FEDERAL COURT OF AUSTRALIA

Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988

ANGELO ZOIA v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

WAD 227OF 2007

SIOPIS J

2 July 2008

PERTH

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The applicant is to file and serve any submissions he wishes to make regarding costs by 4.00pm on 16 July 2008.

3.                  The respondent is to file and serve any submissions regarding costs by 4.00pm on 23 July 2008.

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

REASONS FOR JUDGMENT

1                     The applicant has been unemployed for a very considerable period of time.

2                     On 26 October 2006, a Centrelink officer decided to suspend the applicant's newstart allowance on the grounds that he did not attend an interview with his job network provider.

3                     On 1 November 2006, a Centrelink officer decided to cancel the applicant’s newstart allowance on the grounds that he had failed to lodge an application for payment form. 

4                     The applicant asked that an authorised review officer review both of these decisions.  The authorised review officer upheld the decision of the Centrelink officer made on 26 October 2006.

5                     In relation to the second decision, namely, that made on 1 November 2006, the authorised review officer found that the applicant had, contrary to the decision of the Centrelink officer, in fact lodged an application for payment form.  However, the authorised review officer went on to find that the applicant had on 4 October 2006 failed to attend an interview with his job network member to renegotiate his activity agreement, and consequently from that date he ceased to be qualified for a newstart allowance.

6                     By a letter dated 23 November 2006, the authorised review officer wrote to the applicant in the following terms:

After carefully looking at the matters presented in your case,…I have decided to change the decision to cancel your Newstart Allowance as you did not lodge your Application for Payment form on 17 October, 2006.  This is because you did lodge your Application for Payment form.

However, I have also decided that you ceased to be qualified for Newstart Allowance as of 4 October, 2006.  This is because you failed to attend appointments with your Job Network Member to renegotiate your Activity Agreement.

7                     The letter also said that it attached a document entitled “Decision Statement”.  A copy of the letter and attached Decision Statement was included in the appeal papers as comprising the documents that were before the Administrative Appeals Tribunal.  The heading of the Decision Statement relevantly states:

Social Security Appeals Tribunal

8                     On 3 January 2007, the applicant appealed against the decisions of the authorised review officer to the Social Security Appeals Tribunal (SSAT).  The SSAT identified four relevant issues:

a.       Whether the applicant failed to attend an interview at Centrelink;

b.      Whether the applicant failed to attend an interview with his job network provider for the purpose of entering a newstart activity agreement;

c.       If so, whether he had reasonable excuses for not attending the appointments; and

d.      If not, whether his newstart allowance should have been cancelled and suspended.

9                     The applicant said at the SSAT hearing that he had “cancelled” his appointments, with his job network provider rather than simply not attending them, because he resented Centrelink writing and advising him of his appointment, without first checking whether he would like an appointment.

10                  The applicant also said that he was not previously required to sign an “activity agreement” and objected to being asked to sign one now.

11                  The SSAT found that the applicant’s job network provider wrote to the applicant on 18 September 2006 advising him of an appointment on 4 October 2006 to enter an activity agreement.  The SSAT concluded that the applicant did not have a reasonable excuse for failing to attend the appointment.  The SSAT also found that Centrelink wrote to the applicant on 20 October 2006 advising him of an appointment on 3 November 2006.  The applicant also failed to provide a reasonable excuse for not attending that appointment.

12                  The SSAT found that the applicant did not attend his appointments because he did not want to.  The SSAT found that the applicant committed a newstart participation failure under sub-s 624(1) of the Social Security Act 1991 (Cth) (the Act) by failing to attend his appointment to negotiate an activity agreement. It further found that he had no reasonable excuse for the newstart participation failure.

13                  The SSAT concluded that newstart allowance was not payable to the applicant due to his participation failure.  It affirmed the earlier decisions to suspend and then cancel the applicant’s newstart allowance.

Administrative Appeals Tribunal

14                  The applicant appealed to the Tribunal.  In its reasons, the Tribunal identified three relevant issues:

a.       Whether the applicant failed to attend an interview with his job network provider for the purpose of entering a newstart activity agreement;

b.      If so, whether he had a reasonable excuse for not attending the appointment; and

c.       If not, whether his newstart allowance should have been suspended and cancelled.

15                  The applicant said in evidence at the Tribunal hearing that he chose not to attend the appointment because “they’re going to tell me what to do” and “nobody likes to be told what to do”.

16                  The applicant also contended that the relevant provisions of the Act are unenforceable because the word “newstart” does not appear in the Commonwealth Constitution.  Rather, he said, the Constitution gives the Parliament the power to make laws with respect to unemployment allowances.  The Tribunal rejected the applicant’s constitutional argument on the basis that the newstart allowance falls under the category of unemployment allowances.

17                  The Tribunal found that the applicant had no reasonable excuse for his failure to attend his appointment with his job network provider. It affirmed the decision of the SSAT.

This appeal

18                  The applicant filed a notice of appeal in this Court on 23 November 2007.  It was subsequently amended.

19                  An appeal to this Court from any decision of the Tribunal is an appeal on a question of law (s 44 (1) of the Administrative Appeals Tribunal Act 1975 (Cth)).  North J in Pham v Secretary, Department of Employment and Workplace Relations [2007] FCA 947 has referred to a number of authorities which explain the ramifications of this limitation.  North J cited with approval the following observations of Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 325:

In our view, O53 r3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law.  It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of a particular case and the orders sought on the appeal.

20                  It was, therefore, incumbent upon an applicant to formulate a question of law in his notice of appeal.  The applicant raised various issues which he called “questions of law” in his notice of appeal.  In the main, the notice of appeal comprised generalised statements relating to justice, natural justice and constitutional rights and powers statement.

21                  The notice of appeal also referred to the matters mentioned at [23] below relating to the terms of the authorised review officer’s Decision Statement of 23 November 2006.

22                  The orders for relief sought in the notice of appeal included orders that went beyond the setting aside of the orders of the Tribunal, and included a claim for compensation and that the Australian Federal Police be ordered to make an enquiry.  However, I have construed one of the applicant’s claims for relief, namely, that his unemployment benefit be restored, as a claim that the orders of the Tribunal be set aside and the matter be remitted to the Tribunal for rehearing.

23                  At a hearing before me, it emerged that the applicant’s main concern was that there was a difference in the wording of the authorised review officer’s Decision Statement dated 23 November 2006, which was in the appeal papers; and the Decision Statement which the applicant actually received as an annexure to the letter of 23 November 2006 sent to him.  This Decision Statement was annexed to the applicant’s notice of appeal.  The relevant Decision Statement which the applicant received reads: “ARO' s decision:  Set Aside”.  In the Decision Statement in the appeal book, the equivalent passage reads:  “ARO's decision:  Varied”.  The applicant contended that relevance of the distinction in this context was the authorised review officer’s decision to substitute his own decision for the decision of the Centrelink officer which he set aside, was invalid because once he set aside the Centrelink officer’s decision, he had no power to substitute a new decision.

24                  The applicant went on to say that he had raised this issue before the Tribunal but the Tribunal had not dealt with the issue.

25                  The applicant’s notice of appeal did not define with precision a question of law.  However, after listening to the applicant’s submissions, it appeared to me that the appropriate question of law which captured the point the applicant appeared to be making was the following:  whether the Tribunal erred in law in failing to appreciate, and deal with, the issue arising from applicant’s contention that the Decision Statement of the authorised review officer, dated 23 November 2006, which the applicant received from the authorised review officer had used the words “set aside”, whereas the copy of the Decision Statement of the same date, which was in the T-documents, had used the word “varied”?  The applicant said he was content with that formulation.

26                  The respondent submitted that, pursuant to s 135 of the Social Security (Administration) Act 1999 (Cth)(the Administration Act), an authorised review officer has the power to affirm or vary a decision, as well as to set aside a decision and substitute a new one.  Accordingly, it did not matter whether the term “varied” or “set aside” was used in the Decision Statement.  In any event, the respondent said the applicant’s point was misconceived because howsoever the authorised review officer described what he did, both the Tribunal and the SSAT had conducted a full merits review of his case and, in doing so could, and did, exercise the same powers under s 135 of the Administration Act as the authorised review officer.

27                  Section 135 of the Administration Act  provides as follows:

(1)               Subject to subsection (3) and subsection 127(1), if a person applies under section 129 for review of a decision, the Secretary, the CEO or an authorised review officer must:

(a)                review the decision; and

(b)               do one of the following:

(i)                  affirm the decision;

(ii)                vary the decision;

(iii)               set the decision aside and substitute a new decision.

28                  It is the case, as the applicant contends, that the Tribunal did not deal in its reasons with the point sought to be raised by the applicant at the hearing before the Tribunal, about the difference in language between the two documents.

29                  Whilst it is the case that the Tribunal is required to consider the substance of the claims that are made that could affect the outcome of the review, the Tribunal does not have to deal with every point raised by an applicant (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641, Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 402-3, Australian Postal Corporation v Sellick [2008] FCA 236 at [35]).  In this case, the Tribunal was undertaking a merits review.  It was empowered on the review to exercise the same powers as an authorised review officer.  There is no doubt that an authorised review officer has the power under s 135 of the Act to vary the decision of a Centrelink officer or to set it aside and substitute a different decision.

30                  Accordingly, the applicant’s argument as to whether the decision of the authorised review officer should correctly be characterised as a “variation” of the original decision or the “setting aside” of that decision could not affect the outcome of the merits review undertaken by the Tribunal.  This is because, regardless of how the authorised review officer described what he had done, the Tribunal, on a merits review, had the power to consider the applicant’s appeal and exercise afresh the powers described in s 135 of theAdministration Act, which undoubtedly included the power, contrary to the applicant’s contention, to set aside a decision and substitute a new decision, and to vary the original decision.

31                  Accordingly, the failure of the Tribunal to deal with the argument of the applicant did no amount to an error of law. I, therefore, dismiss the applicant’s appeal in so far as it is based on this ground.

32                  As to other matters referred to as “questions of law” in the applicant’s amended notice of appeal, by reason of what he said at the hearing, I understood the applicant to have abandoned the constitutional matters mentioned in his amended notice of appeal because he could not get a lawyer to put them.  Further, the applicant advanced no submissions in support of the other matters which he referred to as “questions of law” in his notice of appeal.  However, for the avoidance of doubt, I also dismiss the applicant’s appeal in so far as it was based on those other matters referred to in the amended notice of appeal.  This is because none of the statements made by the applicant in his notice of appeal, defined a recognisable question of law such as would invoke the jurisdiction of the Court.

33                  Accordingly, the appeal is dismissed.

Associate:

Dated:         2 July 2008