FEDERAL COURT OF AUSTRALIA

Luck v Chief Executive Officer of Centrelink [2015] FCA 1234

THE COURT ORDERS THAT:

1.    The respondent’s objection to competency be upheld.

2.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1    On 30 June 2008 the applicant, Ms Gaye Luck, filed an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). The applicant sought review of certain decisions attributed to the Chief Executive Officer of Centrelink and the Secretary of the Department of Human Services or their delegates.

PROCEDURAL BACKGROUND

2    This proceeding has been pending in this Court since 30 June 2008. The reason that it was not heard until late April 2015 is because of other applications in related proceedings, which were made by Ms Luck, to Full Courts and to the High Court, and which were not resolved until relatively recently. Once those matters were resolved and any obstacle for the hearing of this proceeding was removed, the matter was listed for hearing on 13 and 14 April 2015. Ms Luck was advised of the notice of listing on 10 October 2014. Ms Luck, therefore, had seven months’ notice of the pending hearing.

3    On 28 November 2014 a timetable was arranged by way of consent order, which was designed to ensure that submissions on both sides were filed in good time for the scheduled hearing on 13 April 2015. For various reasons that timetable fell behind and, as a result, I listed this matter for mention on 7 April 2015. Because the timetable had fallen behind, and because there was some risk of prejudice to Ms Luck as a result of that, I extended the commencement date of the hearing until 27 April 2015. The estimate remained two days.

4    By interlocutory application filed on 20 April 2015, Ms Luck sought an adjournment of the hearing pending the outcome of an application to the High Court in this proceeding under s 40 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). That application was made on 17 April 2015, and it identified certain constitutional issues, which it was said would arise, and in respect of which notices, given under s 78B of that Act, had earlier issued. No mention was made in the course of the directions hearing on 7 April 2015 of any proposal on Ms Luck’s part to make application to the High Court for removal of the proceeding into that court.

5    At the hearing Ms Luck made an oral application that I should disqualify myself from conducting the trial of the proceeding on the ground of ostensible bias. One of the bases on which Ms Luck advanced her ostensible bias argument was that my recusal was warranted because of my appointment as Judge Advocate General of the Australian Defence Force which, she said, made me “answerable” to members of the Executive Branch of the Commonwealth Government including the Minister for Defence.

6    Ms Luck had made a similar application during an earlier directions hearing on 4 April 2014. During that directions hearing I ruled that I would not recuse myself on the ground of ostensible bias in this proceeding: see Luck v Chief Executive Officer of Centrelink [2014] FCA 345. The reasons for my decision included that none of the statutory provisions relating to my appointment made me “answerable” to the Executive Government or could give rise to a reasonable apprehension of bias.

7    For the reasons that I gave in Luck v Chief Executive Officer of Centrelink [2014] FCA 345, together with some additional reasons to which I will shortly advert, I did not accede to the renewed application made at the hearing.

8    The additional reasons are these: since the ruling on 4 April 2014 was made I have ceased to be the Judge Advocate General of the Australian Defence Force. I ceased to hold that office upon the expiry of my last appointment. The expiry date was 29 July 2014.

9    Although I continue to hold the rank of Major General in the Army, I am on the list of retired officers. I have no active participation in the affairs of the Army, and have not done so since the end of July last year.

10    Despite Ms Luck’s apprehension to the contrary, I have no administrative or any other role in the military. I would add this: even when I did exercise the powers of the Judge Advocate General under the Defence Force Discipline Act 1982 (Cth) (“the DFDA”) I had no association whatsoever with the Department of Human Services, or Centrelink, or any of the officers of those bodies, which are the subject of the present proceeding.

11    Ms Luck raised an additional matter relating to remuneration. She said that I am the beneficiary of what she described as some form of emolument by way of allowance.

12    The answer to that misapprehension is that, since my retirement, I have not been in receipt of any moneys by way of allowance or otherwise in relation to any military service. I have no financial interest in the outcome of this proceeding.

13    Another matter that was raised in oral argument by Ms Luck was that I had an interest in the outcome in the proceeding, because, as it was put, I am effectively the subject matter of the constitutional objection. The constitutional objection, as argued, was an objection that, in providing, in s 180, for the qualifications of a person to serve as Judge Advocate General, the DFDA was invalidated by operation of the Boilermakers’ doctrine. Even if that be right, the consequence would be that that section would be held to be unconstitutional. That finding would have no bearing at all on my capacity to sit as a judge of this Court, and to deal with matters such as the present that come before me as a judge of the Court.

14    I would also note that some similar arguments have been raised before two Full Courts, one in 2009 and one in 2014, and in both cases the arguments were unanimously rejected. In the latter case, applications to the High Court were refused: see Luck v University of Southern Queensland (2009) 176 FCR 268; Luck v University of Southern Queensland (2014) 145 ALD 1; Luck v University of Southern Queensland & Anor [2015] HCASL 136. See also the recent decision of another Full Court in Luck v Secretary, Department of Human Services [2015] FCAFC 111 at [22].

15    Ms Luck’s application for an adjournment, because of her High Court application under s 40 of the Judiciary Act, as I have already noted, identified certain constitutional issues, which it was said would arise, and in respect of which s 78B notices had earlier issued. Those constitutional issues related, as I have already indicated, to the constitutionality of a provision of the DFDA, and also to a provision of the Disability Discrimination Act 1992 (Cth), amongst others. For reasons I have already given, any ruling that the High Court might ultimately make in respect of those issues can have no bearing on my capacity, sitting as a judge of this Court, to deal with the issue that is presently before the Court. I note that no Attorney General has indicated a desire to intervene in response to the s 78B notices. For those reasons, the application for an adjournment of this hearing was refused.

MS LUCK’S APPLICATION

16    Ms Luck sought review of decisions by the respondent and the Secretary of the Department of Human Services on 31 July 2006, 10 August 2007 and 3 June 2008. These decisions related to the means by which Ms Luck would be permitted to have access to Centrelink in order to deal with her affairs. The respondents filed a notice of objection to the competency of the application in so far as it sought review of the decisions made on 31 July 2006 and 10 August 2007 on the basis that the application, in so far as it related to those decisions, was made outside of the time limits imposed by s 11(3) of the ADJR Act. The Secretary of the Department of Human Services sought an order that she be removed as a respondent on the ground that neither she nor any delegate of hers had made or could make any of the impugned decisions. On 10 December 2008, I refused Ms Luck’s application to enlarge the time within which to lodge an application in respect of the decisions made on 31 July 2006 and 10 August 2007. I also ordered that the Secretary of the Department of Human Services cease to be a party to the proceeding: see Luck v Chief Executive Officer of Centrelink [2008] FCA 1879.

17    The remaining decision to which the application relates is the decision in June 2008, which restricted Ms Luck’s means of communication with Centrelink to telephone, fax or email. Ms Luck received notice of the decision by letter on 3 June 2008. The letter stated:

“I refer to your contacts with Centrelink over the past 6 months most recently on 7 May 2008. On 24 December 2007, 1 May 2008 and 7 May 2008 you spoke with Centrelink Call Centre staff regarding your Centrelink entitlements and on all 3 occasions it has been reported that you were not prepared to listen when an explanation was being offered. It has been noted that on 7 May 2008 the call was terminated after 2 warnings, due to you yelling at the staff member.

Because of your unacceptable behaviour, I have decided that you can contact Centrelink only by telephone, fax or e mail, when you need to access our services or when you have a query about any of the payments or services to which you are entitled.

These arrangements will be in place for three months until 28 August 2008 and their duration will be reviewed on a regular basis. You will be advised when the review will occur and you will be given the opportunity to contribute.

Please call 136150 if you want to talk about what happened on any of the dates mentioned or if you have any queries about any of the information contained in this letter. You may ask another person to do so on your behalf. If you want to take this option, you will need to authorise this person, in writing to us, to talk to Centrelink on your behalf.

I am asking you to behave with respect and courtesy in your telephone contact or in any future dealings with Centrelink.”

18    Ms Luck relied on a number of grounds of review under s 5 of the ADJR Act, including that there had been a breach of natural justice, that procedures required by law were not observed, that persons who made the decision did not have jurisdiction to make it, that the decision was not authorized by an enactment and that the making of the decision was an improper exercise of power. Despite the number of grounds advanced by Ms Luck, her principal complaint was that the decision had been based on what she claimed were inaccurate notations, made by Centrelink call centre operators, of conversations which occurred when she telephoned Centrelink. Ms Luck did not agree with the call centre operators’ descriptions of her manner towards them during these conversations. In particular, she disputed statements made by the operators that she was “unwilling to listen” to them and that she had been “yelling” at them.

DECISION UNDER AN ENACTMENT

19    The respondent contended that its decision in June 2008 was not a decision made “under an enactment” for the purpose of the definition of “decision to which this Act applies” in s 3(1) of the ADJR Act. Accordingly, it submitted that the decision was not susceptible to review under the ADJR Act.

20    In order to deal with the respondent’s objection to competency it is necessary first to examine the complicated statutory framework under which Centrelink operates.

21    The Commonwealth Services Delivery Agency, known as Centrelink, was established by s 6 of the Commonwealth Services Delivery Agency Act 1997 (Cth) (“the CSDA Act”). The function of Centrelink is to assist the respondent in the performance of his or her functions: see s 6A of the CSDA Act.

22    Section 7 of the CSDA Act provides that the CEO of Centrelink “may enter into arrangements with the principal officer of a Commonwealth authority for the provision of the Commonwealth services specified in the arrangements, subject to the conditions specified in the arrangements”. “Commonwealth service” is defined in s 3 as “a service, benefit, program or facility for some or all members of the public that is provided for by the Commonwealth, whether under an enactment or otherwise.”

23    Section 7(2) provides that “arrangements for the provision of Commonwealth services may include arrangements for doing anything incidental, conducive or related to the provision of the services.”

24    Section 7(3) provides a list of arrangements for the provision of Commonwealth services which includes, without limitation, arrangements for “determining a person’s eligibility for, or entitlement to receive or have access to, the services” and “providing Commonwealth authorities and other persons with information related to the provision of the services”: see ss 7(3)(b) and 7(3)(d) of the CSDA Act.

25    Section 7(5) provides that “an approval given by the Minister under this section is not a legislative instrument”.

26    Section 8(1) of the CSDA Act provides that the functions of the CEO are, inter alia, the provision of Commonwealth services in accordance with service arrangements and doing anything incidental, conducive or related to the performance of any of his or her other functions.

27    Section 7 of the Social Security (Administration) Act 1999 (Cth) (“the SS(A) Act”) provides that the Secretary is to have the general administration of the social security law. The social security law includes that Act and the SS(A) Act.

28    On or about 5 October 2006, the Secretary and the CEO of Centrelink entered into the Business Partnership Agreement 2006-2010 (“the Agreement”), which was an arrangement for the purpose of s 7(1) of the CSDA Act. In accordance with the Agreement, in June 2008, Centrelink was responsible for administering the payment of disability support pensions, and rental assistance, on behalf of the Secretary of the Department of Families, Community Services and Indigenous Affairs. The services and activities to be provided by the respondent included dealing with claims, notifiable events and general enquiry calls.

29    There is nothing in the CSDA Act, the SS(A) Act or the SS Act which deals specifically with the means by which customers can access the services provided by the respondent. Such matters may be comprehended, at a general level, by s 8 of the CSDA Act, which deals with the CEO’s functions and the general power to do anything included in the arrangement that is incidental, conducive or related to the provision of the services.

30    Officers of the respondent, including customer service officers, are required to follow the procedures set out in the respondent’s reference instruction “People Handbook” and e-reference, which details the procedures for dealing with customer aggression and/or dealing with objectionable callers. The decision about which Ms Luck complains was made (assuming that she engaged in the alleged conduct – a matter which the Court is not required to determine, at least at this stage) consistently with the policies as set out in section 1.6 of the People Handbook, which was in effect at the time of the decision and provided:

“1.6 Deal with the Customer

Introduction

Decisions about how to deal with an aggressive customer should be made by the Area or Office Manager following consultation with the employees involved. The HR/People Team may be contacted by employees and/or manager to discuss appropriate action, which depends on a number of factors, including the:

•    seriousness of the incident,

•    customer’s previous behaviour, and

•    background to the incident.

Possible actions

The action taken by Centrelink after a customer has been aggressive or violent could be:

•    to warn the customer, or

•    withdraw services.

…

Withdrawal of public contact services

…

In cases where the customer, after persistent warnings or charges, continues to harass employees, the Office Manager may consider withdrawing public contact services to the customer and making arrangements for the customer to deal with the office only by phone or post.”

31    This Handbook was, as has been noted, a “reference instruction”. It was not expressed to have been (nor was it) made under any express statutory authority. The Handbook took the form of a guide prepared by managers to ensure the occupational, health and safety of the respondent’s employees.

SUBMISSIONS

32    The respondent founded its competency argument on the decision of the High Court in Griffith University v Tang (2005) 221 CLR 99. Gummow, Callinan and Heydon JJ there held (at 130-1) that:

“The determination of whether a decision is “made … under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made … under an enactment” if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rules or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.”

33    Noting that the decision is not expressed to have been made pursuant to a particular legislative or regulatory provision, the respondent submitted that, the decision is, “at best” for Ms Luck, impliedly authorised by s 8 of the CSDA Act, s 6A of the CSDA Act and/or ss 7 and 8 of the SS(A) Act. In this respect, the respondent described the decision as “incidental, conducive or related to the performance of the [its] functions, which includes the provision of services to the public in accordance with [the Agreement]”.

34    The respondent submitted that the decision did not satisfy the second Tang criterion that the decision “confer, alter or otherwise affect legal rights or obligations”. The decision affected the applicant’s ability to enter the Centrelink premises in person in order to access its services. Ms Luck continued to be able to access the respondent’s services by telephone, fax or email. The respondent contended that the decision constituted “an exercise of the [its] power, as an occupier of premises, to withdraw the [a]pplicant’s permission to enter Centrelink premises, which is a permission granted to members of the public generally”. The decision, it was submitted, affected the applicant’s legal rights under general law and not by virtue of the CSDA Act, the SS(A) Act or the SS Act.

35    Ms Luck submitted that the decision had been made under s 8 of the CSDA Act and that the decision “altered and otherwise affected [her] rights and obligations and was directly related to the Secretary’s determination to pay … her benefits”.

CONSIDERATION

36    Tang was decided under the Queensland equivalent of the ADJR Act. There were, however, no material differences between the two statutes: they both applied to decisions made “under” enactments. Griffith University had terminated Ms Tang’s enrolment on the ground that she had fabricated research results. Under the Griffith University Act 1998 (Qld) the University was governed by a council and the council had power “to manage and control the university’s affairs and property.” The council had promulgated policies relating to academic misconduct which were reflected in a disciplinary code. The action had been taken against the student under that code. Although the code had been made and promulgated under the University’s governing statute, the decision to terminate her candidature was held to have been authorised by but not made under that Act. Nor did the Act give legal force or effect to the disciplinary decision. The relationship between Ms Tang and the university was consensual in nature and had ended when the university was no longer willing to allow her to continue her studies. The decision to terminate the student’s enrolment did not alter or otherwise affect any existing rights or obligations enjoyed by her. It followed that the decision to terminate Ms Tang’s candidature was not made under the Act in the necessary sense.

37    It has been suggested that Tang gives rise to “doubts about the possibility of seeking judicial protection of any kind under relationships covered only by ‘soft law’ – guidelines, procedure manuals, internal disciplinary codes, and so forth”: see Aronson M, “Private Bodies, Public Power and Soft Law in the High Court” (2007) 35 Fed L Rev 1 at 2 (emphasis added). The Handbook pursuant to which the decision impugned in this case was made, falls squarely within the genre of “soft law” to which Professor Aronson refers.

38    Whether those doubts are warranted or not need not be determined. What can be said is that the Handbook did not have statutory force. Nor did any of its contents (including those relating to the means by which clients could communicate with Centrelink) create, alter or impose any legal rights, duties or liabilities on Centrelink officers or Ms Luck. Ms Luck had no right, either under statute or otherwise, to communicate with the Centrelink office in any particular manner. The decision which she seeks to have reviewed did not deprive her of the ability to claim or receive benefits or to raise queries relating to her social welfare entitlements.

39    The decision about which Ms Luck complains is not a decision under an enactment for the purposes of the ADJR Act. The respondent’s objection to competency must, therefore, succeed.

40    The application must be dismissed with costs.

DISCRETION

41    I should add that, even had the proceeding gone to trial and Ms Luck had established that the impugned decision was a reviewable decision under the ADJR Act, I would not have been disposed to grant her relief in the absence of any evidence that the alleged decision had any ongoing effect on her dealings with Centrelink. It was made in 2008 and was expressed to operate, subject to review, for a period of three months.

Associate:

Dated:    20 November 2015