VJCB; Secretary, Department of Social Services and (Social services second review) - [2021] AATA 4732

VJCB; Secretary, Department of Social Services and (Social services second review) [2021] AATA 4732 (17 December 2021)
Division: GENERAL DIVISION
File Number: 2021/9522
Re:Secretary, Department of Social Services
APPLICANT

AndVJCB
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:17 December 2021
Date of written reasons: 20 December 2021
Place:Melbourne
1.Until the hearing and determination of the charge brought against VJCB by the Commonwealth Director of Public Prosecutions under section 135.1(5) of the Criminal Code 1995 (Cth), or until further order of the Tribunal, the decision of the Social Services and Child Support Division of the Tribunal dated 24 October 2021 is stayed.
2.The Tribunal directs that the application of the Secretary of the Department of Social Services for a second review is not listed for hearing until the outcome of the charge laid against VJCB under the Criminal Code Act 1995 is known.

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Senior Member D. J. Morris
Catchwords
PRACTICE AND PROCEDURE – application for second review of Social Services and Child Support Division decision by General Division of tribunal – second review application accompanied by request for stay order – respondent charged with criminal offence – dispute by parties about whether alleged offence relevant to tribunal proceedings – potential detriment to parties – tribunal satisfied on what evidence is before it that charge laid is not remote – requirement of witness to answer questions – requirement modified if answer might tend to incriminate person – balancing objective of expeditious proceedings with fairness to parties – detriment to parties if Tribunal hearing precedes resolution of Court matter – greater detriment to applicant in this case – stay order made – written reasons provided – non-publication order issued
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A 35, 42, 62
Criminal Code Act 1995 (Cth), Sch 1 – The Criminal Code, s 135.1
Social Security (Administration) Act 1989 (Cth), s 179
Cases
Negri v Secretary, Department of Social Services (2016) 70 AAR 103
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880
Scott and Australian Securities and Investments Commission, Re: [2009] AATA 798
REASONS FOR DECISION
Senior Member D. J. Morris
20 December 2021
PRELIMINARY

On 24 October 2021, the Social Services and Child Support Division of this Tribunal made a decision relating to the Respondent in these proceedings (‘the Tier 1 decision’). On 7 December 2021, the Applicant in these proceedings, the Secretary of the Department of Social Services (‘the Secretary’), lodged an application for second review of that decision by the General Division of the Tribunal. On 7 December 2021, the Secretary also lodged an application that the Tribunal stay the Tier 1 decision.
The Tribunal held an interlocutory hearing on 17 December 2021 by telephone. The Secretary was represented by Mr Tim Noonan, a Department legal officer. VJCB was represented by Mr Michael Pena-Rees, of Lewenberg & Lewenberg Solicitors.
At the conclusion of the interlocutory hearing, the Tribunal made a decision to issue a stay order, and to direct when the substantive matter would be listed for hearing in the Tribunal. The Tribunal offered to provide written reasons to the parties if requested. Mr Pena-Rees made such a request, and these are those written reasons.
The Tribunal decided of its own motion to issue an order under section 35(3) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) not to publish the name of the Respondent because of potential prejudice to her, given that Court proceedings are on foot. She will be known by the anonym, ‘VJCB’.
In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said at [27]:
… as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
In preparing the written reasons which follow, the Tribunal is satisfied that they reflect the oral reasons given on 17 December 2021, consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally.
BACKGROUND
The decision at first review set aside a debt in the amount of $2,130.24 in relation to Family Tax Benefit received by VJCB in the period between 1 July 2018 and 30 June 2019, and directed that the debt be recalculated. The learned Member found that the recalculation of the debt should be done on the basis that VJCB was not a member of a couple during that period. That is the Tier 1 decision.
The Secretary’s position
On 7 December 2021, the Secretary, through his officer, sought that the Tribunal exercise the powers under section 41(2) of the AAT Act to issue an order staying the operation and implementation of the Tier 1 decision.
That request sought that the Tier 1 decision be stayed on the basis that the Secretary contended the prospects of success are good. The Secretary also submitted that any amount of Family Tax Benefit paid to VJCB by way of refund for over-recovered payments or withholdings will become a debt to the Commonwealth if the application for review of the Tier 1 decision succeeds.
Separately, the Secretary provided a copy of a letter to the Respondent from an officer of Services Australia (i.e., a department allied to the Secretary’s department) to VJCB on 7 December 2021. In that letter, apart from advising VJCB of the Secretary’s application for a further review and the stay request, the officer notes that the Commonwealth Director of Public Prosecutions (‘DPP’) has laid a charge against the Respondent under the Criminal Code Act 1995.
The charge, as relayed by the Secretary, is in the following terms:
Between 16 March 2015 and 26 March 2019 at Melbourne in Victoria [VJCB] dishonestly caused a loss to another person, namely Services Australia, which is a Commonwealth entity, knowing or believing that the loss would occur, contrary to section 135.1 of The Criminal Code of the Commonwealth.
Apart from the administrative costs the Secretary may incur, the Secretary submitted that VJCB may experience difficulty with repayment.
Mr Noonan made oral submissions that the Secretary would wish to make written submissions in response to the Respondent’s written submissions about the stay order request. When asked by the Tribunal whether it would be likely those would be able to be lodged before Christmas, he said that would be unlikely.
The Respondent’s position
Mr Pena-Rees lodged written submissions with the Tribunal on 16 December 2021, on which he expanded at the interlocutory hearing.
These submissions set out principles that it is generally considered need to be satisfied for a stay application under section 41(2) of the AAT Act to be successful, citing Scott and Australian Securities and Investments Commission [2009] AATA 798 (‘Scott’). In that case, President Downes said, at [4]]:
Application having been made for a stay of proceedings under section 41 of the Administrative Appeals Tribunal Act 1975, it is nevertheless incumbent upon me to consider whether a stay is appropriate. In considering the application, it is appropriate for me to consider a range of matters, including:
1.    The prospects of success.
2.    The consequences for the applicant of the refusal of the stay.
3.    The public interest.
4.    The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.
5.    Whether the application for review would be rendered nugatory if a stay were not granted.
The Respondent also referred to a Federal Court of Australia decision, Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880 (‘Mouratidis’), where Her Honour Justice Dodds-Streeton stated, at [20]:
The discretion conferred by section 44A(2) of the AAT Act should be exercised only where special circumstances justify departure from the rule that a successful litigant is entitled to the fruits of the judgment pending the appeal, because the appeal, although successful, may otherwise be rendered nugatory…
The Respondent submitted that the Secretary has failed to demonstrate any special circumstances, whether alone, or in combination with those matters that the Secretary submits in support of the stay application. Mr Pena-Rees submitted that the Secretary’s assertions go no further than making unfounded assertions as to a claimed ‘error’ that the learned Member fell into at first instance.
The Respondent noted that the nub of the disputation concerns a sum of $2,130.24 and submitted that it is inconceivable that in the event the Secretary is successful in his substantive application that a government department would be prejudiced to a substantial degree, if at all, in not having the said amount paid to the Department immediately.
Mr Pena-Rees submitted that VJCB is a woman of ill health, with several children, who is heavily reliant on her entitlements from the Department. In his oral submissions he noted that more than one of her children has special needs, and that the matter has already been going on for a prolonged period, with the hearing at Tier 1 occurring around April 2021. Mr Pena-Rees said it was the Respondent’s view that the stay should not be granted and that the matter should be listed expeditiously. He submitted that VJCB would suffer immense pressure as the result of any stay.
The parties’ view on the relevance of the criminal proceedings
In respect of the charge laid by the DPP, the Tribunal noted that the period of the debt dealt with at Tier 1 is partly within the longer period that is stipulated in the charge. Mr Pena-Rees said it is his understanding ‘from the Crown’ that the matters which are the subject of the criminal proceedings are separate from the Family Tax Benefit debt which was the subject of the Tier 1 decision.
Mr Noonan, in his submissions, contended that the Family Tax Benefit debt dealt with at Tier 1 is part of a larger alleged amount of money received by VJCB over a longer period from Services Australia as set out in the charge, and that therefore those proceedings are relevant because of that overlap.
CONSIDERATION
The Tribunal considered the written submissions of the Respondent, lodged with the Tribunal late on the night before the interlocutory hearing and received by me shortly before the hearing. The Tribunal stated that the case law set out in the submission of the Respondent reflects the factors that generally should be taken into account when considering whether to grant a stay order.
However, each matter must turn on its own circumstances. That is clear from the way section 41(2) is couched, because it requires the Tribunal to form an opinion about the desirability of making a stay order, after taking into account the interests of any person who may be affected by the review. The use of the word ‘desirability’, I infer, means whether an order staying implementation or operation of a decision is desirable on a fair assessment of all the circumstances of the case.
The Tribunal noted the Secretary’s contention about difficulty VJCB may have in repaying the debt, but considers this is speculatory because the second review in the General Division has yet to be held and it is undesirable to anticipate what the outcome of that hearing might be. At present the Tier 1 decision stands. In response to a direct question from the Tribunal, Mr Noonan advised that no action had yet been taken by the Secretary to recalculate the debt in accordance with the Tier 1 decision.
Are the criminal charges remote to the Tribunal proceedings?
The Tribunal notes the competing submissions of Mr Noonan and Mr Pena-Rees as to whether the charges laid by the DPP are relevant to the debt before the Tribunal. The Tribunal is disadvantaged by not having any details of the case that will be put by the DPP other than the advice of the terms of the charge laid and an email from Mr Noonan dated 16 December 2021 where he contended to the Respondent that the matters relating to the charge encompass a much more significant alleged overpayment of benefits. Because of the lack of detail relating to the DPP’s decision to lay the charge, the Tribunal makes no conclusion on which of the Applicant’s or the Respondent’s submissions, about the debt being an element of the criminal charge, is correct.
Having said that, the fact is that the Tier 1 decision dealt with a debt period between 1 July 2018 and 30 June 2019. The terms of the charge the DPP has laid – the fact of which was not disputed by either party – refers to a loss being dishonestly caused to Services Australia in the period between 16 March 2015 to 26 March 2019. Clearly the majority of the first period is encompassed by the second period. I therefore consider that the advice of this criminal charge being laid, on this fact, may well be relevant to whether the reviewable decision made by the Respondent was the correct or preferable decision.
That view is reinforced by the fact that the Authorised Review Officer in the Department who made the decision reviewed at Tier 1 referred in the decision letter to VJCB to the officer’s and the Respondent’s conversations with, and information provided by, the Australian Federal Police.
I find, on a fair assessment, the charges are not remote to the matter before the Tribunal for second review.
Obligation of witnesses to answer questions in a hearing
What is also relevant is that section 62(3) of the AAT Act provides:
Questions
A person commits an offence if:
(a) The person appears as a witness before the Tribunal; and
(b) The member presiding at the proceeding has required the person to answer a question; and
(c) The person fails to answer the question.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
However, section 62(4) of the AAT Act is also important. It provides:
Subsection (3) does not apply if answering the question might tend to incriminate the person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4)(see subsection 13.3(3) of the Criminal Code).
The Tribunal noted that the provision in section 62(4) is founded in the well-established common law right against self-incrimination.
The Tribunal noted that, unlike the Courts, the AAT Act does not empower a Member of the Tribunal to issue a certificate to a witness in proceedings before it to indemnify that person from prosecution that may be laid in relation to evidence the person gives in a Tribunal hearing, or any such evidence being adduced in Court proceedings.
Factors to take into account when considering a stay order
In respect of the ‘check list’ that Downes J listed in Scott, a list which I note His Honour did not suggest was exhaustive, I consider there is an arguable prospect of success on the part of the Secretary. I accept that there is a consequence for VJCB in terms of the recalculation of the debt and am mindful of the submissions that the proceedings have been underway for some months. I consider there is no particular consequence for the Secretary in carrying out his functions depending upon whether a stay is granted or not. I do not conclude that the application for review would be rendered nugatory if the stay is granted or not.
In respect of gauging the public interest, it is axiomatic that it is generally not in the public interest for a person to receive a taxpayer-funded benefit to which the person is not entitled, but equally I consider it would be the view of the public that a person entitled to a benefit, who has properly been in receipt of it, should not have that income disturbed.
I have formed the opinion that it is desirable to make a stay order. I consider that the laying of the criminal charge against the Respondent is a special circumstance that affects the usual expectation that a person successful in a Tier 1 review should be entitled to the fruits of that success, in this case the recalculation of a debt to treat VJCB as not a member of a couple in the stipulated period.
I stress, here, that I have not examined the merits of the Secretary’s substantive case, nor that of VJCB. No documents relating to the decision have yet been lodged by the Secretary under section 37 of the AAT Act, nor statements of position or other evidence lodged by either party. The Tribunal only has brief submissions from each party expressing each of their views on the stay order. Therefore, nothing in this interlocutory decision should be taken as expressing any view on the learned Member’s decision of 24 October 2021.
Detriment to both sides if Tribunal hearing precedes Court outcome
I have taken into account the interests of persons who may be affected by the review. I consider that it would be detrimental to both parties to proceed in relation to the second review until the matter to come before the Court is resolved. I rejected the Secretary’s request for time to make written submissions about the stay order on the basis that will not happen until after Christmas and there is little value in a further interlocutory hearing. The Secretary’s view is set out in the application for the stay and in the written submissions.
The detriment to the Secretary is that he must recalculate a debt and potentially make a repayment to VJCB which, depending on the outcome of the review, may become a recoverable debt in whole or part. This is not huge administrative imposition, but it is one, nonetheless.
I assess the detriment to VJCB as greater. She may be unable to properly make her case that the Tier 1 decision was the correct decision in a circumstance where she is required to give evidence at the Tribunal hearing and be cross-examined on it. This is because some questions may have relevance to the charge laid, and yet to be dealt with at Court. While VJCB may invoke her right in section 62(4) of the AAT Act, that could affect the quality of the material able to be tested.
Mr Pena-Rees submitted that VJCB has already given evidence to the learned Member at Tier 1. I accepted that fact. However, I noted that the Tier 1 decision was in private and involved the learned Member asking questions directly of VJCB and about her personal arrangements (and questions of the person contended by the Secretary to be the other member of a couple). In contrast, the General Division hearing will be a public hearing and will involve evidence in chief, cross-examination by the representative of the other party and, potentially, questions directly from the presiding Member. Other witnesses may be called by either party. Other material might be tendered in evidence. The Tribunal may summon persons or documents in relation to the hearing.
I consider while section 2A of the AAT Act is a reminder that one of the objectives under which the Tribunal provides a mechanism of review that is ‘economical’ and ‘quick’ (see section 2A(b) of the Act), the paramount consideration is that the mechanism must also be fair to all parties concerned. Under section 179 of the Social Security (Administration) Act 1989, the Secretary is entitled to apply for an AAT second review. Equally, VJCB is entitled to rebut arguments put that the Tier 1 decision was in error.
CONCLUSION

It is my conclusion that there would be a considerable fettering of the utility of the second review while the criminal charge against VJCB is on foot, given that it relates to benefits apparently paid in the past to the Respondent by the Applicant. As set out above, part of these payments occurred in the period relating to the Family Tax Benefit debt recalculation dealt with at Tier 1. These Court proceedings are, I find, not wholly remote to the administrative review which is being sought.
I am satisfied this set of circumstances amount to special circumstances, consistent with circumstances of the nature contemplated by Her Honour in Mouratidis, which make it desirable to temporarily suspend VJCB’s expectant entitlement to the fruits of her success as a result of the Tier 1 decision.
DECISION
The Tribunal decided that an order will be made staying the operation and implementation of the Social Services and Child Support Division of the Tribunal decision made on 24 October 2021 in relation to VJCB’s Family Tax Benefit debt.
In addition, I will direct that the application of the Secretary of the Department of Social Services for a second review is not listed for hearing until the outcome of the charge laid under the Criminal Code Act 1995, referred to earlier, is known.

46. I certify that the preceding 45 (forty-five) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 20 December 2021

Date of interlocutory hearing:

17 December 2021

Advocate for the Applicant:

Mr Michael Pena-Rees

Solicitors for the Applicant:

Lewenberg & Lewenberg Solicitors

Advocate for the Respondent:

Mr Tim Noonan

Solicitors for the Respondent:

Services Australia

Date of interlocutory hearing:	17 December 2021
Advocate for the Applicant:	Mr Michael Pena-Rees
Solicitors for the Applicant:	Lewenberg & Lewenberg Solicitors
Advocate for the Respondent:	Mr Tim Noonan
Solicitors for the Respondent:	Services Australia