Shiel v Secretary, Department of Social Security

[1999] FCA 1237

Christopher Shiel v Secretary, Department of Social Security [1999] FCA 1237
Social Security

Shiel v Secretary, Department of Social Security [1999] FCA 1237

CHRISTOPHER SHIEL v SECRETARY, DEPARTMENT OF SOCIAL SECURITY

NG 1239 of 1998

KATZ J

SYDNEY

13 SEPTEMBER 1999

SOCIAL SECURITY - application for retrospective rent assistance - whether Secretary to pay rent assistance only when satisfied that rate of newstart allowance paid is currently less than rate provided by Social Security Act - whether Secretary's duty in administering Act to have regard to desirability of achieving certain results imports duty to obtain information about change in person's circumstances - whether Secretary's power to obtain information relevant to question of applicable rate of social security payment must be exercised - whether part of function of Administrative Appeals Tribunal to determine whether Secretary breached duty imposed by Act.

Acts Interpretation Act 1901 (Cth) s 33(2A)

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)

Federal Court of Australia Act 1976 (Cth) s 19(2)

Social Security Act 1991 (Cth) Pt 2.12, Divs 5, 5A, ss 635, 640, 641, 642, 643, 660(2), 660G, 660K, 1068, 1296(a)(i), 1296(a)(iii), 1304(1), 1304(2), 1304(3), 1304(4), 1304(7)

Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361, cited

Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739, followed

Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454, followed

Ward v Williams (1955) 92 CLR 496, followed

Julius v Bishop of Oxford (1880) 5 App Cas 214, followed

Commissioner for Superannuation v Hastings (1986) 70 ALR 625, cited

Green v Daniels (1977) 13 ALR 1, cited

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1239 of 1998

       On appeal from a decision of the Administrative Appeals Tribunal constituted by Ms S Bullock, Member

BETWEEN:	CHRISTOPHER SHIEL Applicant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent
JUDGE:	KATZ J
DATE OF ORDERS:	13 SEPTEMBER 1999
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.       The appeal be dismissed.

2.       The applicant pay the respondent's costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1239 of 1998

On appeal from a decision of the Administrative Appeals Tribunal constituted by Ms S Bullock, Member

BETWEEN:	CHRISTOPHER SHIEL Applicant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent
JUDGE:	KATZ J
DATE:	13 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1       Subsection 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides that "[a] party to a proceeding before" the Administrative Appeals Tribunal ("the Tribunal") "may appeal to" this Court, "on a question of law, from any decision of the Tribunal in that proceeding".

2        (The so-called "appeal" mentioned in subs 44(1) of the AAT Act is actually an invocation of this Court's original jurisdiction: see subs 19(2) of the Federal Court of Australia Act 1976 (Cth). However, it seems easier simply to use in these reasons for judgment the terminology used in subs 44(1) of the AAT Act and so I will continue to do so.)

3 In the present proceeding, Mr Christopher Shiel has instituted an appeal to this Court under subs 44(1) of the AAT Act. His appeal is against a decision of the Tribunal dated 16 October 1998, which decision affirmed two decisions of the Social Security Appeals Tribunal ("the SSAT"). The two SSAT decisions had been made on 29 January 1997 and 30 October 1997 respectively.

4       The first of the two SSAT decisions, that of 29 January 1997, had affirmed a decision of an authorised review officer ("an ARO") in the Department of Social Security ("the DSS"), made on 9 January 1997. The ARO's decision had in turn affirmed the decisions of two delegates of the Secretary of the DSS, made on 30 December 1996 and 6 January 1997 respectively.

5       The second of the two SSAT decisions, that of 30 October 1997, had affirmed a decision of an ARO in the DSS, made on 10 September 1997. The ARO's decision had in turn affirmed that part of a decision of a delegate of the Secretary of the DSS, made on 20 June 1997, which was under review by the ARO.

6       The decisions of the two Secretarial delegates of 30 December 1996 and 6 January 1997 respectively and the relevant part of the decision of the Secretarial delegate of 20 June 1997, all of which were in effect affirmed by the Tribunal's decision of 16 October 1998, had in every case refused claims by Mr Shiel for the payment to him of sums of money by way of retrospective rent assistance.

7       The Secretarial delegate's decision of 30 December 1996 had refused a claim made by Mr Shiel on 12 December 1996 solely for retrospective rent assistance in respect of accommodation at 81 Cantrell Street, Yagoona, New South Wales, for the period 16 August 1996 to 15 November 1996 ("the second period"); the Secretarial delegate's decision of 6 January 1997 had refused a claim made by Mr Shiel on 31 December 1996 solely for retrospective rent assistance in respect of accommodation at the Bass Hill Caravan Park, Bass Hill, New South Wales, for the periods 11 July 1996 to 18 July 1996 ("the first period") and 15 November 1996 to 18 November 1996 ("the third period"); and the Secretarial delegate's decision of 20 June 1997 had granted in part and refused in part a claim made by Mr Shiel on that day for rent assistance in respect of accommodation at 7 Henry Lawson Drive, Villawood, New South Wales ("the Villawood accommodation"). The claim had been granted in so far as it sought prospective rent assistance, but had been refused in so far as it sought retrospective rent assistance for the period between 18 November 1996 and the date of the making of the claim ("the fourth period").

8       At the time of the making of all three of the claims to which I have just referred, Mr Shiel had been living in the Villawood accommodation, although, according to the findings of the Tribunal, he first advised the Department of that fact only at the time of the making of his third claim. It would have been open to Mr Shiel, at the time of the making of either of his first two claims, each of which, as I have already said, sought retrospective rent assistance only, to have sought as well prospective rent assistance in respect of the Villawood accommodation, but that he did not do. (Indeed, it would have been open to him to seek prospective rent assistance in respect of the Villawood accommodation at any time between 18 November 1996, when he first apparently arranged for and moved into that accommodation, and 20 June 1997, when he first made a claim for rent assistance in respect of that accommodation.) In its statement of findings and reasons, the Tribunal recorded the only explanation which Mr Shiel apparently gave before it for not doing so. It was as follows:

"... Well, basically, in a nutshell, I was basically - how would you say? I was so wound up about this whole thing, about from January till that time, all the stuff that I'd gone through about all that, all I wanted to do was just put my head back and just take a break. I couldn't do that. ...

I'm just saying I had - my priorities, as I said, were at that stage to re-educate myself, better enhance myself both physically, psychologically, mentally and socially, and to, like, be able to provide, given on what I had, the basic benefit, basically to provide for myself as best means I could, within the boundaries of the law."

If Mr Shiel had applied earlier for prospective rent assistance in respect of the Villawood accommodation, there is no reason to think that such application would not have succeeded, just as such application ultimately made on 20 June 1997 did.

9       For most of the period between 11 July 1996 (which was the starting date of the first period in respect of which Mr Shiel unsuccessfully claimed retrospective rent assistance) and 20 June 1997 (which was the ending date of the last period in respect of which Mr Shiel unsuccessfully claimed retrospective rent assistance), Mr Shiel was in receipt from the DSS of an allowance named "newstart allowance".

10       (The distinguishing part of the allowance's name bore so close a resemblance to "newspeak", the name of George Orwell's artificial language used for official communications in the novel Nineteen Eighty-Four, that the allowance's naming may well have been done by someone with an unusual sense of humour. According to the Oxford English Dictionary (2^nd ed), "newspeak" is frequently applied to any corrupt form of English, specifically the propagandistic and ambiguous language of (relevantly) some politicians.)

11 Newstart allowance was primarily dealt with at the relevant time in Pt 2.12 of the Social Security Act 1991 (Cth) ("the Act"). (For the purposes of the present appeal, when I refer to provisions of the Act, it is sufficient that I do so in the form which they took as of 1 July 1995, as they appeared in Reprint No 2 of the Act.) Newstart allowance could, in certain circumstances, include an additional component for rent assistance; see the following provisions of the Act: s 643; par 1068(1)(aa); the Rent Calculator at the end of s 1068; and, in particular, Module F of that Calculator. It was such rent assistance which Mr Shiel unsuccessfully claimed retrospectively in each of his three claims to which I have referred above and successfully claimed prospectively in the third of his three claims.

12       (I note, incidentally, that for a significant part of the second period, namely, from 14 September 1996 to 27 October 1996, Mr Shiel was not in receipt of newstart allowance. It is impossible to see how, all other things apart, his claim in respect of that part of that period for retrospective rent assistance, which assistance was available purely as an additional component of newstart allowance and not as a freestanding benefit, could have succeeded, given that he was not receiving newstart allowance at the time.)

13 It is convenient, before concentrating on the Tribunal's decision, to say something further about the relevant provisions of the Act relating to newstart allowance.

14 A person who wanted to be granted a newstart allowance was required to make a proper claim for it (subs 635(1)). The Secretary was required, in accordance with the Act, to determine that claim (s 640). If the Secretary was satisfied that the person was qualified or was expected to be qualified for a newstart allowance and that the allowance was payable, the Secretary was to determine that the claim was to be granted (s 641). The date of effect of that determination was provided for in s 642. A person's newstart allowance rate was worked out using the Benefit Rate Calculator B at the end of s 1068 (s 643, already mentioned). Provision was made for payment and advance payment of newstart allowance in Pt 2.12, Divs 5 and 5A respectively.

15       Subsection 660(2) relevantly provided, "A determination of the rate of a newstart allowance continues in effect until ... a further determination in relation to the allowance under section 660G... has taken effect". Section 660G provided (emphasis added),

"If the Secretary is satisfied that the rate at which a newstart allowance 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."

The day on which a determination under (relevantly) s 660G ("the favourable determination") took effect was worked out in accordance with s 660K. In particular, subs 660K(5) provided,

"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."

16 As I understand the effect of the provisions to which I have referred in the preceding paragraph, the duty imposed (and only power relevantly conferred: see subs 660(2)) on the Secretary by s 660G, that of determining to increase the rate of a person's newstart allowance, depended upon the Secretary's being satisfied that the person was, at the time of the Secretary's consideration of the matter, entitled to be paid at a higher rate than that at which the allowance was presently being, or had formerly been, paid to the person. If the Secretary was so satisfied, then the rate was to be increased prospectively.

17       Such rate increase could, in certain circumstances, operate retrospectively, but only if, at the same time, it was to operate prospectively. For instance, one way in which it could operate retrospectively was if it occurred following advice to the Department by the person of a change in the person's circumstances. If the favourable determination occurred on a day later than the day on which either the advice was received by the Department or the change in the person's circumstances occurred, then the favourable determination would, by reason of subs 660K(5), take effect retrospectively on the later of those two earlier days.

18       It is not in dispute that, of Mr Shiel's three claims for rent assistance referred to above, only the third of them was predicated upon his having a then-existing entitlement to rent assistance and his thus being entitled to a prospective increase in the rate of his newstart allowance. Therefore, and subject to what I say below about the argument made by Mr Shiel on this appeal, it was only in respect of his third claim for rent assistance that there was any possibility of his obtaining such assistance retrospectively, such possibility existing in respect of some or all of the fourth period.

19       I have already mentioned more than once that Mr Shiel's third claim for rent assistance succeeded in so far as it sought prospective rent assistance. Because of the success of that part of that claim, it was necessary to determine the date of operation of the increase in rate of his newstart allowance, which date could have been a date in the past if, for instance, subs 660K(5) applied to the increase.

20       So far as that part of the third claim was concerned, the Tribunal, standing in effect in the shoes of the Secretarial delegate, and accepting both that that part of that claim had properly succeeded and that subs 660K(5) did apply, considered to what commencing date for the rate increase the operation of that provision led.

21       As I have already mentioned, the Tribunal found as a fact that Mr Shiel had first advised the Department of the change in his circumstances which entitled him to prospective rent assistance in respect of the Villawood accommodation on the very day on which he made his claim both for prospective and retrospective rent assistance in respect of that accommodation, that also being the day upon which the claim was granted, so far as it sought rent assistance prospectively. The Tribunal therefore concluded that the operation of subs 660K(5) led to his rate increase having no retrospectivity. Prima facie, that conclusion was unaffected by legal error.

22 So far as Mr Shiel's first and second claims were concerned, although, unlike his third claim, neither of them had included a claim for prospective rent assistance, the Tribunal nevertheless thought it appropriate to attempt to deal with them by the same process of reasoning as that which it employed in dealing with his third claim. As that process of reasoning in connection with Mr Shiel's first two claims was sought to be explained to me by the Secretary's legal representative, the Tribunal first determined with respect to them under s 660G that there should be a "notional" increase in the rate of Mr Shiel's newstart allowance for rent assistance. It next asked itself whether or not such notional increase should take effect retrospectively. It applied subs 660K(5) in order to answer that question and concluded, in the case of each of those claims, that it should not. (It is unnecessary that I refer to the factual findings which led the Tribunal to that conclusion.) Since each of those claims had been for retrospective rent assistance only, a conclusion that the notional increase not be retrospective meant that the claim failed entirely.

23       That mere statement of the reasoning said to have been employed by the Tribunal in affirming in effect the respective Secretarial delegates' decisions with respect to Mr Shiel's first two claims appears to me to contain its own refutation. It is apparent, however, that the Tribunal should instead, and subject to what I say below about the argument made by Mr Shiel on this appeal, have affirmed in effect the respective Secretarial delegates' rejections of Mr Shiel's first two claims for the reasons to which I have referred above (see pars 15-17), in which case the Tribunal's error regarding Mr Shiel's first two claims was not material in the circumstances.

24       I turn now to the argument made by Mr Shiel on the present appeal. The question is whether that argument requires me to reach a different conclusion than the one which I have expressed above, which is that the Tribunal committed no material legal error in rejecting all three of Mr Shiel's claims for retrospective rent assistance, each being doomed to failure for one or other of the two reasons which I have given above.

25 The argument made by Mr Shiel on the present appeal depended upon certain provisions contained in Ch 7 of the Act, which chapter is headed "Administration".

26       He first pointed to subpars 1296(a)(i) and (iii), contained in Pt 7.1 ("General Administration"), Div 1 ("Principles of Administration") of Ch 7. Those subparagraphs together provided that, in administering the Act, the Secretary was to have regard to the desirability of achieving two results: first, the ready availability to members of the public of advice and information services relating to income support; and, secondly, the delivery of services under the Act in a fair, courteous, prompt and cost-efficient manner.

27       Mr Shiel next pointed to par 1304(1)(c), contained in Pt 7.2 ("Information Management"), Div 1 ("Information Gathering") of Ch 7. That paragraph provided that the Secretary might require a person to give information, or produce a document that was in the person's custody or under the person's control, to the Department if the Secretary considered that the information or document might be relevant to the question of the rate of social security payment under the Act that was or had been applicable to a person.

28 As I understood Mr Shiel's argument as to the effect of those provisions, it was that one or more of them imposed upon the Secretary a continuing duty to obtain from a person (and, indeed, from any other person) information about any change in the person's circumstances which would lead to an increase in the rate of that person's newstart allowance. Although the argument did not progress beyond that submission, I have assumed that its next step was that if the Secretary had complied with that continuing duty in Mr Shiel's case, that would have led to the Secretary's having had the satisfaction referred to in s 660G of the Act at or very shortly after the beginning of each of the four periods to which I have referred in par 7 above. (Of course, if that had occurred, then Mr Shiel would presumably have received prospective rent assistance for all or substantially all of each of the four periods, rather than failing to receive retrospective rent assistance in respect of any part of any of the four periods.) I have further assumed that the final step in the argument was that the Tribunal had erred in law by not, in effect, ordering the payment of Mr Shiel's three claims for retrospective rent assistance, given the Secretary's breach of duty and the fact that, if the Secretary had performed the duty when obliged to do so, then the Secretary would have had the requisite satisfaction at or very shortly after the beginning of each of the four periods to which I have referred in par 7 above.

29       I do not understand any part of the argument to which I have referred in the preceding paragraph to have been put in terms by Mr Shiel to the Tribunal, although, as the Tribunal said in its statement of findings and reasons, "Mr Shiel made much [before the Tribunal] of the responsibility of the Department to inform him of what he needed to do to obtain rental [sic] assistance". However, even though the argument was not put in terms before the Tribunal, I am of the view, given that Mr Shiel appeared in person both before the Tribunal and before me, that I should not refuse to deal with the argument simply because it was not put in terms to the Tribunal: compare Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 at 366-67 (Beazley J).

30       However, I am also of the view that the argument must fail on its merits.

31 It will be recalled that the first step in that argument was that one or more of subpars 1296(a)(i) and (iii) and par 1304(1)(c) of the Act imposed on the Secretary a continuing duty to obtain information about any change in a person's circumstances which would lead to an increase in the rate of that person's newstart allowance. I will deal in turn with each of those provisions.

32 First, while subpars 1296(a)(i) and (iii) of the Act did, in terms, impose a duty on the Secretary, that duty was merely one to have regard, in administering the Act, to the desirability of achieving the results referred to in those subparagraphs. I am unable to regard those subparagraphs as having imposed on the Secretary any new substantive duty, but only as having regulated the manner of the performance of those substantive duties (and powers) of the Secretary already existing elsewhere in the Act. Furthermore, even the limited duty of the type which I have just described which was imposed on the Secretary by subpars 1296(a)(i) and (iii) was not, I consider, one owed by the Secretary to any member of the public.

33       In the latter respect, some assistance may, it appears to me, be gained from the decision of this Court in Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 (Burchett J). In that case, the applicants either were or represented Aboriginal communities in remote areas of the Northern Territory and claimed that Telecom was in breach of the obligation imposed upon it by s 27 of the Australian Telecommunications Corporation Act 1989 (Cth). That section defined the "standard telephone service" as the "public switched telephone service" (subs (2)). With respect to that standard telephone service, the section required Telecom to ensure that it was reasonably accessible to all people in Australia on an equitable basis, wherever they resided or carried on business (par (4)(a)). It was claimed by the applicants that Telecom had not ensured that the standard telephone service was reasonably accessible to them on an equitable basis from the non-standard telephone service which it had supplied to them. They sought certain mandatory relief against Telecom, which relief, they claimed, would have the effect that the standard telephone service would be reasonably accessible to them on an equitable basis.

34       Burchett J refused the relief sought. In the course of doing so, he said (at 749),

"When Parliament imposes on a functionary a broad duty involving the development and application of policy, to be performed nationally, the fulfilment of which must be subject to many constraints and may be achieved in many ways, according to the measure allowed to those constraints, but cannot be achieved absolutely, if only because it involves an ideal, detailed supervision by the courts of the manner of performance of the duty is not likely to have been intended."

35 I regard the language which I have just quoted as applicable to the Secretary's duty, in administering the Act, to have regard to the desirability of achieving both the ready availability to members of the public of advice and information services relating to income support and the delivery of services under the Act in a fair, courteous, prompt and cost-efficient manner.

36       I should add that I do not consider that, in concluding that the duty which I have just described was not one owed by the Secretary to any member of the public, I have "reduce[d]" it "to the status of a pious admonition", to quote from the reasons for judgment of Mason CJ and Deane and Gaudron JJ in Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 at 459. That case concerned a duty imposed on a statutory corporation not to enter into certain contracts without Ministerial approval. The statutory corporation having breached that duty, a question arose whether, on the proper construction of the provision imposing the duty, the resulting contract was invalidated. Mason CJ and Deane and Gaudron JJ held that it was not, but said that such a construction of the provision did not reduce it to the status of a pious admonition, because breach of the provision could lead to disciplinary proceedings against those responsible for such breach. Similar reasoning is applicable to subpars 1296(a)(i) and (iii) of the Act.

37 Turning now to par 1304(1)(c) of the Act, that paragraph did not, in terms, impose any duty on the Secretary, so that, in order for its presence in the Act to assist Mr Shiel, it would be necessary for him to establish that the power conferred by the provision was one which there was impliedly a duty to exercise in the way which I have described in par 28 above.

38       There are at least two difficulties in the way of such a conclusion.

39 First, it is apparent from the context in which par 1304(1)(c) of the Act appeared that the Parliament's purpose in including the provision was to confer a power capable of being used in aid of the prevention or recovery of unjustified payments of social security benefits ("the first situation"). It was not included in order to confer a power capable of being used in aid of ensuring that persons who were not receiving or had not received social security benefits to which they were or had been entitled received those benefits ("the second situation").

40 The context to which I have referred in the preceding paragraph included the circumstance that, under subs 1304(1) of the Act, the Secretary might require information and documents relevant, not only to the question of the rate of social security payment under the Act that was or had been applicable to a person, but also to the questions of whether a person who had made a claim for a social security payment under the Act was or had been qualified for that payment and of whether such payment was or had been payable to a person who was or had been receiving it. That context also included the elaborate procedural requirements surrounding the exercise of the power conferred by subs 1304(1) of the Act: a requirement under subs 1304(1) was required to be by notice in writing given to the person (subs 1304(2)); the notice was required to specify certain matters, including a time for compliance with the requirement (subs 1304(3)); and that time must be at least two weeks (subs 1304(4)). Further, non-compliance with a requirement without reasonable excuse was made an offence punishable by one year's imprisonment (subs 1304(7)).

41       If par 1304(1)(c) is construed in accordance with the evident purpose of its inclusion, then it is incapable of giving rise to an implied duty of the type for which Mr Shiel contends, since it did not confer the express power which was the necessary foundation for that contention.

42 Secondly, even if one were to construe par 1304(1)(c) of the Act without regard to the evident purpose for its inclusion, so that it was construed as conferring a power capable of being used, not only in what I have called above the first situation, but also in what I have called above the second situation, still, "in ascertaining" "the real intention of the legislature" when it included in a statute a provision expressed in permissive or facultative terms, "you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning": Ward v Williams (1955) 92 CLR 496 at 505 (Dixon CJ and Webb, Fullagar, Kitto and Taylor JJ) (and see also subs 33(2A) of the Acts Interpretation Act 1901 (Cth), reinforcing that prima facie presumption). "One situation" in which that prima facie presumption is overcome is (Ward at 505-06, quoting Lord Cairns in Julius v Bishop of Oxford (1880) 5 App Cas 214 at 225),

"... where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise...."

43 Manifestly, however, par 1304(1)(c) of the Act was not a provision of the type just described, given, among other things, its capacity to be used both in the first and in the second situations: compare Commissioner for Superannuation v Hastings (1986) 70 ALR 625 (FCA: Woodward, Keely and Wilcox JJ) at 630.

44       Further, putting to one side Lord Cairns' example, which is the one in which permissive words are typically construed as implying a duty as well, I am unable to discern anything "from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power" (Ward at 505, quoting Lord Selborne in Julius at 235) which would support Mr Shiel's argument. Instead, I discern something (even ignoring the context to which I have referred in par 40 above) which is destructive of that argument, the fact that acceptance of it would impose on the DSS an administrative burden which would plainly be impossible for it to fulfil. (In so saying, I draw attention to the fact that, if par 1304(1)(c) of the Act had the effect claimed by Mr Shiel, it would have that effect, not only in connection with newstart allowance, but in connection with every benefit available under the Act.)

45 For those reasons, I reject Mr Shiel's argument about the effect of par 1304(1)(c) of the Act.

46 It follows from what I have said above that I reject Mr Shiel's argument that there is imposed on the Secretary by the Act a continuing duty to obtain information about any change in the circumstances of a person receiving newstart allowance which would lead to an increase in the rate of that person's newstart allowance.

47       That being the case, it is, strictly speaking, unnecessary that I deal with the ultimate step in the argument which I have attributed to Mr Shiel in par 28 above. It will be recalled that that step was that the Tribunal had erred in law by not, in effect, ordering the payment of Mr Shiel's three claims for retrospective rent assistance, given the Secretary's breach of duty and the (assumed) fact that, if the Secretary had performed the duty when obliged to do so, then the Secretary would have had the requisite satisfaction at or very shortly after the beginning of each of the four periods to which I have referred in par 7 above.

48 However, even though it is not, strictly speaking, necessary for me to deal with that step in the argument, I do wish to say that I have considerable difficulty in seeing how it could be correct. While I accept that it would have been possible for a court exercising supervisory jurisdiction to declare that the Secretary had breached a duty imposed on the Secretary by the Act (compare, for instance, the first declaration made by Stephen J in Green v Daniels (1977) 13 ALR 1 at 15 (HCA)), I am unable to see how reaching a conclusion on such a matter was any part of the Tribunal's function. Its function was instead that which it performed, namely, making the correct or preferable decision with respect to the claims for retrospective rent assistance which had actually been made by Mr Shiel on the dates to which I have referred in par 7 above.

49       In all the circumstances, Mr Shiel's appeal is dismissed with costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated:        13 September 1999

DATE OF HEARING:       19 July 1999

DATE OF DECISION:       13 September 1999

PLACE:        SYDNEY

#DATE 13:09:1999

Appearances

Mr Shiel appeared for himself.

Solicitor for the Respondent:        Australian Government Solicitor