Tsangaris v Secretary, Department of Education, Employment and Workplace Relations
[2012] FCA 721
FEDERAL COURT OF AUSTRALIA
Tsangaris v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 721
Citation: Tsangaris v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 721 Appeal from: Tsangaris v Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 185 Parties: TERESA TSANGARIS v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS File number: NTD 19 of 2012 Judge: LANDER J Date of judgment: 6 July 2012 Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – Social Security Act 1991 (Cth) – parenting payment – partnered (partner in gaol) – whether circumstances of partner (partner in gaol) precluded consideration of Secretary’s discretion to determine appellant be not treated as member of couple Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Migration Act 1958 (Cth) s 501Social Security Act 1991 (Cth) ss 4, 24, 1068
Cases cited: Beadle v Director-General of Social Security (1985) 60 ALR 225
Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277
Federal Commissioner of Taxation v Salenger (1998) 81 ALR 25
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Scott and Commissioner for Superannuation (1986) 9 ALD 491
Secretary, Department of Social Security v Porter [1997] AATA 137
Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32Date of hearing: 26 June 2012 Place: Adelaide (Videoconference to Darwin) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 48 Counsel for the Applicant: Mr B Taylor Solicitor for the Applicant: Hunt & Hunt Counsel for the Respondent: Mr T Anderson Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 19 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: TERESA TSANGARIS
ApplicantAND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
LANDER J
DATE OF ORDER:
6 JULY 2012
WHERE MADE:
ADELAIDE (VIDEOCONFERENCE TO DARWIN)
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of the Administrative Appeals Tribunal made on 30 March 2012 be quashed.
3.The applicant’s application to the Administrative Appeals Tribunal be remitted to the Administrative Appeals Tribunal for further consideration according to law.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 19 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: TERESA TSANGARIS
ApplicantAND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
LANDER J
DATE:
6 JULY 2012
PLACE:
ADELAIDE (VIDEOCONFERENCE TO DARWIN)
REASONS FOR JUDGMENT
This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of a Deputy President of the Administrative Appeals Tribunal (AAT) given on 30 March 2012, in which he affirmed a decision of the Social Security Appeals Tribunal (SSAT) made on 9 November 2011 that the applicant was being paid the correct rate of parenting payment, and that she was not entitled to be assessed as a single person under the Social Security Act 1991 (Cth) (SS Act).
Section 44(3) of the AAT Act gives this Court jurisdiction to hear and determine appeals and provides, where the appeal is brought from a presidential member, that the jurisdiction may be exercised by the Court constituted as a Full Court or by a single judge depending upon the determination of the Chief Justice: s 44(3)(b). In this case the Chief Justice has determined that the appeal should be heard by a single judge.
The applicant was born on 13 February 1983. She advised Centrelink that she had been engaged in a long term de facto relationship with Mr Simon Cross since 16 January 2006. The applicant and Mr Cross have three young children under the age of six years.
On 10 December 2010, Mr Cross was sentenced to be imprisoned and is not due to be released before 10 June 2013.
The applicant was last paid for employment on 28 October 2010. On 13 December 2010, the applicant contacted Centrelink and was advised to seek a Parenting Payment (Partnered).
On 13 December 2010, a Parenting Payment was granted by Centrelink to the applicant on the basis that the applicant was “partnered (partner in gaol)”.
After that date the applicant sought, because of financial hardship, to receive a benefit at a single rate, which was higher than the partnered (partner in gaol) rate.
On 31 March 2011, the applicant sought a review of her rate of parenting payment. On 17 June 2011, an authorised review officer affirmed the decision to pay the applicant at the partnered (partner in gaol) rate. On 15 September 2011, the applicant appealed to the SSAT. On 9 November 2011, the SSAT affirmed the decision under review.
On 25 November 2011, the applicant applied to the AAT for review of the SSAT’s decision dated 9 November 2011. On 30 March 2012, the Deputy President affirmed the decision of the SSAT.
Section 4 of the SS Act defines “family relationships – couples”. Section 4(2) addresses “member of a couple”. A person is a member of a couple if the person can satisfy the criteria in s 4(2)(b), which provides:
(b) all of the following conditions are met:
(i)the person has a relationship with anther person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii)the person is not legally married to the partner;
(iii)the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v)the person and the partner are not within a prohibited relationship.
In considering the relationship in s 4(2)(b)(iii) the Secretary is to have regard to the circumstances of the relationship, and in particular the circumstances in ss 4(3) and 4(3A).
Section 4(11) provides that a person is partnered if the person is a member of a couple: s 4(11)(a). A person is partnered (partner in gaol) if the person is a member of a couple and the person’s partner is in gaol or undergoing psychiatric confinement because the partner has been charged with committing an offence: s 4(11)(f).
Although the applicant contended unsuccessfully before the Deputy President that she was not partnered (partner in gaol), because the partnership had been severed by Mr Cross’ imprisonment, that argument was not advanced on this appeal, and nor in my opinion could it have been.
Section 1068 provides, inter alia, for the rate of benefit of a partner allowance. A person who is a partnered (partner in gaol) is entitled to the benefit given by s 1068, which is identified in Table C, Item 4 of Column 1. The maximum basic rate is provided for in Column 3.
There is no doubt that the applicant was entitled to the maximum basic rates given in Item 4 of Column 1 of Table C of s 1068. The Table is in the following form:
Table C—Maximum basic rates Column 1
Item
Column 2
Person’s family situation
Column 3
Rate
1 Person not covered by item 2, 3 or 4 $290.10 2 Member of illness separated couple $347.80 3 Member of respite care couple $347.80 4 Partnered (partner in gaol) $347.80
The applicant was entitled to the benefits as a partnered (partner in gaol) in Column 3.
The applicant contended that she was also entitled to the benefit of the exercise of a discretion available to the Secretary under s 24 of the SS Act, namely that she not be treated as a member of a couple.
Section 24(2) provides:
Where:
(a)a partner has a relationship with another preson, whether of the same sex or a different sex (the partner); and
(b)the person is not legally married to the partner; and
(c)the relationship between the person and the partner is a de facto relationship; and
(d)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
If a determination is made under s 24 that a person is not a member of a couple for the purposes of the SS Act, then that person is not a member of a couple: s 4(6). The applicant contended before the Deputy President that if she were a partner for the purpose of s 4(2) of the SS Act, the Secretary should exercise his discretion to treat her as not a member of a couple for the purposes of the Act. If, as she contended, the Secretary exercised the discretion in her favour, then she would be entitled to increased benefits under the SS Act.
The Deputy President found that the applicant was a member of a couple because of the provisions of s 4(2) of the SS Act. He found, however, that where the family situation answers the statutory description of partnered (partner in gaol), it is not open to the Secretary to exercise the s 24(2) discretion. He reasoned that the legislature had made express provision for persons in the applicant’s position and the legislature did not intend that a person whose partner is in gaol could claim that to be a special reason. He said:
10.In my view, and contrary to the view apparently expressed by the Tribunal in Re Secretary, Department of Social Security and Porter [1997] AATA 137, it is not open to exercise the s 24(2) discretion when the family situation answers the statutory description of “partnered (partner in gaol)”. That expression is explained by s 4(1) of the Act such that a person is “partnered (partner in gaol) if the person is a member of a couple and the person’s partner is in gaol”.
11.Section 24(2) does not specify the matters to be take (sic) into account in considering the exercise of the discretion beyond the requirement that there be a special reason for doing so. Thus the matters to be considered (or not considered) must be determined by implication from the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40. Here the statute makes express provision for a rate of parenting payment where the recipient’s partner is in gaol. The rate is higher than that for a member of a couple not in gaol (or separated by illness or respite care) but less than that payable to a person not a member of a couple.
12.There is, I consider, an implication that the legislature, having made an express provision for persons in Ms Tsangaris’s position, did not intend that that position be regarded as a special reason. I note that a contrary conclusion was reached in Porter. There the Tribunal concluded, in relation to an illness separation couple, that to read s 24(2) of the Act in such a way would discriminate against an illness separated couple. So much may be accepted however I consider that Parliament has chosen to discriminate in this way and that is not open to circumvent Parliament’s intention that such couples be paid at a particular rate by reference to the general discretion in s 24(2) of the Act.
The sole question which is raised on the appeal, although there are nine separate questions of law identified in the notice of appeal, is whether the Secretary was, given the circumstances of the applicant, entitled to make a determination under s 24(2) that the applicant not be treated as a member of a couple.
At the hearing before the Deputy President, the parties put their submissions at the extremes. The applicant contended that the very fact that her partner was in gaol meant that the Secretary was bound to exercise the discretion in favour of the applicant under s 24(2) and determine in writing that she is not to be treated as a member of a couple for the purpose of the SS Act. She said that the special reason referred to in s 24(2)(d) of the SS Act was, in her case, the fact that her partner was in gaol.
On the other hand, the respondent Secretary argued that s 24(2) did not apply in circumstances where the applicant was a partnered (partner in gaol) person because the legislature had separately addressed those persons. The Secretary’s argument prevailed before the Deputy President.
In my opinion neither argument is correct, and because the Deputy President accepted the argument put by the Secretary, it follows that I disagree with his decision.
Before turning to a consideration of the section itself, I should deal with an argument put by the applicant that the Deputy President should have followed the decision to which the Deputy President referred in [10] of his reasons: Secretary, Department of Social Security v Porter [1997] AATA 137. The applicant relied upon a decision of French J (as he then was) in Federal Commissioner of Taxation v Salenger (1998) 81 ALR 25. That case is not authority for the proposition relied upon. In that case French J said that, ordinarily, members of the AAT should apply the law as stated by a judge of the Federal Court or judges of the Supreme Courts, save where there is conflicting authority of or in those Courts, in which case the members of the AAT may have to decide which authority to follow.
The Deputy President in this case refused to follow a previous decision of a member of the AAT. I do not think that the Deputy President was bound to follow a decision of a member of the AAT. The decision of any member of the AAT deserves to be given respect, but a decision of a member cannot bind a Deputy President. Even a decision of a Deputy President will not bind another Deputy President, because the AAT is not a Court and not thereby obliged to apply a system of precedent. However, in such a case a Deputy President would only ordinarily refuse to follow another Deputy President’s decision only if the Deputy President were satisfied for any reason it was plainly wrong.
In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J said at 639:
Inconsistency is not merely inelegant: it brings the process of deciding into disrepute suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.
The AAT said in Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499:
Nevertheless, where a matter has been decided by the Tribunal after full consideration of competing arguments, the decision is one which is reasonably tenable and there have been no changes to the legislation and no new decisions of the High Court of Australia or the Federal Court which may be relevant, it seems to us that it would be extremely unhelpful for the Tribunal in subsequent proceedings to decide the matter in a manner inconsistent with that decision, particularly when the arguments advanced are substantially the same as those advanced in the previous case.
The AAT was created to standardise principles and procedures for decision making, in order to enhance administrative processes. The AAT, it was contemplated, would assist decision makers in carrying out their duties. If the AAT were to speak on each occasion without reference to its previous decisions, the AAT’s decisions would soon lack legitimacy.
For the reasons that follow, the Deputy President should have followed the AAT’s previous decision, because it was right.
The respondent Secretary argued that a partnered (partner in gaol), and a member of illness separated couple, were not entitled to have the Secretary exercise the Secretary’s discretion under s 24 because those persons will already be receiving additional benefits under s 1068 that recognised that those persons did not have the assistance of their partner pooling resources. The respondent pointed to the benefits identified in Table C reproduced earlier in these reasons.
The respondent contended that s 1068 recognised the hardship that the three classes of persons recognised in Table C would suffer, because although they were deemed under the SS Act to be a member of a couple, the other member was absent. Therefore, it was contended that s 24 was not intended to apply to those persons.
In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, the High Court considered whether the Minister’s power to cancel a visa under s 501(2) of the Migration Act 1958 (Cth) was restricted because of the Minister’s power to order deportation under that Act. Gleeson CJ said at [2]:
If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent’s contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said.
(Footnotes omitted)Gummow and Heydon JJ said at [59]:
However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
They said further at [61]:
The defect in that submission is that it fixes upon only one practical consequence of the respective orders. It does not address whether the subject matter of the power is in law substantially the same. However, for the reasons which follow, the two powers do not deal with the same subject matter so as to attract the operation of the maxim expressum facit cessare tacitum and the reasoning which underpins Anthony Hordern and other decisions. The scheme of the Principal Act does not treat as having the one identity deportation and cancellation of a visa. This is so notwithstanding that, by reason of other provisions of the Principal Act, the exercise of both powers may well result in the same practical outcome. The ambit of the power to deport is not wholly subsumed within the ambit of the power to cancel a visa by reference to the character test in s 501(2).
The purpose of s 24 of the SS Act is to assist a person who is a member of a couple. Section 24 is intended to provide the Secretary with a residual discretion in circumstances where the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple. In circumstances where the Secretary is so satisfied, the Secretary may determine in writing that the person is not to be treated as a member of a couple for the purposes of the SS Act. Section 24 assumes that the person who is to obtain the benefit of the Secretary’s discretion is a member of a couple. That assumption arises because s 24 confers only one discretion upon the Secretary: to determine in writing that the person is not a member of a couple.
The qualifying circumstances that enliven the Secretary’s discretion include that the person making the application to the Secretary pursuant to s 24(2) is first, in a relationship with another person: s 24(2)(a). In s 4(1), “partner”, in relation to a person who is a member of a couple, is defined as “the other member of the couple”. Secondly, the applicant must be not legally married to the partner. Thirdly, the relationship between the applicant and the partner must be a de facto relationship. By virtue of the assumption discussed above, the person must be a member of a couple. The Secretary may, if all the criteria are satisfied and if there is a special reason in the particular case, determine in writing that the person is not to be treated as a couple for that purpose of the SS Act. Clearly, the benefit of the subsection is offered to members of a couple. The same is true of s 24(1), which addresses persons who are legally married to another person and allows the Secretary not to treat a legally married person as a member of a couple.
Both subsections are designed to address a member of a couple. A person who is partnered (partner in gaol) is a member of a couple for the purpose of section 4 of the SS Act: s 4(11)(f).
Section 1068 identifies benefits available to the persons identified in s 4. The fact that s 1068 gives greater benefits to three of the classes of persons mentioned in Table C does not mean persons in those classes are excluded from the benefit of s 24 of the SS Act. The purpose of s 24 is to allow the Secretary to ameliorate hardship by treating members of a couple as single persons and, therefore, eligible for increased benefits. There is no reason to think that s 24 does not offer a person in the applicant’s class the same right as persons in other classes.
Because s 1068 provides particular benefits to the three classes of persons identified in Table C does not mean that those persons cannot be the subject of a determination under s 24(2). If that were so it would mean that those three classes of persons, unlike all other members of a couple, would never be entitled to be treated as a single person and obtain the higher benefits attached to single persons. Section 1068 does not provide a power or benefit which is inconsistent with s 24. For that reason, s 1068 is not incompatible with s 24.
Section 24 applies to all persons who are members of a couple. Those persons, however, will not qualify for the exercise of a discretion under that section simply because they are members of a couple. They must, to qualify under s 24(1), (1A), or (2), establish a special reason in the particular case.
A person who is partnered (partner in gaol) qualifies as a person under s 24(2) provided that the partner in gaol is not legally married to the person and the relationship between the person and the partner is a de facto relationship: s 24(2)(b), (c).
There is nothing, in my opinion, in s 24(2) which would lead to the conclusion reached by the Deputy President that a partnered (partner in gaol) is not entitled to a determination of the kind provided for in s 24(2).
However, that does not mean, as the applicant contended before the Deputy President, that simply because her partner is in gaol means that she is necessarily entitled to a determination under s 24(2). Section 24(2) does not say that. Section 24(2) says that a person may be entitled to the benefit of the section if the person can establish, to the satisfaction of the Secretary, a special reason in the particular case not to be treated as a member of a couple.
It cannot be that the mere fact that the person’s partner is in gaol is sufficient, because otherwise all partnered (partner in gaol) persons would be entitled to the benefit of s 24(2) and there would be no point in treating them as a member of a couple under s 1068.
In my opinion, the correct reading of s 24(2) is that it allows the Secretary to make a determination of the kind mentioned in the subsection in favour of a person who satisfies paragraphs (a) to (c) of s 24(2) and, if the Secretary is satisfied for a special reason, that the person not be treated as a member of a couple.
The respondent Secretary contended that if I were of the opinion that the Deputy President erred in the construction of the statute by deciding that s 24(2) did not reach to a partnered (partner in gaol) person, that I should remit the matter to the AAT for further consideration. The applicant, on the other hand, initially contended that I should deal with that question on the appeal. However, in oral submissions the applicant conceded that the question should be remitted. Clearly, the Secretary’s submission must be accepted and the applicant’s concession acted upon, because this Court only has jurisdiction to deal with a question of law, and it is not for this Court to make the decision which is for the Secretary in the exercise of the Secretary’s discretion. It is for the Secretary to determine whether the Secretary is satisfied that special reason exists for the exercise of the Secretary’s discretion in favour of the applicant: Beadle v Director-General of Social Security (1985) 60 ALR 225. When the Secretary comes to consider the question of special reason, the Secretary will no doubt have regard to French J’s reasons in Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277. The reason that is relied on must be special in the sense that it is unusual, different or out of the ordinary. A reason does not have to be extremely unusual, uncommon or exceptional to be special: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32. In the end, it is for the Secretary to determine whether or not the reason or reasons advanced are special.
There will be an order allowing the appeal and remitting the matter to the AAT for further consideration according to law.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 6 July 2012
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