FEDERAL COURT OF AUSTRALIA

Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Social Security (Administration) Act 1999 (Cth) ss 624, 234

Social Security Act 1991 (Cth) ss 605(4), 629

Hussain v Minister for Foreign Affairs [2008] FCAFC 128cited

TSI (JEREMIAH) LIM v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

NSD 212 of 2008

BRANSON J

21 JULY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the respondent be changed to “Secretary, Department of Education, Employment and Workplace Relations”.

2.                  The objection to the competency of the appeal be dismissed.

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

REASONS FOR JUDGMENT

Introduction

1                     On 15 February 2008 Mr Lim purported to institute an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal made on 18 January 2008.  That decision affirmed a decision of the respondent to impose an eight-week non-payment period in respect of Mr Lim’s newstart allowance.  The non-payment period was imposed pursuant to s 629 of the Social Security Act 1991 (Cth) (“the SS Act”).

2                     The notice of appeal filed by Mr Lim suffers from a number of deficiencies, including that it does not identify either the decision appealed from or the tribunal that made the decision.  No complaint has been made by the respondent about formal deficiencies of this kind.  However, the respondent has objected to the competency of the appeal on the ground that the notice of appeal does not disclose a question of law as required by s 44(1) of the AAT Act.

3                     The notice of appeal asserts that the questions of law raised on appeal are –

Mr Lim has already made arrangements with Rebecca Dean and also business manager to reschedule job search of 27^th April to following week.

Application of law on “attendance” and “reasonable excuse” on 27^th April is irrelevant.

Statutory Provisions

Social Security Act 1991 (Cth)

4                     Section 629 of the SS Act relevantly provides:

(1)        A newstart allowance is not payable to a person, for the period of 8 weeks … if the person:

(a)        commits a newstart participation failure (the repeated failure), having committed newstart participation failures (the earlier failures) on 2 or more other occasions during the period of 12 months preceding that failure …

(2)        …

(3)        Subsection (1) does not apply in relation to the repeated failure if the Secretary is for any other reason satisfied that subsection (1) should not apply to the failure.

5                     Meaning is given to the statutory expression “newstart participation failure” by s 624 of the SS Act which relevantly provides:

(1)       A person commits a newstart participation failure if the person:

…

(d)        fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person…

(2)        Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.

6                     Section 605(4) of the SS Act provides:

A Newstart Activity Agreement is a written agreement in a form approved by the Secretary.  The agreement is between the person and the Secretary.

7                     On 27 June 2006 the Secretary approved a “form of Activity Agreement for a job seeker to enter into with Centrelink” (Instrument SSL 17/2006).  No other approved form has been drawn to the Court’s attention.

Social Security (Administration ) Act 1999 (Cth)

8                     Subject to an exception not here relevant, s 234 of the Social Security (Administration) Act 1999 (Cth) relevantly authorises the Secretary to delegate all or any of the Secretary’s power under the SS Act to a person engaged by an organisation that performs services for the Commonwealth (see s 234(1) and (7)(c)).

Administrative Appeals Tribunal Act 1975 (Cth)

9                     Section 44(1) of the AAT Act creates a limited right of appeal to the Federal Court from a decision of the Tribunal.  The subsection provides:

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

Activity Agreements

10                  Mr Lim entered into three separate agreements with WorkDirections Pty Ltd (“WorkDirections”) each of which was signed by a person apparently engaged by that company.  I infer that WorkDirections performs services for the Commonwealth in respect of job seekers.  Each of the agreements identified a number of compulsory activities to be undertaken by Mr Lim.  It is not in dispute that Mr Lim breached one or other of the agreements to which he was a party on three occasions during a period of twelve months.

11                  As Mr Lim does not enjoy the benefit of legal representation, I requested the legal representative of the respondent to provide the Court with supplementary written submissions on the issue of whether it was open to the Tribunal to be satisfied that the agreements entered into by Mr Lim were Newstart Activity Agreements within the meaning of s 624 of the SS Act.  I have now had the benefit of those supplementary written submissions and of written submissions in reply from Mr Lim.

Question of Law

12                  The notice of appeal filed by Mr Lim does not identify a question of law capable of constituting the subject matter of his purported appeal (see, Hussain v Minister for Foreign Affairs [2008] FCAFC 128 at [26]-[34]).  The factual assertion that Mr Lim had made arrangements, apparently after breaching one of his agreements, to attend at WorkDirections on an extra day in a later week does not itself constitute a question of law.  Nor does it by implication raise a question of law the answer to which could throw doubt on the correctness of the decision of the Tribunal.  The references in the notice of appeal to the law of “attendance” and “reasonable excuse” do not assist Mr Lim in this regard.

13                  Nonetheless, as Mr Lim does not have the benefit of legal representation, I have considered it appropriate to approach the issue of the competence of the appeal by giving consideration to any questions of law that Mr Lim could reasonably expect to be able to obtain leave to include in his notice of appeal were he to apply to amend that document.  Mr Lim identified the following matters which he characterised as legal errors:

(a)                it was not legally possible, he argued, for the Tribunal to find that he had breached his Activity Agreement on 27 April 2007 (and possibly on other occasions) as he had received emails from WorkDirections requiring him to make-up missed days;

(b)               it was not open to the Tribunal, he argued, to find that he had breached one of his Activity Agreements unless his case manager, Rebecca, had asserted that he had done so;

(c)                he was, he argued, only legally obliged to attend at WorkDirections if his case manager, Rebecca, was present on that day and she was not present on one of the days on which the Tribunal found that he had breached his Activity Agreement without reasonable excuse;

(d)               he argued that WorkDirections imposed an unlawful condition on him by requiring him to find job interviews for himself; and

(e)                he argued that his case manager, Rebecca, made an administrative error by requiring him on short notice to make up for missed attendances.

14                  None of the above alleged legal errors gives rise to a question of law that Mr Lim could reasonably expect to be able to obtain leave to include in his notice of appeal.  They each concern an issue not raised by him before the Tribunal.  More importantly, they reflect a clear misapprehension of the obligations imposed on Mr Lim by the agreements signed by him. 

15                  However, it seems to me that it is at least arguable that none of the agreements between Mr Lim and WorkDirections is “a Newstart Activity Agreement between the Secretary and the person” within the meaning of s 624 of the SS Act.  In particular I consider it arguable that the Secretary has not approved a form of Newstart Activity Agreement for an agreement between a person and a party other than Centrelink.  It may also be arguable that the authority of the Secretary to delegate all or any of the Secretary’s powers under the SS Act is insufficient to alter the requirements of s 605(4) that a Newstart Activity Agreement be between the person and the Secretary.  I do not mean thereby to suggest that the Secretary could not delegate his or her power to sign such an agreement.  However, the agreements entered into by Mr Lim do not purport to be agreements between him and the Secretary.  They purport to be agreements between him and WorkDirections.

16                  I am therefore satisfied that, with leave, Mr Lim could amend his notice of appeal so as to render his appeal an appeal on a question of law as required by s 44(1) of the AAT Act.

Conclusion

17                  For the above reasons, while I accept that Mr Lim’s notice of appeal is technically incompetent, I do not consider that it would be appropriate, at least at the present time, to dismiss the notice of appeal.  Should Mr Lim not seek and obtain leave to amend his notice of appeal, it may be that the respondent could renew the objection to competency.  In any event, the Secretary could not in the circumstances be criticised for not acting promptly to challenge the competency of the purported appeal.

Associate:

Dated:         21 July 2008