Suzor v D.F.C.S.
[2003] FMCA 309
•24 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SUZOR v D.F.C.S. | [2003] FMCA 309 |
| ADMINISTRATIVE LAW – Appeal against decision of Administrative Appeals Tribunal setting aside a decision of SSAT – SSAT decided to set aside the decision of the review officer and substitute a decision that a Newstart activity test rate reduction of 24 per cent should not apply – question to determine – whether the SSAT was correct to conclude on the findings of fact that as a matter of law section 630AA(1) of the Social Security Act 1991 applied to the appellant. |
Social Security Act 1991
Social Security (Administration) Act1999
Social Security (Administration and International Agreements) (Consequential Amendments) Act1999
Administrative Appeals Tribunal Act1975
Family and Community Services Legislation Amendment Act2003
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321at 356
Allina Pty Ltd v FCT 99 ALR 295 at 303
| Applicant | GREGORY JOHN SUZOR |
| Respondent: | SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES |
| File No: | BZ146 of 2002 |
| Delivered on: | 24 July 2003 |
| Delivered at: | Brisbane |
| Hearing Dates: | 21 May 2002 & 1 July 2003 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Applicant: | Self-represented |
| Counsel for the Respondent: | Mr B Porter |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the appeal be dismissed.
That each party bear their own costs of the appeal, including reserved costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ146 of 2002
| GREGORY JOHN SUZOR |
Applicant
And
| SECRETARY, DEPT OF FAMILY & COMMUNITY SERVICES |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 February 2002, GREGORY JOHN SUZOR (“the Appellant”) filed an appeal against a decision of the Administrative Appeals Tribunal (“the Tribunal”) given by Senior Member Beddoe on 12 February 2002. The Respondent, the Secretary of the Department of Family and Community Services (“the Secretary”), opposes the appeal.
Decision
The decision under appeal set aside a decision of the Social Security Appeals Tribunal (SSAT) of 5 September 2001. The SSAT had decided to set aside the decision of the authorised review officer and substituted a decision that a Newstart activity test rate reduction of 24% should not be applied.
Principles on appeal
This is an appeal on a question of law, brought pursuant to section 44 of the Administrative Appeals Tribunal Act1975. It is worth re-stating that there is no error of law simply in making an error of fact (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321at 356).
Issue
The seminal issue before me is whether the Tribunal was correct to conclude on its findings of fact that as a matter of law, section 630AA(1) of Social Security Act1991 (“The Act”) applied to the Appellant.
Background
The factual background is not in dispute. At the relevant time the Appellant was in receipt of a Newstart allowance benefit created by Part 2.12 of the Act. The Newstart allowance is subject to an activity test (see section 601 of the Act), the effect of which is that if a person fails to satisfy the activity test, the Newstart allowance ceases to be payable and future payments are deducted or suspended.
The Appellant completed fortnightly applications revealing whether he had worked in the previous fortnight, In particular on 29 June 2001, the Appellant completed/lodged an application and in answer to the question following his admission he had worked, namely:-
“What was the amount earned in the period before tax or other deductions?”
The Appellant said,
“$80”
The undisputed evidence before the Tribunal (comprising of a pay slip issued by BROADCASTING STATION 4IP PTY LTD) showed a gross payment of $158.03.
Similarly on 13 July 2001, in the face of a further pay slip he stated less than the gross income received.
The principle reason why he did so was his passionate belief (see letter to Centrelink on 13 July 2001) that:-
“The C.S.A. (Child Support Agency) is currently deducting 20% of my part-time wage and continually refuses to address the specific nature of the concerns relating to said “constitution”, this would indeed be proceedually flawed and most possibly illegal. We have continued to claim the nett amount on our benefit form as we believe that to be fair and equitable until a proscribed court of law at the appointed time rules on these matters. At times special circumstances arise and these may be one of those times. All I request is you continue to apply the nett amount to my deductions when calculating my benefit, when the Court has determined these matters I will inform your office accordingly”.
The use of the word “we” appears to relate to an organisation named “Support Service” of which the Appellant is the principal and which he says represents “citizens on welfare” who claim they have been disadvantaged by abuse of powers exercised by institutions of the State.
Centrelink, by notice dated 16 July 2001, asserted that the appellant had failed to properly disclose his income (they say in compliance with the obligation under section 630AA(1)(b)) and suspended his Newstart allowance.
The Tribunal was concerned with the accuracy of answers given by the appellant to a question on each application form asking what was the amount earned in the period before tax and other deductions. After reviewing the material before it, the Tribunal concluded (at page 3.5):
“The net result is that the Tribunal finds that the Respondent has deliberately included on his claims for Newstart allowance the net income which he calculated, however he did it, rather than the gross income that the question on the form clearly required. That question is consistent with the requirement of the Social Security Act that the relevant amount is the gross income.
And in particular … its clear that the legislation requires that gross income be declared and that is clear from the form that that’s what the applicant required to be declared.”
It is clear from the Tribunal’s reasons that it found that the Appellant had not complied with s.630AA(1)(b). Such a finding was open to the Tribunal on the evidence.
The real remaining question posed by the Appellant was whether he was obliged, by law, to comply with the provision.
Legislative framework
I was referred to the decision of Deputy-President Forgie of the AAT delivered 12 February 2002, in a matter of Quinn. In the learned Deputy-President’s Reasons for Decision (at paragraphs 8-24), she sets out a very detailed, and I believe accurate, historical analysis of the applicable legislation to that time. Whilst I adopt that summary I do not repeat that summary fully in these reasons, save to say section 630AA(1) provides.
“(1) if a person:
(a)refuses or fails, without reasonable excuse, to provide information in relation to a person’s income from remunerative work (the failure); or
(b)knowingly or recklessly provides false or misleading information in relation to the person’s income from remunerative work (the provision of information);
when required to do so under a provision of this Act, a newstart allowance is not payable to the person.”
On 20 March 2000 the Social Security (Administration) Act1999 (“the Administration Act”) commenced, and provided for the administration of what it describes as the “social security law”, which comprises the Administration Act, the Act and any other Act that is expressed to form part of the social security law (Administration Act s.3(3).
On the same day that the Administration Act commenced, so also did the Social Security (Administration and International Agreements) (Consequential Amendments) Act1999 (“the Consequential Amendments Act”). No direct amendment to section 630AA was made.
Section 1224 of the Act is concerned, in this case, with the debt that may arise from the Appellant’s alleged failure to comply with section 630AA(1) of the Act (by not revealing his gross income), section 1224 of the Act was amended by section 202 of the Consequential Amendments Act by omitting the words “this Act” from section 1224(1)(b)(ii) and substituting the words “social security law or this Act as in force immediately before 20 March 2000”. It now reads:-
“(1) If:-
a)an amount has been paid to a recipient by way of social security payment; and
b)the amount was paid, because the recipient or another person
i)made a false statement or a false representation; or
ii)failed or omitted to comply with a provision of the social security law or this Act as in force immediately before 20 March 2000 or the 1947 Act.
the amount so paid is a debt due by the recipient to the Commonwealth.”
After the hearing of this matter before me on 21 May 2002, section 630AA(1) of the Act was amended by the Family and Community Services Legislation Amendment Act (FCSLAA) on 12 April 2003. The relevant amendment was to remove the reference to “this Act” and replace it with a reference to “the social security law” (see item 53 Schedule 4). As a result of amendment I invited both parties to make any further submissions which they did on 1 July 2003.
Appellant’s submissions
The Appellant was not legally represented, however, he had prepared a considered and very detailed written agreement, which he says is simple and commonsense and rejects the respondent’s submissions and the analysis undertaken by Deputy-President Forgie as a:-
“…far more complex legal agreement that ranges through numerous sections of Social Security Law which relies in the main, on supposition, conjecture and hearsay and opinion over what may or may not have been parliamentary intention when attempting to marry the 1991 Act to the 1999 Administration Act and referring to both as Social Security Law”.
I have carefully considered his submissions. To the extent that the Appellant contends that there are three Tribunal decisions to consider (the SSAT and Beddoe decisions and the decision in Quinn). I am, as a matter of law, only concerned with the decision of Senior Member Beddoe. That is the decision under appeal.
Without seeking to paraphrase the Appellant’s 19 pages of written submissions, the essence of the Appellant’s position is that:
a)whilst it was clear that the Parliament had the intention to “marry” the Act, and the Administration Act, because Parliament did not amend section 630AA(1) by the Consequential Amendments Act, Parliament exhibited a clear intention not to do so.
b)In interpreting the intention of Parliament:-
i.the Respondent bears an onus to prove “beyond a reasonable doubt” that the words “the Act” in section 630AA(1) referred to any other part of the social security laws other than the 1991 Act;
ii.such intention was not the subject of evidence “and was conjecture”;
iii.it would have been simple for Parliament to create the “legislative bridge” between section 630AA (empowering the provision of information) and the remunerative provisions removed by the Administration Act from the Act. Because Parliament did not choose to do so, its intention was clear;
iv.the amendment to section 1224 of the Act (as mentioned at paragraph 18 of these reasons) makes it clear that a “legislative bridge” exists between the Act “as in force immediately before 20 March 2000”, in respect of debts created. Again a simple amendment to section 630AA(1) of a similar nature would have made Parliament’s intention clear. It did not amend.
(a)The Appellant says he had sought an adjournment to await the decision being handed down on the same day (but in Perth) by Deputy-President Forgie in Quinn. Senior Member Beddoe delayed handing down his decision until after the Quinn decision was available, perpetuating an act of “legal plagiarism” which leads to the “inadmissibility” of the Senior Member’s decision. There is little doubt the decision under appeal is “tragically flawed both procedurally and legally”.
(b)The decision of Deputy-President Forgie is “the best piece of intellectual property around section 630AA(1) and whilst the opinion is respected these are matters of statutory interpretation and the opinion of the Deputy-President is just that ultimately… opinion and not based in any real legal fact.” I should not follow that conclusion or reasoning but rely upon “the written word of the law (lex scripta) “which is “very clear and evident”.
(c)“The facts speak for themselves (res ipsa locquiter)”
(d)the amendments to section 630AA(1) by FCSLAA, exhibits that Parliament concedes it made an error, and he relies for this submission on the “Background” published as the reason for the amendments being:
“At times, unintended drafting and other minor errors occur, which may need to be corrected by future legislative amendments. Schedule 4 makes minor technical amendments to the social security law to correct a variety of unintended errors, to assist in more effective and efficient administration of that legislation.”
In summary, the Appellant says the decision is a significant one because:
“clearly” this Act” at s.630AA(1) means “this Act” and no other Act. The evidence to suggest and confirm this lies at s.1224 “the 1991 Act”. The remunerative provisions of “the 1991 Act” have now been placed in “the 1999 Act (Administrations Act) so it is not incumbent on a citizen to provide remunerative details and information “when required to do so under a provision of this Act” at s.630AA(1) so by consequence. The Secretary cannot impose a breach penalty for failing to do so this puts in doubt all Centrelink breaches imposed across the country since March 2000 pursuant to s.630AA(1) “the 1991 Act”.
and further says:
“We, the Appellants firmly believe the written decisions of the Senior Member to be prejudicial and procedurally flawed and request this court deem them inadmissible on procedural grounds alone and if so deemed then the operation of such a document should also be removed and the operations of the Social Security Appeals Tribunal be reinstated as a matter of some urgency.”
Respondent’s submissions
The Respondent contends that:-
(a)“The overall effect of the reforms comprising introduction of the Administration Act and the Amendment Act was to remove provisions of an administrative nature from the SSA which were repeated in respect of different benefits but were substantially the same, and to replace them with a single provision dealing with that issue in the Administration Act. The plain intent of Parliament in carrying out such a reform, it is submitted, is to simplify and reduce the volume of the SSA. That that was one of the purposes of the reform is confirmed by the second reading speech of the Minister.”
(b)The nature of the amendments clearly indicates an intention that the two substantive Acts would operate in complementary fashion.
(c)“Also evidencing that intention, and of more importance to the determination of this particular appeal is ss.244 and 245(1) of the Administration Act which relevantly provide:
‘244 A reference in:
(a)a provision of a law of the Commonwealth or a Territory enacted before 20 March 2000 (whether or not the provision has come into operation); or
(b)an instrument or a document;
to a provision of the 1991 Act that has been repealed by the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 is, on and after 20 March 2000, to be construed as a reference to the corresponding section of this Act.
245(1) If one provision of the 1991 Act and one provision of this Act have the same legal effect, the 2 provisions correspond with each other.’
As the SSA is a law of the Commonwealth and as the Administration Act is a later Act, the effect of s.244 is to amend the SSA to the extent it contains provisions which fall within the scope of s.244.”
(d)“In the absence of s.630AA(1) and s.244 being construed in the manner submitted as correct by the respondent, s.630AA(1) will have no provisions upon which it can operate and therefore the provision will have no operation at all. It is plainly the case that in that situation, where the Court has available to it two interpretations, one of which gives no effect to a statutory provision and the other allows the provisions to operate, the interpretation giving the provision operation ought be preferred: see Beckworth v R 12 ALR 333 at 337; Pearce and Geddes, Statutory Interpretation in Australia (4th Ed) at 2.20.
Another important factor in construing the relationship between 630AA(1) and s.244 is that s.244 is self evidently a catchall provision inserted by Parliament in an attempt to cover all necessary amendments in what, on any view, was a very complex amendment reform. Such provisions should be read broadly so as to be consistent with the plain intention behind their enactment which is to avoid unforseen effects of extensive amendments. This conclusion is reinforced by the matters referred to in paragraphs 17 to 22 above.”
The Respondent adopted the reasoning and authorities set out in the decision of Deputy-President Forgie in Quinn.
As to the effect on the statutory interpretation of section 630AA(1) at the relevant time of the most recent amendment by FCSLAA, the respondent contends that:-
(a)sometimes Parliament’s intention will simply be to remove doubt as to the meaning of the provision (see Allina Pty Ltd v FCT 99 ALR 295 at 303);
(b)“In this case, it is submitted that there is little ambiguity as to the operation of the legislative scheme relied upon by the respondent as providing a basis for supporting the Tribunal’s approach. It was clearly designed as a catchall provision designed to remedy any oversights occurring in the creation of the Amendment Act regime and applied to s.630AA(1) as set out in paragraphs 24 to 37 of the respondent’s submissions.”
(c)“In any case, it is submitted the amendment plainly shows that parliament’s earlier intention was consistent with the catchall regime applying to s.630AA(1). The explanatory memorandum to the FCSLAA explains that the purpose of the amendment to s.630AA(1) was to ‘correct various cross-referencing errors in the’ SSA. Taking into account this indicator of parliament’s intention, the failure to amend s.630AA(1) to specifically refer to the social security law in the first place was merely a mistake.”
Conclusion
Whilst the decision of Deputy-President Forgie in Quinn does not bind this Court, any detained analysis of the law on exactly the same issue should be given careful consideration. I have done that, and adopt both the analysis and the conclusions of the learned Deputy-President reached. I record in these reasons the conclusion reached at paragraphs 35 and 36 as follows:
“35. Returning to the provision I must consider, it is apparent that, prior to 20 March 2000 it was appropriate to take into account only the purpose of the Act itself. Since 20 March 2000 it is apparent from an examination of its provisions and those of the Administration Act that they, together with any other legislation expressed to form part of the social security law, must be considered together in order to ascertain Parliament’s purpose. It was submitted on behalf of Mr Quinn that the Act and Administration Act are “not intended to drive a recipient of such funds into the ground by the accumulation of excessive punishments.” When regard is had to the social security lase, of which the Act is a part, it is apparent that its purpose is to provide for the payment of certain pensions, benefits and allowances in order to provide maintenance and relief to those who would otherwise face hardship and or require financial assistance. It achieves this purpose by providing for various types of payment. At the same time, its purpose is to ensure that each person receives no more than that to which he or she is entitled under the Act. It achieves this by employing two strategies. First, it imposes obligations upon the recipients of any benefits under the Act and imposes penalties for breaches of those obligations. Second, it establishes systems for recovering the amounts which he or she has been paid but to which he or she was not entitled. It follows that a person may suffer both a penalty for a breach of an obligation and, as a result of his or her failure to fulfil that obligation, face recovery action for amounts that would not have been paid to him or her had he or she fulfilled the obligation. That is illustrated by reference to s.630AA and s.1224 in this case. It is quite clear that application of the provisions carrying out the purpose of the social security law may leave a recipient in very straitened circumstances indeed and this would seem to be contemplated by the social security law.
36. In light of Parliament’s intending to achieve a quite complex purpose, it is difficult to conclude that it would have intended that s.630AA should be of no effect. It would be of no effect if it were to be read, as Mr Quinn would argue, as being confined to a provision of the Act as it is enacted after 20 March 2000 for there are no longer any provisions in the Act that would empower the Secretary to require a person to provide information about his or her income from remunerative work and so no provisions of the type to which reference is made in s.630AA(1). Since that date, all such provisions are found in the Administration Act. The section would have effect if it were given the meaning I have set out in paragraph 29 above. That is to say, it would have effect if s.630AA(1) were taken as a provision of a law of the Commonwealth enacted prior to 20 March 2000 (as it is) referring to provisions of the 1991 Act (as it does by reference to their requiring a person to provide certain information) that have been repealed (as they have been). The effect of s.244 is that those provisions then be read as referring to corresponding provisions in the Administration Act. That interpretation accords with the purposes revealed by the social security law even though, in its application in a particular case, it may be thought to lead to the imposition of unbearable hardship.”
It seems clear that Senior Member Beddoe was aware of and relied upon the same conclusions when delivering his reasons. He was entitled to do so.
The decision is not procedurally flawed as asserted by the Appellant.
The later amendment affected by section 53 of Family and Community Services Legislation Amendment Act2003 to section 630AA(1) by omitting “the Act” and substituting “the social security law” corrected an unintended error by Parliament when enacting the Amendment Act and the Consequential Amendments Act.
For these reasons no error of law can be detected in the decision under appeal. The appeal shall be dismissed.
Costs
Costs in a matter of this nature would usually follow the event. The Secretary seeks an order for costs. Whilst the Appellant’s personal situation was a catalyst for the proceedings, the position taken and pursued by the Appellant was, I believe, genuinely regarded as a “public interest” issue for those who he describes as affected by the welfare laws.
It seems that conflicting views at officer and SSAT levels existed. Although I have no direct evidence of the Appellant’s current financial position, it is fair to infer it is probably modest. I do not think this is an appropriate case for an order for costs. In the exercise of my discretion I will order that each party bear their own costs of the proceedings (including reserved costs).
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Baumann FM
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