FEDERAL COURT OF AUSTRALIA

Rajcinoski v Secretary, Department of Employment and Workplace Relations [2006] FCA 1396

ADMINISTRATIVE LAW – estoppel – whether government department can be estopped from decision to limit portability of pension payments in accordance with legislation - inapplicability of doctrine where statutory power is mandatory

STATUTORY INTERPRETATION – ordinary meaning – extrinsic material cannot be used to contradict the meaning of the legislation

Social Security Act 1991 (Cth) cl 135 sch 1A

Apthorpe v Repatriation Commission (1987) 77 ALR 42 considered

Deputy Commissioner of Taxation v Roger Crook & Associates Pty Ltd (2005) 142 FCR 273 considered

Formosa v Department of Social Security (1988) 46 FCR 117 applied

Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 applied

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 applied

Waterford v Commonwealth (1987) 163 CLR 54 considered

NIKOLA B RAJCINOSKI v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

VID 13 OF 2006

MIDDLETON J

20 SEPTEMBER 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Factual and procedural background

1                     The appellant came to Australia from Macedonia in 1988 and is an Australian citizen. He has been receiving disability support pension since 24 December 1998. When he first received the disability support pension, he was to receive it for a lifetime. On 13 February 2003 he left Australia to live permanently with his parents in Macedonia.

2                     In 2004 he decided to visit Australia for a short period. Before he came to Australia to visit, the appellant received a letter sent from Centrelink dated 5 April 2004 which provided:

Social Security and Family Assistance legislation will change from 1 July 2004. The length of time that most Australian payments, including Disability Support Pensions, can be paid whilst overseas will be shortened to 13 weeks.

If you are already outside Australia on 1 July 2004 the new rules will not apply to you until you return to Australia. However, there are some exceptions to this, including if you go to a country with which Australia has an international social security agreement.

3                     On 19 April 2004, the appellant contacted Centrelink, after receipt of that letter, and he was advised that as long as he did not return to Australia to live, the new rules relating to disability support pensions, commencing 1 July 2004, would not apply to him. In reliance on that advice, the appellant returned to Australia on 22 June 2004 not intending to live in Australia permanently. In September 2004, the appellant advised Centrelink of his intention to return to Macedonia and was told that his disability support pension would cease after 13 weeks.

4                     On 7 January 2005 a Centrelink officer made a decision that the appellant would not be paid his disability support pension for more than 13 weeks if he left Australia. On 4 March 2005, an authorised review officer affirmed the decision. On 9 March 2005, the appellant appealed against that decision to the Social Security Appeals Tribunal (‘SSAT’) and on 5 April 2005, the SSAT affirmed the decision under review.

5                     The appellant then appealed to the Administrative Appeals Tribunal (‘the Tribunal’) and by decision dated 12 December 2005 the Tribunal affirmed the decision under review. The appellant now appeals from the decision of the Tribunal.

Statutory background

6                     Division 2 of the Social Security Act 1991 (Cth) (‘the Act’) provides for the circumstances in which social security payments will be paid during a period throughout which a person is continuously absent from Australia. New legislation regarding the portability of payments was introduced by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (Cth) amending, amongst other things, Division 2 of the Act. Section 1217(1) of the Act, as amended, provides as follows:

1217(1) The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

(a) the payment (as specified in column 2 of the table); and

(b) the class of persons to which the person belongs (as specified in column 3 of the table).

The table relevantly provides that the maximum portability period for a person in receipt of disability support pension is 13 weeks.

7                     However, s 1218AA allows for an extension of the maximum portability period if, and only if, all of the qualifying circumstances exist:

1218AA(1) The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

(a)               the person is severely disabled (see subsection 23(4B)); and

(b)               the person is receiving disability support pension; and

(c)                the person is terminally ill; and

(d)               the person’s absence from Australia is or will be permanent; and

(e)                the purpose of the person’s absence is:

(i)                 to be with or near a family member of the person (see subsection 23(14)); or

(ii)               to return to the person’s country of origin.

8                     Along with the changes relating to the portability of payments, a savings provision was inserted as cl 135 sch 1A to the Act. Clause 135(1) provides as follows:

The Secretary may determine that a person’s maximum portability period for disability support pension is an unlimited period if:

(a)               at the commencement of this clause, the person is absent from Australia and receiving disability support pension; and

(b)               under this Act as in force immediately before the commencement, that absence could not affect the person’s right to continue to be paid the disability support pension through the period that absence; and

(c)               after the commencement, the person enters Australia but does not become an Australian resident again.

The relevant amendments took effect and commenced on 1 July 2004.

ISSUEs IN THE PROCEEDING

9                     There are two main issues in this proceeding. The first is whether the advice given by the Centrelink officer on 19 April 2004 was incorrect, and if so, given that the appellant relied on it in returning to Australia, whether the respondent is now estopped from refusing to determine that the appellant’s maximum portability period for disability support pension is an unlimited period.

10                  The second issue is a matter of statutory interpretation of cl 135 sch 1A of the Act. It is not in issue that s 1217 limits the portability period of the appellant’s pension payment to 13 weeks. Furthermore, there is no doubt that s 1218AA does not apply to the appellant as the criteria in s 1218AA(1)(c) is not satisfied. The issue is whether the savings provision in cl 135 sch 1A to the Act applies to the appellant in the circumstances, in particular the meaning to be given to the words ‘absent’ and ‘absence’.

Consideration

11                  The Tribunal considered whether the advice given by the Centrelink officer to the appellant on 19 April 2004 was in fact wrong. At paragraphs [8] and [9] of its reasons for decision, the Tribunal stated:

After hearing the oral evidence and considering the written material the Tribunal is reasonably satisfied that Mr Rajcinoski received the letter sent by Centrelink on 5 April 2004. The Tribunal takes the view that Mr Rajcinoski’s telephone contact with Centrelink on 19 April 2004, in which he queried the portability arrangements, was in response to that letter. Centrelink’s record of the telephone conversation: “Advised customer that as long as he does not return to Australia to live new rules will not apply to him”. In the context of providing information to a person who is already out of Australia, it is reasonable to conclude that the Centrelink officer may, in effect, have been advising Mr Rajcinoski not to return to Australia before 1 July 2004; particularly as the telephone enquiry seems to have been made in general terms, rather than a request for specific information about the applicant’s situation.

In the absence of a full record of the conversation, and given that Mr Rajcinoski appears to have interpreted the words “to live” as meaning to reside permanently in Australia, the Tribunal finds that the advice was not necessarily incorrect. The Tribunal notes that Mr Rajcinoski did not contact Centrelink on his arrival in Australia or before 1 July 2004 to seek clarification of the new rules or the contents of the letter dated 5 April 2004.

12                  The appellant contended that the findings of the Tribunal in these paragraphs were wrong, and that upon the basis of the alleged incorrect advice given by Centrelink, the appellant returned to Australia. I do not find any error (of law or otherwise) in those two paragraphs. Having regard to the sequence of events described, namely, the appellant’s receipt of the letter and the subsequent telephone conversation and the nature of the telephone inquiry, it seems to me that the conclusions reached by the Tribunal were correct. It may well be that the appellant misunderstood the terms of the information, and upon the basis of the communication did act in returning to Australia before 1 July 2004. Later on in its reasons, the Tribunal accepted that had the appellant realised that if he came back to Australia and was not absent on 1 July 2004, there would be a limitation of his disability support pension, he would not have returned to Australia on 22 June 2004. However, this does not mean the advice was incorrect, just that it may have been misunderstood, and upon that basis, it was acted upon. In any event, paragraphs [8] and [9] represent findings of fact of the Tribunal and are not reviewable by this Court (see s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)). Even if the findings of fact were erroneous, it would not constitute an error of law: see Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J.

13                  The appellant contends that the respondent is now estopped from not exercising the discretion found in cl 135 in his favour. If I am wrong and the advice given to the appellant was incorrect, the respondent is not estopped from refusing to determine that the appellant’s maximum portability period for disability support pension is for an unlimited period, where the Act now limits the portability period for disability support pension to 13 weeks.

14                  Putting aside the question of whether the advice given to the appellant was not sufficiently clear and unambiguous so as to be capable of giving rise to an estoppel (see Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 196, 200 and 207-8 (‘Kurtovic’)) in my view, no estoppel can arise when the provisions of the Act are mandatory (see discussion in Kurtovic at 208-10 per Gummow J; Theo v Department of Family and Community Services [2005] FCAFC 239 at [20] per Kiefel, Jacobson and Greenwood JJ; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 104-7 per Davies and Branson JJ (‘Polat’); and Formosa v Department of Social Security (1988) 46 FCR 117 at 125 per Davies and Gummow JJ).

15                  Kurtovic was not a case where a party asserted that the public authority was estopped from asserting that a particular action, of which the other party sought performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. However, Gummow J considered the applicability of the doctrine of estoppel in such a case, and stated, at 208:

Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying.

16                  The inapplicability of the doctrine of estoppel to this case ensures the performance of a statutory duty: see Kurtovic at 208-10 per Gummow J. In my view, the authorities clearly provide that the doctrine of estoppel cannot be called on to aid the appellant in this case.

17                  Any suggested exceptions or qualifications to the general rejection of estoppel in public law (see Kurtovic at 213 per Gummow J) have no application to the present case. Further, this is not a case dealing with the exercise of a statutory discretion that is capable of being exercised in favour of the appellant and certainly not at an operational level. It is true that cl 135(1) of sch 1A to the Act gives the respondent discretion to extend a person’s maximum portability period, but the respondent can only exercise it in favour of a person who satisfies the criteria set out in subclauses (a), (b) and (c).

18                  It was further argued by the appellant that the provision of incorrect advice involves a breach of duty on the part of the respondent. I do not accept that the findings of the Tribunal establish any such breach of duty, but any such breach would, in any event, not constitute an error of law such as to enable me to grant the relief sought in this proceeding (Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 52-3 per Davies, Lockhart and Gummow JJ; Polat at 103-4 per Davies and Branson JJ.

19                  It was also argued that the words ‘absent’ and ‘absence’ in cl 135(1) sch 1A to the Act should be read in the context of the Act as a whole and should be interpreted as more than just not physically present. It was submitted that I should adopt a purposive approach to interpreting the legislation and take into account that if one construction will manifestly work an injustice and the other avoid it, the latter construction should be adopted. It was submitted that the appellant was absent from Australia in that while physically present, he was not a resident of Australia. Reference was made to Re Alderson; ex parte Jackson [1895] 1 QB 183, where Vaughan Williams J held that in order to come within s 4 of the Bankruptcy Act 1883, which constituted an act of bankruptcy where a debtor with certain intent ‘absents himself’ a debtor need not absent himself from any particular place by physical bodily absence.

20                  In the context of the Act I am unable to accept that the word ‘absent’ or ‘absence’ has any other meaning than its ordinary meaning as found in the dictionary, namely: ‘away, not present’ (Shorter Oxford English Dictionary); ‘being away: not present’ (Chambers English Dictionary); and ‘not in a certain place at a given time’ (Macquarie Dictionary). It is clear that in the case of the appellant, he was not absent from Australia on, relevantly, 1 July 2004.

21                  Reliance was placed by the appellant upon the second reading speech of the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures)Bill 2003 (Cth) (‘the Bill’). In my view, the provisions of the Act are clear and unambiguous. Extrinsic material cannot be used to contradict the meaning of the legislation itself: see Deputy Commissioner of Taxation v Roger Crook & Associates Pty Ltd (2005) 142 FCR 273 at 277-8. In any event, nothing in the second reading speech deals specifically with the issue for determination here, particularly the requirement that as at 1 July 2004, the person is absent from Australia.

22                  I also observe that the Tribunal itself referred to the Explanatory Memorandum to the Bill, which provides, in relation to cl 135(1) sch 1A that:

This new provision enables the Secretary to determine unlimited portability for DSP where a disability support pensioner with an unlimited portability period is absent from Australia on 1 July 2004 comes to Australia after that date and does not become an Australian resident again.

23                  This part of the Explanatory Memorandum takes away nothing from the ordinary meaning to be given to the legislation itself and may in fact support the ordinary and natural meaning of the word “absent”.

Conclusion

24                  The appeal is dismissed with costs.

Associate:

Dated: 26 October 2006