Trevor Alexander and Secretary, Department of Social Services

[2015] AATA 332

[2015] AATA 332 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2015/0180
Re	Trevor Alexander
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Roderick McRae, Member
Date	1 May 2015
Date of written reasons	15 May 2015
Place	Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

..............................[sgd]..........................................

Member

SOCIAL SECURITY - Family tax benefit - baby bonus - notification of birth - date of birth requirement - whether claim is effective - decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 s 37

A New Tax System (Family Assistance) Act 1999 s 36

A New Tax System (Family Assistance) (Administration) Act 1999 s 7, s 157

Births, Deaths and Marriages Registration Act 1996 (Vic) ss 12, 13 and 15

REASONS FOR DECISION

Dr Roderick McRae, Member

15 May 2015

1. Mr Trevor Alexander, the Applicant, states he is the male biological parent of a daughter.  On 24 July 2014 the Applicant lodged a claim for Family Tax Benefit (FTB) and Baby Bonus (BB) with Centrelink related to this child.  On 14 August 2014 he was advised in writing that the birth document that you have supplied is not adequate, and received a request for information and advised of the possibility that the claim may be non-effective (T4).  On 28 August 2014 a Centrelink officer rejected the Applicant’s claim for FTB and BB, as the claim was not effective (T5).  (Centrelink is the service delivery agency for the Secretary, Department of Social Services (the Department)). 

2. The Applicant requested a review of this decision by an authorised review officer (ARO), who affirmed the decision on 20 September 2014 (T8).  The Applicant sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the ARO’s decision on 11 December 2014 (T2).  On 15 January 2015 the Applicant lodged an application for review of the SSAT decision with this Tribunal (T1).

3. The issues before the Tribunal are whether the Applicant was entitled to FTB according to the requirements of s 157(1) of A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act) and BB according to the requirements of s 36(2)(c) of A New Tax System (Family Assistance) Act 1999 (the Act) at the time of his claim on 24 July 2014.  The Tribunal’s decision is that the Applicant was not entitled to FTB and BB as the requirements had not been satisfied. 

4. The Applicant was self-represented, assisted by Mr McClure, a friend who stated he is not legally qualified. The Respondent was represented by Mr J Henderson, an advocate for the Secretary. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents). 

   BACKGROUND

5. The Applicant is a 53 year old man.  He states he is the male biological parent of a daughter.  He is in receipt of FTB related to an older child following a successful claim. 

   APPLICANT’S SUBMISSIONS

6. The Applicant, who advised he had read the SSAT decision and the Respondent’s Statement of Facts and Contentions, submitted that he was caught in a collision between the requirements of Centrelink to complete a form to obtain FTB and BB, and his religious beliefs as a member of the Spirit of Christ in Action church, which precluded his ability to complete the form as required to obtain FTB and BB for his daughter born through free birth.  He opined that the date of birth was irrelevant, and the month of birth was sufficient, particularly as he could produce the infant for whom he required financial assistance to raise.  He was acting to protect her legal interests, because she is unable to provide informed consent.  He stated he does not possess the authority to release the child’s particulars.  In his Application for Review of a Decision, he conceded that [the SSAT] decision whilst it may technically follow the book … . 

7. The Applicant stated that Centrelink was pernickety, and trying to blackmail [him] against his religious beliefs, amounting to an administrative abuse of power.  It was unreasonable that the Respondent did not exercise a discretion related to a deemed date of birth used for Indigenous Australians and refugees in his case, and Centrelink ought to exercise this in favour of benefit to his family.  He opined Centrelink and the government had a duty to provide assistance to him, and that it was an act of violence against him to not provide what was due to him, and was his right to receive.  He stated that Centrelink should have gone to any lengths required to ensure he received the FTB and BB payments, as it was up to them to obtain the information they wanted.  For this, he relied on Victorian legislation, a report of the Victorian Law Reform Commission (VLRC), a submission to the VLRC, and alluded to the Australian Constitution. 

8. The Applicant provided a photocopy of a Family Court of Australia consent order dated 20 March 2015, which contained information that the child for whom the claims were made was born on 3 January 2014.  The Applicant appeared to seek a judicial declaration from the Tribunal amounting to wanting his own evidence related to the consent order date of birth of 3 January 2014 to be ignored, and several bureaucracies ordered that a different (earlier) date of birth of 1 January 2014 be assigned, that FTB and BB payments be backdated to this arbitrary date, and that interest payments be added to the payments he wanted authorised from this arbitrary date.  In addition, he appeared to require the Tribunal to alter several pieces of legislation, including the Australian Constitution.  He stated that if unsuccessful, he would appeal this Tribunal’s decision to the Supreme Court of Victoria. 

   RESPONDENT’S SUBMISSION

9. The Respondent stated that the Applicant is responsible for registering the birth of the child.  The FTB claim was not effective as it did not contain a date of birth for the child about whom the claim was made.  As such, the claim is taken not to be made.  The requirements for BB have not been met as at the time of the claim the birth of the relevant child was not and has not been subsequently registered as required by law.  As such, the claim is taken not to be made. 

   LEGISLATION

10. Section 7 of the Administration Act states:

    How to claim

    (1)An individual or approved care organisation (a claimant) may make a claim:

    (a)for payment of family tax benefit by instalment; or

    (b)for payment of family tax benefit for a past period; or

    (c)in the case only of a claimant who is an individual—for payment of family tax benefit by single payment/in substitution because of the death of another individual.

    Form etc. of claim

    (2)To be effective:

    (a)a claim must:

    (i)     be made in a form and manner; and

    (ii)     contain any information; and

    (iii)    be accompanied by any documents;

    required by the Secretary;

    and s 157 states:

    157  Obtaining information to verify claims etc.

    (1)The Secretary may require a person to give information about a class of persons, to a specified agency for either or both of the following purposes:

    ...

    (b)to verify the eligibility, conditional eligibility or the applicable weekly limit of hours of persons who have made claims for family assistance.

    (2)The information that the Secretary may require about each person in the class of persons is all or any of the following information (but no other information):

    (a)full name and any previous name;

    ...

    (e)date of birth; ...

11. Section 36 of the Act (prior to 1 March 2014) which is the relevant act states:

    36  When an individual is eligible for baby bonus in normal circumstances

    (1)An individual is eligible for baby bonus in respect of a child in any of the 4 cases set out in this section.

    Parent of child

    (2)First, an individual is eligible for baby bonus in respect of a child if:

    (a)the individual is a parent of the child; and

    (aa)the child is an FTB child of the individual; and

    (c)if the individual is, under a law of a State or Territory, responsible (whether alone or jointly) for registering the birth of the child in accordance with the law:

    (i)      at the time the claim for payment of baby bonus is made, the birth of the child has been registered in accordance with the law; or

    (ii)     at the time the claim for payment of baby bonus is made, the individual has applied to have the birth of the child registered in accordance with the law; or

    (iii)    the Secretary is notified, or becomes aware, within 52 weeks after the birth of the child, that the individual applied to have the birth of the child registered in accordance with the law;

12. Sections 12, 13 and 15 of the Births, Deaths and Marriages Registration Act 1996 (Victoria) states:

    PART 3—REGISTRATION OF BIRTHS

    Division 1—Notification of births

    12 Notification of births

    (1)When a child is born in the State, the responsible person must give notice of the birth to the Registrar including any particulars required by the Registrar.

    Penalty: 10 penalty units.

    (2)Notice under subsection (1) may be given—

    (a)in writing; or

    (b)in any other manner approved by the Registrar by notice published in the Government Gazette.

    (3)The notice must be given—

    (a)in the case of a child born alive, within 21 days after the birth;

    (b)...

    ...

    (6)In this section—

    responsible person means—

    (a)in the case of a child born in a hospital or brought to a hospital within 24 hours after birth, the chief executive officer of the hospital; or

    (b)in any other case—

    (i)     the doctor or midwife responsible for the professional care of the mother at the birth or a doctor who examined the body of the still-born child after the birth; or

    (ii)     if no doctor or midwife was in attendance at the birth, any other person in attendance at the birth.

    Division 2—Registration of births

    13 Cases in which registration of birth is required or authorised

    (1)If a child is born in the State, the birth must be registered under this Act.

    15 Responsibility to have a birth registered

    (1)The parents of a child are jointly responsible for having the child's birth registered under this Act and must both sign the birth registration statement but the Registrar may accept a birth registration statement from one of the parents if satisfied that it is not practicable to obtain the signatures of both parents on the birth registration statement.

    (3)The Registrar may accept a birth registration statement from a person who is not responsible for having the child's birth registered if satisfied that—

    (a)the person lodging the statement has knowledge of the relevant facts; and

    (b)the child's parents are unable or unlikely to lodge a birth registration statement.

    FINDINGS

13. It is taken as a fundamental operative norm that all persons within Australian enjoy freedom of religious beliefs. 

14. The Applicant has successfully claimed FTB and BB previously, and is experienced in the necessary requirements for a successful claim.  He claimed FTB and BB on 24 July 2014 for a subsequent infant. 

15. The relevant jurisdiction is the Commonwealth jurisdiction.  It is ultra vires for the Tribunal to issue judicial declarations, order interest payments, or to amend legislation including the Australian Constitution. 

16. There is no objective evidence the Applicant is the male biological parent of the child for whom the FTB and BB have been claimed. 

17. The Department has a wide, lawful discretion to determine what information must be included in a claim for it to be considered effective.  The Department is empowered to require a person’s date of birth.  The Tribunal considers that a date of birth is a positive whole number between and including one and a maximum of 31, not a name of a month in a year.  The Tribunal considers that every person possesses a date of birth.  At an absolute minimum, every neonate’s biological mother is aware of the child’s date of birth.  There is no objective evidence of the provision of a specific date of birth or registration or intention to register the birth of the child to whom the Applicant’s FTB and BB claims relate at the time the claims were rejected. 

18. The Tribunal finds that the Applicant completed the required forms as much as he was prepared to do for his reasons.  The Tribunal considers he is at liberty to choose to do this. 

19. It is necessary to make an effective claim to meet the legislative requirements to become entitled to have FTB paid to a person.  The Applicant did not make an effective claim for FTB as the necessary date of birth was not provided.  The claim is correctly taken to have not been made. 

20. It is necessary to make an effective claim to meet the legislative requirements to become entitled to receive BB.  The Applicant did not make an effective claim for BB as the birth has not been registered or an application to be registered has not been made within 52 weeks of the birth.  The claim is correctly taken to have not been made. 

    CONCLUSION

21. The Tribunal concludes that the Applicant did not satisfy the legal requirements necessary to become entitled to FTB and BB. 

    DECISION

22. Accordingly, the decision to reject the claims for FTB and BB was the correct decision.  The Tribunal affirms the decision of the SSAT made on 11 December 2014. 

1     I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Roderick McRae, Member

........................[sgd].....................................

Associate

Dated   15 May 2015

Date of hearing	1 May 2015
Advocate for the Applicant	Self-Represented
Advocate for the Respondent	Mr J Henderson, Department of Human Services