The Minister for Veterans Affairs v Buttenshaw, A.B

Re: THE MINISTER FOR VETERANS' AFFAIRS, THE SECRETARY TO THE DEPARTMENT
OF VETERANS' AFFAIRS and DEFENCE SERVICE HOMES CORPORATION
And: ALLAN BRUCE BUTTENSHAW
No. NG794 of 1989
FED No. 162
Defence - Veterans' entitlements - Defence Service Homes
11 AAR 480

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CATCHWORDS

Defence - Veterans' entitlements - Defence Service Homes - application by respondent for further advance - respondent resigned voluntarily from Air Force - respondent then living near aerodrome where he was engaged in service - respondent obtained employment requiring him to live closer to Sydney - respondent earlier received benefit under Defence Service Homes Act 1918 - application for further advance to enable him to acquire new house - whether Administrative Appeals Tribunal correct in directing Secretary to issue certificate of entitlement under s. 17 of Act - whether application had been considered by Secretary at all - whether Minister had considered matter as an application for approval under s. 19 of Act - whether Tribunal entitled to depart from Ministerial guidelines or policy - whether Tribunal took irrelevant considerations into account - consequences of Tribunal acting under wrong form of section providing for Ministerial approval.

Defence Service Homes Act 1918, ss. 4, 16, 17, 18, 19

Defence Service Homes Amendment Act 1988, ss. 2, 4 and 10

Defence Service Homes Amendment Act 1989, ss. 2, 3, 4

HEARING

SYDNEY

#DATE: 30:4:1990

Counsel for the Applicants: Mr. A. Robertson

Solicitors for the Applicants: Australian Government Solicitor

Counsel for the Respondent: Mr. M.B. Smith

Solicitors for the Respondent: Thomas Laycock of Newcastle

by their Sydney agents Henderson Taylor Mitchell Baker

ORDER

The appeal be allowed.

The decision of the Administrative Appeals Tribunal made on 13 October 1989 be set aside.

The matter be remitted to the Tribunal to be heard and decided again.

The applicants, the Minister for Veterans' Affairs and the Secretary to the Department of Veterans' Affairs, pay to the respondent his costs of the application.

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

JUDGE1

This is an appeal from the Administrative Appeals Tribunal. The entity named as the third applicant is the Defence Service Homes Corporation ("the Corporation"). The Corporation was abolished by s.15 of the Defence Service Homes Amendment Act 1988. Section 15 of that Act came into force on 30 June 1989 so that the abolition was effective from that date. Subsection (1) of s.15 repealed s.5A of the Defence Service Homes Act 1918 ("the Act") by which the Corporation had been established when s.5A was inserted into the Act by the Defence Service Homes Amendment Act 1977.

Because the Corporation had ceased to exist, it was agreed that there should be added as applicants in this appeal the Minister for Veterans' Affairs and the Secretary to the Department of Veterans' Affairs, each of whom is said to have made, by his delegate, decisions which were the subject of review by the Tribunal. It would seem doubtful whether the Corporation was ever an appropriate party to the proceedings before the Tribunal, and, furthermore, that the Minister and the Secretary should have been parties before it. Nothing, however, turns on this.
I propose now to give an account of the facts of the matter. I shall then refer to the relevant provisions of the Act. On 23 February 1989 the respondent made an application to the Corporation which was entitled "Further Subsidy Application". The application was made on a form provided by the Corporation for this purpose. By it the respondent sought a subsidy to enable him to enter into a mortgage of a home he proposed to buy in the Newcastle area. The background to the application was this. The respondent is a former serving member of the Royal Australian Air Force. He retired from the RAAF in August 1986 after completing 22 years service. He did so voluntarily. His reason was that he could not expect to be promoted beyond his then rank of Squadron Leader and he thought that it was in the best interests of himself and his family that he seek alternative employment whilst still under 40 years of age rather than wait for compulsory retirement which would have occurred when he reached the age of 45.
Following his retirement the respondent obtained employment in the Australian Taxation Office at Newcastle. For part of the time of that employment he was granted leave without pay and was engaged in full time duty in the Air Force Reserve. He was based at Williamtown near Newcastle. Later he resigned from the Commonwealth Public Service in order to continue his career as a pilot. He obtained a flying position with a company known as Lloyd Aviation which operated from Nowra about 100 miles south of Sydney. Early in 1989 he obtained employment with Qantas. He had sought employment with Qantas when he first left the RAAF but was unable to obtain it until Qantas raised the age limit for employment of pilots in February 1989. It was a condition of that employment that he live within three hours' driving time of Sydney airport.
During the later years of his service with the RAAF the respondent had lived with his family in the Newcastle area. On 26 February 1986 he was granted an initial advance by the Corporation which he used to purchase a home at Salamander Bay near Port Stephens about 30 miles north of Newcastle and close to the Williamtown base where he was stationed. The house was occupied by the respondent and his family prior to his retirement, it having been purchased in April 1986.
The Tribunal accepted evidence that the house was purchased with the intention that it would remain the family home during the balance of the respondent's service with the RAAF and afterwards. Two factors influenced the purchase, namely, the fact that the respondent's wife's parents were resident in Newcastle and Salamander Bay was within easy travelling distance of Williamtown.
When the respondent began employment with Lloyd Aviation at Nowra he leased the Salamander Bay home and purchased another house at Nowra. He raised further finance from a bank. He did not seek any subsidy from the Corporation in relation to the mortgage into which he then entered.
After the respondent obtained employment with Qantas, the house at Nowra was no longer needed and it was sold. The house at Salamander Bay was more than three hours' travelling time from Sydney airport and it was placed on the market. It was eventually sold in May 1989. So that the family might remain close to Newcastle another house was purchased at Dudley, which, although in the Newcastle area, is within three hours' travelling time of the Sydney airport. That was the house the purchase of which was foreshadowed in the application made to the Corporation on 23 February 1989.
The application was refused in a letter written to the applicant on 22 March 1989 signed by Mr. R. Millard on behalf of the State Manager of the Corporation. Amongst other things the letter said:-

"I note that you left the RAAF in August 1986 and subsequently secured employment in Nowra. Your decision to discharge from the Forces to pursue civilian employment was voluntary, as is your proposed move to Newcastle, and your request does not come within the policy outlined. Accordingly, it is not possible to favourably consider your request for further assistance."

It is now necessary to refer to the relevant provisions of the Act. The Act as amended down to 1980 has been reprinted as at 31 August 1981. However the reprint has to be read in conjunction with later amendments. For the purposes of this case the significant of these are the Defence Service Homes Amendment Act 1988 and the Defence Service Homes Amendment Act 1989. The 1989 amending Act was assented to on 27 June 1989 but, by s.2, it provided that it should be taken to have commenced immediately after the commencement of s.10 of the 1988 amending Act. Section 10 of that Act inserted a new Part III into the Act which is headed, "Notices of Eligibility and Certificates of Entitlement". Section 10 of the 1988 amending Act came into force on 19 December 1988. This was before Mr. Millard made his decision but, before the Tribunal commenced the hearing of the matter in October 1989, the 1989 amending Act was enacted. Its provisions applied retrospectively.
A significant change in policy was given effect to in the 1988 amending Act. As I have mentioned, the Corporation was abolished on 30 June 1989. On 9 November 1988 the Commonwealth entered into an agreement with Westpac Banking Corporation. The agreement recited that the Commonwealth was willing to provide the Bank with the exclusive right to provide advances and benefits to all persons who satisfied the tests of eligibility and entitlement under the Act current as at the date of the agreement other than those members of the Defence Force who enlisted after 14 May 1985. For its part the Bank was prepared to acquire the Corporation's interests described in the agreement which were to be vested in the Bank by legislation. These interests included current mortgages given by eligible persons to the Corporation. The agreement further recited that the Commonwealth was willing to pay to the Bank a subsidy in respect of specified portfolio assets, subsidised advances and certain other agreements. The agreement was approved in s.4B of the Act which was inserted by s.7 of the 1988 amending Act. There followed a number of ancillary provisions including provisions regulating the transfer of assets to the Bank and the transfer of other assets to the Commonwealth.
One then comes to the new Part III of the Act which is comprised of ss.15 to 23 inclusive. Section 15 provides that a person may apply to the Secretary for, inter alia, a Notice of Eligibility and a Certificate of Entitlement in relation to subsidy on a subsidised advance that the person may seek from the Bank. By s.16, where the Secretary is satisfied that the applicant is an eligible person, the Secretary shall issue to the applicant a Notice of Eligibility. The expression "eligible person" is defined in s.4 of the Act. It is unnecessary to go to the detail of that definition. There is no issue between the parties about the respondent's eligibility under the Act. The Secretary is defined as the Secretary to the Department of Veterans' Affairs.
Section 17 provides that the Secretary shall, on application made to him, issue to the applicant a Certificate of Entitlement certifying that subsidy is payable by the Commonwealth to the Bank if the Bank makes an advance to the applicant. The Certificate is to specify the maximum amount in respect of which subsidy is payable, the maximum term of the advance, the purpose of the advance and the rate of interest payable thereon and is to contain particulars of other matters specified in the agreement made between the Commonwealth and the Bank.
Subsection 18(1) specifies the criteria for the issue of certificates of entitlement. The subsection is as follows:-

"18. (1) Subject to this section, the Secretary shall not issue a certificate of entitlement in relation to subsidy on an advance that a person may seek from the Bank unless satisfied that:

(a) the person is an eligible person, or the husband or wife of an eligible person who is temporarily or permanently insane;

(b) the person is not the owner of any dwelling-house other than that in respect of which the advance is payable;

(c) the person is not liable to repay any amount received by way of assistance under an agreement of the kind known as a War Service Land Settlement Agreement;

(d) the person has not received money from the Commonwealth after 9 December 1987 by way of:

(i) a payment of a cash grant instead of an advance under this Act as in force on or before that day; or

(ii) a payment instead of such a cash grant;

(e) if the person has a husband or wife (other than a husband or wife from whom he or she is permanently separated) - the husband or wife is not the owner of any dwelling-house other than that in respect of which the advance is payable;

(f) except in the case of an advance to a person included in paragraph (b) or (d) of the definition of 'Australian Soldier' in section 4 in relation to a house or building used or to be used as a hospital, sanatorium or nursing-home - the dwelling-house in respect of which the advance is payable is intended to be used by the person as a home for the person and any dependants of the person; and

(g) except as provided by the agreement, such advance will be secured by a first mortgage over the relevant holding of the person." Subsections 18(2), (3) and (4) are as follows:- "(2) The Secretary shall not issue a certificate of entitlement in relation to subsidy on an advance, other than an additional advance, that a person may seek from the Bank unless satisfied that the advance is for the purpose of enabling the person:

(a) to build a dwelling-house on a holding of the person;

(b) to purchase land and build a dwelling-house on the land;

(c) to purchase a dwelling-house together with the land on which it is built;

(d) to complete a partially built dwelling-house owned by the person;

(e) to enlarge a dwelling-house owned by the person; or

(f) to discharge any mortgage, charge or encumbrance already existing on a holding of the person.

(3) The Secretary shall not issue a certificate of entitlement in relation to subsidy on an additional advance that a person may seek from the Bank unless satisfied that the advance is for the purpose of enabling the person:

(a) to enlarge a dwelling-house owned by the person to the extent necessary to provide essential extra sleeping accommodation or to instal essential utility services;

(b) to meet the cost of roadmaking if the person is liable to meet that cost but is otherwise unable to do so;

(c) if the person is a widow or widower who is the registered owner of a motor vehicle and is unable to meet the cost of building a garage for the motor vehicle - to build a garage for the motor vehicle;

(d) to raise a dwelling-house owned by the person above the level of periodic flooding; or

(e) to discharge any mortgage, charge or encumbrance already existing on a holding of the person.

(4) The Secretary shall not issue a certificate of entitlement in relation to subsidy on an initial advance, an additional advance or a further advance that a person may seek from the Bank for the purposes referred to in paragraph (2)(f) or (3)(e) if the mortgage concerned was raised with the consent of the Corporation under section 32 of this Act, as in force before the commencing day, or, in any other case, unless satisfied that:

(a) the mortgage, charge or encumbrance concerned was raised by the person with the consent or approval of the Corporation or by the Secretary, as the case may be;

(b) the mortgage, charge or encumbrance is over land and the person intends to use the advance partly to discharge the mortgage, charge or encumbrance and partly to build a dwelling-house on that land;

(c) the terms of the mortgage, charge or encumbrance are onerous and, having regard to the person's income, compliance with those terms is causing the person serious financial hardship; or

(d) the person is suffering serious financial hardship for other reasons beyond the control of the person."

Subsection 18(6) provides that "advance" where used in s.18 means a subsidised advance other than a widow's advance or an advance for essential repairs. The expression "further advance" was defined in subsec. 4(1) of the 1988 amending Act to mean a subsidised advance to a person who had been a purchaser or borrower but was not a purchaser or borrower immediately before the advance was made. The definition was replaced by a new definition in s.3 of the 1989 amending Act. It was the new definition which was relevant to the Tribunal's consideration of the matter. The new definition is as follows:-

"'further advance' means a subsidised advance to a person who:

(a) has been a purchaser or borrower as defined in this section (as in force before, on or after the commencing day), otherwise than merely because the person is or was the personal representative of a deceased purchaser or borrower as so defined; and

(b) is not such a purchaser or borrower immediately before the advance is made;"

The "commencing day" was 19 December 1988.

"Purchaser" is defined in the Act to mean a person who is liable to pay the outstanding balance of the purchase money in respect of the purchase of land and a dwelling house under a contract of sale in respect of which subsidy is payable and "borrower" means a person who, inter alia, is liable to pay the outstanding amount of a subsidised advance in respect of which subsidy is payable.
Section 19 of the Act is central to the questions which arise for determination. Section 19, in the form in which it was inserted into the Act by the 1988 amending Act, was repealed by the 1989 amending Act which replaced it with the following provision:-

"19. (1) Except with the approval of the Minister, the Secretary shall not issue a certificate of entitlement in relation to subsidy on a subsidised advance (other than an additional advance, a widow's advance or an advance for essential repairs) that a prescribed person may seek from the Bank.

(2) In this section: 'prescribed person' means:

(a) a person who is or was at any time a purchaser as defined in section 4 (as in force before, on or after the commencing day), otherwise than merely because the person is or was the personal representative of a deceased purchaser as so defined;

(b) a person who is or was at any time a borrower as defined in section 4 (as in force before, on or after the commencing day), otherwise than merely because the person is or was the personal representative of a deceased borrower as so defined;

(c) a person who executed a mortgage in favour of the Corporation under subsection 19(6) of this Act, as in force before the commencing day; or

(d) a person to whom an initial advance is taken to have been made under section 37; but does not include any such person if:

(e) a Corporation advance is or was made to the person at any time after 9 December 1987 for a term of 25 years or less, otherwise than in connection with the execution by the person of a mortgage mentioned in paragraph (c); or

(f) an initial advance (other than one taken to have been made under section 37) or a further advance is or was made to the person at any time."

This form of s. 19 was the form which the Tribunal was required to consider because the provisions of the 1989 amending Act applied retrospectively and, once that Act was passed, operated from 19 December 1988 which was the date upon which the new Part III of the Act came into force. However, the Tribunal did not allude to the new form of the section. For whatever reason it proceeded as if the former s.19 was the relevant one. For reasons which will emerge, the failure of the Tribunal to have regard to the correct form of s.19 creates an additional complication in the consideration of this matter. For this reason it is necessary to refer to the earlier form of s.19 which was as follows:-

"19.(1) Except with the approval of the Minister, the Secretary shall not issue a certificate of entitlement in relation to subsidy on a subsidised advance (other than an additional advance, a widow's advance or an advance for essential repairs) that a person may seek from the Bank if the person is, or was at any time, a purchaser or a prescribed borrower or a person to whom an initial advance is taken to have been made under section 37.

(2) In this section: 'prescribed borrower' means a borrower other than a borrower in relation to an initial advance or a further advance, or a Corporation advance granted after 9 December 1987 for a term of 25 years or less."

Review of decisions by the Tribunal is provided for in s.44 of the Act. Before referring to it, I should mention s.43 which provides for the internal review of "reviewable decisions". The expression "reviewable decision" is defined in subsec.4(1) of the Act to mean, inter alia, a decision of the Secretary refusing to issue a notice of eligibility or a certificate of entitlement as provided for in ss.16 and 17 to which I have referred. Section 43 provides that the Secretary shall, as soon as practicable after making a reviewable decision, cause a notice in writing to be given to the person whose interests are affected, informing him of the terms of the decision and the reason for it and containing a statement setting out particulars of the person's right to have the decision reviewed under s.43. A person affected by the decision may apply in writing to the Secretary for a review of the decision. The Secretary is to review the decision or cause it to be reviewed by one of his delegates and the decision may be affirmed, varied or revoked. In cases where the Secretary personally has made the original decision, the application for review goes to the Minister who is to review the decision.
Section 44 provides that an application may be made to the Tribunal for a review of a decision affirming or varying a reviewable decision under s.43 or for the review of a decision by the Minister to give an approval under s.19 of the Act. It is the submission of counsel for the applicants that the decision which was reviewed by the Tribunal was the decision of the Minister made by his delegate under s.19 of the Act and not of any other decision. In the submission of counsel for the respondent, the Tribunal reviewed both the Minister's decision under s.19 and what was claimed to be a decision of the Secretary under s.17 to refuse a Certificate of Entitlement which decision, so it was said, had been reviewed internally and confirmed. It was not suggested that the internal review had taken place before the matter was referred to the Tribunal but it was said that it had taken place between that time and the date of the hearing by the Tribunal.
The order which the Tribunal made was that the decision under review be set aside and the matter remitted to "the Respondent" (presumably the Secretary and not the Corporation) with the direction that the now respondent be entitled to receive a Certificate of Entitlement in relation to a subsidised advance on a second occasion.
Before going to the submissions of the parties, I should refer to some further legislative or quasi legislative provisions. Regulation 6 made under the Act provides that applications for homes and advances shall be dealt with in the manner laid down "in the General Orders issued by the Corporation". In evidence are general orders formulated by the Corporation. The evidence does not reveal when they were formulated but Regulation 6 to which I have referred was made no later than 1980 at a time when the Corporation was in existence and charged with the task of providing homes, advances and subsidies to eligible persons. A section of the General Orders is to be found in Chapter 22 which is entitled "Further Advances" and in Chapter 23 which is entitled "Second Assistance". Paragraphs 23.1, 23.14 and 23.16 of Chapter 23 are as follows:-

"23.1 Requests for second assistance will normally be considered only in the circumstances listed below unless the State Manager considers there are exceptional circumstances which warrant special consideration by GO. This GO does not apply to second assistance applications described in GO 22.11.

........ ........ ........ ........ ........ ..... 23.14 Where it is established that the applicant is compelled, for reasons beyond his control, to move to another locality for employment reasons and it is impracticable for the applicant to reside in the house with a Corporation advance and travel to the place of employment. The compulsion to move may arise out of a number of factors: . the conditions of an applicant's employment e.g. service in the Defence Force;

. transfer of operations of a government department or agency, or a private organisation to a growth centee; . an internal change in an organisation's operations or staffing; . the loss through reasons beyond his control, of an applicant's employment and his inability to obtain other suitable employment in the locality of the house. ........ ........ ........ ........ ........ ..... 23.16 A voluntary transfer will not constitute grounds for a further advance. Voluntary transfers will include cases where: . an applicant wishes to take up employment which will make use of skills etc. which he already possesses and which he cannot use in his present employment or in any alternative employment in the same locality; . an applicant gives up his employment to undertake a course of study and on its completion wishes to take up employment in another area which will make use of the skills etc. thus acquired."

I have earlier set out part of the letter dated 22 March 1989 which notified the respondent that his application had been unsuccessful. Earlier parts of the letter were as follows:-

"Loans granted before (9 December 1987) are not portable, although in certain circumstances a loan subsidy may be approved. Generally speaking, a loan subsidy will be considered only where the borrower is compelled to move from the Defence Service Homes property because of circumstances for which he or she is in no way responsible. Where a request is based on employment grounds an applicant must demonstrate that he has been compulsorily transferred in his employment, or that he is unemployed for reasons beyond his control and unable to find suitable employment in the locality of the home under security to the Defence Service Homes Corporation."

There then appeared that part of the letter which I have earlier quoted and the letter continued:-

"The above decision is based on the information supplied by you and the Corporation's present policy relative to further assistance. The Defence Service Home Act provides for consideration of any appeal against the decision.

You have the right to apply to the Administrative Appeals Tribunal for a review of the decision. If you decide to apply, the application to the Tribunal must be made in writing, including a statement of your reasons, and must be lodged with the Tribunal within 28 days of the date you receive this letter.'

It is to be observed that the letter did not suggest to the respondent that he could apply for internal review of the decision pursuant to s.43 but rather that he had the right to apply to the Tribunal for a review of the decision. This would appear to have been an implied reference to s.44.
As earlier mentioned the letter of 22 March 1989 was signed by Mr. R. Millard on behalf of the State Manager of the Corporation. It was agreed by both parties that Mr. Millard, despite the way he described himself at the end of the letter, was not acting on behalf of the State Manager of the Corporation but was acting as a delegate, in the applicants' submission, of the Minister; in the respondent's submission of both the Minister and the Secretary. Counsel said that I should draw one of these inferences because, whether the Corporation were in existence or not, it would be irrelevant for it to make any decision in the matter. The decisions were a decision of the Secretary under s.17 and a decision of the Minister under s.19. During the course of the hearing counsel for the applicants tendered copies of delegations given both by Mr. Humphreys, the then Minister, and the Secretary. These are both dated 19 December 1988 so that Mr. Millard was a delegate of both the Secretary and the Minister at the relevant time. I should perhaps mention that the delegations do not refer to Mr. Millard by name but to Administrative Services Officers of either one of two classes holding specified position numbers. Counsel for the applicants said, without objection, that he was instructed that Mr. Millard fell into one of these categories.
It was the submission of counsel for the applicants that Mr. Millard, in making the decision which he did, was acting under s.19 of the Act and not under s.17. It was said that whatever the outcome of the appeal may be, the order made by the Tribunal would need to be corrected to direct the grant of an approval under s.19 rather than a certificate of entitlement under s.17. Counsel submitted that it was clear from a reading of the decision of the Tribunal that it considered that it was acting in a case which concerned only s.19. He pointed to the fact that that was the section referred to in para.8 of the decision (although in the form it took under the 1988 amending Act and not the 1989 amending Act). No reference is to be found in the decision to s.17 or s.18 which are the sections relevant to the issue of a certificate of entitlement. Additionally, counsel relied upon the fact that there had been no internal review under s.43 of the Act which would give rise to a decision of the Secretary which could be made the subject of an application for review by the Tribunal under para.44(1)(a) of the Act.
In the submission of counsel for the respondent, there were clear signs that the Tribunal had in fact dealt with the matter, not only under s.19, but also under s.17. There was first the form of the Tribunal's order to which I have referred. It contained a direction that the now respondent was entitled to receive a certificate of entitlement. Furthermore, the documents forwarded to the Tribunal under s.37 of the Administrative Appeals Tribunal Act 1975 showed that an internal review had taken place. One of the documents purports to be a summary of events "leading to this matter". The fifth of these was said to be, "Internal Informal Review and Confirmation of Delegate's Decision and Statement of Reasons dated 3 May 1989". A record of that review was amongst the papers sent to the Tribunal. It was a document signed by Mr. David as Acting General Manager of the Corporation and sent to the State Manager thereof. Four cases including that of the respondent were dealt with. The document said that the State Manager's recommendations to allow the decisions to refuse approvals of second assistance to stand were accepted.
As earlier mentioned, there is no sign that the formal procedure provided for in s.43 of the Act for internal review was ever followed. Instead the review was carried out without reference to the respondent who was told only of a right to have the decision reviewed by the Tribunal. The respondent was not told that he was entitled to apply to the Secretary for a review of the decision and was not informed of the fact that an internal review was being conducted. In those circumstances I think it right to describe the internal review which was carried out as an informal review, in other words, not a review for the purposes of s.43.
Counsel for the respondent analysed the provisions of ss.17 and 18 and contended that, once a certificate of approval under s.19 were granted, the facts of the case were such as to lead automatically to the conclusion that a certificate of entitlement must have issued. This led to submissions by counsel for the applicants that this was not so. Questions of the construction of the two provisions, but particularly of s.18, were raised. Counsel for the applicants said that the provisions of subsec.18(4) might well be applicable to the case because the purpose for which the subsidy was required might prove in reality to be, not for the purpose of enabling the respondent to purchase a dwelling house (para. 18(2)(c)), but to discharge a mortgage already in existence on the house at Dudley which the respondent has purchased (para. 18(2)(f) and probably para. (3)(e) as well). The evidence did not enable one to tell but, if para. 18(2)(f) (or para. 18(3)(e)) were relevant, the provisions of subsec. 18(4) would arise for consideration. Those provisions prohibited the Secretary from issuing a certificate of entitlement unless the Secretary were satisfied of one of the four alternatives mentioned in the subsection. It was submitted that none of these was likely to be established.
I should say in passing that the position is difficult because, at the time that the respondent made his application for subsidy, the purchase of the house at Dudley had not been completed. The application was made for the purpose of buying a home, but, although a contract had been entered into, the contract had not been completed. By the time the matter reached the Tribunal in October 1989 the respondent and his wife had completed the purchase of the house at Dudley and were living in it but, whether they financed the purchase by entering into a mortgage, the evidence does not enable one to say.
Reference to the transcript of the proceedings before the Tribunal does not suggest that the Tribunal entertained any submissions otherwise than in relation to s.19. The section was expressly referred to by Mr. Pola, the Departmental representative, at the commencement of his submissions and the fact that the Tribunal made no reference to any other provision appears to be in accordance with the way the matter was put to it. The respondent was unrepresented and probably had little idea of the ramifications of the complex of legislation which his appeal raised for consideration. In passing I should say that it seems to me to be regrettable that the provisions of a law which touches so fundamentally the lives of so many people who have served Australia well over numbers of years cannot be expressed in more simple terms. The average person will have no hope of understanding the nature and extent of his or her rights under the Act and, plainly enough, its proper construction has in this case vexed the minds of senior officers of the Department, members of the Administrative Appeals Tribunal and myself.
Another matter which was relied upon by counsel for the respondent was the fact that the respondent made but one application, namely, the further subsidy application to which I have referred. That application was the subject of the decision notified in the letter of 22 March 1989. Counsel said that, in the absence of any reference to the provisions of the legislation in the application or in the letter and the failure of those dealing with the application to tell the respondent that two steps were involved, namely, the obtaining of an approval from the Minister under s.19 and a certificate of entitlement from the Secretary under s.17, it should be inferred that Mr. Millard, who was empowered to act both for the Minister and for the Secretary, had dealt with the matter in its entirety with the consequence that the decision was a refusal to grant certificates both of approval and entitlement.
I must confess that I have found this argument attractive, but I have reached the conclusion that it ought be rejected. There is no sign that the matter was dealt with otherwise than as a matter under s.19 of the Act. It may be that Mr. Matthews dealt with it comprehensively but in the absence of there coming into existence a reviewable decision within the meaning of s.43 of the Act, it is difficult to see how the review by the Tribunal could have been of any matter other than the failure of the Minister to grant an approval. When one adds to these considerations the fact that s. 19 was the only section referred to, both in the submissions made to the Tribunal and in the Tribunal's decision, I do not think one can draw the inferences which counsel for the respondent says are open. In reaching this conclusion I have taken into account the form of the Tribunal's order, but I do not think that it can outweigh the considerations which point in the other direction. The matter is most unsatisfactory but I am afraid that it has to be looked at as one where, at the most, the respondent was entitled to a direction that the Minister grant an approval under s.19. The matter would then have to go to the Secretary for further consideration and possible internal review if his decision were adverse to the respondent.
Nevertheless, counsel for the applicants submitted that the Tribunal's decision, even if viewed as a decision to direct the grant of an approval, was wrong in law so that the matter should be sent back to the Tribunal for further consideration. I come to the submissions upon which counsel for the applicants relied in this respect. An understanding of them requires further reference to the Tribunal's decision. In para. 9 the Tribunal referred to the General Orders which it said had been issued by the Department. It said that the Departmental representative did not tender any material evidencing the standing of the General Orders but "agreed in argument" that they represented Departmental guidelines which had not been reviewed since the coming into force of the 1988 amending Act. The Tribunal went on to treat the guidelines as Departmental policy and referred to a number of earlier Tribunal decisions which said that the Tribunal, standing in the shoes of the decision maker, should, as far as possible, give effect to Departmental policy. See Re Pigdon v. Minister for Veterans' Affairs (1989) 10 AAR 560 at pp 562-3 .
The Tribunal then referred to para. 22.5 of the General Orders which says that requests for further advances will normally be considered only in the circumstances listed in Chapter 22, Chapter 23 and Chapter 24, unless the State Manager of the Corporation considers that there are special circumstances which warrant special consideration by the Central Office. The Tribunal then referred to para. 23.14 which has been quoted above and remarked in passing that specifying the particular examples mentioned in the paragraph could not be taken to be a limitation of the circumstances but rather as illustrative of some circumstances which might exist.
The Tribunal continued:-

"13. It was urged upon us by Mr. Pola that the Applicant's resignation from the RAAF was voluntary and thus paragraph 23.16 applied. This paragraph states inter alia: 'A voluntary transfer will not constitute grounds for a further advance. ...'

14. The fact that the Applicant resigned from the RAAF and was not compulsorily retired is totally irrelevant. The time for consideration of the Applicant's claim is the time when he requested the second advance. That second advance was not requested until his prospective employer required, as a condition of his employment, that he reside within three hours travelling of Sydney Airport."

The Tribunal next referred to the decision of Davies J. (when President of the Tribunal) in Re Dainty v. Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 where his Honour said (p 266):-

"As was demonstrated in Re Drake (No. 2)

((1979) 2 ALD 634), there are frequently very good reasons why the Tribunal should adopt and apply a relevant policy, particularly one which is appropriately formulated in the political context and which has been enunciated by a Minister of State. See the discussion in Re Drake (No. 2) and also in Re Anston and Secretary to the Department of Primary Industry (1985) 4 AAR 65 at 74-78.

I accept that, in the exercise to (sic) discretions under the Australian Citizenship Act 1948, the Tribunal ought generally to apply guidelines or policies which have been established by the Minister of State for Immigration and Ethnic Affairs. Such policies can only be adopted by the Minister. He has the experience and advice and the power to formulate such policies and he is able to take responsibility in Parliament should the policies be found wanting. But to say that, is not to say that the Tribunal ought to treat policy as more than policy. Policy is not a legislative prescription and, though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down."

Davies J. concluded that the Ministerial guidelines there under consideration were not appropriate to Mr. Dainty's circumstances and said that a consideration of factors which were relevant ought not to be denied because they fell outside guidelines which had been prepared for the purpose of the consideration of an ordinary and different type of case.
The Tribunal continued:-

"16. In this matter it seems to us that there are in the case of this Applicant factors which are relevant and should be taken into account. The Applicant was required to move from the Salamander Bay house in order to secure employment as a pilot with QANTAS. The Applicant's need to secure permanent employment as a pilot after he retired from the RAAF is accepted by the Tribunal as reasonable. It is, in our opinion, nothing to the point that the move was required as a precondition to employment as opposed to the situation contemplated by the guidelines, namely, that the move was a condition of retaining employment. ........ ........ ........ ........ ........ .....

18. In our opinion the Applicant's circumstances are as follows:

(a) He had hoped to make the home at Salamander Bay the family home.

(b) Whilst employed at Nowra he continued to retain that home notwithstanding financial arrangements not to his advantage.

(c) At the time of his resignation from the RAAF he was informed he would not be employed by QANTAS. Later as a result of a change of company policy he was offered employment by QANTAS in his profession of an airline pilot.

(d) It was a precondition of such employment that he live within three hours of Sydney Airport.

(e) The house upon which the original advance was secured did not meet this criteria so it was necessary to sell that house and purchase elsewhere. The request for the second advance was made well before settlement of the sale of the house upon which the advance was secured. These circumstances plus the totality of the evidence is sufficient for the Tribunal to find, as we do, that exceptional circumstances exist in this case, within the provisions of the General Orders paragraph 23.1."

The Tribunal concluded its decision by saying:-

"20. ... as stated above the facts and circumstances of this case are such that the Tribunal is able to find that exceptional circumstances exist and that in addition there are other factors which are relevant and should be taken into account sufficient to have the matter considered on its own merits, see Re Dainty supra. The decision under review will therefore be set aside and the matter remitted to the Respondent with the direction that the Applicant is entitled to receive a Certificate of Entitlement in relation to a subsidised advance on a second occasion."

In the submission of counsel for the applicants, the Tribunal had decided the matter favourably to the respondent because it found exceptional circumstances within the meaning of paras. 22.5 and 23.1 of the General Orders. It was submitted that it was not open to the Tribunal to find exceptional circumstances. The submission was based on a consideration of the legislation as a whole, there being no statement of specific criteria to be taken into account by the Minister when making a decision under s.19 of the Act. Of the section counsel said:-

(a) It contained a dispensing power authorising a departure from what is otherwise the scheme of the Act that a person was to be assisted to enter the housing market but, ordinarily, no more. The primary objective of the Act was to provide homes for eligible persons who did not own one rather than improving the housing standard of those who had already been assisted;

(b) The power was in terms vested in the Minister rather than in the Secretary;

(c) Guidance in determining the ambit of the power was to be obtained by a consideration of a number of the provisions of s.18.

I agree that one needs to look at the Act as a whole in order to determine the purpose and extent of the power which is conferred by s.19. It is correct to say that it is a dispensing power which was available to be exercised in the context of an Act of Parliament which lays down, with a degree of particularity, the circumstances under which eligible persons are entitled to benefit under the Act. Nevertheless, there being no specification of criteria or guidelines in the section, the decision to be made is very much one for the decision maker and the considerations which are taken into account or omitted from account are themselves within the decision maker's discretion. Obviously Departmental policy is a matter which it is relevant to take into account. Both the Minister, by Mr. Millard, and the Tribunal took it into account.
It must be remembered that this is not an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977. It is an appeal from the Tribunal on a question of law. Section 43 of the Administrative Appeals Tribunal Act provides that the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. In other words, it stands in the shoes of the Minister or his delegate. The matter was at large before it and it was entitled to reach conclusions of its own on what amounted to special circumstances in the case before it. It would only be if the Tribunal had taken into account matters which, upon the proper construction of the Act, particularly ss. 17, 18 and 19, were not open to it to consider, that this Court could interfere. In my opinion this is not a case of that kind. I reject the submission to the contrary made by counsel for the applicants.
Then it was submitted that the Tribunal fell into error in treating as irrelevant the circumstances that the respondent resigned from the RAAF and was not compulsorily retired. I have set out the paragraphs in which the Tribunal deals with this matter. It was said that the Tribunal was not entitled to regard the respondent's voluntary retirement as an irrelevant consideration. I accept the submission made by counsel for the respondent that the Tribunal, when it said what it did, was dealing only with the provisions of paras. 23.16 (and perhaps para. 23.14) of the General Orders. It was not saying that the respondent's voluntary retirement was irrelevant for all purposes. So much is made clear, in my opinion, by the reference to the evidence of the respondent's retirement in the decision and the terms of para. 18(e) of the decision which I have earlier quoted. It is true that the circumstance that the respondent voluntarily retired from the RAAF was not a matter to the forefront of the Tribunal's decision. But a reference to the way in which the case was argued before the Tribunal is instructive. In the course of the Departmental representative's submissions, the presiding member of the Tribunal asked what relevance the voluntary retirement had. The reply was, "Probably not a great deal ... I would not be putting too much emphasis on that ...". Later the Departmental representative said that the voluntary discharge did not carry any great weight. The matter was discussed later and one of the members of the Tribunal remarked that he thought the matter had been withdrawn. The Departmental representative agreed.
The final submission was based on the taking into account by the Tribunal of a passage from the Hansard Report of the debate in the Senate on 22 August 1983 on a Bill for the amendment of the Act presented to Parliament in that year.
Whatever the rights and wrongs of the matter may be, it is clear that the Tribunal did not take the matter complained of into account. In para. 19 of its decision it said that certain circumstances had been outlined sufficient to constitute exceptional circumstances. It went on to say that, had it been necessary, the Tribunal could also have had regard to the policy as enunciated in a passage from the debate which it set out. The language used by the Tribunal shows that in fact what was said there played no part in its decision. I would say, however, that I do not think that one could obtain any assistance in the construction of the Act, so far as it relates to a problem such as this, from what is reported as having been said in the Senate. The submission is, however, rejected because the Tribunal did not in fact take the matter into account.
My conclusions so far are that the applicants' submissions that the Tribunal acted only under s.19 of the Act should be upheld, but that their remaining submissions should be rejected. Should this lead me to vary the Tribunal's decision by substituting for the direction it made, a direction to the Minister to grant an approval under s.19 of the Act? That is what counsel for the respondent has submitted I should do in the event that my conclusions should be as they are. The problem, however, is that the Tribunal did not apply its mind to the correct form of s.19, that is the section in the form in which it was inserted into the Act by the 1989 amending Act. Nor did it consider the correct definition of "further advance" which the 1989 amending Act also replaced. It may be that nothing turns on the differences which there are in these provisions. But the differences are not insubstantial and may involve the need for matters not yet considered by the Tribunal to be taken into account. In those circumstances, I am afraid that the appeal must be allowed and the matter referred to the Tribunal to be heard and determined again.
This is a regrettable outcome, but I think that referring the matter back to the Tribunal is the only safe course which can be taken. I would hope that before it does go back to the Tribunal, if that is what occurs, there may be further consideration of the matter by the Minister and the Secretary and an attempt made, if their conclusions be adverse to the respondent and he wishes to appeal, to see to it that the whole matter comes back to the Tribunal and not just part of it.
There remains the question of costs. For whatever reason, it is clear that the problem which has arisen in this case concerning the form of the Tribunal's decision arose because of the prescribed form of the application which the respondent made, the form of Mr. Millard's letter of 22 March 1989 and the failure of the Departmental representative at the hearing to spell out precisely what was involved. With respect, I think that the Tribunal contributed to the problem by not sufficiently analysing the sections of the Act which were relevant and in failing to realise that to direct the issue of a certificate of entitlement must perforce have given rise to the need to consider the implications of ss. 17 and 18 before making the decision which it did. The respondent has been substantially successful on the matters which have been argued. The fact that the appeal will be allowed is due to the failure of those administering the Act to spell out, both to the respondent and to the Tribunal, what was really involved. In those circumstances I think the applicants, other than the Corporation which no longer exists, must pay the respondent's costs of the appeal.
In the result, the appeal will be allowed. The decision of the Tribunal will be set aside and an order made remitting the matter to be heard and decided again. The applicants, other than the Corporation, are to pay the respondent's costs of the application.

[1990] FCA 162

30 APRIL 1990