FEDERAL COURT OF AUSTRALIA

Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268

ADMINISTRATIVE LAW – Social Security law – decision to cancel Newstart payment following repeated participation failures – appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – whether a question of law stated – proper construction of “to be negotiated” contrived by it's legislative setting – right to negotiate limited in the context of Social Security law – no error of law in Tribunal's construction – Secretary not satisfied that applicant had reasonable excuse for repeated participation failures – appeal dismissed

Federal Court of Australia Act 1976 (Cth) s 31A

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Social Security Act 1991 (Cth) s 593(1)(c), (d) and (e), s 601(4), s 605(1), (2) and (3), s 606, s 615(1), (4) and (6), s 624(1)(a) and (c), s 624(2), s 629(1), s 630(1)(c)

Social Security (Administration) Act 1999 (Cth) s 64, s 80(1), ss 80-82, s 131

Social Security (Reasonable Excuse) (DEWR) Determination 2006

Comcare v Etheridge [2006] FCAFC 27 cited

Vranic v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 672cited

Waterford v The Commonwealth (1987) 163 CLR 54 cited

Craig v South Australia(1995) 184 CLR 163 cited

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 applied

HORST KRONEN v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

No SAD 60 of 2009

FINN J

9 NOVEMBER 2009

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
general division	SAD 60 of 2009

BETWEEN:

HORST KRONEN

Applicant

AND:

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGE:	FINN J
DATE OF ORDER:	9 NOVEMBER 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 60 of 2009

BETWEEN:

HORST KRONEN

Applicant

AND:

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGE:	FINN J
DATE:	9 NOVEMBER 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The present motion, brought under s 31A of the Federal Court of Australia Act 1976 (Cth), seeks summary judgment against the applicant, Horst Kronen, in respect of his appeal to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

2 Section 31A empowers the Court to award summary judgment in relation to a proceeding if satisfied that the applicant has no reasonable prospect of prosecuting it. The basis of the respondent Secretary’s resort to s 31A is the contention that the applicant has not identified any question of law such as would enliven the Court’s jurisdiction under s 44 of the AAT Act. Given that an appeal lies “on a question of law” only – and not on a question of fact or of mixed law and fact: see Comcare v Etheridge [2006] FCAFC 27 at [11]-[17] – the issues before me are whether such a question has been raised by Mr Kronen and whether his argument thereon is sufficiently strong to warrant the matter going to trial: Vranic v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 672.

3 Mr Kronen was the recipient of a Newstart Allowance under the provisions of the Social Security Act 1991 (Cth). A number of adverse decisions having been made against him, the decision was made to cancel the Allowance. Those various decisions were affirmed ultimately by the Tribunal in the decision the subject of this s 44 appeal.

4 Given the complexity of the legislative scheme relating to this species of Allowance, I will for ease in exposition, refer to it before referring to the factual setting and the decisions in question.

Statutory Setting

5 A Newstart Allowance is a species of income support payment for unemployed people aged over 21 or people who are temporarily incapacitated. It has specified qualification criteria. A claimant for, or a person in receipt of, the allowance must enter into an activity agreement with the Secretary and on terms which are approved by the Secretary. The Act prescribes circumstances in which the allowance is not payable or can be suspended or cancelled.

6 The following refers to some number of provisions in this scheme insofar as they are relevant to this proceeding. I would note that the legislative scheme was amended significantly after the Tribunal’s decision.

7 The basic qualifications are set out in Subdivision A of Division 1 of Part 2.12 of the Act. Section 593, insofar as presently relevant, provides:

Qualification for newstart allowance

(1) … a person is qualified for a newstart allowance in respect of a period if:

(a) the person satisfies the Secretary that:

(i) throughout the period the person is unemployed; … and

(b) in the case of a person to whom subparagraph (a)(i) applies--throughout the period, or for each period within the period, the person:

(i) satisfies the activity test; or

(ii) is not required to satisfy the activity test; and

(c) if subsection 605(1) applies to the person, at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and

(d) if subsection 605(1) or (2) applies to the person, at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and

(e) if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement …

8 The “activity test” referred to in subclause (1)(b) above, is defined in s 601 for present purposes as follows:

Activity test

(1) Subject to subsections (1A) and (5), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

(a) actively seeking; and

(b) willing to undertake;

paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.

I should refer as well to s 601(4) as it is relied upon by Mr Kronen, though as I will later indicate it is inapplicable having regard to the facts found by the Tribunal:

(4) A person also satisfies the activity test in respect of a period if throughout the period, the person complies with the terms of a Newstart Activity Agreement between the Secretary and the person.

9 Subdivision C of Division 1 deals with Newstart Activity Agreements. Section 605 prescribes, for present purposes, that:

Newstart Activity Agreements - requirement

(1) Subject to this section, the Secretary may require a person who is not a party to a Newstart Activity Agreement to enter into such an agreement if:

(a) the person is receiving, or has made a claim for, a newstart allowance; or

(b) the Department is contacted by or on behalf of the person in relation to a claim for a newstart allowance.

(2) Subject to this section, the Secretary may require a person who has entered into a Newstart Activity Agreement to enter into another such agreement instead of the existing one.

…

(3) The Secretary is to give a person who is required to enter into a Newstart Activity Agreement notice of:

(a) the requirement; and

(b) the places and times at which the plan is to be negotiated.

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

(Emphasis added.)

I would note in passing that the stipulation that the Agreement is “to be negotiated” is central to Mr Kronen’s appeal.

10 Section 606 deals with the “terms” of an agreement and provides (inter alia):

Newstart Activity Agreements – terms

(1) Subject to sections 607 and 607B, a Newstart Activity Agreement with a person is to require the person to undertake one or more activities that the Secretary regards as suitable for the person.

(1A) However, an agreement must not contain a requirement of a kind that the Secretary determines under subsection (1B).

(1B) The Secretary must determine, by legislative instrument, the kinds of requirements that agreements must not contain.

(1C) To avoid doubt, a determination under subsection (1B) does not limit the Secretary’s discretion to exclude other kinds of requirements from a particular agreement under subsection (1).

(2) The terms of an agreement, which include the specification of the activities that the person is to be required to undertake, are to be approved by the Secretary.

…

(5) An agreement with a person:

(a) may be varied (in negotiation with the person) or suspended; and

(b) if another Newstart Activity Agreement is made with the person, may be cancelled.

11 I note in passing, again because of Mr Kronen’s reliance upon it, that s 615(1) and (4) provide:

Newstart allowance not payable if person fails to attend interview etc. in certain circumstances

(1) A newstart allowance is not payable to a person if:

(a) before or after the person made a claim for a newstart allowance, the Department is contacted by or on behalf of the person in relation to a claim for a newstart allowance; and

(b) as a result of the contact, the Department required the person to do one or both of the following:

(i) attend an interview with a specified person or organisation at a time and place specified in the requirement;

(ii) enter into a Newstart Activity Agreement; and

…

(4) This section ceases to apply:

(a) when the person complies with:

(i) that requirement, or those requirements; or

(ii) any requirements that the Secretary has required the person to undertake in place of that requirement, or those requirements; or

(b) at such earlier time as the Secretary determines, in accordance with any guidelines under subsection (5).

12 Subdivision F deals with situations where the allowance was not payable because of a Newstart participation failure. Section 624 defines such failures in terms which include the following:

Newstart participation failures

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

(a) fails to comply with a requirement:

(i) that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and

(ii) that was reasonable; and

(iii) the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure; or

(b) fails to satisfy the activity test; or

…

(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.

(2A) The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing a newstart participation failure.

(2B) To avoid doubt, a determination under subsection (2A) does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing the newstart participation failure referred to in subsection (1).

(3) Despite subsection (1), if a failure of a kind referred to in that subsection occurs in an instalment period of the person in which the person has already committed a newstart participation failure, the failure is not a newstart participation failure if:

(a) the instalment period is the person’s first instalment period for newstart allowance; or

(b) the instalment period is not the person’s first instalment period for newstart allowance, and:

(i) the person did not commit a newstart participation failure in the immediately preceding instalment period of the person; or

(ii) in respect of each newstart participation failure that the person committed in the immediately preceding instalment period of the person, the person acted in accordance with a requirement of the Secretary notified in respect of that failure.

(4) Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if it results in newstart allowance not being payable to the person under section 615.

The relevant legislative instrument referred to in subcl (2A) is the Social Security (Reasonable Excuse) (DEWR) Determination 2006. The matters it prescribes to be taken into account in determining if a person had a reasonable excuse are not ones which could have availed Mr Kronen in this matter.

13 Section 629(1) allows the imposition of an eight week non-payment period where a person commits a participation failure and has committed earlier failures on two or more occasions in the 12 months preceding the latest failure. One provision of the Social Security (Administration) Act 1999 (Cth) requires note. Section 80(1) provides:

If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a) who is not, or was not, qualified for the payment;

(b) to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.

Factual Setting

14 I should preface what I have to say with the observation that much in what Mr Kronen raises by way of “questions” in this appeal involves no more than his impermissible disputing of fact findings made by the Tribunal.

15 The following draws from the Tribunal’s reasons which conveniently lay bare the factual bases of the complaints made in this appeal.

16 Mr Kronen was a recipient of Newstart Allowance from March 2005. On 2 April 2007 he was referred to Maxima Joblink (Maxima), an employment service provider, for intensive support with looking for work and training opportunities. Maxima was at all relevant times a delegate of the Secretary for the purposes of Mr Kronen’s entry into a Newstart Activity Agreement. At the time, Mr Kronen was 53 years of age with a history of significant periods of unemployment.

17 Mr Kronen signed an activity agreement with Maxima on 10 May 2007. That agreement expired on 26 September 2007. He then fell into a dispute with Maxima about signing another agreement as he insisted that certain terms be included in the new agreement, which he considered would “protect him” from Maxima’s conduct. He also objected to some terms that Maxima wanted to include in the agreement. Over the following months Mr Kronen failed to attend a number of pre-arranged interviews with Maxima despite having notice of them and that they had been arranged for the purpose of negotiating an activity agreement. He chose not to attend.

18 I note in passing that the standard form notice for the meetings, after indicating that he was required to attend, included the following:

(ii) You are required to enter an Activity Agreement.

At the appointment you will negotiate an Activity Agreement with your JNM, which is a legally binding agreement. It outlines the activities you agree to do (eg. Looking for work, job search training) in return for receiving your Newstart Allowance.

2. What will happen if I don’t attend the appointment or enter an Activity Agreement?

To continue receiving your Newstart Allowance you must:

(i) attend this appointment

(ii) enter into an Activity Agreement.

These are requirements under social security law.

If you do not attend this appointment or do not enter an Activity Agreement and you do not have a valid reason:

this could be a Newstart Allowance participation failure, which may be placed on your record

your Newstart Allowance may be stopped until you do attend or enter an Activity Agreement.

If you have 3 Newstart Allowance participation failures in a 12-month period your payment could be stopped completely for 8 weeks.

19 Mr Kronen was found to have committed a number of NSA participation failures and non-payment periods were imposed. A decision was also made to cancel his Newstart Allowance altogether on the basis that he did not satisfy the eligibility requirements for the allowance.

20 After internal review processes, there were three decisions of the Social Security Appeals Tribunal which founded his review application to the Tribunal. As described by the Tribunal they were as follows:

The first decision was made on 24 July 2008, in which the SSAT:

(i) Affirmed the decision of an Authorised Review Officer (ARO) of 9 April 2008 that Mr Kronen had committed, without reasonable excuse, NSA participation failures on 8 February 2008 and 29 February 2008. In that same decision they set aside a decision by the ARO that a third participation failure had occurred on 7 March 2008.

(ii) Affirmed a decision of an ARO made on 19 May 2008 that Mr Kronen had committed a third participation failure on 14 March 2008 and that as it was the third failure in 12 months, an eight week non-payment period should be applied to Mr Kronen’s payments. That period was to run from 11 April 2008 until 5 June 2008.

(iii) Affirmed a second decision made by the same ARO on 19 May 2008 that Mr Kronen had committed a further participation failure on 1 May 2008 and that a further eight week non-payment period should be applied to his NSA from 9 May 2008 until 3 July 2008.

The second decision was made by the SSAT on 24 July 2008 which affirmed the decision of an Authorised Review Officer on 27 June 2008 to cancel Mr Kronen’s NSA from 6 June 2008.

The third decision was that of 7 November 2008. It affirmed the decision of an ARO made on 21 July 2008 that Mr Kronen had committed another NSA participation failure without reasonable excuse on 6 June 2008 and as a result, an eight week non-payment period was applied.

21 The following, which draws directly from the Tribunal’s reasons ([34]-[59]), appears under the heading:

Mr Kronen’s explanation for his failure to attend the meetings.

34. He told the Tribunal that his non co-operation with Maxima was largely because he took the view that until such time as Maxima was willing to sign an agreement that included the specially crafted clauses that he had prepared, there was no point in him attending these meetings.

35. He told the Tribunal of his perceived difficulties in his dealings with maxima. He referred to correspondence that he had sent to Maxima in July 2007 … that contained a litany of complaints about his dealings with Maxima that went back to early 2007. He told the Tribunal that he had become suspicious of his dealings with them prior to the events of October 2007 onwards.

36. He became particularly aggrieved at the assertion by one of the Maxima employment consultants in August and September 2007 that he was exhibiting a pattern of work avoidance. He considered that there was no evidence to support such a contention and complained that they would not provide him with the evidence upon which they had based this assessment.

37. He was also unable to accept as reasonable that he be subject to a “work-for-the-dole” clause in an activity agreement as he believed that, because of his age, he was exempt from such a requirement.

38. When his prior activity agreement was due to expire in September 2007, discussions commenced with a view to him entering into a new agreement. It was at this point that relations between Mr Kronen and Maxima worsened.

39. At a meeting on 9 October 2007, he presented an activity agreement for signing by Maxima which included some specific clauses that he insisted must be included before he would sign it.

40. The three clauses that he had drafted were as follows:

“1. Maxima Joblink will make every reasonable effort to assist Horst Kronen with the search for suitable employment. To this end, Maxima Joblink will supply support services as required, will supply good, well considered advice and guidance as required, and will refrain from attempting to cause Horst Kronen any unnecessary aggravation, frustration, monetary loss and/or other form of unnecessary inconvenience in its (and its employees’ and/or representatives’) interactions with him.

2. Maxima Joblink agrees to pay to Horst Kronen an amount equivalent to 8 weeks’ loss of Newstart benefits (currently $1,697.20), or any greater amount set by a court or tribunal of suitable jurisdiction, in the event that Maxima Joblink, or its employees and/or representatives, furnish incorrect, incomplete, false and/or misleading information to any third party – including, but not limited to, that which recommends or may result in a participation failure, serious failure or other similar ‘breach’, or adverse and/or defamatory finding or assessment, being wrongly or improperly listed (no matter how briefly) against Horst Kronen.

(a) This clause applies to information, reports, assessments, etc. that have been furnished to any third party since 1 January 2007, or that will be so furnished in the future.

(b) The amount – currently $1,697.20 – is payable in each individual instance where incorrect, incomplete, false and/or misleading information has been generated and/or supplied to a third party.

3. Periodic meetings between Maxima Joblink (or its employees and/or representatives) and Horst Kronen, which are scheduled at the discretion of Maxima Joblink (or its employees and/or representatives), shall be conducted in a professional, efficient and productive manner where the agenda for each meeting is to be made known to Horst Kronen at least 7 days before any such meeting. Failure to provide satisfactory reasons for any such meeting, or failure to provide advance notice of its full agenda, will allow for the cancellation of the proposed meeting.”

41. He also presented a written proposal as to “Negotiation Procedures” if Maxima would not accept his terms. This included referral to an independent panel if any terms could not be agreed.

42. The agreement as presented by Mr Kronen was not counter-signed by Maxima as it was not acceptable to them. It did not contain the job search requirement they considered appropriate for Mr Kronen, nor would they accept his contractual terms and, in particular, his liquidated damages clause.

43. On 25 October 2007, Mr Kronen presented another written complaint to Centrelink which include complaints of Maxima “mishandling” his personal information.

44. Mr Kronen then commenced a pattern of deliberate non-attendance at some of the meetings that he was required to attend.

45. In December 2007 he presented an amended list of contractual obligations that he required in any activity agreement, which included a similar liquidated damages clause (T15). Maxima declined to sign it. He signed his preferred agreement on 14 December 2007.

46. He did not attend meetings that were for the purposes of negotiating a NSA activity agreement.

47. Mr Kronen acknowledges that he was sent an appointment letter before each meeting at which he was required to attend to enter into an activity agreement. He chose not to attend the meetings.

48. Despite his failure to attend these meetings, which were set up specifically for the purpose of negotiating the NSA activity agreement, Mr Kronen would attend his brief Rapid Connect meetings at Maxima.

49. Mr Kronen told the Tribunal that there was no point in him attending any of the meetings which were for the purpose of negotiating an activity agreement as he did not consider that Maxima were prepared to reasonably negotiate with him.

50. He had formed the view that there was no prospect of his requirements being fulfilled, namely that his specific clauses would be included in the activity agreement, and therefore there was no point in his attending. He also expressed the view that Maxima refused to engage with him in a courteous and professional manner.

51. He referred the Tribunal to the “Employment and Related Services Code of Practice”. He considered that Maxima had breached that code in the way that they dealt with him.

52. He alleged that Maxima engaged in conduct that he considered did not comply with appropriate standards.

53. Mr Kronen was of the view that, because of his age, he should not be subject to mutual obligation requirements. He had been very put out when he was told that with a pattern of work avoidance he could be required to submit to mutual obligation requirements, despite his age.

54. During this period of repeated refusals to attend interviews, Mr Kronen made complaints to the Department and to the Ombudsman. In a letter received by Mr Kronen on 10 April 2008 from the Deputy State Manager of the Department of Education, Employment and Workplace Relations (DEEWR), it was suggested that he contact the DEEWR line to arrange a new job network member because of the breakdown in his relations with Maxima. Mr Kronen chose not to do so.

55. In a telephone discussion with the ARO, it was noted that he did not wish to change job network member providers, despite this option being available to him.

56. On 10 April 2008, Mr Kronen entered into an activity agreement with Centrelink (as distinct from his employment service provider) in which he agreed that he would do certain things from 10 April 2008 until 28 August 2008. He signed this activity agreement without insisting on the inclusion of his own clauses.

57. Mr Kronen then failed to attend his next appointment set by Maxima, which was for 1 May 2008. He was provided with written notice of the appointment.

58. He was advised on 13 May 2008 that a NSA participation failure would be applied to his payment and, as this was the third NSA participation failure in 12 months, an eight week non-payment period was applied for the period 9 May 2008 to 3 July 2008.

59. He submits that he did sign agreements that included his preferred clauses and that Maxima refused to sign those agreements. He considered his actions reasonable and Maxima’s actions unreasonable.

The Tribunal’s Decision

22 The Tribunal was of the view that it had four issues to determine:

(i) whether Mr Kronen committed participation failures and if so, how many, on what dates and within which periods;

(ii) if he did commit participation failures, whether he had a reasonable excuse for any or all of those failures;

(iii) whether the two [sic] eight week non-payment periods should be imposed in the circumstances; and

(iv) whether there was a basis for cancelling his Newstart Allowance.

23 The Tribunal found as facts that, (a) Mr Kronen’s activity agreement having expired in September 2007, he thereafter refused to enter into an activity agreement in the terms required by Maxima; (b) Maxima’s terms were reasonable in all the circumstances; (c) the terms Mr Kronen insisted be inserted were not reasonable in all the circumstances; (d) Centrelink provided him with all required notices of meetings and warnings in respect of participation failures; and (e) there appeared to be no factual basis for such of his complaints against Maxima as were investigated by the Ombudsman and by DEEWR and no evidence that Maxima breached the Code of Practice for providers of employment related services.

24 The Tribunal characterised Mr Kronen (at Reasons [94]) as:

… a difficult person who appeared unable to accept that as a person who is receiving Government benefits there are certain obligatory requirements that can be imposed upon him, regardless of whether he likes them or not. He had an unrealistic view of his own bargaining power in his relationship with his employment service provider.

The Tribunal went on to note that the requirements Maxima sought to impose on Mr Kronen were reasonable in the circumstances and that his response was unreasonable.

25 Having found that the participation failures occurred, the Tribunal then considered the issue of whether there was any reasonable excuse that would exculpate his actions. Given Mr Kronen’s concern with “negotiating” his activity agreement, the Tribunal indicated that his ability to negotiate the terms of such an agreement was not judged according to ordinary notions of freedom of contract but “must be viewed in the context of the statutory provisions of the Act”. It referred to an earlier decision which in this regard noted that under the Act the Secretary could require that agreements be entered into and it provided for possible adverse consequences in the event of a person in his position failing to agree to the contractual terms proposed. It considered there were not only no reasonable bases for his behaving the way he did; his issues with Maxima did not constitute a reasonable excuse for his participation failures; and his clauses were not reasonable in the circumstances.

26 The Tribunal went on to confirm that the non-payment periods were correctly imposed for the periods found by the SSAT.

27 As to the decision to cancel the Allowance from 6 June 2008, the Tribunal observed:

113. Mr Kronen persistently refused to co-operate with Maxima for six months. His attendance at Rapid Connect meetings was not sufficient to satisfy the activity test. He refused to enter into a NSA activity agreement in the terms proposed. He declined the invitation to move to a new employment service provider. Sections 593(1)(d) and (3) [sic] of the Act provide that to qualify for NSA, a person must be willing to enter into an activity agreement if required to do so.

114. It was apparent by June 2008 that Mr Kronen was determined not to enter into a NSA activity agreement.

115. He had been given more than adequate time to consider the terms of the activity agreement and to co-operate. He had been warned that his failure to enter into an activity agreement would disqualify him from receiving payment.

28 In affirming the cancellation decision the Tribunal appears to have acted under s 80(1) of the Administration Act.

29 The Tribunal affirmed the decisions of the SSAT.

The Appeal to this Court

30 Mr Kronen is a self represented litigant who has had some legal advice. His notice of appeal did not state any questions of law. It generally challenged the correctness of the Tribunal’s conclusions. I provided him with the opportunity to formulate, with such precision as he was able, the questions of law he wished to agitate on the appeal. Mr Kronen then filed a “Statement of Questions of Law” which, under five general rubrics, listed one or more questions. The rubrics were:

(i) whether Newstart Allowance participation failures were committed and, if so, how many;

(ii) whether there existed a reasonable excuse for any of these failures;

(iii) whether any eight week non-payment periods should be imposed;

(iv) whether there was any basis for cancelling the allowance; and

(v) whether findings of the AAT should be set aside where they were not supported by evidence, or were contrary to the evidence.

31 These in turn were enlarged upon in Mr Kronen’s written submissions. These revealed that much of his complaint was with matters of fact involving merits-review. He is now aware that a wrong fact finding is not sufficient to establish an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Nonetheless, the submissions also exposed that he was taking issue with the manner in which the Tribunal purported to apply the statute to the circumstances. In this one can discern that in several respects he was contending that the Tribunal fell into an error of law which caused it to identify a wrong issue, to ask itself a wrong question, and to ignore relevant material, so exceeding its authority or powers: Craig v South Australia (1995) 184 CLR 163 at 179. The essence of his complaints are both that the Tribunal failed to apply the correct sections of the Act (eg s 615), and misconstrued or misapplied the terms of the Act (eg “to be negotiated” or “reasonable excuse”). To this extent, as I will indicate, I am satisfied that Mr Kronen’s application to this Court has in some degree enlivened its jurisdiction under the AAT Act. Nonetheless, I am satisfied that the proceeding has no reasonable prospects of success and for the reason that in ascribing error to the Tribunal he misapprehends the scheme of the Act and of the decision-making processes it mandates.

32 Rather than deal with his many subgrounds of appeal individually, I will indicate why, in my view, the course taken by the Tribunal is not susceptible to challenge on the basis he proposed.

33 By way of background I should again note that Mr Kronen entered into a Newstart Activity agreement with Maxima which expired on 26 September 2007. From that date until 10 April 2008 (when he entered into an activity agreement with the Secretary via Centrelink), he had no such agreement though he had received three notices to attend meetings with Maxima for the purpose of entering into such an agreement. I have noted the terms of those notices and his knowing failure to attend the meetings. On 22 April he received a further notice from Maxima to attend a meeting on 1 May 2008 for the purpose of entering into another activity agreement. He again failed to attend. What is to be emphasised is that his entry into the agreement with the Secretary on 10 April 2008 did not relieve him of the obligation to enter into a further agreement with the Secretary as required in the 22 April notice: see s 605(2) which permits the Secretary to require this.

34 I refer to this matter for this reason. To satisfy the qualifying criteria for a Newstart Allowance, for the period 27 September 2007 – 10 April 2008 Mr Kronen had to be prepared to enter into an activity agreement: s 593(1)(c). For the period from 1 May 2008, he had to be prepared to enter into another such agreement instead of the then existing one: s 593(1)(d). In respect of both periods, because of the terms of the notices sent him requiring him to enter into an agreement, he was also required to satisfy s 593(1)(e) which obliged him to enter into the agreement required by the Secretary.

35 It is clear from the terms of the notices sent to Mr Kronen by Maxima (as the delegate of the Secretary), that he was being required first to enter into an activity agreement and, later, a further agreement: s 605(1) and (2). It was in the circumstances open to the Tribunal to approach the question of whether there had been participation failures by reference to his failure “to comply with a requirement to enter into” such an agreement: cf s 624(1)(c). Though the Secretary now seeks to rely upon this ground, it is clear from the Tribunal’s reasons that it approached the matter differently, ie through s 624(1)(a) (failure to comply with a requirement which satisfied the criteria for the sub-clause). It clearly was open to the Tribunal to take this course in relation to Mr Kronen’s failures to comply with the notices in question.

36 Irrespective of the provisions of s 615 of the Act (which appears to deal in any event with first time claimants for a Newstart Allowance: cf s 615(6)), the question whether Mr Kronen had committed a newstart participation failure and the possible consequences of any such failure were in the circumstances to be dealt with pursuant to s 624 and s 629. As s 624(1)(c) makes plain on its face a recipient of a newstart allowance does not have to have entered an activity agreement to be guilty of a participation failure. Mr Kronen’s reliance upon s 615 as the appropriate provision to deal with his failure to attend an interview or to enter into an activity agreement is misconceived.

37 Turning to s 624(1)(a), the Tribunal, while not dealing seriatim with each of its three requirements, readily found that Mr Kronen’s failures to attend the four meetings in issue constituted participation failures and, furthermore, that there were no reasonable excuses for those failures. Mr Kronen’s challenges to these conclusions are multipronged but in substance relate to three contentions. First, the requirement that he attend the meetings was not “reasonable” as required by s 624(1)(a)(ii); secondly, the terms of the proposed agreement were not “negotiated” as stipulated by s 605(3); and, thirdly, in consequence, he had a reasonable excuse, for not attending.

38 Central to this trio is Mr Kronen’s conception of what is signified by the words “to be negotiated” in s 605(3). What is clear is that the level of permissible compromise and of required mutual agreement that this formula might otherwise suggest when used in other contexts, is radically curtailed in this statutory setting. Whether one can say that the ordinary meaning of “negotiate” is what is intended here (albeit what can be negotiated is limited by the Act and its purposes), hence the meaning is a question of fact: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (proposition 2); or that its meaning and hence proper construction is contrived by its legislative settings, hence are questions of law: Pozzolanic, 287 (propositions 1 and 4), what is clear is that Mr Kronen misapprehends the latitude the Act gives him. Elblematic of this was his presenting Maxima with negotiation procedures which included referral to an independent panel if any terms could not be agreed.

39 If Mr Kronen is to qualify for a newstart allowance, he was required, in the circumstances, enter into an activity agreement: s 593(1)(e); he was required to undertake one or more activities that the Secretary regarded as suitable for the person: s 606(1); the terms of the agreement were to be approved by the Secretary. In this scheme, the “right to negotiate” could be illusory in quite some degree for some purposes and especially when the Secretary (or a delegate) takes decisions or actions in effectuation of the purposes of the Act itself. This is not to say that there was no room for discussion, accommodation and compromise. Rather, it is to recognise that the actual terms of the negotiation itself were something in relation to which the Secretary, acting reasonably and in good faith, could ultimately dictate, approve or disapprove, if there was to be an agreement.

40 The Tribunal clearly understood this was the case: see Reasons [106]-[108]. It committed no error of law in construing and hence giving legal effect to the “negotiation expectation” of s 605(3) as it did. Further, the Tribunal satisfied itself on the evidence before it that the requirements Maxima sought to impose were reasonable and that those upon which Mr Kronen insisted were unreasonable in the circumstances. These fact findings were open to it and were unimpeachable in this proceeding.

41 This brings me to what I consider to be the central element in Mr Kronen’s challenge to the participation failures. That is that the requirement to attend the meetings to negotiate the activity agreement was itself not “reasonable”: s 624(1)(a)(ii). I will accept for present purposes (without concluding that such was the case) that this requirement related to an objective fact which had to be satisfied before a failure to comply with “the meeting notices” could constitute a participation failure.

42 The two general matters informing his “unreasonableness” contention were (a) the delegate’s alleged refusal to negotiate with him notwithstanding he was prepared to negotiate “rationally and in good faith”; and (b) the requirement that he deal with the delegate given his complaints about its conduct.

43 I simply note in passing that aspects of Mr Kronen’s contentions here relate to decisions and actions of the Secretary which are not in issue in this proceedings.

44 I express no view upon whether it was desirable for Maxima to have been retained as Mr Kronen’s employment service provider after his relationship with it became the subject of complaint, though I do accept the force of the Tribunal’s characterisation of Mr Kronen. It was suggested to him by a senior officer of the Department that he contact DEEWR to arrange a new job network member because his relationship with Maxima had broken down. He chose not to. Maxima thus remained the delegate of the Secretary exercising lawful authority in relation to him.

45 As I have already indicated, the context and purpose of the negotiations and the evidence supporting the Tribunal’s findings as to the reasonableness of the respective terms being sought by Maxima and Mr Kronen, satisfy me that there was nothing in the conduct of the negotiations that would render unreasonable the requirement to attend the meetings. The clauses he sought to impose were, I venture, ones not likely to be agreed and for understandable reasons. Maxima made plain it would not agree to them. It is in my view more probable than not that the stalemate reached in the negotiations was ascribable to his own idiosyncratic conception of “meaningful negotiations” and to his intransigence. By 9 January 2008 he indicated that unless Maxima assured him that future meetings would be conducted “quite differently”, he would not be attending any future meeting.

46 I am satisfied that, in the face of Mr Kronen’s refusal to participate further in a process in which he was required to engage, the requirements that he do so for the purposes of the Act were reasonable.

47 In the circumstances, the remaining issue was not whether Mr Kronen had a reasonable excuse, but rather whether he satisfied the Secretary that he had such an excuse for his participation failures: s 624(2). The “questions” and contentions raised by Mr Kronen, while addressing what as a fact might constitute a reasonable excuse, do not challenge the satisfaction of the Secretary (hence the Tribunal) as such.

48 The Tribunal was satisfied that Mr Kronen had no such excuse for the participation failures. Consistent with what I have said above in relation both to the reasonableness of the notices to attend the meetings and the “right to negotiate”, I cannot discern any proper basis upon which it could be said there was an error of law in the Tribunal’s decision in this regard.

49 The last of the matters relating to the participation failures with which the Tribunal dealt was with whether the three non-payment periods were correctly imposed. The Tribunal held that they were. In relation to the participation failures of 8 February, 29 February and 14 March, the start of the next instalment period after the day on which the Secretary first became aware that the last of these had been committed: s 630(1)(c), was 11 April 2008. On 28 April Mr Kronen’s newstart allowance payments were recommenced under s 131 of the Administration Act pending review of Centrelink’s actual decision on 23 April 2008 that because of his participation failures the eight week period of non-payment applied from 11 April 2008.

50 When Centrelink was notified of Mr Kronen’s next potential participation failure of 1 May 2008 the next instalment period for s 630(1)(c) purposes began on 9 May 2008 and ran to 3 July.

51 The third non-payment period occurred as a result of a participation failure on 6 June 2008 during the second non-payment period and was notified to Centrelink on the same day. 6 June was the commencement date for Mr Kronen’s next instalment period and the non-payment period was applied immediately under s 630(1)(c) from 6 June 2008 for eight weeks.

52 Though the Tribunal’s reasons are slight when dealing with the non-payment period, they disclose no error. This said, for practical purposes, the only significant period in the event was the first. It ran until 6 June 2008, ie the day the allowance was cancelled by the Secretary.

53 The Tribunal finally considered the cancellation decision which, in the circumstances, was made under s 80(1)(a) of the Administration Act apparently on the basis that under s 593(1)(d) of the Act he was required to, but was unprepared to, enter into another activity agreement: see Reasons [113]. The Tribunal’s reasons, though would seem to encompass his conduct over a wider period than from when Mr Kronen entered into an activity agreement with Centrelink on 10 April 2008. The reasons tend to suggest that s 593(1)(d) and (e) were being relied upon collectively for the conclusion that Mr Kronen was not willing to enter into an activity agreement, having been required to do so. I simply note there is an obvious error in citation of the subsection of s 593 in Reasons [113].

54 I preface what I have to say on this matter by noting that certain provisions of the Act by their own force render allowances etc “not payable” if stipulated criteria are, or are not, met: see eg s 615 and s 629 of the Act and s 64 of the Administration Act. These are to be contrasted with those provisions in which a discretion is given to the Secretary to cancel or suspend payment to a person on specified grounds: see eg s 80 – s 82 of the Administration Act. Given Mr Kronen’s submissions fail to differentiate between these two types of provision, I simply emphasise that the cancellation decision was taken under a provision of the latter variety.

55 Much in Mr Kronen’s submissions on cancellation turn on his assertion that he was prepared to enter into an activity agreement but that he was denied by the delegate the process prescribed by the Act. I have dealt with this.

56 Suffice it to say for present purposes that I cannot discern any error of law infecting the cancellation decision or any sufficiently arguable question of law relating to it. Mr Kronen took a deliberate, but quite misconceived, course. He was the author of his own harm.

57 I do not intend to refer to the many fact findings with which Mr Kronen has taken issue. I have explained to him the straightened nature of appeals under s 44 of the AAT Act.

Conclusion

58 I have dealt with the Tribunal’s reasons at some length but for the purpose of indicating that Mr Kronen has not demonstrated that a sufficiently arguable question of law has been raised in relation to the decision to warrant the matter going to trial. His application to this Court has no reasonable prospect of success for the purposes of s 31A of the Federal Court of Australia Act.

59 I will order that the application be dismissed and that the applicant pay the respondent’s costs of the application.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 9 November 2009

Counsel for the Applicant:	The Applicant appeared in person.

Counsel for the Respondent:	Ms T Birss

Solicitor for the Respondent:	DLA Phillips Fox

Date of Hearing:	11 August 2009

Date of Judgment:	9 November 2009

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