mr Jordan was a full-time student at the University of Wollongong during that period and hence was not entitled to the job search allowance.
The Tribunal found that Mr Jordan was a part-time student in the MBA course during the autumn session of 1995 and consequently incurred no debt to the DSS. In reaching this conclusion, the Tribunal made a number of findings:
Mr Jordan initially enrolled in four subjects, later withdrawing from one of those subjects.
Mr Jordan’s lectures were scheduled for Wednesday of each week – one subject was conducted from 9:30am to 12:30pm, another from 2:30pm to 5:30pm and the third from 5:30pm to 8:30pm. The Tribunal found that the subjects also required about four to five hours per week of “study, assignment work and tutorial preparation over and above the contact time.” On the Tribunal’s findings, therefore, Mr Jordan spent between 13 and 14 hours on his MBA studies each week.
The MBA conducted by the University of Wollongong is “one of those courses which is taken by students who are usually in employment” and that “it is envisaged that it is a course that fully employed people take” From these matters the Tribunal concluded that the MBA course was a part time course. Towards the end of its reasons, the Tribunal stated:
“The University is ambivalent in its attitude to the status of the students. It treats the enrolment as a full-time enrolment for internal record purposes, but there is no doubt that the MBA course is structured in such a way that the Department regards the students as being part-time”
Mr Jordan was regarded by the University as a full-time student but “it is unclear as to whether that designation was made before or after he officially withdrew from Managerial Finance in mid-March 1995.”
Mr Jiang
Mr Jiang came to Australia in February 1988 on a student visa from China. Following the Tiananmen Square incident in June 1989, Mr Jiang and his family sought to remain in Australia. In 1990, Mr Jiang was granted a four year temporary residence visa, subsequently being granted permanent residency on 24 November 1994. On 13 February 1991 Mr Jiang claimed, and was later granted, the “special benefit”. Such a benefit is paid to needy persons whose circumstances do not fit the criteria for other benefits.
In 1992 Mr Jiang commenced part-time study towards a Master of Mathematics degree at the University of New South Wales and was awarded that degree in April 1994. He was advised by the DSS that whilst undertaking the course he could continue to receive the special benefit. Having received his degree, Mr Jiang attempted, without success, to obtain work and then decided to enrol again at the University of New South Wales, this time in a PhD in mathematics. The Tribunal found that Mr Jiang was more concerned with finding work but felt it was necessary to keep his mind active while he was looking for work.
Mr Jiang then ceased to receive the special benefit and began to receive the job search allowance. The circumstances surrounding this transition as found by the Tribunal may be shortly stated.
In late 1994 Mr Jiang visited the Fairfield office of the DSS, to advise that he intended to find work but also intended to enrol in the PhD course and to ask whether he should remain on special benefit or transfer to some other benefit. He was advised to go to the Commonwealth Employment Service (“CES”). At the CES, Mr Jiang was told by an officer that he could see no advantage in Mr Jiang changing from special benefit but he referred Mr Jiang back to the DSS. On 4 January 1995 Mr Jiang again attended the Fairfield office of the DSS and on 11 July he was visited at his home by a field officer of the DSS for the purposes of reviewing his entitlement to the special benefit. The Tribunal found that the field officer “convinced [Mr Jiang] to apply for Job Search Allowance.” Mr Jiang filed the job search application form with the Cabramatta office of DSS on 13 July 1995 and was thereafter assigned to a case manager who, the Tribunal found, was not interested in his PhD studies but only his attendance at University and whether that attendance still allowed for plenty of time for employment.
At some time after July 1995, Mr Jiang’s allowance was changed from job search to newstart. The DSS later sought information about Mr Jiang’s course and was advised in a letter from the University of New South Wales that Mr Jiang was enrolled in his PhD course on a full-time basis. The DSS then advised Mr Jiang that he had been paid money to which he was not entitled due to the fact that he was considered by the DSS to have been a full-time student in 1995. The initial calculation of the debt was $5277.15 which represented payments for the full year but the figure was subsequently amended to $2587.89 for the period from 13 July 1995 to 16 November 1995.
The Secretary argued that Mr Jiang, like Mr Jordan, was a full-time student during that period and hence was not entitled to the newstart allowance.
The Tribunal found that Mr Jiang was a part-time student in the PhD course during the period 13 July 1995 to 16 November 1995 and consequently did not incur a debt to DSS. The Tribunal concluded as follows:
Mr Jiang may well have been treated by the University of New South Wales as a full time student for records purposes but the fact was that he was only filling in time while searching for a job.
The question of whether Mr Jiang was a full-time or a part-time student should be resolved by looking at all of the facts of the case rather than applying a “mechanical formula” and merely deciding the matter based on the course designation of the University.
It was an officer of the DSS who caused Mr Jiang to apply for the job search allowance and caused him to believe he was a part-time student for social security purposes. If there was any error, it was due solely to the officer of the DSS.
If Mr Jiang was paid any money by way of job search or newstart allowance to which he was not entitled, he received it in good faith and it was due solely to an administrative error. Thus, if there is any debt, the right to recover it is waived.
The circumstances of Mr Jiang’s case were so special that the recovery of any debt, should be waived.
THE GROUNDS OF APPEAL
Both the Notice of Appeal in the Jordan matter and the Amended Notice of Appeal in the Jiang matter raise as questions of law the proper interpretation of s 531 Social Security Act 1991 (“the Act”). In addition, the Jiang matter raises the interpretation of s 613 of the Act. Each of these sections is in similar terms, although each relates to a different kind of allowance.
The fundamental question raised in both matters concerns the interpretation of the words “enrolled in a full-time course of education” as those words are used in both sections 531 and 613 of the Act. The applicant seeks orders that the decision of the AAT be set aside and the matter be remitted to the AAT for determination according to law.
THE STATUTORY BACKGROUND
Qualification for the job search and newstart allowances are regulated by Parts 2.11 and 2.12 respectively of the Act. Sections 531 and 613 each provides that a benefit is not to be payable where a person is enrolled in a full-time course of education, creating a debt where the person has received a benefit to which he or she is not entitled: s 1223. The relevant sections, for present purposes, are set out below:
“Section 531
(1)Subject to subsection (2), a job search allowance is not payable to a person who is enrolled in a full-time course of education or of vocational training for the period that:
(a)starts when the person starts the course; and
(b)finishes when the person:
(i)completes the course; or
(ii)abandons the course; or
(iii)gives notice to the provider of the course that the person:
(A)wishes to withdraw from the course; or
(B)wishes to withdraw from such number of subjects that the person’s course will no longer be a full-time course; and
(c)includes periods of vacation…
Section 613
(1)Subject to subsection (2), a newstart allowance is not payable to a person who is enrolled in a full-time course of education or of vocational training for the period that:
(a)starts when the person starts the course; and
(b)finishes when the person:
(i) completes the course; or
(ii)abandons the course; or
(iii)gives notice to the provider of the course that the person:
(A) wishes to withdraw from the course; or
(B)wishes to withdraw from such number of subjects that the person’s course will no longer be a full-time course; and
(c)includes periods of vacation…
Section 1223
(1)Subject to subsection (2), if:
(a)an amount has been paid to a person by way of social security payment; and
(b)the recipient was not qualified for the social security payment and the amount was not payable to the recipient;
the amount so paid is a debt due to the Commonwealth…”
FULL TIME STUDY
As already noted the fundamental issue for determination in both matters is the meaning of the words “enrolled in a full-time course of education”. The Tribunal decided that both Mr Jordan and Mr Jiang were not enrolled in a course of full time education and so were entitled to the allowances they had been paid. It did so for essentially the same reasons in each case. The test applied by the Tribunal in each matter is to be found in the following extracts from its reasons.
The Jordan matter:
“I am aware of those cases which suggest that the University’s characterisation of whether or not a student is full-time should be taken as the be all and end all of the argument. I am aware of the cases in which students have enrolled as full-time students but then have claimed that they do not work very hard or they do not attend lectures and they really are only part-time students. I agree with the decisions which, in those cases, take the University’s attitude to the course, that is, that it is full-time.
However, the MBA Course conducted by the University of Wollongong is structured differently to the courses which were the subject of the decided cases. The University structures its MBA course in such a way that it accommodates the fact that nearly all of the students doing the course are in full-time employment. The University is ambivalent in its attitude to the status of the students. It treats the enrolment as a full-time enrolment for internal record purposes, but there is no doubt that the MBA course is structured in such a way that the Department regards the students as being part-time.
On the peculiar facts of this case I find that the autumn semester of 1995 in his MBA course at University of Wollongong, Mr Jordan was a part-time student.”
The Jiang matter:
“The Tribunal was aware of the debate as to whether the status of a student for social security purposes should be identical to his/her status for University records purposes. Some decisions suggest that the status designated by the University is the one to be applied for social security purposes. Others suggest that each case should be judged on its merits – a question of fact and degree. In this case the Tribunal preferred to look at the facts of the case to determine the issue, rather than use a mechanical formula. We were not satisfied that Mr Jiang was a full-time student during the period under review.”
Although the Tribunal in neither case referred to the decided cases to which it was referring by name, most would have been under the previous Social Security Act 1947 (Cth) (“the 1947 Act”), now superseded by the 1991 Act. Section 136(1)(b) of the 1947 Act, so far as is relevant, provided that a benefit was not to be payable to a person who:
“… is engaged … in a course of education on a full-time basis” [emphasis added].
Section 136(2) then provided::
“For the purposes of paragraph (1)(b), a person who is enrolled in a course of education shall be taken to be engaged in that course from the day on which the person commences that course until the person completes or abandons that course, including during periods of vacation but not including during periods of deferment.”
Nowhere in either the 1947 Act or the present Act is the term “full-time” study defined. As a result, decisions of the AAT have adopted a number of approaches. In a number of cases the Tribunal has held that full-time study is satisfied where the University classifies a course as such, irrespective of the hours of study, attendance and preparation expected of the student: see Re Murfet and Secretary, Department of Social Security (1993) 17 AAR 102(note), Re McKnight and Secretary, Department of Social Security (unreported, 2 November 1994). Other cases have taken a different view, preferring not to be bound by the University’s assessment but rather to examine all the facts, acknowledging that judgments of degree must be exercised: Re Secretary, Department of Social Security and Cheary (1993) 17 AAR 97 at 101; Re Lander and Secretary, Department of Social Security (unreported, 26 April 1996), Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543 at 547.
A full court of this Court considered the provisions of the 1947 Act in Harradine v Secretary, Department of Social Security (1989) 25 FCR 35. All member of the Court were of the view that the words “full time study” were to be construed by reference to the engagement of the student rather than by reference to the description of the course itself. They considered the antecedent history of the legislation, including the decision of this Court in Director-General of Social Services v Thomson (1981) 53 FLR 356 in so concluding. French J, with whose reasons Wilcox J agreed in substance, held that the word “engaged” in the context of the 1947 Act referred to the activities of the students enrolled in the course. His Honour said (at 42):
“In my opinion the construction of the words ‘on a full-time basis’ that most accords with their natural meaning, alone or in context, is that by which they are taken to describe the nature of the activity undertaken by the student. That is to say the section excludes from eligibility for benefit the student who is engaged ‘full-time’ in a course of education. So construed it requires a consideration of the question of fact which will no doubt involve judgments of degree, whether the objectively ascertainable activity of the student may be described as a full-time engagement in his course of education”
Wilcox J, in separate reasons, observed at 36:
“Where a difference between classification of course and engagement does occur, the critical matter is the nature of the student’s engagement, not the nature of the course.”
Counsel for the applicants submitted that the decision in Harradine is no longer applicable because the 1991 Act, following the decision, has deliberately amended s 136. In support of this she relies on the Explanatory Memorandum to the Act where it is stated:
“Having regard to the decisions in Harradine v Secretary to the Department of Social Security … it has become necessary to clarify that:
… the intention behind section 136 of that Act was that it should apply not only to persons ‘engaged’ in a course of education ‘on a full-time basis’ but to all persons enrolled in a full-time course of education”
It may readily be accepted that Harradine was decided upon different language and can no longer bind the construction of the present Act. However it does not follow that the present Act requires, as counsel submitted, that the nomenclature used by the educational institution as descriptive of a course conclusively determines whether the course is or is not a full-time course of education for the purposes of the Act. Nothing in the explanatory memorandum accompanying the bill, which later became the present Act, suggests this. Indeed that explanatory memorandum is silent on the question of the meaning of the words “course of full-time education” What it makes clear, and it follows in any event from the change in language between the 1947 Act and the present Act, is that the disqualification for benefit is dependent not on being engaged in full-time study, but in being enrolled in a course of full-time study. No longer would it be relevant to consider the particular activities of a student to determine the level of engagement of that student. Instead there was to be concentration on the course of study itself. But how should a course of study be classified as full-time or part-time?
In the Secretary’s submission, should a university declare a course full-time, then a student enrolled in that course would satisfy the criteria of ss 531 and 613, becoming ineligible for a job search or newstart allowance. In her submission, this would be the case irrespective of the amount of time the student was required by the course to spend attending the university, working on assignments or preparing for the course generally. She submitted that “we are not entitled to second guess the institution.”
Counsel for the respondents submitted that the question must be resolved by the Tribunal by looking at all the facts and that the classification by the institution of the course is merely one of the factors to consider. With respect, I agree.
The classification of the course by the educational institution offering it is a factor to consider; indeed it may provide at the least a prima facie indication and perhaps often will, absent other factors, be determinative. But that classification can not be the only factor to be considered. In Thomson a question arose under the 1947 Act as then applicable to the facts of the case whether an applicant was “unemployed” while enrolled in a course. The Court said at 362:
“To describe her, and others undergoing different courses, as ‘full-time’, serves, in our opinion, only to disguise the problem. Some ‘full-time’ courses may be 9am to 5pm, Monday to Friday, or even more demanding. At the other extreme a ‘full-time’ course may require attendance at lectures for only a relatively insignificant part of the week. In Miss Thomson’s case, she attended lectures on two days per week in the first semester and on four days per week in the second semester in the relevant year.”
Other relevant facts will include the number of hours the student is required to attend the university, the number of hours expected to be spent working at home on study and assessments and the times and days the student is required to attend the university. The task of statutory interpretation, however, is not to define an expression in the abstract. The context in which the expression is employed will cast light on the meaning which Parliament intended. In the present case the context is that of conferring upon unemployed applicants a benefit where they are seeking work. An applicant who is enrolled in a full-time course of educational or vocational study is to be regarded as not able to participate in the full-time work force and thus disentitled to the benefit. Hence in construing the expression “full time course of education” it will often be relevant to consider whether the course is so structured that it would be inconsistent with the ability of the applicant to be become engaged in full-time employment.
Thus, whether a person is enrolled in a full-time course of study will involve an issue of fact and degree to which these factors will all be relevant. In my opinion, the classification by an institution cannot be the final answer. If it were, difficulties might arise were an institution to fail to classify a course or where the educational institution flies in the face of common sense and reality in classifying what might otherwise be thought to be a part time course as a full-time course, or vice versa.
Mr Jordan initially was enrolled in four subjects at the University of Wollongong, later withdrawing from one of those subjects – what is to be the conclusion where the University does not continually reassess the student’s classification? Counsel for the applicants submitted that this would create an administrative nightmare for the DSS because each course and applicant for an allowance would effectively have to be assessed by a tribunal to weigh up all these criteria and assess eligibility. But there are times when it may be assumed that parliament prefers common sense and fairness to arbitrary administrative decision making, no matter how convenient the latter. In any event, the difficulty which is suggested may be more apparent than real. The DSS can easily obtain information about all courses. A letter from a course coordinator may indeed answer many of the relevant questions. In effect, it will not be enough for an institution to merely classify a course as full-time or part-time, that claim will need to be substantiated.
In my opinion, there has been no error of law on the part of the Tribunal in either case in interpreting the language of ss 531 and 613 of the Act. The application of the law to the facts of the case is a matter for the Tribunal, involving as it does questions of fact and degree.
ADDITIONAL GROUNDS OF APPEAL – JORDAN
In addition, the Secretary in each matter submitted that the decision of the Tribunal was flawed on a number of other bases. I shall deal with each of these in turn.
No Evidence
The Secretary submitted that there was no evidence upon which the Tribunal could find that:
“… the MBA course conducted by the University of Wollongong is structured differently to the courses which were the subject of the decided cases. The University structures its MBA course in such a way that it accommodates the fact that nearly all of the students doing the course are in full-time employment. The University is ambivalent in its attitude to the status of the students. It treats the enrolment as a full-time enrolment for internal record purposes, but there is no doubt that the MBA course is structured in such a way that the Department regards the students as being part-time.”
This submission may be shortly disposed of. In my view, the Tribunal had evidence before it which entitled it to make the finding set out above. It had before it evidence from Mr Jordan, course timetable information and details of a telephone conversation made in the course of an original appeal to the Social Security Appeals Tribunal summarised in its reasons as follows:
“In a telephone conversation with the Professional officer of the MBA course, Helen Hill of the business school, the tribunal noted that Ms Hill stated that most local students work and do the MBA course part time. Some can do it full time but the vast majority do it part time which is why evening subjects are offered.”
The Conduct of the Administrative Appeals Tribunal Hearing
The Secretary submitted that the way in which the hearing was conducted before the AAT was so improper as to require the decision to be set aside. Mr Jordan represented himself before the Tribunal and the Tribunal chose to conduct the proceedings in an informal manner. Mr Jordan was not sworn and was permitted to give his evidence from the bar table, largely by answering questions asked by the Senior Member. He was not cross examined while on oath at any time by the representative appearing for the Secretary. At no time did she object to the manner in which the proceedings were being conducted. She was given the opportunity to question Mr Jordan and indeed asked some, if not many, questions of him although mostly through the Tribunal member conducting the hearing.
The manner in which the AAT may conduct proceedings is clear. Section 33(1) of the AAT Act provides that proceedings before the Tribunal “shall be conducted with as little formality and technicality, and with as much expedition, as … a proper consideration of the matters before the Tribunal permit.” The Tribunal is not bound by the rules of evidence and “may inform itself on any matter in such manner as it thinks appropriate.” This is subject to the requirement that it proceed in accordance with the rules of fairness and natural justice.
As I said in Casey v Repatriation Commission (1995) 60 FCR 510 at :
“… s 33 of the AAT Act means what it says. The fact that material may be inadmissible in accordance with the law of evidence does not mean that it can not be admitted into evidence by the Tribunal or taken into account by it. The criterion for admissibility of material in the Tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance.”
This is not to say that the Tribunal should not be guided, in appropriate cases, by the rules of evidence. But it is entitled to have regard to evidence, sworn and unsworn, in reaching its conclusion. It is given a wide discretion in the conduct of the proceedings. Section 40 of the AAT reinforces this conclusion. It provides that the Tribunal “may” take evidence on oath or affirmation. It does not require it so to do. No doubt in circumstances where unsworn evidence is given the Tribunal will weigh that evidence, particularly where there is some conflict in testimony. That was not the case here where the evidence of Mr Jordan was not contested. In my view the Tribunal acted within its power and in a manner it regarded, and had the power to regard, as appropriate to the circumstances.
The Secretary further submitted that the Tribunal contravened s 39 of the AAT Act by failing to ensure all parties were given a reasonable opportunity to present their case. The facts do not support such a conclusion. Both the respondent and the applicant’s representative made submissions to the Tribunal, referred the Tribunal to relevant documents and presented their cases. If the applicant’s representative wished to object to the way the proceedings were being conducted or to seek to cross-examine Mr Jordan on oath, she had every opportunity to do so. No such objection or request was ever made.
ADDITIONAL GROUNDS OF APPEAL – JIANG
Ostensible Bias
In addition to the claim that the Tribunal erred in interpreting ss 531 and 613 of the Act, the Secretary in the Jiang matter submitted that the decision of the Tribunal was flawed on the basis that the comments by the Senior Member (Mr Muller) during the course of the hearing gave rise to a reasonable apprehension of bias. The Tribunal comprised both a senior member and a member. No objection is taken to anything said by the latter during the course of the hearing.
The comments relied upon by counsel for the applicant to suggest apprehended bias (the words objected to have been emphasised for ease of identification) were as follows:
The proceedings commenced with Ms Mahony, for the Secretary, giving her opening address. She explained that Mr Jiang was originally receiving the special benefit but changed to the job search allowance. The transcript reads:
“MR MULLER: Then someone said to him, you should be on Job Search allowance.
MS MAHONY: That is correct.
MR MULLER: So he switched over to that and six months later they said, hey you cannot be on Job Search allowance, you have got to give it all back.
MS MAHONY: So that is my outline.
MR MULLER: Just having heard that much, that sounds pretty rude to me but never mind.”
During the course of Mr Jiang giving evidence, the Senior Member made a number of comments which are also objected to by the Secretary on the same basis:
MR MULLER: He is saying basically this, look I lay my cards on the table, I told the man from the Department exactly what I was doing. I am a PhD student at the University of New South Wales. I told him that, he told me to switch to Job Search, he said you have got plenty of time to be looking for work and if you look for two jobs every fortnight, you will be right and then from there on, I filled in the forms on that basis because I am not doing course work.
I told the man what I was doing and then from there on, the Department should have known all about it and I am not a full time student because I do not have to attend courses, I do not have to go to the university, I do not have to be there. So that is why I said that I was not a full time student. Is that what you say? --- Yes.
Simple as that? --- Exactly.
It is as simple as that. So all this nonsense about saying that he put down terrible lies, saying that he was not a full time student when he really was and the university says he was a full time student. It is all a lot of nonsense as far as I am concerned.
MS HENDERSON: Senior Member if you have formed a concluded view on this case, it is probably inappropriate that you continue to hear it.
MR MULLER: Keep going, I intend to keep going.”
The comments of the Senior Member next objected to arose shortly thereafter. Mr Jiang was giving evidence of his first interview with his case manager:
“MS MAHONY: Did you say – were you asked to provide any supporting documentation to your case manager regarding your enrolment in your PhD? --- No
What if anything, was explained to you about the meaning of full time and part time – being a full time and part time student? --- She still ask me attendance.
She asked you about your attendance and what did you say about your attendance? --- I say that my attendance is one a fortnight or once a week. I can’t remember exactly what I said.
MR MULLER: This is bureaucracy gone mad. Never mind, keep going.”
MS MAHONY: Was there any …
MS HENDERSON: Sir, I renew the application I make [sic] a few moments ago. I am concerned about whether the matter is being determined in the spirit in which the AAT Act requires.
MR MULLER: It is being determined on the evidence. Before I came into this room I had no clear idea what the case was about. The more I hear about it, the worse it gets. I am perfectly entitled to form a view as I hear the evidence and I am forming a view and my view is getting more and more around the view that this is bureaucracy gone absolutely crazy. But never mind, let us continue.”
While Mr Jiang was being cross-examined by counsel for the Secretary, the Senior Member made comments which are also objected to:
“MS HENDERSON: Each time you filled in one of the forms that came to your home about your benefit you wrote – you answered ‘no’ to the question about ‘did you enrol or did you study in a full time course’ did you not? --- Yes.
You knew you were enrolled in a full time course did you not when you answered those questions?
MR MULLER: I think that is an unfair question because he has been convinced by the department officer in July that he is part time.
MS HENDERSON: With respect sir the gentleman has shown me two documents he received in April and July telling him was in a full time course.
MR MULLER: Yes but he has been convinced by a person from your department after talking to him and revealing everything, he has revealed everything to your department and your officer convinces him that he is a part time student and he is perfectly able to look for work and that he should switch to Job Search, what more can the man do. We know why he filled it in, there is no point going over old ground you are flogging a dead horse, we know that he filled that in and we know why.”
Counsel for the Secretary submitted that the comments raised a reasonable apprehension that the Senior Member had formed a concluded view regarding Mr Jiang’s case without hearing all the evidence and submissions in the matter. It is submitted that a reasonable person could conclude that the Senior Member had closed his mind to any submissions concerning the question whether Mr Jiang had been convinced by the department officer that he was a part time student.
The test of ostensible bias, as it is sometimes called was stated in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294 in the following terms:
“[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.”
However, the Court in the same case pointed out that matters of degree were involved and the circumstances might sometimes strike different minds in different ways. The Court warned (at 294) that:
“…it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias…”
This remains the authoritative statement of principle in Australia: see Webb v The Queen (1994) 181 CLR 41, Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375, Gaisford v Hunt (1996) 71 FCR 187 at 198. Although the comments made by the High Court were made in the context of a court, there can be no suggestion that any different rule applies in a tribunal than applies in a superior court: Khadem v Barbour (1995) 21 AAR 555 at 561.
It is suggested that the comments of the Senior Member during the course of the evidence might convey the impression that he had formed a concluded view. In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100, Gaudron and McHugh JJ commented:
“A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry … When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.”
There have been few cases which have considered the issue of ostensible bias where comments have been made during the trial, which comments are relied upon as showing such bias. I had cause to consider the most important, at least, of such authorities in Khadem. It is clear that for ostensible bias to be made out, it must be firmly established that the circumstances raise a substantial case. So much was made clear by Dixon CJ, Williams, Webb and Fullager JJ in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116:
“But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there be strong grounds for supposing that the judicial or quasi judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be ‘real’. The officer must have so conducted himself that a high probability of bias inconsistent with the fair performance of his duties, with the result that substantial distrust of the result must exist in the minds of reasonable persons. It has been said that ‘preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence would be disregarded…”
Nothing in the comments of the Senior Member suggest that he was disregarding or intended to disregard evidence. Nothing, in my view, suggests that the Senior Member could not be expected fairly to discharge his duty. The comments by the Senior Member do indicate that he was forming a view about the evidence. But that, of itself, does not show ostensible bias. Comments such as “this is bureaucracy gone mad” may be seen by some as unfortunate. The comments do not, however, suggest that the Senior Member had closed his mind and ultimately prejudged the matter. In my view they indicate nothing more than that he was indicating a developing view and was prepared to continue hearing the matter and consider any other evidence that might come to light. Indeed, he remarked on a number of occasions “but never mind let us continue”. I am not satisfied that the ground of ostensible bias has been made out.
In addition, it is submitted that the Senior Member improperly asked Mr Jiang an “extraordinarily leading question.” Counsel specifically refers to the exchange I have extracted in number 2, above. It may be noted that she made no attempt to object to the question, although at the time seeking that the Senior Member disqualify himself from the hearing. Even in courts, leading questions, if not objected to, are often asked and answered. The problem lies less with asking a leading question than with the weight which can be given to the answers. While the Tribunal should not be encouraged to ask questions which suggest the answer in contentious areas it can not be said that the Tribunal committed any reviewable error in the way it approached its task. Counsel for the applicant submitted that in asking the question, the Senior Member misstated the evidence of Mr Jiang. I have read the passages upon which counsel for the applicant relies in making this submission. The primary passages relied upon seem to be in submissions made subsequently to the question being put, rather than to evidence given prior to that time. There is little conflict with earlier evidence and such conflict as there is is somewhat debatable. It is not apparent to me that the Senior Member did misstate Mr Jiang’s evidence. But I note also that counsel for the applicant did not seek to object to the question on this basis also. It is somewhat late to now complain that the Tribunal did, in formulating a question for the applicant, misstate the evidence in a way that led it into reviewable error.
Administrative Error
The Tribunal concluded that any money Mr Jiang had received by way of job search or newstart allowance was solely due to administrative error. Section 1237A of the Act relevantly provides:
“(1)Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.”
The Secretary submitted that the Tribunal erred in finding that the debt was attributable solely to administrative error because the conclusion was not open to it on the evidence before it. Specific reference was also made to the fact that the applicant had, at times, falsely answered question 7 on his continuation of benefit forms. It is unnecessary to deal with these submissions in detail having regard to the conclusion I have reached on the substantive issue. However, in deference to the argument advanced by counsel, I shall record shortly my conclusions.
The Tribunal made a number of findings relevant to this issue, none of which was directly challenged. These included that Mr Jiang would never have applied for the job search or newstart allowance but for the intervention of an officer of the DSS, that Mr Jiang had received the payments in good faith and that he had made full disclosure of his position to the DSS. The Tribunal’s view was that the purpose of the continuation of benefit forms was to inform the DSS of any change in the recipient’s affairs. Since the Tribunal was of the view that Mr Jiang had “made full disclosure of his position” and that his status was known to the DSS from January 1995 and did not change until late November 1995, it concluded that it would be unfair for the DSS to rely on the fact that he had incorrectly answered the question on some of the returns without taking into account that it was an officer of the DSS who caused him to apply for the job search allowance and to believe he was a part time student for social security purposes.
These are all matters of fact which were decided by the Tribunal. They provided the foundation for the Tribunal’s conclusion. The Tribunal found Mr Jiang to be a truthful witness and in particular believed him when he told them (contrary to the complexion which Mr Jiang’s answer to question 7 would on its own have given, namely that he was a full time student) that he was enrolled in a PhD course which in the circumstances was part-time. In my view, the assessment of the material before the Tribunal was a matter for it and its conclusions demonstrate no error of law.
Alternatively, the Tribunal concluded that the circumstances of Mr Jiang’s case were so special that the recovery of any debt, if there be any, should be waived in accordance with s 1237AAD of the Act:
“The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt”
The Tribunal reached this conclusion as an alternative to the other grounds upon which it put its decision. I will likewise deal briefly with the applicant’s submission. It is unnecessary for me to embark on an explanation of the meaning of the section as was done recently in Secretary, Department of Social Security v Hales (French J, 16 March 1998, unreported).
The Secretary submitted that the Tribunal erred in finding there were special circumstances without identifying any evidence or providing any reasons to support the finding. Counsel for the respondent, Mr Jiang, submitted that the reasoning on each of the statutory issues raised by the section was so obvious that there was no need for elaboration. It was suggested that the fact that the Tribunal had found that Mr Jiang had been induced by the DSS to move to an ineligible allowance, of itself, was a special circumstance justifying the waiver of the debt.
This is arguably so and suffices to justify the Tribunal’s conclusion. It may well have been desirable that the Tribunal express its reasoning process clearly. Certainly the Tribunal’s reasons do not spell out what circumstances it regarded as special, although it can be concluded that the Tribunal was of the view that the facts which it found were cumulatively special. There is a danger in taking too pedantic an approach to the Tribunal’s reasons. But in the present case, having regard to the conclusions which I have reached on the other issues raised it is unnecessary to consider this matter further.
It follows that for the reasons explained above I would dismiss both applications. I order that the applicant in each matter pay the costs of the respondent in that matter.
I certify that this and the preceding one (21) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill
Associate:
Dated: 4 June 1998
Counsel for the Applicants: Miss R.M. Henderson Solicitor for the Applicants: Australian Government Solicitor Counsel for the Respondents: Mr M.B. Smith Solicitor for the Respondents: Welfare Rights Centre Date of Hearing: 6 May 1998 Date of Judgment: 4 June 1998
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