WEBB and CHIEF EXECUTIVE OFFICER, CENTRELINK

[2010] AATA 632

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 632

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1513

GENERAL ADMINISTRATIVE DIVISION		)
Re		PHILLIP WEBB

Applicant

And CHIEF EXECUCTIVE OFFICER, CENTRELINK

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date24 August 2010   

PlaceSydney

Decision The Tribunal sets aside the decision under review and decides that the Applicant’s record, where it makes reference to the address “77 Central Avenue Deagon”, is to be annotated as follows: “77 Central Avenue is a non-residential address”.

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

Ms N Isenberg

Senior Member

CATCHWORDS

Freedom of Information - Request for amendment of personal records in relation to address – Whether definition of “address” encompasses non-residential address – Whether alteration or notation is appropriate amendment - Decision under review is set aside and an annotation is to be made to indicate address is non-residential.

Freedom of Information Act 1982, ss 48, 50, 55 and 60

Re Agnes Jackson and Department of Social Security [1991] AATA 255

Re Nguyen Giang Vu On Behalf of  Nguyen Tuong Vi and Department of Immigration, Local Government and  Ethnic Affairs  [1989] AATA 156

REASONS FOR DECISION

August 2010 Ms N Isenberg, Senior Member

Decision under review

1.      The decision under review is a decision by the Freedom of Information Review Officer dated 2 March 2009 to refuse to amend Mr Webb’s Centrelink record which makes reference to the address "77 Central Avenue, Deagon".

Background

2.      In a letter dated 21 November 2008 Mr Webb requested Centrelink (the Respondent) to make a number of amendments to his Centrelink file.  In summary, these were:

·to correct the spelling of a past address where he lived from "Wallace Street" (incorrect) to "Wallis Street" (correct); and

·to amend the record which makes reference to 77 Central Avenue, Deagon (Central Ave) from 31 October 1989 and 4 January 1990 (the relevant period), on the basis that it was a “non-residential address”; and

·to remove an incorrect Customer Reference Number (401 275 057T) from his record.

3.      On 23 December 2008 the original decision maker refused to make the requested amendments.  On an internal review, the review officer agreed that the spelling could be changed in relation to Wallis/Wallace Street, and clarified the Customer Reference Number.

Issue before the Tribunal

4.      At the hearing Mr Webb confirmed that the only remaining issue was whether the Respondent’s decision to refuse the complete removal of the reference to the Central Ave address on his Centrelink record was correct.

5.      In Terms of Agreement dated 30 April 2010, which the parties made available to me, the Respondent indicated that it was prepared to annotate Mr Webb’s record as follows:

“77 Central Avenue is a non-residential address.  Mr Webb never lived at this address (77 Central Avenue Deagon)”

6.      Mr Webb did not consider this to be satisfactory.  He referred me to Re Agnes Jackson and Department of Social Security [1991] AATA 255 (6 November 1991), where the Tribunal decided that the appropriate remedy was that the offending reference be deleted. In that matter, the Tribunal held annotation was insufficient.

Legislation

7. Under s 48 of the Freedom of Information Act 1982 (the FOI Act), a person may make application for amendment of a record which contains information relating to his personal affairs that is incomplete, incorrect, out of date or misleading; and that has been used, is being used or is available for use by the agency.

8.      Personal information is defined under the FOI Act as information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

9. Under s 50 of the FOI Act, the agency may make the amendment either by altering the record or by adding an appropriate notation to the record.

10. Section 61 of the FOI Act provides that the agency, in this case Centrelink, has the onus of establishing that a decision given in respect of a request is justified or that the Tribunal should give a decision adverse to an Applicant. However, ss 55(6) of the Act has the effect of requiring an Applicant to provide evidence that establishes a factual basis on which the Tribunal could base a finding that a relevant provision of the subsection has not been satisfied. It is an evidentiary onus, which requires an Applicant to establish at least a prima facie case that a relevant condition has not been satisfied. The onus will then shift to the Respondent to satisfy the Tribunal, on the balance of probabilities, that ss 55(6) applies. It is the Respondent who has the overall onus of showing that the document should not be amended, and it is for the Respondent to satisfy the Tribunal that ss 55(6) applies to preclude amendment once the Applicant has raised a prima facie case to the contrary.

Evidence

11.     Mr Webb’s evidence was that he had never lived at Central Ave.  He said that he had lived at an address in Albion from 1987 to May 1989 and then lived at 14 Station Road, Deagon (14 Station Rd) until about 29 September 1989, when he moved to 155 Station Road, Deagon (155 Station Rd).  He had spent some time in the early part of 1989 in Cairns.

12.     The house at Central Ave was owned by a friend, Mr Haefele (anglicized as Hayfield), who had leased it to a Mrs Flynn while he was in his homeland of Austria.  Mr Webb said Mr Haefele had allowed him to moor his boat in the canal at the rear of the premises.  In return, Mr Webb would mow the property’s lawn and tend to Mr Haefele’s boat, which was also moored there.

13.     Mr Webb said he couldn’t have been living on the premises at Central Ave because they did not have a granny flat.  He also said that because his boat is only a metre wide, with no bathroom or cooking facilities, he could not live on the boat moored there.  Even when he and his son would go sailing for a fortnight they would have to camp on land overnight because the boat could not accommodate them.

14.     Mr Webb was referred to a Centrelink document dated 30 August 1989.  The document was addressed to him at 14 Station Rd.  There Mr Webb had provided, in response to the questions on the document, the following:

1. Did you change your POSTAL address?

Ticked “YES”.

If  YES, what is your new POSTAL address?

77 CENTRAL AVE DEAGON 4017

2. Did you change the address where you live?

Ticked “NO”

If YES, where do you live now?

77 CENTRAL AVE DEAGON 4017

3. Please tick one box to show if you:

Ticked “pay rent”

If you pay rent or for lodging or for board and lodging, how much do you pay each week?

$80.00

What is the name and address of the person (or agency) to whom you pay rent?

Name MR HAYFIELD

Address 77 CENTRAL AVE, DEAGON.

15.     Mr Webb agreed that the document was in his handwriting but said it had been completed by him “under duress”.  He said he was “forced” to do it because field officers of the Department of Social Security (the precursor to Centrelink), had seen him emerging from a boat at the rear of Central Ave.  I note that these current proceedings were the first occasion, as far as I could tell, on which Mr Webb made this particular allegation.  Previously he has made numerous allegations of harassment by Centrelink officers.

16.     Mr Webb said his response that he paid rent was made in reference to an arrangement made between him and Mr Haefele regarding the property at 14 Station Rd: a rent/buy agreement whereby Mr Webb paid some deposit and rent to Mr Haefele and one day expected to take the ownership of the property, having paid it off.  Mr Webb described the arrangement as a ‘gentleman’s agreement’, for which no written instrument was drawn.  Mr Webb said that subsequently, because of Centrelink’s continuing enquiries of Mr Haefele about the property, the agreement ended and Mr Webb was forced to leave.  It was this falling out that precipitated his move to 155 Station Rd.

17.     Mr Webb was shown an undated letter sent to him at Central Ave, with a handwritten notation which he agreed was made by him, dated 28 September 1989.  He said it “turned up” in his letterbox at 155 Station Rd.  Another letter dated 13 October 1989 and addressed to him at Central Ave was never received, according to Mr Webb.

18.     Mr Webb was shown another document dated 13 June 1990 – a request  for statement of benefit of pension wherein he had written under the heading “OTHER ADDRESSES YOU MAY HAVE USED DURING PERIODS OF BENEFIT/PENSION”:

11 WAKEFIELD ST ALBION QLD

14 STATION RD DEAGON QLD

77 CENTRAL AVE DEAGON QLD

19.     Mr Webb explained he had recorded the Central Ave address because Centrelink, not he, had used the address.

20.     I asked Mr Webb if he could point to material which effectively showed that, from the end of September 1989, he had moved to 155 Station Rd.  He explained that although he had material ‘at home’, he did not think it was relevant and did not bring it.  Regarding this explanation I note that any material which may establish precisely where he was living from the end of September 1989 would be clearly relevant to the issue at hand.

21.     After the conclusion of the hearing Mr Webb sent in letters from the Department of Social Security dated 25 and 26 October 1989, and several dated November 1989 and addressed to him at 155 Station Rd.

22.     The Respondent indicated that an underlying issue to Mr Webb’s application concerned the debt of sole parent pension which had been raised and has since been recovered from Mr Webb, following Centrelink’s decision that he was living in a marriage like relationship during a period between 1987 and 1989.  After considering the voluminous papers filed by Mr Webb, I agree with the Respondent that this seems to be Mr Webb’s concern.  However, I do not consider that this is an issue relevant to the matter at hand. 

Consideration

23.     Mr Webb has been in dispute with Centrelink for some years.  He alleges that Centrelink officers bullied and harassed him.  Regarding this allegation there is no clear evidence one way or the other, and the events of which he complains happened over 20 years ago.  The Respondent submits that it is all too long ago for the Tribunal to make confident findings as to precisely what occurred.

24.     I observe that Mr Webb, in his initial application to Centrelink to have his record amended, described Central Ave as a “non-residential address”.  He used that expression throughout the hearing.   I acknowledge that Mr Webb has steadfastly denied over a long period of time that he lived at that address.  His evidence was that there was no granny flat at the premises, and his boat was uninhabitable as a residence.  However, he does not altogether deny any association with the address. 

25.     As I noted earlier in paragraph [5], Centrelink was prepared to make an annotation, which, as far as I can see, would more than adequately have addressed Mr Webb’s concerns. 

26.     So far as the Centrelink record is concerned, recording an address is an unexceptional exercise.  According to the Macquarie dictionary one definition of address is “a place where a person lives or may be reached.”  Adopting that commonly understood definition in the absence of any definition of “address” for the purpose of the Social Security Act 1991 (under which Centrelink operates), I find that “address” is simply a notation of where one can be reached.  It does not necessarily indicate residence.

27.     The document in question records an address for Mr Webb, namely Central Ave.  I find that he was able to be reached at that address during the relevant period, whether or not he lived there.  I do not consider that it is necessary to determine whether or not he actually lived there. 

28. The Tribunal, standing as it does in the shoes of the original decision maker, is empowered by s 50 of the FOI Act to make the amendment either by altering the record or by adding an appropriate notation to the record. I consider that this is a situation in which the making of a notation on the record is a more appropriate than alteration. The gravity and consequences of the recorded information, given my findings in paragraphs [26] and [27] above, do not require alteration, only annotation: Re Nguyen Giang Vu On Behalf of Nguyen Tuong Vi and Department of Immigration, Local Government and Ethnic Affairs [1989] AATA 156.

Decision

29.     The Tribunal sets aside the decision under review and decides that the Applicant’s record, where it makes reference to the address “77 Central Avenue Deagon”, is to be annotated as follows:

“77 Central Avenue is a non-residential address.”

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: .......[sgd]..................................................................
           Associate

Date of Hearing  30 July 2010
Date of Decision  24 August 2010
Solicitor for the Applicant                Self-represented
Solicitor for the Respondent          Mr B Slattery, Centrelink Advocacy Branch