FEDERAL COURT OF AUSTRALIA

Aboriginal Community Benefit Fund Pty Ltd v Chief Executive Centrelink [2016] FCA 769

ORDERS

THE COURT ORDERS THAT:

1.    Insofar as the application filed on 23 May 2016 seeks to invoke the Court’s jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review a decision of the respondent made on 1 July 2015 to terminate an hitherto existing arrangement with the applicants for the provision of the Centrepay service specified in item 2 of Sch 1 to the Human Services (Centrelink) Regulations 2011 (Cth) made pursuant to the Human Services (Centrelink) Act 1999 (Cth) (the purportedly terminated arrangement) and to substitute on and from that day until 30 June 2016 a new such arrangement (the termination decision), the applicants are granted an extension of time to 23 May 2016 for the filing of that application.

2.    The termination decision is quashed.

THE COURT DECLARES THAT:

3.    The purportedly terminated arrangement has on and from 1 July 2015 remained and presently remains in force.

THE COURT FURTHER ORDERS THAT:

4.    The respondent pay the applicants’ costs of and incidental to the proceedings, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    Paternalism by the Crown and officers of the Crown towards aboriginal Australians has a very long history.

2    In 1836, a Select Committee of the House of Commons of the United Kingdom’s Parliament furnished to that parliament a report, the Report from the Select Committee on Aborigines (British Settlements). As Commissioner Elliott Johnston QC recorded in the National Report of the Royal Commission into Aboriginal Deaths in Custody (Royal Commission into Aboriginal Deaths in Custody, National Report, (1991) Vol 2, para 10.3.18), in this Select Committee report the committee “recommended a Protector be appointed in each colony who would learn their language, distribute gifts (other than liquor), introduce a simple set of laws, collect statistical information regarding population, act as a magistrate and provide legal representation”. This report was acted upon in the Australian colonies and such action continued after Federation. Well into the 20th century an office of Protector of Aboriginals or an equivalent office was to be found in the several States, along with related legislative provision.

3    The facts of this case are not in dispute in any material way. They offer a reminder that, in the view of Ministers of the Crown and officers of their departments, there is still a place today for a form of such paternalism.

4    The applicants are part of a group of companies which provide funeral benefit cover, principally to indigenous Australians. Cover is also provided to non-indigenous Australians but the majority of those covered come from indigenous communities throughout Australia. It is not necessary to distinguish between the separate roles of each applicant company. They may conveniently be referred to collectively as ACBF. ACBF was established in 1989 following a request from indigenous community groups to the founder of ACBF, Mr Ron Pattenden.

5    “Centrepay” is a service provided in the course of the conduct of the executive government of the Commonwealth by which recipients of welfare and certain other benefits (termed “customers” by the Department of Human Services (the Department)) under Commonwealth legislation may take advantage of a voluntary, free, bill paying service via deductions made directly from payments made to them via Centrelink so as to meet their ongoing expenses. Centrelink is an agency of the Commonwealth executive government which administers Centrepay. The Chief Executive Officer of Centrelink (CEO) is the respondent in these proceedings. Centrepay was originally introduced as a “debt prevention strategy” in 1998 to assist the indigenous housing sector to collect rent. Its initial success in this regard led to requests from “customers”, businesses and the wider community for its deduction recipient base to be broadened.

6    The CEO’s position is that, originally, the legal foundation for the Centrepay service was to be found in all that is entailed under our system of government in the constitutional provision for the vesting and exercise of the executive power of the Commonwealth (ss 61, 64 and 67 of the Constitution of the Commonwealth in conjunction with more specific Ministerial and Permanent Head functions of administration found in legislation so consigned to, materially, the Minister for Human Services by the Governor-General pursuant to the Administrative Arrangements). From 1999, such legislation materially included the Social Security (Administration) Act 1999 (Cth) (Administration Act). Within the Administration Act, the following provisions are said to have provided legislative authority for Centrepay, s 7, which gives the Secretary to the Department, subject to any direction of the Minister, the general administration of the social security law, s 8, which specifies principles of administration to which the Secretary is to have regard in the administration of the social security law and s 55(4), which makes provision for the Secretary to direct that the whole or a part of the relevant amount of a benefit to be paid to a person otherwise than by payment into a bank account nominated and maintained by that person (or one maintained jointly or in common with another person). Another Act said to be relevant to the original delivery of the Centrepay service by Centrelink is the Human Services (Centrelink) Act 1999 (Cth) (Centrelink Act). The historical position was the subject of yet further elaboration in the CEO’s submissions but further to detail that is fraught with the risk of construing the text of the present through the prism of that of the past. ACBF does not question the asserted legality of the original foundation for the Centrepay service. It is not necessary to examine the correctness of the CEO’s position about the original foundation in law for the Centrepay service. What is pertinent is the position under Commonwealth legislation and subordinate legislation which prevailed as at 1 July 2015.

7    By 1 July 2015, the Governor-General in Council had made the Human Services (Centrelink) Regulations 2011 (Centrelink Regulations) under s 41 of the Centrelink Act. That section provides:

Regulations

The Governor-General may make regulations prescribing matters:

(a)    required or permitted by this Act to be prescribed; or

(b)    necessary or convenient to be prescribed for carrying out or giving effect to this Act.

8    Within the Centrelink Regulations, Pt 2 sets out the prescribed functions of the CEO for the purposes of s 8(1)(ba) of the Centrelink Act. That paragraph of s 8(1) of the Centrelink Act provides that the CEO’s functions include those which are prescribed. There is nothing elective about this s 8(1)(ba) specification of the CEO’s function. One such prescribed function is to perform functions delegated to the CEO under a law of the Commonwealth: reg 9(1)(a). Another is to provide a service (termed a specified service) specified in Sch 1 to the Centrelink Regulations to, inter alia, a “Commonwealth body” or “a non-government organisation”: reg 11(1)(a) and (d) respectively. Once again, there is nothing elective about this prescription of the CEO’s function. Subject to the terms of the prescription, it is a function which the CEO must discharge. Within Sch 1, what is lawfully entailed in the service specified in item 2 is of singular importance in the present proceedings:

2    A service (known as Centrepay) of deducting an amount from a benefit payable to an individual and paying the amount directly to another person:

(a)    with the individual’s consent, or as otherwise authorised or permitted by a law of the Commonwealth; and

(b)    consistently with arrangements between the Department and the other person.

As at 1 July 2015 and to this day, this item 2 reference to Centrepay is the only express reference to a service of that name in Commonwealth legislation or subordinate legislation. Having regard to s 8(1)(ba) of the Centrelink Act, reg 11(1)(d) (materially) of the Centrelink Regulations and item 2 in Sch 1 to those regulations, the provision of service known as Centrepay in accordance with the terms of item 2 was, as at 1 July 2015, a function which the CEO was obliged to discharge.

9    It is common ground that, until 1 July 2015, Centrelink was, pursuant to a hitherto subsisting arrangement between the Department and ACBF, making, with the consent of each individual concerned, deductions from a benefit payable to that individual and paying that amount directly to ACBF. In this way, that individual paid the premium or instalment of a premium in respect of a funeral benefit insurance policy taken out by that individual with ACBF. For the purposes of the arrangement which, up until 30 June 2015, prevailed as between the Secretary and ACBF as a “non-government organisation”, ACBF met all of the specified eligibility criteria (see cl 5.1 of the Centrepay Policy).

10    On 22 May 2015, the then Minister for Human Services, Senator the Honourable Marise Payne, issued a press release in which, inter alia, she announced that funeral insurance would be excluded from “Centrepay”, “because of the particular risks funeral insurance raises for vulnerable customers”. It is evident from an antecedent minute to the Minister from the Department on which the Minister signed off on 13 April 2015 that the policy position with respect to funeral insurance announced in the press release was preceded by a report to the Secretary of the Department in June 2013 concerning the operations of the Centrepay service. Also evident is that the Minister’s signing off of the minute entailed her acceptance of the view that the use of Centrepay so as to make deductions from welfare and other benefits to pay instalments of funeral insurance premiums was inconsistent with the purposes of those welfare and other benefit payments and that the benefit offered by that insurance was “high cost/low value” and involved “unacceptable risks of financial stress or exploitation for customers”. Though ACBF is not named expressly in this minute, it is stated in it that, “The department is aware of only one provider using Centrepay for funeral insurance, but that provider has over 8,800 customers.” Other evidence makes it clear that the provider referred to was none other than ACBF.

11    On 1 July 2015, Mr Alex Anderson, the National Manager, Customer Payment Services Branch within the Department, wrote to ACBF notifying that, “the department is terminating your existing Centrepay contract with effect at the end of the day on 31 August 2015 and approving your business to use Centrepay under the new Centrepay policy and terms from 1 September 2015”. The latter statement is a reference to a new Centrepay policy and related terms of service which were adopted on 1 July 2015 by the CEO and the Department with the approval of the Minister. ACBF was further advised by this letter that it would be “given until 30 June 2016 to ensure that there are no Centrepay payment arrangements for any funeral insurance or any excluded goods or services after that date”. I shall refer to the notification of 1 July 2015 as the “termination decision”.

12    Mr Anderson was the departmental contact officer nominated on the minute on which the Minister signed off on 13 April 2015 and on all other departmental minutes to the Minister material in these proceedings.

13    ACBF contends that the decision to terminate its “contract” was affected by jurisdictional error. It has applied for the judicial review of that decision and an asserted further decision of the CEO on 20 May 2016 under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and further or alternatively under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act).

14    After 1 July 2015, ACBF, via its solicitors, made particular representations both to the CEO and to the Minister’s successor in office, the Honourable Alan Tudge MP, about the vacation of the termination decision or, as the case may be, so much of that decision as entailed the fixing of the 30 June 2016 sunset for the making of Centrepay deductions in favour of ACBF. By a letter to ACBF’s solicitors dated 29 April 2016, the new Minister signified that he was not disposed to depart from his predecessor’s policy position. By a letter dated 20 May 2016, Mr Anderson informed ACBF’s solicitors that, in effect, the CEO was not disposed either to vacate the termination decision itself or even vary it so as to extend the 30 June 2016 sunset in respect of the making of deductions via Centrepay (although he signified the Department was disposed to discuss, if desired, the possibility of providing further assistance with respect to the transitioning from Centrepay deductions of customers who had previously availed themselves of that service so as to meet payment obligations to ACBF). This letter of 20 May 2016 is also said by ACBF to evidence a judicially reviewable decision and one affected by jurisdictional error.

15    The present proceedings were instituted on 23 May 2016. ACBF sought interlocutory relief staying the operation of the sunset of its access to the Centrepay service pending the hearing and determination of the judicial review application. Given the imminence of the end of that access and the availability of potential hearing dates before then, I brought the proceeding on for case management on 26 May 2016. It is fair to say that such expedition somewhat disconcerted the CEO and his legal representatives. The granting of interlocutory relief was opposed by the CEO on 26 May 2016. In the result, I declined to grant any such relief then, because it was possible for each party to file supporting evidentiary materials in sufficient time to permit a hearing prior to the sunset date.

16    At the commencement of the hearing on 27 June 2016, I was informed by senior counsel for the CEO that the CEO no longer opposed the granting of a form of interlocutory relief which would preserve ACBF’s access to the Centrepay service pending the determination of the judicial review application. That change in disposition was, so I was informed, expressly motivated by a desire on the part of the CEO that I not feel constrained to deliver judgment before 1 July 2016.

17    I am not unmindful of that change in disposition but it has presented something of a dilemma. Though ACBF has never conceded the legality of the termination decision, the evidence discloses that, after 1 July 2015, the Department and ACBF have each gone to some lengths to identify affected customers and to notify them of the termination decision and related 30 June 2016 deduction sunset. It further discloses that there are as yet still many customers for whom deductions are being made who have not yet transitioned away from Centrepay. The CEO’s termination decision has already disrupted existing arrangements for the thousands of people who individually authorised deductions in favour of ACBF. Albeit with the result that these reasons for judgment may well be more compressed than they otherwise might have been, a delivery of judgment today is preferable in my view to introducing further uncertainty by a reservation and related stay or interlocutory injunction of uncertain duration.

18    There is another point which needs to be made at the outset. The merits of the new policy adopted with the Minister’s approval and of the termination decision are not for me to judge. That is for all of the reasons identified by Sir Gerard Brennan in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36, by reference to a famous statement made by Marshall C.J of the United States Supreme Court in Marbury v Madison (1803) 5 US 137; (1803) I Cranch 137, at 177. The role of the court on a judicial review application such as the present does not, as Brennan J there stated, go beyond “the declaration and enforcing of the law which determines the limits and governs the exercise of the [CEO’s] power”. It necessarily follows that it is no part of my role to determine the worth or otherwise, relative to the premium burden, of the funeral benefit insurance offered by ACBF. Neither is it my role to question the wisdom or place of the paternalism evident in the CEO’s termination decision, only to determine its legality insofar as that is under challenge.

19    Even so, it is only fair to record that the views put to and adopted by the Minister and evident in the termination decision were contested by ACBF in its various representations to a Minister or to the Department via Mr Anderson. Some features of those representations were assertions that:

    there was, for cultural reasons, a large demand amongst the Australian indigenous communities for funeral cover;

    ACBF initially conducted “a contributory style, pre-paid fund” (still in operation) but, following requests from members, established a funeral insurance style fund in 1993. That fund was originally underwritten by National Mutual and, after merger, by AXA. In about 2001, AXA refused to continue to underwrite the insurance style fund, because of the high mortality rate of its members.

    ACBF then sought an alternative re-insurer. One was unable to be found in Australia but in about 2002 one was found overseas.

    Since 2002, ACBF has accepted and paid 100% of claims under the insurance fund immediately.

Those representations were accompanied by testimonials supportive of the continuance of the Centrepay deduction arrangement from an Aboriginal community health corporation, an aboriginal community worker and a number of individual fund members.

20    As finally amended, the grounds of review are prolix. They are:

1.    Neither of the Respondent's decisions was authorised by the Human Services (Centrelink) Act 1997 (the Act) or the Human Services (Centrelink) Regulations 1999 (the Regulations), in that:

(a)    Under s 8(1)(ba) of the Act, the Respondent's functions include those prescribed by regulation.

(b)    One of the Respondent's prescribed functions is to provide a service known as “Centrepay” to, relevantly, a “non-government organisation”: Regulations, s 11(1) and Sch 1.

(c)    Schedule 1 of the Centrelink Regulations specifies the “Centrepay” service as:

A service (known as Centrepay) of deducting an amount from a benefit payable to an individual and paying the amount directly to another person:

(a)    with the individual's consent, or as otherwise authorised or permitted by a law of the Commonwealth; and

(b)    consistently with arrangements between the Department and the other person

(d)    The Respondent is a “non-government organisation”; each of the Applicants’ customers who is currently using “Centrepay” has consented to amounts being deducted from their benefits and paid to the Applicants; and the deductions are made consistently with arrangements between the Department and the Applicants (including with respect to the payment of fees).

(e)    In the circumstances, the Respondent is under an obligation to perform the function of providing Centrepay to the Applicants for so long as the Respondent is satisfied that the Schedule 1 criteria are satisfied.

(f)    Further, or alternatively, the person who purported to make the decisions was not in fact an authorised delegate of the Respondent and so had no authority under the Act or the Regulations to make the decisions.

2.    Alternatively, the Respondent’s decisions involved an improper exercise of power, because they involved the exercise of a personal discretionary power at the direction or behest of another person, in that:

(a)    If the Respondent has a discretion under the Act or the Regulations to cancel or discontinue the Applicants’ access to the “Centrepay” service, then that discretion is personal to the Respondent (or his delegate).

(b)    The Respondent erred by exercising his discretion at the direction or behest of the Minister for Human Services (or the Minister’s officers), instead of exercising his discretion according to his own assessment of the merits of the case.

3.    Further, or alternatively, the Respondent’s decisions involved an improper exercise of power, because they involved the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case or in reliance on an inflexible policy, in that:

(a)    If the Respondent has a discretion under the Act or the Regulations to cancel or discontinue the Applicants’ access to the Centrepay service, then that discretion was unfettered save for such constraints as may be expressly or impliedly found in the Act or the Regulations.

(b)    With effect from about 1 July 2015, the Respondent adopted a policy in relation to the exercise of his function of providing the Centrepay service, which is set out in a document titled “Centrepay Policy”.

(c)    The Centrepay Policy is unlawful or invalid, because it imposes an inflexible fetter on the Respondent’s discretionary powers regarding the Centrepay service; including:

(i)    The terms of the Centrepay Policy inflexibly and invariably preclude the Respondent from providing the Centrepay service to persons (such as the Applicants and their potential customers) who wish to commence using the “Centrepay” service for the deduction of amounts payable for “funeral insurance plans”.

(ii)    In circumstances where persons (such as the Applicants and their customers) were already using the “Centrepay” service (prior to 1 July 2015) for the deduction of amounts payable for “funeral insurance plans”, the terms of the Centrepay Policy inflexibly and invariably preclude the Respondent from continuing to provide the “Centrepay” service to those persons after 30 June 2016.

(d)    In exercising his discretion, the Respondent when making his decisions:

(i)    Acted pursuant to the terms of the Centrepay Policy.

(ii)    Relied on and fettered his discretion by reference to the Centrepay Policy.

(iii)    Failed to have regard to the merits of the Applicants’ particular circumstances.

(e)    Further, or alternatively. the making of the decisions involved reliance on an irrelevant consideration; namely, that the deductions paid to the Applicants through the Centrepay service were for the purpose of paying for funeral insurance.

(f)    Further, or alternatively, the making of the decision involved failing to take into account a relevant consideration, namely failing to consider the standing authorities for deductions under the Centrepay service from the policy holders of the Applicant, and the effect of terminating those standing authorities without consulting each policy holder.

(g)    Further, or alternatively, in premises of the preceding paragraphs (e) and ill the making of the decisions was so unreasonable that no reasonable decision maker acting reasonably could have made those decisions.

21    Ground 3(e) was added by leave granted to ACBF and without objection after all of the evidence had been filed. Grounds 3(f) and 3(g) were added by leave on the morning of the first day of the hearing over the objection of the CEO. That evidence included, as part of Exhibit 2, a tender bundle comprising material which was described as being compliant with an interlocutory order made by me on 26 May 2016. That required the filing of an indexed and paginated bundle compressing the material before the decision-maker on 1 July 2015 and that before the decision-maker on 20 May 2016, save insofar as such material was not already exhibited to an affidavit filed on behalf of ACBF by its solicitor.

22    Neither in his letters of 1 July 2015 (or that of 26 June 2015 which anticipated those letters) nor in that of 20 May 2016 did Mr Anderson choose to furnish reasons which would satisfy the requirements of either s 25D of the Acts Interpretation Act 1901 (Cth) or s 13 of the ADJR Act. He was not obliged so to do. As to the former, no requirement arose under any Act so to do, including as to the latter in particular, because ACBF chose not to make any request for reasons under s 13 of the ADJR Act. That being so, the common law position, which is that an administrative decision-maker is not obliged to furnish reasons (but may choose so to do) prevailed: Public Service Board (New South Wales) v Osmond (1986) 159 CLR 656. Further, any later elaboration by Mr Anderson would be nothing more than an ex post facto, self-serving statement and, for that reason, inadmissible: Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 at 168 per Davies J and at 188-189 per Hill J. Yet further, it seemed to me that, had the CEO conceived it possible and necessary to call Mr Anderson, any such need had already arisen on the basis of the grounds of review as earlier pleaded, including Ground 3(e). Though it was put on behalf of the CEO that Mr Anderson would be able to give “background”, it was not put that this extended to documents other than those already in evidence as having been before him. I therefore considered that no evidentiary embarrassment to the CEO was entailed by the allowance of the further amendments and that they raised pure points of law well within the abilities of his counsel to address the following day. It later transpired that the tender bundle may not have been accurately described as compliant with the terms of the interlocutory direction. Though invited by me prior to the conclusion of the hearing to signify whether the CEO sought an adjournment so as to adduce further evidence, no such application was made.

23    As to so much of the application that relied on the ADJR Act for its jurisdictional foundation, in respect of the challenge to the termination decision, ACBF sought an extension of time for the lodgement of the application to 26 May 2016, pursuant to s 11(1)(c) of that Act. It was common ground that such an extension was needed but the grant of that extension was opposed by the CEO on the basis of delay. It was further common ground that, while no time limit for filing attended so much of the application as relied upon s 39B of the Judiciary Act, delay was a relevant consideration in the context of whether to grant relief even if a ground of review were established.

24    The considerations relevant to the exercise of a discretion as to whether to grant an extension of time are not in doubt. They were stated in a non-exhaustive way by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Those expressed considerations are, necessarily, non-exhaustive because the discretion is ultimately open-ended and always one which falls to be exercised judicially in the circumstances of a particular case. In this case, I am not persuaded that ACBF ever, truly, rested on its rights. The representations which it made to the current Minister to which a response was sent on 29 April 2016 evidence that. In my view, what it sought to do was, without ever conceding the legality of the CEO’s termination decision, both to seek administratively the vacation or variation of that decision while also, out of an abundance of commercial concern and also concern for the potential effects of loss of the Centrepay deduction facility on fund members, to endeavour to have alternative arrangements put in place. When it became clear by the letter of 20 May 2016 that neither the Minister nor the CEO was disposed in any way to alter either the termination decision or even so much of it as fixed the 30 June 2016 deduction sunset date, proceedings were swiftly filed thereafter. Further and in any event, the evidence discloses that there are as yet at least some hundreds of individuals who, for one reason or another, have not been able to be moved to some other facility for the payment of their funeral insurance premium. They are in jeopardy of forfeiting their policy or at least having to seek its later reinstatement by ACBF. Yet further, not to grant the extension would still leave that part of the application reliant on s 39B to be resolved on like grounds to those pleaded in respect of the ADJR aspect of the application. Finally, the issues at law at large in the proceedings concern an aspect of public administration of pervasive importance, such is the potential reach of the Centrepay service. Though the particular facts disclose an assertion in good faith of lawful paternalism by the Minister, the Department and the CEO in respect, principally, of Australian aboriginals, the asserted right is by no means so confined. The point at issue in relation to the current Centrepay policy is of particular public interest. For these reasons, I consider it apt to exercise the discretion conferred so as to grant the required extension of time to ACBF.

25    Lest it be thought otherwise, it should also be recorded that, in response to an inquiry by me of his counsel in that regard, I was informed that the CEO has expressly considered whether, for the purposes of the ADJR Act and having regard to Griffith University v Tang (2005) 221 CLR 99, the termination decision was a decision under an enactment. The objection which the CEO made to competency was, I was further informed, expressly not grounded on a contention that the termination decision was not a decision under an enactment. That proposition seems to me to be reasonably open such that, in the absence of controversy between the parties, it is not incumbent on me further to consider it.

26    The CEO contended that Mr Anderson did not make a separately reviewable decision on 20 May 2016. Rather, so it was submitted, what he did was to decline to vacate the earlier, termination decision, including in that regard the 30 June 2016 deduction sunset fixed under the new arrangement terms imposed that day. In my view, having regard to the terms of his letter of 1 July 2015 and the arrangements both before and then on and from 1 July 2015 with ACBF in relation to the making of deductions via Centrepay, that is the correct way in which to characterise the position. That is not to say that Mr Anderson did not consider the request made by ACBF by its solicitor by a letter of 11 May 2016 that the earlier decision be vacated, or take into account the contents of the representation made to the new Minister by ACBF by its solicitor’s letter of 11 April 2016. Mr Anderson expressly stated in his letter of 20 May 2016 that this correspondence had been considered. There is no reason to doubt the veracity of that statement. But the judicially reviewable decision is the termination decision of 1 July 2015.

27    To address the grounds of review in respect of that decision, it is necessary to outline in a little more detail the legislative provision for Centrelink and to set out some provisions of the Administration Act and the Centrelink Act as they stood on 1 July 2015.

28    By s 7 of the Centrelink Act, there is to be within the Department an officer of the Senior Executive Service within the public service who is designated by the Department’s Secretary to be the CEO. The CEO’s functions are set out in s 8 of the Centrelink Act and by prescription by regulation. I have already referred to s 8(1)(ba) and reg 11 and Sch 1, item 2 in that regard. The CEO is also required by s 8(1)(a) to discharge the service delivery functions specified in s 8A. It is not necessary to refer to these. It is desirable now to set out s 8 in full:

8    Functions of Chief Executive Centrelink

Functions--general

(1)    The Chief Executive Centrelink has the following functions:

(a)    the service delivery functions mentioned in section 8A;

(b)    any functions conferred on the Chief Executive Centrelink under any other Act;

(ba)    any functions that are prescribed by the regulations;

(d)    doing anything incidental, conducive or related to the performance of any of his or her other functions.

Parallel function

(3)    A function prescribed by regulations made for the purposes of paragraph (1)(ba) may be a specified function that another person (the primary person) has under a law of the Commonwealth.

(4)    When the specified function is performed by the Chief Executive Centrelink, the function is, for the purposes of that or any other law of the Commonwealth, taken to have been performed by the primary person.

(5)    The performance of the specified function by the Chief Executive Centrelink does not prevent the performance of the function under the law of the Commonwealth by the primary person.

(6)    For the purposes of subsection (3), it is immaterial whether the specified function is a function that can be delegated.

(7)    For the purposes of subsection (3), it is immaterial whether the specified function is a function under a law administered by the Minister.

(8)    Subsection (3) does not limit paragraph (1)(ba).

(9)    Subsections (6) and (7) are enacted for the avoidance of doubt.

Function of acting on behalf of another person

(10)    A function prescribed by regulations made for the purposes of paragraph (1)(ba) may be a function of acting on behalf of another person (the primary person) in the performance of a function that the primary person may perform, whether under a law of the Commonwealth or otherwise.

(11)    For the purposes of subsection (10), it is immaterial whether a function that the primary person may perform is a function that can be delegated.

(12)    For the purposes of subsection (10), it is immaterial whether a function that the primary person may perform under a law of the Commonwealth is a function under a law administered by the Minister.

(13)    For the purposes of subsection (10), it is immaterial whether a function that the primary person may perform otherwise than under a law of the Commonwealth is a function that is within the responsibilities of the Minister.

(14)    Subsection (10) does not limit paragraph (1)(ba).

(15)    Subsections (10) to (14) are enacted for the avoidance of doubt.

The notion of a parallel function found in s 8(3) of the Centrelink Act assumed some importance in the CEO’s submissions. The point made, which is a correct statement of the position in law, is that it is lawfully possible for the CEO or one of his delegates to discharge a particular function or exercise a particular power even though the Secretary or a delegate of the Secretary not assigned to Centrelink may also have the role of discharging that same function or exercising that same power. Further, when reading references to a function in the Centrelink Act, it is necessary to recall that, by s 3 of that Act, “function” is defined to include a power. Evidently, the Parliament envisaged that not all officers of the Department would be assigned to duty within Centrelink offices and wished to confer on the Secretary, subject to any direction from the Minister, maximum flexibility in the administration of the Administration Act and other social security law. That included envisaging that functions might be undertaken both within and outside the unit of public administration known as Centrelink, i.e. discharged in parallel.

29    By s 234(2) of the Administration Act and subject to an exception not here relevant, the Secretary to the Department may, in writing, delegate to the CEO or a Departmental employee (within the meaning of the Centrelink Act) all or any of the powers of the Secretary under the social security law. Subsection 12(3) of the Centrelink Act expressly empowers the CEO to delegate to a Departmental employee all or any of the functions delegated to the CEO under another Act. For the purposes of s 12(3), the Administration Act is “another Act”. By virtue of such express legislative provision, it is lawfully possible for the CEO to delegate to a Departmental employee powers which, in turn, have been delegated to the CEO by the Secretary.

30    As at 1 July 2015, a delegation by the Secretary to the CEO under s 234 of the Administration Act, dated 16 December 2014, was current. Save to the extent specified by express exclusion, that delegated to the CEO all of the Secretary’s powers under the Administration Act. Of importance in this case are such powers of the Secretary as are found in s 55 of the Administration Act. Section 55 is not an excluded provision in the delegation. It follows that any such s 55 powers have lawfully been delegated to the CEO. In turn as at 1 July 2015, the CEO had, by a delegation under s 12(3) of the Centrelink Act, dated 30 June 2015, delegated to officers of the public service holding particular classification levels at that time, particular specified powers and functions of the CEO under the Administration Act. One of the powers and functions so identified comprised those arising under s 55 of the Administration Act (Item 94 in the Schedule to this delegation). ACBF did not seek to prove that Mr Anderson was not an officer holding an office in the public service at a level which fell outside those specified in respect of s 55 in the delegation. Its case in relation to his power to make the termination decision assumed that he was of the requisite level but challenged whether his delegated s 55 power was in any way relevant or sufficient.

31    I should record that it was part of ACBF’s absence of power to terminate submission that the deductions made in its favour extended beyond benefits covered by s 55 of the Administration Act so as to include family assistance payments. A complete answer to this was offered by the CEO by reference to an analogue of s 55 found in s 23(5) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). Whatever may be the virtues or vices of the CEO’s reliance on s 55 of the Administration Act, they are the same in respect of this analogue. It is sufficient therefore only to consider s 55.

32    It is necessary now to set out the presently material parts of s 55 of the Administration Act (as at 1 July 2015):

55    Payment into bank account etc.

(1)    Subject to Part 3A, an amount (the relevant amount) that is to be paid to a person under section 44, 45, 47, 48, 48A, 48B, 48C, 48D or 50 is to be paid in the manner set out in this section.

(2)    Subject to subsections (4) and (4A), the relevant amount is to be paid to the credit of a bank account nominated and maintained by the person.

(3)    The account may be an account that is maintained by the person either alone or jointly or in common with another person.

(4)    The Secretary may direct that the whole or a part of the relevant amount be paid to the person in a different way from that provided for by subsection (2). If the Secretary gives a direction, the relevant amount is to be paid in accordance with the direction.

…

(5)    If, at the end of the period of 28 days starting on the day on which the Secretary requested the person to nominate an account for the purposes of subsection (2) (the 28 day period):

(a)    the person has not nominated an account for the purposes of subsection (2); and

(b)    the Secretary has not given, or has revoked, a direction under subsection (4) in relation to the payment of the relevant amount to the person;

the relevant amount ceases to be payable to the person.

(6)    If the person nominates an account for the purposes of subsection (2) after the end of the 28 day period, the relevant amount again becomes payable to the person and is so payable:

(a)    if the nomination is made within 13 weeks after the end of the 28 day period--on and from the first day after the end of that period; or

(b)    if the nomination is not so made--on and from the day on which the nomination is made.

(7)    Subsection (6) does not apply at a time when, because of the operation of another provision of the social security law, the relevant amount is not payable to the person.

33    Part 3A makes provision for the appointment of payment nominees. It is not relevant for present purposes.

34    The CEO contended that, as at 1 July 2015, s 55(4) provided the requisite statutory authority for the Centrepay system at least as it related to the making, as a matter of discretion, of each deduction made and paid to ACBF rather than into the bank account of the individual concerned. Further, insofar as the termination decision entailed a cessation of the hitherto prevailing arrangement with ACBF that was nothing more than the revoking of one direction by the Secretary and its replacement with another on terms that permissibly included the imposition of a sunset date. Insofar as policy approved by the Minister was taken into account (and it was conceded that it was), that was said to be permissible and contemplated by the principle of administration found in s 8(f) of the Administration Act – “the need to apply government policy in accordance with the law”. Other principles of administration cited as relevant on behalf of the CEO were those found in s 8(b) (the special needs of disadvantaged groups in the community) and s 8(c) (the need to be responsive to the interests of the Aboriginal and Torres Strait Islander communities and to cultural and linguistic diversity).

35    Mr Anderson did not expressly refer either to the principles in ss 8(b) or 8(c) of the Administration Act in the communication of 1 July 2015 to ACBF which contained the termination decision. That communication was preceded by a letter of 26 June 2015 sent by Mr Anderson to the solicitors for ACBF. That letter clearly anticipated, if not precisely foreshadowed, the imminent making of the termination decision. Such is the intimacy of connection between that letter and the termination decision that it can and ought fairly to be read with the communications of 1 July 2015 so as to understand such of the reasons for that decision as Mr Anderson was disposed to furnish. Here, too, there is no reference to the principles in ss 8(b) or 8(c) of the Administration Act but there is a reference to the recently adopted policy. Even without s 8(f), policy lawfully adopted by a Minister for the purposes of the administration of an Act would not be an irrelevant consideration. That stated and as was properly conceded on behalf of the CEO, s 8(f) is not a panacea for the taking into account of an unlawful policy; rather, it counsels the reverse.

36    As to the construction of s 55(4), the CEO submitted that the making by direction of the Secretary of a payment to ACBF from a benefit constituted a payment to the individual concerned.

37    In support of this submission, the CEO pointed to the primary meaning of “pay” offered by the Macquarie Dictionary, which is “to discharge an obligation”. That in the Oxford English Dictionary might be thought narrower in that it refers to the giving of money to someone that is due in respect of work done, goods received or a debt incurred. It was put that a payment by the Secretary’s direction to a third party such as ACBF discharged the obligation of the individual concerned to that entity and hence “paid” the individual. The point might be better made by focussing on the obligation which arises to pay a benefit to that individual once a claim has been determined in that individual’s favour. Even so, it would be consistent with the Macquarie Dictionary definition of “pay” to regard a payment by direction to a third party such as ACBF, with the consent of the individual, as discharging to the extent of the payment the obligation to pay the benefit to that individual.

38    But the word “paid” in s 55(4) must not be construed in isolation from the statutory context in which it is found. The default method of payment, found in s 55(2) of the Administration Act, is payment to the credit of a person’s nominated and maintained bank account. The reference in s 55(4) to “paid” necessarily means paid in a different way to that. That “different way” is open ended but it must nonetheless be consistent with what would amount to the payment of the particular benefit which s 55(1) collectively terms a “relevant amount”.

39    In context, construing “paid” in s 55(4) as meaning discharging the obligation to pay a relevant amount is the best meaning to give that word.

40    One “different way” in which the obligation might be discharged by direction of the Secretary would be by the giving of cash to the person; another would be by the tendering of a cheque made out in that person’s favour. It is not necessary for present purposes to delve further into the subtleties which may attend the payment of obligations by cheque for two reasons. First and foremost, that method is not raised on the facts; secondly, that method would in any event be a directed “different way”. Neither cheque nor cash is though exhaustive of the different ways of payment to a person which the Secretary might direct. Accepting, as I do, that “paid” means discharging the obligation to pay the relevant amount to a person, a “different way” might conceivably and permissibly be a payment by direction of the Secretary whereby part of that person’s relevant amount was paid to a third party to whom that person owed an amount. That payment would both to that extent discharge the obligation to pay the relevant amount to the person as well as discharge that person’s obligation to pay that third party. Inferentially, because the default position is as stated in s 55(2), the Secretary could not make a direction that the person be in part paid the relevant amount by a payment to a third party without the consent of the person. Absent such consent, a permissible “different way” would have to place the relevant amount in the hands of the person entitled to it. That inference is supported by the separate and elaborate provision found in Pt 3B of the Administration Act for income management in respect of a person’s relevant amount even in the absence of that person’s consent.

41    The CEO also submitted that his preferred construction of the meaning of “paid” in s 55(4) was supported by views expressed in the Full Court as to the meaning of “paid” in the context of s 246(1) of the Social Security Act 1947 (Cth) (repealed) in Kalwy v Secretary, Department of Social Security (1992) 38 FCR 295 (Kalwy). The text of that provision did not include “paid to the person in a different way”, as does s 55(4), so the context is different. For that reason, I do not regard Kalwy as offering any relevant assistance.

42    The CEO further submitted that s 55(4) conferred a discretion as to whether to make a direction in respect of a “different way” on the Secretary. This is correct. That “may” in the first sentence of s 55(4) is indicative of the conferral of a discretion on the Secretary, rather than being purely facultative, flows from the conditional clause which opens the second sentence in s 55(4) and the juxtapositioning in s 55(4) of “may” and “must”.

43    Accepting this in favour of the CEO, the concern of ss 55(2) and 55(4) of the Administration Act is with the making of a payment of a relevant amount to a person, not, expressly, with a deduction from that payment.

44    As at 1 July 2015 and aside from distributions which might be made under the income management regime found in Pt 3B, other express provisions in the Administration Act for the making of a deduction were found in s 61 and s  238. By s 61, at the request of the person, the Secretary was empowered to deduct an amount from a social security payment and pay that amount to the Commissioner of Taxation. Deductions under s 238 are not conditioned on the person’s consent but rather must be made where there is in place a statutory garnishee in respect of the person’s taxation liability or where a notice in respect of an outstanding amount has been given to the Secretary by the Child Support Registrar. There is also provision for the making of deductions in ss 1231 and 1234A of the Social Security Act 1991 (Cth) (Social Security Act) but it is not necessary to consider these. Subject to these provisions, s 60 of the Administration Act makes a social security payment absolutely inalienable.

45    Since 1 July 2015, the scope in the Administration Act for the making of deductions has been considerably broadened by the insertion into that Act by amendment of s 61A, which provides:

61A    Deduction at request of recipient--other payments

(1)    This section applies if a person asks the Secretary:

(a)    to make deductions from instalments of a social security payment payable to the person; and

(b)    to pay the amounts deducted to a business or organisation nominated by the person.

(2)    The Secretary may make the deductions requested by the person, and if the Secretary does so, the Secretary must pay the amounts deducted to the business or organisation nominated by the person.

As this section was not in force at the time when the termination decision was made, it is not necessary further to refer to it. I merely observe in passing that it would be consistent with the construction of s 55(4) which I have adopted to construe s 61A(2) as conferring a discretion on the Secretary as to whether to make the requested deduction.

46    For the purposes of item 2 in Sch 1 to the Centrelink Regulations and as at 1 July 2015, deductions under s 61 or s 238 of the Administration Act or under ss 1231 and 1234A of the Social Security Act might be regarded as falling within “as otherwise authorised or permitted by a law of the Commonwealth” in para (a) of item 2. These are specified in para (a) as an alternative to deductions from a benefit payable to an individual and paying the amount directly to another person “with the individual's consent”. Paragraph (a) of item 2 has nothing at all to say about the Secretary having a right of veto, be that as a matter of discretionary direction or otherwise, with respect to the making of either deduction alternative. Further, the first of the alternatives offered by item 2, para (a) assumes that the specification of that alternative in that paragraph pursuant to the regulation making power in the Centrelink Act is itself an authorisation under a law of the Commonwealth to make the deduction. Neither party submitted that this first alternative was unlawful because it was incompatible with the generally inalienable status of social security payments, flowing from s 60 of the Administration Act. The whole of item 2 was assumed in submissions to be within the regulation making power.

47    Acting on this basis, a payment to a third party by discretionary direction of the Secretary with the consent of the individual under s 55(4) of the Administration Act is not at all within the first of the alternatives offered by item 2, para (a). It is just an example of a deduction “otherwise authorised or permitted by a law of the Commonwealth” in terms of the second of the alternatives in that paragraph. Those otherwise permitted alternatives may well by their separate provision entail discretionary value judgments about the suitability of making a deduction from an individual’s relevant amount so as to make a payment to a third party nominated by that individual. Under s 55(4) of the Administration Act, the Secretary might decline to specify such a different way for just such a reason.

48    It was put for the CEO that discretionary value judgments made by the Secretary under s 55(4) as to suitable third parties to whom a payment might be made so as to discharge in part the obligation to pay the relevant amount to the person might permissibly repose in an arrangement made by the Secretary for the purposes of item 2 para (b) of the Centrelink Regulations. I disagree.

49    So to construe para (b) would be subversive of the lack of any requirement in the alternative first specified in item 2, para (a) other than an individual’s consent for the making of a lawful payment directly to another person from a benefit payable to the consenting individual. The Centrepay service is, inter alia, a means whereby that consenting individual, instead of giving a payment authority to the bank in which the nominated account is maintained in favour of the third party non-government organisation, can instead furnish a consent to the CEO which then permits a lawful deduction from that individual’s relevant amount and a related payment to that third party. Where there is an arrangement in place with the non-government organisation concerned, the Centrepay service offers the individual the advantage that it is, for the individual, free, thereby not diminishing the worth of a relevant amount to that individual by bank charges in respect of a debit authority. Necessarily, the alternative first specified in item 2, para (a) leaves the individual free to decide how to expend his or her relevant amount in just the same way as he or she is free to spend that amount if it is credited directly to his or her nominated and maintained bank account. Paternalistic value judgments by the Minister or the Secretary, however well-intentioned, have no more place in the alternative first specified in item 2, para (a) than they do in respect of drawdowns by the individual from his or her nominated and maintained bank account. That is so irrespective of whether or not that individual is an Australian aboriginal. Income management as such is the province of Pt 3B of the Administration Act, not item 2, para (b). The arrangements made by the Secretary with a third party under item 2, para (b) must facilitate, not subvert, materially, the paying to the third party of the deducted amount to which the benefit recipient has consented.

50    There is no doubt that Mr Anderson took into account the policy announced by the Minister on 22 May 2015 when he made the termination decision. As proposed to the Minister, that policy was to exclude from the Centrepay service deductions which would pay for the individual an amount in respect of a funeral insurance service: see para 6 of the Departmental Minute signed off by the Minister on 13 April 2015 (the Minute). The then Minister emphasised her approval of that proposed policy by her personal underlining of, materially, “funeral insurance services” and by annotating that paragraph with “Point needs to be made clearly” in her handwriting in the margin. Were there any doubt (and there is not), flowing from para 6 of the Minute, about the Minister’s approval of the proposed exclusion policy, that is settled by her express approval of the proposed change in policy position specified in Attachment A to the Minute where a change so as to exclude funeral insurance is proposed in item 4. Further, funeral insurance is a nominated exclusion in the Centrepay Policy Draft Version 0.26 which was Attachment C to this Minute: see p 6 of that draft policy. The Minute envisaged consultation with “external stakeholders” prior to the finalisation and publication of the policy. As an existing participant in the Centrepay service, ACBF was identified as such an external stakeholder. It was offered and, by its solicitor’s letter of 2 June 2015 and later submitted testimonials, ACBF took up an opportunity to engage in that consultation.

51    Reading the communication of the termination decision in conjunction with Mr Anderson’s letter of 26 June 2015, I do not accept, as ACBF contended, that he made his decision in accordance with a rule or policy and without regard to the merits of ACBF’s individual position.

52    An arrangement as mentioned in item 2, para (b) must be made between “the Department” and the third party concerned. The reference to “the Department” is materially to be read as a reference to the Department of Human Services (via the operation of s 19A of the Acts Interpretation Act 1901 (Cth)). As noted, subject to Ministerial direction, the Secretary has the administration of the Department. In terms of parties, that would suggest that the arrangement must be between the Secretary in his or her official capacity (or perhaps the Commonwealth of Australia as represented for this purpose by the Secretary – it is not necessary to reach any concluded view on this subject) and the third party. The Secretary’s power of delegation to the CEO and its exercise has already been noted. And so has the CEO’s power of delegation and the envisaging of parallel functions. Assuming then that he possessed a relevant delegation either from the Secretary or from the CEO, it fell to Mr Anderson, not to the Minister, to the extent permitted, terminate an arrangement with ACBF or to vary conditions. The relevant jurisdictional error principle which ACBF sought to invoke was pithily stated by Gibbs CJ in Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 418 and by reference to prior authority thus:

The Commission is the body entrusted with power to fix the price, and its decision must be its own. If it acted under pressure exerted by the Minister, or simply gave automatic effect to a decision of the Minister, the decision would not then really be that of the Commission but would be that of the Minister. It does not follow that it was impermissible for the Commission to consider the views of the Minister in coming to its decision. For the Commission to take ministerial policy into account in making a decision of its own is a different thing from automatically following ministerial policy. In that case the whole Court accepted that where a discretion is vested in the head of a government department, the policy of the government is not necessarily an extraneous matter which he must not consider.

[Footnote references omitted]

As with the Commission in that case, so with the Secretary, the CEO or, relevantly, Mr Anderson in the present case.

53    Also pertinent is the following statement of principle by Gleeson CJ in NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at 289, [24]:

There is nothing inherently wrong in an administrative decision-maker pursuing a policy, provided the policy is consistent with the statute under which the relevant power is conferred, and provided also that the policy is not, either in its nature or in its application, such as to preclude the decision-maker from taking into account relevant considerations, or such as to involve the decision-maker in taking into account irrelevant considerations. The policy, and its application, must be measured against those requirements, having regard to the matter presented for decision, and the information and arguments, if any, advanced for or against a particular outcome.

54    In his letter of 26 June 2015 to ACBF’s solicitors, Mr Anderson made express reference to the prior submission made on behalf of ACBF and continued:

Outcomes from the consultation process generally

I would like to thank ACBF, through you, for its participation in the confidential consultation process.

A range of issues were raised during the consultation process. The Department is committed to taking all comments received into consideration, where possible, in implementing administrative arrangements for Centrepay. Some proposals advanced, however, were not consistent with decisions already announced or established positions of the Department. The Department has published a summary of its response to the 89 recommendations of the independent review of Centrepay. …

…

Specific issues raised by ACBF

The matters raised in your letter of 2 June 2015 have been considered by the department. It remains the case, as announced on 22 May 2015 by Senator the Hon Marise Payne, Minister for Human Services, that under the new Centrepay Policy and Terms, customers will no longer be able to use Centrepay to pay for funeral insurance.

This change in policy is not a reflection of the activities of ACBF specifically but is related to the broader Centrepay changes that have come about following the Independent Review of Centrepay and as a result of consultations with a range of Centrepay stakeholders.

In accordance with the terms of the Centrepay contract, ACBF will be given 28 days’ notice of the termination of its Centrepay contract and of the conditional approval of ACBF under the new Centrepay Policy and Terms to enable a 12 month grandfathering period, during which time we would wish to support ACBF in the transitioning of continuing customers to alternative payment methods.

55    Were Mr Anderson’s letter of 26 June 2015 only to have contained the response found under the heading, “Outcomes from the consultation process generally”, there would be much to be said in favour of this ground of challenge. But such a view is challenged by the heading, “Specific issues raised by ACBF” and all that found under that heading. The letter must be read as a whole. So read, the case is just one where Mr Anderson was not persuaded that ACBF’s circumstances warranted exemption from the announced policy.

56    It was put for ACBF that some different conclusion should be reached because Mr Anderson was not called to give evidence. He gave no affidavit but his letters of 26 June 2015 and 1 July 2015 were consensually in evidence. These were the contemporaneous repositories of his termination decision and such reasons as he was disposed to give for that decision. That evidence does not persuade me that he was acting under dictation, only that, as he was entitled if it was lawful, he took the announced policy into account but nonetheless considered ACBF’s invited submission on its merits. In reaching that conclusion, I also take into account that Mr Anderson was the contact officer nominated in the Department’s minute signed off by the then Minister on 13 April 2015. Taken in conjunction with the express reference to the consultation process in his letter of 26 June 2015, it is inferentially likely from his status as the contact officer that he was well aware that consultation was envisaged to occur before final decisions were made.

57    The jurisdictional error vice with the termination decision is not to be found in Mr Anderson’s acting in accordance with a rule or policy and without regard to ACBF’s individual merits. There is no merit in Ground 2 of the application and neither is there any merit insofar as Ground 3(d)(iii) asserts a failure to have regard to ACBF’s particular merits.

58    Instead, one jurisdictional error vice which attended the termination decision was that, on 1 July 2015, s 55(4) of the Administration Act (and related delegated authority with respect to s 55 decisions) did not, for the reasons already given, afford Mr Anderson any power to terminate an arrangement with ACBF whereby a deduction was then being made with an individual’s consent from a benefit payable to that individual and being paid to ACBF. The policy approved by the Minister which presumed an ability to exclude payments in respect of funeral insurance from the deductions to which an individual might consent be paid to a third party under item 2, para (a) was unlawful. To take it into account was conducive to just the error made by Mr Anderson.

59    For jurisdictional error purposes, a consideration will be irrelevant if either expressly or by necessary implication flowing from the provision by which the power is concerned the repository of that power must not take that consideration into account in the exercise of that power: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. And the converse applies with respect to what is a relevant consideration for jurisdictional error purposes. It follows from the views which I have expressed in relation to item 2 in Sch 1 to the Centrelink Regulations that the fact that the deduction from the benefit was to be made so as to pay ACBF for funeral insurance was an irrelevant consideration. Consent, not purpose, is relevant in respect of the first of the alternatives offered by item 2, para (a) in Sch 1. There is no doubt that Mr Anderson took that consideration into account in making the termination decision. Ground 3(e) is made out.

60    By the time when Mr Anderson made his termination decision, the then Minister had received and on 25 June 2015 signed off on a further departmental minute which briefed the Minister on the results of the earlier proposed consultation process. Once again, Mr Anderson was the nominated contact officer in this minute. Materially, that minute offered and the Minister noted a fair summary of the various adverse effects which ACBF had asserted in its submission would flow from the exclusion from Centrepay of funeral insurance. These adverse effects included that, potentially, tens of thousands of people might be left without funeral insurance cover. ACBF’s apprehension that, if members were to be moved to direct bank debits the prospect of missed payments would “increase enormously” was expressly mentioned. In his letter of 26 June 2015, Mr Anderson expressly mentions that the submission which ACBF had made by its solicitors had been considered.

61    Flowing from item 2 in Sch 1 to the Centrepay Regulations, it may be accepted that relevant considerations for Mr Anderson in any decision to terminate a subsisting arrangement with ACBF were the terms of that arrangement, the number of persons who had consented to the making of deductions from their benefits in favour of ACBF and the likely effects on those persons and on ACBF as the non-government organisation concerned. It is for ACBF to prove that these considerations were not taken into account. This it cannot do in the face of Mr Anderson’s letter of 26 June 2015. Further, not to accept a submission raising relevant considerations is not to be equated with failing to take those considerations into account. Indeed, given that he was the nominated contact officer for the minute on which the Minister signed off on 25 June 2015, it is inferentially more likely than not that he was only too well aware of the potential consequences to which the solicitors for ACBF had drawn attention in their submission. Ground 3(f), which alleges a failure to take relevant considerations into account, is not made out.

62    While a person entitled to be paid a benefit may access a “specified service” such as Centrepay, the CEO’s function under the Centrelink Act and Centrelink Regulations is to provide that service to a non-government organisation, not to the benefit recipient. The evidence is that the terms of the arrangement between the Secretary and, materially, ACBF, which as at 30 June 2015 were the standard Centrepay terms as governed by the standard Centrepay policy were publicly available to be viewed. When an individual consents to the making of a deduction under the Centrepay service, he or she takes that service as he or she finds it with all of its lawfully expressed policy features and terms and conditions by arrangement with the non-government organisation concerned. While I was initially attracted to the view that the provision for the consent of an individual benefit recipient meant that each such recipient needed to be consulted in advance before an arrangement might be terminated, on reflection and having regard to with whom the Secretary makes the arrangement and for whom the CEO has the function of providing the specified service, I do not consider that such a prior consultation obligation arises. Further, that there might, potentially (and actually here) be many thousands of consenting individuals makes it unlikely that such prior consultation was intended to be mandated.

63    This does not mean that the potential effects of the termination of an arrangement on consenting individuals are irrelevant for the purpose of determining whether a termination decision was unreasonable. The metes and bounds of the jurisdictional error ground of unreasonableness are not limited by illogicality or irrationality: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364, [68] per Hayne, Kiefel and Bell JJ. Even so, there is a singular and qualitative difference between a decision which manifests unreasonableness amounting to jurisdictional error and one which is nothing more than one about the outcome of which reasonable people might reasonably differ. Termination of the arrangement with ACBF as at 30 June 2015 required nothing more than the giving of 30 days’ notice by the Secretary. Mr Anderson gave ACBF such notice but coupled that with the substitution of a fresh arrangement which would not expire until 30 June 2016. That gave ACBF a year in which to inform its members of the change and for alternative payment arrangements to be made. In my view, the value judgment entailed in Mr Anderson’s making this decision including the length of the sunset period was not in the circumstances as at 1 July 2015 unreasonable in the sense described. Ground 3(g) is not made out.

64    Grounds 3(a) and 3(b) are not independent grounds of review but rather must be read with Ground 3(c). The latter asserts that the Centrepay policy newly adopted on 1 July 2015 was unlawful because it fettered a discretion. For reasons already given, I agree that this policy was unlawful but that is because it was not lawfully possible, be it with the Minister’s approval or otherwise, for the CEO to adopt or to implement a policy which excluded funeral insurance payments from payments which might be deducted and paid with an individual’s consent. In terms Ground 3(c) is not made out but that is of no moment as Ground 1(f) asserts a want of lawful authority in any event.

65    The evidenced delegation from the Secretary to the CEO dated 16 December 2014, which remained in force as at 1 July 2015, delegated his powers under the Administration Act and the Social Security Act to the extent specified in that delegation. That delegation did not, however, make any reference to the Secretary’s powers of making or terminating an arrangement made for the purposes of item 2 of Sch 1 to the Centrelink Regulations. No delegation of these particular powers to the CEO or to such persons who were at the level in the public service as was Mr Anderson or who held or occupied for the time being his position was in evidence. Perhaps that was because, erroneously as I have found, s 55(4) of the Administration Act and related delegations were thought to confer the requisite power on Mr Anderson. The position is that there is nothing which would show that he, as opposed to the Secretary personally, possessed the power of making or terminating arrangements with non-government organisations such as ACBF.

66    Even were there such a delegated power, Mr Anderson’s termination decision was made because of a view that it was lawfully possible to exclude a payment for a funeral expense from those which might be deducted and paid to ACBF with the consent of the benefit recipient concerned under item 2 of Sch 1 to the Centrelink Regulations in the discharge of the CEO’s function under s 8(1)(ba) of the Centrelink Act to provide a specified service to a non-government organisation such as ACBF. For the reasons given, this exclusion was not lawfully possible as at 1 July 2015.

67    The CEO did not submit that the arrangement with ACBF was lawfully terminated in any event because the requisite 30 days’ notice was given. In any event, that notice was not given by a person shown to have been entitled to give it. The arrangement with ACBF as at 30 June 2015 remains in force. Payments made thereafter to ACBF with the consent of the benefit recipient have been lawful because the other Sch 1 item 2 requirement of a subsisting arrangement was also in place. Even if imposed by a person entitled to make the substitution (and Mr Anderson is not evidenced to be such a person), the purported new arrangement is tainted by an unlawful view, manifested by the sunset provision, that an individual benefit recipient’s consent under item 2(a) of Sch 1 to the Centrelink Regulations to deductions for the purpose of making funeral insurance payments may be over-ridden by an exclusion decision made by the discretionary value judgment of the Secretary, the CEO as his delegate or delegates of the CEO.

68    The granting of relief either under the ADJR Act or s 39B of the Judiciary Act is discretionary. That there may yet be very many persons (and for that matter the families of such persons) who would be placed in the invidious position of forfeiting funeral insurance cover otherwise being paid for by a deduction from an entitled benefit payment made with their consent is not just persuasive but in my view determinative that relief ought not be withheld to ACBF. But what relief? The termination decision must be quashed. If only for the avoidance of doubt, it is desirable to declare that the arrangement with ACBF which was in force until 1 July 2015 consequentially remains in force. This relief granted, is it necessary for a mandamus to go to the respondent requiring him to observe the terms of that arrangement? His disposition not to, was occasioned only by an erroneous view as to an ability to over-ride a deduction and related payment made to ACBF with a benefit recipient’s consent. There is no present reason to think that the CEO will (subject, of course to the exercise of any right of appeal and any securing of a related stay) do other than to abide the order of the Court. A quashing order and related declaration is, in my view, all that is presently necessary. Costs must follow the event.

69    There will be orders accordingly.

Associate:

Dated:    30 June 2016