Watson and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 204

ADMINISTRATIVE APPEALS TRIBUNAL ) Nos: A2001/471 and

) A2001/472

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MAXWELL ROBERT WATSON and JUNE WATSON
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr M J Sassella Senior Member

Date28 March 2002
PlaceCanberra

Decision      The decision under review is affirmed.
  ..............................................
  Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL              )

) No: A2001/471 and 472

GENERAL ADMINISTRATIVE DIVISION )

Re:        MAXWELL ROBERT WATSON
  and JUNE WATSON
Applicant

And:SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

ORDER TO AMEND DECISION

Tribunal : Mr HJ Sassella, Senior Member
Date : 8 April 2002

Place : Canberra
WHEREAS:

The Tribunal made a decision in the matter dated 28 March 2002 pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 ("the Act").
It has come to the Tribunal's attention that there is an obvious error in the text of the decision in the 16 March 2001 event column of the table at page 2.
The Tribunal desires to amend the decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies section 43AA of the Act to amend the terms of the decision;
NOW THE TRIBUNAL THEREFORE orders that the decision be amended to read:

Date Event Reference
16 March 2001 Mr Maxwell Robert Watson ("applicant") telephoned Centrelink (the Commonwealth agency that delivers social security services pursuant to a service arrangement with the Secretary, Department of Family and Community Services ("the respondent")). He told Centrelink that he and Mrs June Watson ("applicant") would like to lodge claims for Age Pensions. T3

…………………..
Senior Member

CATCHWORDS
SOCIAL SECURITY - Age Pension - applicants qualified for pensions - pensions not payable because applicants provided no tax file number - respondent made valid requests for provision of tax file numbers - whether respondent compelled provision of tax file numbers – where pension payable even if tax file number not provided – conscientious objection.

Social Security (Administration) Act 1999 ss 75, 76, 77, Schedule 2, clause 5
Social Security Act 1991 ss 23(1) "social security payment", "social security pension"
Income Tax Assessment Act 1936 ss 202(e), (f)
Taxation Administration Act 1953 s 8WA(1), (1AA)(a), (b)
Privacy Act 1988 ss 17, 18
Acts Interpretation Act 1901 s 33(3)
Data-matching program (Assistance and Tax) Act 1990

REASONS FOR DECISION

28 March 2002 Mr M J Sassella Senior Member

HISTORY OF APPLICATIONS

The history of the applications for review is in this table:
Date    Event Reference
16 March 2001        Mr Maxwell Robert Watson ("applicant") telephoned Centrelink (the Commonwealth agency that delivers social security services pursuant to a service arrangement with the Secretary, Department of Family and Community Services ("the respondent")). He told Centrelink that he and Mrs June Maxwell ("applicant") would like to lodge claims for Age Pensions.           T3
27 March 2001        The applicants attended at the Centrelink customer service centre in Griffith, NSW, to complete claim forms and participate in a pre-grant interview.   At the interview they told the Centrelink officer that they would not provide tax file numbers ("TFNs") as required by the claim forms. They had annotated the claim forms (T6/31, T6a/36) along following lines: "I will not give TFN to Centrelink and I will not authorise the ATO to give my TFN to anybody. NOTE: Tax file numbers will not be given".         T5, T6, T6a
28 May 2001 Age Pensions were granted and cancelled at the same time, the cancellations to take effect 28 days after the date of grant. The pensions were payable from 16 March 2001 until 12 April 2001. The cancellation notices said that pensions had been cancelled, effectively, because of the failure of both applicants to provide Mrs Watson's TFN.    T7, T7a, T8, T8a, T8b, T8c
18 June 2001           Centrelink received a request for reconsideration of the cancellation decisions.           T9
19 June 2001           The original decision-maker affirmed the decision because the TFNs had still not been provided.   T10, T11
6 July 2001    Mr Watson asked that the matter be referred to the authorised review officer ("ARO"). That referral occurred on 11 July 2001. It was noted that the applicants "still [do] not agree with legislation".   T12, T14, T17
1 August 2001         The ARO affirmed the decision under review.    T15, T15a
Date uncertain        The applicant's applied to the Social Security Appeals Tribunal ("the SSAT") for review of the cancellation decisions.       Application for review not in T documents.
9 October 2001       The SSAT decided to affirm the decision under review for reasons given below.           T2
9 November 2001    The applicants lodged with the Administrative Appeals Tribunal ("the tribunal") applications for review of the SSAT decision.    T1

DECISIONS UNDER REVIEW

The SSAT, like this tribunal, handled the two appeals in tandem. One set of reasons for decision applied to both applicants. The SSAT, in upholding the decisions made within Centrelink and by the ARO, did so for the following reasons (T2):

Section 75 of the Social Security (Administration) Act 1999 ("the Administration Act") confers on the respondent the power to request the provision of TFNs.
Section 75 does not require that a request be in any particular form. It may be made orally or in writing. There are no particular words required.
The respondent's power to request a TFN can be delegated and that occurred here. The Centrelink C2 level officer who issued the request in these matters was duly delegated to do so.
As a valid request had been made to Mr and Mrs Watson and they had declined to provide TFNs the respondent was empowered to cancel their pensions.

RELEVANT LEGISLATION

The following provisions of the Administration Act are relevant: ss 75. 76, 77.
"SOCIAL SECURITY (ADMINISTRATION) ACT 1999
Secretary's power to request tax file numbers
75.(1) This section applies to a person in Australia who:
(a)       has made a claim for a social security payment; or
(b)       is receiving a social security payment.
75.(2) The Secretary may request, but not compel, a person to whom this section applies:
(a)       if the person has a tax file number—to give the Secretary a written statement of the person's tax file number; or
(b)       if the person does not have a tax file number:
(i)        to apply to the Commissioner of Taxation for a tax file number; and
(ii)       to give the Secretary a written statement of the person's tax file number after the Commissioner of Taxation has issued it.
75.(3) If:
(a)       this section applies to a person; and
(b)       the person is a member of a couple; and
(c)       the person's partner is in Australia;
the Secretary may request, but not compel, the person to give the Secretary a written statement of the tax file number of the person's partner.
75.(4) If:
(a)       this section applies to a person (the recipient) because the person is receiving a social security payment; and
(b)       the income of a person (other than the recipient) is required to be taken into account for the purpose of working out the rate of the recipient's social security payment; and
(c)       the person referred to in paragraph (b) is in Australia;
the Secretary may request, but not compel, the recipient to give the Secretary a written statement of the tax file number or numbers of each person who is a person referred to in paragraph (b).
Effect of failure by person to satisfy request for person's tax file number
76.(1) If the Secretary makes a request under subsection 75(2) of a person who has made a claim for, or is receiving, a social security payment, the social security payment is not payable to the person unless, within 28 days after the request is made:
(a)       the person satisfies the request; or
(b)       the person satisfies subsection (2) or (3) of this section.
76.(2) A person satisfies this subsection if:
(a)       the person has given the Secretary an employment declaration; and
(b)       the declaration states that the person:
(i)        has a tax file number but does not know what it is; and
(ii)       has asked the Commissioner of Taxation to inform the person of the person's tax file number; and
(c)       the person has given the Secretary a document that authorises the Commissioner of Taxation to tell the Secretary:
(i)        whether the person has a tax file number; and
(ii)       if the person has a tax file number—that number; and
(d)       the Commissioner of Taxation has not told the Secretary that the person has no tax file number.
76.(3) A person satisfies this subsection if:
(a)       the person has given the Secretary an employment declaration; and
(b)       the declaration states that an application by the person for a tax file number is pending; and
(c)       the person has given the Secretary a document that authorises the Commissioner of Taxation to tell the Secretary:
(i)        if a tax file number is issued to the person—that number; or
(ii)       if the application is refused—that the application has been refused; or
(iii)      if the application is withdrawn—that the application has been withdrawn; and
(d)       the Commissioner has not told the Secretary that the person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number.
Effect of failure by person to satisfy request for partner's or related person's tax file number
77.(1) If the Secretary makes a request under subsection 75(3) of a person who has made a claim for, or is receiving, a social security payment, the social security payment is not payable to the person unless, within 28 days after the request is made:
(a)       the person satisfies the request; or
(b)       the person satisfies subsection (3) or (4) of this section; or
(c)       the Secretary exempts the person from the need to satisfy the request.
77.(2) If the Secretary makes a request under subsection 75(4) of a person who is receiving a social security payment, the social security payment is not payable to the person unless, within 28 days after the request is made:
(a)       the person satisfies the request; or
(b)       the person satisfies subsection (3) or (4) of this section; or
(c)       the Secretary exempts the person from the need to satisfy the request.
77.(3) A person satisfies this subsection if:
(a)       the person has given the Secretary a declaration by the related person in accordance with a form approved by the Secretary; and
(b)       the declaration states that the related person:
(i)        has a tax file number but does not know what it is; and
(ii)       has asked the Commissioner of Taxation to inform the related person of his or her tax file number; and
(c)       the person has given the Secretary a document in which the related person authorises the Commissioner of Taxation to tell the Secretary:
(i)        whether the related person has a tax file number; and
(ii)       if the related person has a tax file number—that number; and
(d)       the Commissioner of Taxation has not told the Secretary that the related person has no tax file number.
77.(4) A person satisfies this subsection if:
(a)       the person has given the Secretary a declaration by the related person in accordance with a form approved by the Secretary; and
(b)       the declaration states that an application by the related person for a tax file number is pending; and
(c)       the person has given the Secretary a document in which the related person authorises the Commissioner of Taxation to tell the Secretary:
(i)        if a tax file number is issued to the related person—that number; or
(ii)       if the application is refused—that the application has been refused; or
(iii)      if the application is withdrawn—that the application has been withdrawn; and
(d)       the Commissioner of Taxation has not told the Secretary that an application by the related person for a tax file number has been refused or withdrawn.
77.(5) The Secretary may exempt a person from compliance with a request for a statement of a related person's tax file number if the Secretary is satisfied that:
(a)       the person does not know the related person's tax file number; and
(b)       the person can obtain none of the following from the related person:
(i)        the related person's tax file number;
(ii)       a statement of the related person's tax file number;
(iii)      a declaration by the related person under paragraph (3)(a) or (4)(a).
Schedule 2—Rules for working out start day
…
Effect of exclusion period
5.(1) If, on the day that would, but for this clause, be a person's start day under this Schedule in relation to a social security payment, the person is subject to one or more exclusion periods, the person's start day in relation to the payment is worked out as follows:
(a)       if the person is subject to one exclusion period—the start day is the first day after the end of that period;
(b)       if the person is subject to 2 or more exclusion periods—the start day is the first day after all the periods have ended.
5.(2) In this clause:
exclusion period means a period during which, because of a provision of the social security law, a social security payment that would otherwise be payable to a person is not payable to the person, including:
(a)       a waiting period; and
(b)       a non-payment period; and
(c)       a compensation preclusion period; and
(d)       a period during which a person is in gaol."
The following provisions of the Social Security Act 1991 ("the Act") are relevant: ss 23(1) "social security payment", "social security pension", 44(1)(aa), (b), (ba).
"SOCIAL SECURITY ACT 1991
General definitions
23.(1) In this Act, unless the contrary intention appears:
…
"social security payment" means:
(a) a social security pension; or
…
"social security pension" means:
(a) an age pension; or
…"
The following provisions of the Tax Assessment Act 1936 are relevant: s 202(e), (f).
"INCOME TAX ASSESSMENT ACT 1936
Objects of this Part
202. The objects of this Part are, by means of the establishment of a system of tax file numbers:
…
(e) to facilitate the administration of a provision of an Act, being a provision which authorises the collection of a tax file number as a condition to the giving of personal assistance within the meaning of the Data-matching Program (Assistance and Tax) Act 1990; and
(f) to facilitate the administration of the Data-matching Program (Assistance and Tax) Act 1990; and
…"

The following provisions of the Income Taxation Administration Act 1953 are relevant: s 8WA(1), (1AA)(a), (b).
"TAXATION ADMINISTRATION ACT 1953
Unauthorised requirement etc. that tax file number be quoted
8WA(1)          A person must not require or request another person to quote the other person's tax file number.
Penalty:         $10,000 or imprisonment for 2 years, or both.
(1AA)   Subsection (1) does not apply if:
(a) provision is made by or under a taxation law or legislation described in paragraph 202(e) of the Income Tax Assessment Act 1936 for the person to quote the number; or
(b) the first-mentioned person requires or requests the number to be quoted in connection with that person exercising powers or performing functions under, or in relation to, or complying with an obligation imposed by, a taxation law or a law of the Commonwealth of the kind referred to in paragraph 202(c), (d), (g), (h), (ha), (hb), (hc), (i), (ia), (j), (m) or (n) of the Income Tax Assessment Act 1936; or
…
"

The following provisions of the Privacy Act 1988 are relevant: ss 17, 18.
"PRIVACY ACT 1988
Guidelines relating to tax file number information
17. (1) The Commissioner shall, by notice in writing, issue guidelines
concerning the collection, storage, use and security of tax file number
information.
(2) A guideline issued under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act 1901.
(3) In its application under subsection (2) of this section, section 48 of
the Acts Interpretation Act 1901 applies to guidelines issued under subsection
(1) as if paragraph (1) (b) of section 48 were omitted and the following
paragraph substituted:
"(b) shall, subject to this section, take effect:
(i) on the first day on which the guidelines are no longer
liable to be disallowed, or to be deemed to be disallowed, under this section;
or
(ii) if the guidelines make provision for their commencement
after the day referred to in subparagraph (i), in accordance with that
provision; and".
(4) Until the first guidelines take effect for the purposes of subsection
(1), the interim guidelines set out in Schedule 2 have effect, for the
purposes of any provision of this Act other than subsection (1), (2) or (3),
as if they were guidelines issued under subsection (1).
File number recipients to comply with guidelines
18. A file number recipient shall not do an act, or engage in a practice,
that breaches a guideline issued under section 17."
The following provision of the Acts Interpretation Act 1901 is relevant: s 33(3).
"ACTS INTERPRETATION ACT
Exercise of powers and duties
…
33 (3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
…"

HEARING AND APPEARANCES

The tribunal convened a hearing in Canberra on 25 March 2002. Mr Watson represented himself and Mrs Watson. Ms R Bradley of Centrelink represented the Secretary of the Department of Family and Community services.
The tribunal had access to the following documentary evidence:

Exhibit TD1 – Section 37 Statement and attached documents T1-T17 provided for the respondent.
Exhibit A1 – Australian Taxation Office document, The Facts About Tax File Numbers (1988).
Exhibit A2 - Australian Taxation Office document, Responsibilities of Superannuation Trustees (undated).
Exhibit A3 – Department of Social Security leaflet, Employment Separation Certificates (March 1995).
Exhibit A4 – Extract from Age Pension News (May 2000).
Exhibit A5 – Extract from Centrelink publication, Centrelink Information – A Guide to Payments and Services 2001-2002.
Exhibit A6 – Extract from a Department of Social Security pension claim form (1995).
Exhibit A7 – The Commonwealth Privacy Commissioner's Tax File Number Guidelines (1992).
Exhibit A8 – Extract from Australian Taxation Office Income Tax Return form (2000).
Exhibit A9 – Summary of applicant's arguments.
Exhibit R1 – Respondent's statement of facts and contentions, 15 February 2002.
Exhibit R2 – Copy of letter dated 17 January 2002 from Ms Bradley of Centrelink to Mr and Mrs Watson with legislative materials attached.
Exhibit R3 – Witness statement by Ms T Burley of Centrelink, 14 March 2002.

CONFIDENTIALITY ORDER

At the applicants' request the tribunal issued the following order under s 35(2) of the Administrative Appeals Tribunal Act 1975 at the commencement of the hearing:
"The tribunal orders that the following documents listed below within the Section 37 Statement and associated T documents are to be treated as confidential and made available only to the applicants and such officers of the tribunal, Centrelink and the Department of Family and Community Services as have a need to access those documents in the performance of their duties. The relevant documents are T6, T7. T7a, T8 and T8a."

APPLICANTS' SUBMISSIONS

Mr Watson represented himself and Mrs Watson extremely ably. He had done considerable preparation and research. He provided comprehensive written notes of his submissions (ex A9) and he answered questions intelligently. He commenced by objecting to a statement by the original decision-maker that he and Mrs Watson disagreed with the legislation in question. He placed on record that they respect the legislation. To the tribunal it is clear that the gist of the Watsons' case is that Centrelink has not administered the legislation properly. The arguments are summarised below.

(a)Section 75(2) and (3) of the Administration Act state that the Secretary "may request, but not compel" a person to give, amongst other things, a written statement of that person's TFN and that person's partner's TFN. The Secretary, through Centrelink, has attempted to compel the Watsons to provide their TFNs. The Secretary is acting unlawfully in doing this. It is a form of extortion.
(b)While ss 76 and 77 of the Administration Act provide that a pension is not payable where the Secretary has made a request under s 75 of the Administration Act which has not been acted on, ss 76 and 77 can apply only if s 75 has been properly utilised by the Secretary.
(c)Section 75 has not been properly utilised because the Secretary has not made a request to the applicants. Before making such a request the Secretary must have due regard to the implications in ss 76 and 77. Such a request should be made formally because of the seriousness of the implications. In ex A9 Mr Watson wrote, "any valid request made under [s 75] should in all reasonableness, be specific, formal, written, non-ambiguous and clearly outline relevant facts and reasons for the request and should … not be unjustifiably compulsive. Further, it would be signed by or on stated authority of the secretary". It must be made with no hint of compulsion such as, for example, a suggestion that a claimant will not be paid if he or she fails to provide a TFN.
(d)The Age Pension claim forms (T6, T6a) did not contain "requests" for the claimants' TFNs. The form actually asks a claimant to fill in a section where the lead words are, "My Tax File Number is: …" (T6/31, T6a/36). There is a similar section seeking the partner's TFN. By comparison, a 1995 pension claim form (ex A6) contained a section headed, "Request for Tax File Number(s)". This specified the authority for the request, explained the need for the TFN and said that a claimant may not get paid if no TFN was provided. This was closer to what is required for a genuine "request".
(e)The Watsons had asked the Centrelink officer conducting the pre-grant interview why she had said they could not be paid pensions if they did not provide TFNs whereas the legislation says that they may not be paid.
(f)Centrelink's publications speak in terms that pensions and benefits may not be payable where no TFN is provided. A leaflet relating to employment separation certificates (ex A3) issued in 1995 did say that Job Search Allowance, Newstart Allowance and Sickness Allowance were not payable if no TFN was provided. That was the only publication to include such dogmatic terminology.
(g)Age Pension is generally payable to anyone who qualifies unless in prison. Denying Age Pensions to the Watsons was equivalent to treating them criminals. Where, asked Mr Watson, is the presumption of innocence?
(h)The Watsons believe that it is an offence for a person to give another person a third party's TFN, thus the requirement to state a partner's TFN is a requirement to commit an offence. The Privacy Commissioner's TFN guidelines (ex A7) listed people and organisations who can lawfully receive a person's TFN. There was no mention of any person such as Mr or Mrs Watson. The year 2000 income tax return form (ex A8) asked for spouse's TFN but offered the option of providing his or her date of birth if the taxpayer could not provide the spouse's TFN.

The officer who required provision of the TFNs lacked legal authority to make a request under s 75 of the Administration Act. Delegates of the Secretary are also misled by the Guide to the Administration of the Social Security Act published by the Department of Family and Community Services ("the Guide"). Extracts from the Guide appear in T15. At T15/69 the Guide states that "Customers must be requested to provide TFN information if it is not already held by Centrelink". The Administration Act says that the TFN may be requested, not that it must be requested.

CROSS-EXAMINATION

Ms Bradley cross-examined Mr Watson. The following points emerged:

The Watsons read the claim forms, including the section on TFNs, before attending the interview. They had read the TFN panels at T6/31 and T6a/36 in the claim forms before completing the forms.
During the interview, when the Centrelink officer said that the Watsons would not get paid if no TFN was provided, Mr Watson asked if she could show where that was spelt out in writing. Had Centrelink been able to provide such evidence he had told the officer he would probably not lodge the claims. The officer provided no response.
Mr Watson could recall no discussion suggesting that the Watsons would qualify for payment of pensions for only 28 days.
At the end of the interview Mr Watson expected to be paid his pension. He thought that only a claimant suspected of doing the wrong thing or a person such as a "dole bludger" would be denied payment for failure to provide a TFN. He did not think he and Mrs Watson would be denied payment. He thought the interviewing officer would review her position and exercise a discretion to pay him, especially after it was pointed out to her that the claim form did not say that a person who did not provide a TFN could never be paid.
Both Mr and Mrs Watson are in possession of TFNs.
Mr Watson could not say whether he and his wife would have provided their TFNs had they been requested in the fashion he had required.
When asked by the tribunal to consider the categories of person who are exempt, in accordance with departmental policy, from providing TFNs (T15/65-72) he conceded that he and his wife do not fall under any of the categories. The tribunal indicated that it was not necessarily bound to apply an exemption only in those categories and asked Mr Watson what basis he could advance for an exemption in his case. He responded that he would like to see a category of "conscientious objector". This was on the basis that the provision of a TFN by a person was always supposed to be voluntary. He objected to being told something was voluntary and then finding it to be compulsory. He conscientiously believes that there is something wrong with the system if he is told that provision of a TFN is not compulsory, that refusal to provide a TFN is not breaking the law, but then to be given a "life sentence" when he does not provide a TFN.

EVIDENCE FROM CENTRELINK

Ms T Burley, the Centrelink officer who interviewed Mr and Mrs Watson and provided ex R3, gave evidence by telephone. She said, amongst other things, that she had noticed the applicants' annotations on their claim forms stating that they would not provide TFNs. She told the Watsons that they could not be paid beyond a period of 28 days if they did not provide TFNs. In T8/38-40 her file notes suggest that she expected the applicants to appeal. That had been foreshadowed in the interview. Ms Burley could not recall Mr Watson asking anything after she told him that the TFNs were needed. She did not consider that the Watsons fitted any of the exemption categories, hence she had been confident that the TFNs were essential if long term payments were to be made.
Ms Burley was cross-examined by Mr Watson. She recalled that Mr Watson had suggested that her belief that provision of the TFNs was an essential precondition to long term payment differed from the material about TFNs on the claim forms. She recalled that she had looked to her computer screen to check the situation in the legislation. She agreed that she had given no further response to the applicants on this question.
Ms Burley could not recall Mr Watson offering not to lodge the claims if she could show that provision of TFNs was an essential precondition to payment.
Ms Burley was not aware of the Guide apparently requiring that all customers be asked to provide TFNs.
Ms Burley considered that, by the time they left the interview, Mr and Mrs Watson were aware that they must provide TFNs in order to receive ongoing payments.
Ms Burley had never had another case where a customer refused to provide a TFN
The tribunal appreciated Ms Burley's evidence. She was clearly honest and as helpful as possible in the circumstances. She also appeared to be a knowledgeable and experienced officer.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The tribunal finds that Mr and Mrs Watson contacted Centrelink on 16 March 2001 to inquire about receiving Age Pensions (T3).
The tribunal finds that Mr and Mrs Watson lodged claim forms for Age Pension with Centrelink on 27 March 2001 (T6, T6a).
The tribunal finds that Mr and Mrs Watson were interviewed by a Centrelink officer at C2 level, Ms T Burley, in the Centrelink customer service centre at Griffith on 27 March 2001 (T7).
The tribunal finds that each applicant annotated the relevant claim form to the effect that he or she would not be providing a TFN (T6/31, T6a/36). The tribunal further finds that each applicant confirmed that this was the position at interview on 27 March 2001 (paragraphs 14-18, above).
The tribunal finds that the applicants were each paid Age Pension in respect of the period from 16 March 2001 to 12 April 2001 but that the pensions were cancelled on 28 May 2001 (T8b, T8c).
The tribunal finds that Ms Burley, the Centrelink officer who cancelled the pensions, was duly delegated the authority to make that decision (T2/6-7).
The tribunal's reading of the relevant legislation is that it has the following effects:

The Secretary (or a delegate) may request a claimant for, or recipient of, a social security payment to provide a written statement of his or her TFN, or the means to obtain the person's TFN from the Commissioner of Taxation (s 75(2) of the Administration Act). The section makes clear that the Secretary cannot force a person to provide a TFN or the means of obtaining the person's TFN. The section makes it clear that the Secretary may elect not to request the provision of a TFN.
Where a claimant or recipient is partnered the Secretary (or a delegate) may request the claimant for, or recipient of, a social security payment to provide a written statement of his or her partner's TFN, or the means to obtain such TFN from the Commissioner of Taxation (s 75(3), (4) of the Administration Act). The section makes clear that the Secretary cannot force a person to provide a partner's TFN or the means of obtaining the partner's TFN. The section makes it clear that the Secretary may elect not to request the provision of a TFN. The Secretary can exempt a person from providing a partner's TFN if satisfied that the person does not know the partner's TFN and cannot obtain information from the partner as to his or her TFN (s 77(5) of the Administration Act).
Where the Secretary has requested the provision of a TFN, and no arrangements are made within 28 days for the TFN to be provided, then the social security payment is not payable to the claimant or recipient (ss 76, 77 of the Administration Act).
The definition of "social security payment" appears in s 23(1) of the Act and includes Age Pension.

In broad terms, then, the applicants appear unlikely to succeed in this application because:

Each has been asked to provide his or her TFN; and
Each has been asked to provide the other's TFN; and
Each has said that he or she will not be providing these TFNs; and
No exemption has been applied to either applicant.

However, it is necessary to deal with Mr Watson's arguments before the tribunal. These were set out in paragraph 12 above. Arguments (a) – (d) relate to whether the Secretary has properly invoked s 75 in this case to seek the TFNs. It is suggested that there was no request in the proper form, that such request as there was involved compulsion, and that it was issued without proper regard for the consequences under ss 76 and 77 of the Administration Act.
The tribunal has considered these arguments but has decided that the Secretary's requests are not invalid on these bases. The tribunal finds nothing in s 75 to suggest that a request, to be valid, must be in any particular form. It is not required to be in writing. There is no requirement that the word "request" must be used. The tribunal notes that the Administration Act commonly specifies such formal requirements where they are required. For example, s 75(2) itself requires the provision of a TFN in the form of a written statement. As another example, s 72 of the Administration Act requires that a notice given by the Secretary to a claimant or recipient requiring the recipient of the notice to notify of any stated events affecting the recipient's entitlement to social security must be in writing, must be served, must specify how the information is to be provided, must specify the period within which the information is to be provided and must specify that it is an information notice given under the social security law. As no such specifications were imposed by Parliament on a request made under s 75, such request is valid so long as it is, in substance a request. It can be inferred that such a request must be in clear terms and must be unambiguous. It must not, in accordance with s 75(2) and (3) compel the recipient of the request to provide the required TFN(s). The request can, under the Act, even be an oral request.
While it might be better practice, and certainly more courteous, to issue a request in the fashion suggested by Mr Watson, it is not a legal requirement.
The tribunal finds that there were several valid requests made of the applicants in this matter. The first valid requests were made in the claim forms (T6/31, T6a/36). Fresh valid requests were made by Ms Burley during the interview on 27 March 2001.
The tribunal finds that a request does not involve compulsion merely because the request alerts the person to whom it is addressed of the consequences of non-compliance. Thus, it is not compulsion to advise the addressee that failure to provide the TFN will mean that his or payments are at risk. That is doing no more than advising the addressee of the terms of the legislation. That, however, brings in the second set of arguments from Mr Watson. Arguments (e) and (f) address the information given to Mr and Mrs Watson by Ms Burley to the effect that they could not be paid Age Pensions if they did not provide TFNs. Mr Watson was of the view that the correct proposition is that they "may not" be paid in such a case.
There is some force in Mr Watson's argument. However, as he demonstrated in argument (f), Centrelink literature almost invariably speaks in terms of "may". Ms Burley explained to the satisfaction of the tribunal that she was aware of the exemption categories and considered that Mr and Mrs Watson did not fit within any of these categories. That was why she had told them that they could not be paid. Mr Watson agreed at the hearing that he and his wife did not come within any of the categories of exemption. Mr Watson argued in favour of a new exemption for a conscientious objector. This argument is addressed below.
Mr Watson argued ((g)) that Age Pension is only not payable to people such as himself and Mrs Watson and those in prison. This is not wholly accurate. As clause 5(2) of Schedule 2 of the Administration Act indicates, a pensioner can also be precluded from payment of Age Pension because he or she has received a compensation payment. There are different policy reasons for each of these preclusions. Prisoners cannot be paid because they are already fully supported by government authorities. Compensation recipients are not paid because the policy is that they should support themselves from the compensation payment for a particular period of time. Claimants such as the Watsons are precluded because the integrity of the social security system is dependent in part on social security recipients providing their TFNs to facilitate data-matching.
Mr Watson's belief that it would be an offence for him to disclose his wife's TFN, and vice-versa (argument (h)), is not sustainable if one considers the Taxation Administration Act 1953 s 8WA and the Income Tax Assessment Act 1936 s 202(e) and (f) which, in combination, permit the Secretary to exercise the powers described in s 75 of the Administration Act.
The Privacy Commissioner's TFN guidelines are quite powerful in some circumstances (Privacy Act 1988 ss 17 and 18), however they are subordinate legislation that must yield to an inconsistent later Act of Parliament such as the 1999 Administration Act.
In any case, paragraphs 2.1 – 2.4 of the TFN guidelines contemplate the use of TFNs for the purposes of "assistance agency law". Assistance agency law includes social security law.
The tribunal does not accept argument (i). Ms Burley was delegated by the Secretary, via the Centrelink Chief Executive Officer, to issue a request under s 75.
Mr Watson criticised the Guide in stating that a customer must be requested to provide a TFN. There is some force in this criticism. The drafting of s 75(2) and (3) would seem to presuppose that the possible applicability of an exemption from provision of a TFN would be established before a request is made. This would not only better reflect the legislative scheme, given that the legislation contemplates a subsequent exemption in only limited circumstances (s 77(5)), but would resolve such an issue up front. However, the administration of the TFN provisions, as reflected in the Guide, appears more flexible. It would seem to proceed on the basis that, unless an exemption is granted up front, an exemption can be considered later. If an exemption is then permitted, the request can be revoked as a matter of law under s 33(3) of the Acts Interpretation Act 1901. It should be noted that many of the exemption categories are very evident when an affected person approaches Centrelink. Presumably the exemption is applied up front in these cases and no request is issued. The exempt categories are:

Customer is aged 80 or over;
Customer is in a natural disaster zone;
Customer is a disadvantaged homeless person;
Customer is a pensioner with no income;
Customer is overseas;
Customer is profoundly disabled;
Customer is in a psychiatric institution or nursing home;
Customer lives in a remote location.

As noted earlier, Mr Watson agreed that the applicants do not come within any of these categories. He argued for a new category of conscientious objector.
The tribunal could recognise such a new or ad hoc category if it wished to do so. The existing categories emanate from policy only and cannot be regarded as closed. However it is necessary to consider the broader context. TFNs are a vital component in the data-matching program administered in accordance with the Data-matching program (Assistance and Tax) Act 1990. That Act is a cornerstone of successive governments' programs to maximise the integrity and public acceptability of the Australian social security system. Unless it is possible to relieve a conscientious objector from the obligation to provide a TFN while permitting the data-matching program to operate efficiently, it would not be attractive to permit this additional exemption.
The tribunal is also cognisant of the substantial steps taken by Centrelink to safeguard TFNs entrusted to its database. In short, the panel in the paper claim form where a TFN is written down is perforated and is removed and destroyed once the TFN has been entered into the system. Recording of the TFN is done via encryption. The TFN can only be accessed by computer or, presumably, by a limited group of individuals with some legitimate need to access a TFN.

The tribunal is loath to take upon itself the introduction of this additional exempt category without further evidence regarding the policy and administrative implications. The tribunal urges Mr Watson to take up the matter of conscientious objection with his local Member of Parliament and/or the Privacy Commissioner if he wishes to agitate for a change in policy.
In the meantime, as it said at the hearing, the tribunal was concerned that Mr Watson appeared to believe that he and Mrs Watson are permanently shut out from receiving pensions because of the decisions under review. The tribunal wishes to emphasise that this is not the case. If they submit fresh claims and provide TFNs then those claims can be assessed and, if all qualification and payability criteria are met, pensions can be granted. There is in fact no "life sentence" as Mr Watson put to the tribunal.
CONCLUSION
The tribunal congratulates Mr Watson on presenting a solid case for his and Mrs Watson's appeals in an environment he was not used to. As noted earlier, the tribunal appreciated the quality of Mr Watson's argumentation and his ability to reinforce it with documentation. However, on this occasion, for reasons already given, the tribunal considers that it should affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the 47 with preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  25 March 2002
Date of Decision  28 March 2002
Counsel for the applicants       An applicant, Mr M Watson
Counsel for the respondent     Ms R Bradley, Centrelink Advocacy and Administrative Law Team

[2002] AATA 204

28 March 2002

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Payment

Tax File Number

Request for Information

Compliance

Entitlement to Pension