Federal Court of Australia

Ambrose v Commonwealth of Australia [2020] FCA 1439

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application for judicial review purportedly under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The application relates to the temporary suspension of the applicant’s Newstart allowance with effect from 1 August 2019 under s 42AF(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act) because he had failed to attend a scheduled meeting with his Employment Services Provider (ESP) which formed part of his mutual obligation requirements under his Newstart Employment Pathway (employment plan). The decision to suspend his allowance was made by the applicant’s ESP pursuant to a delegation by the Secretary under s 234 of the Administration Act. The allowance was reinstated on 20 August 2019 and the applicant was repaid in full the amount of the allowance for the duration of the suspension period.

2    The parties filed written submissions and were agreed that the decision should be made on the papers. In the event, I considered that it was appropriate to call the matter on for a short hearing in order to afford the applicant an opportunity better to explain what he sought to achieve by the proceedings, given the respondent’s submission among other things that the application lacked any utility and relief should be refused on this ground. At the hearing on 30 September 2020, the applicant made brief oral submissions consistent with his written submissions. The respondent was content to rely upon its written submissions.

3    For the reasons set out below, the application must be dismissed.

2.    EVIDENCE

4    The applicant relied upon his affidavits affirmed on 2 June 2020 and 15 July 2020 (applicant’s June and July affidavits respectively). The applicant’s July affidavit set out what the applicant described as his “final submissions” and was received as such. The applicant also relied upon his affidavit affirmed on 28 September 2020 (the applicant’s September affidavit). At the hearing on 30 September 2020, I received the last of these affidavits which was in the nature of submissions, as submissions only.

5    The respondent relied upon the affidavit of Ishani Das, Principal Government Lawyer, Services Australia, affirmed 12 May 2020 (the Das affidavit) which set out the results of Ms Das’ consideration of the files relating to the applicant held by the respondent and explained the course of relevant events.

3.    BACKGROUND

6    The applicant was a recipient of the Newstart allowance (now the JobSeeker payment). An applicant for Newstart must meet the requirements of Div 1, Part 2.12 of the Social Security Act 1991 (Cth) (Social Security Act). Relevantly in this matter, reference to the Social Security Act is to the Act as at 1 August 2019. Specifically, s 593 of the Social Security Act prescribed a number of criteria which a person must meet in order to qualify for a Newstart allowance in respect of a period. These matters included entry into an employment plan, if the Secretary so required, which records the mutual obligation requirements in respect of the applicant (s 593(1)(e), Social Security Act). A failure to comply with a requirement of the employment plan, such as failing to attend an appointment, could constitute a “mutual obligation failure” under s 42AC of the Administration Act. Under s 42AF(1)(a) of the Administration Act, where a person commits a mutual obligation failure the Secretary must determine that the person’s participation payment is not payable to her or him for a period. However, once the applicant meets her or his reconnection requirement, the suspension period ends and the person’s Newstart allowance is repaid in full for the whole of the suspension period: ss 42AL(3) and (4) and s 42AM, Administration Act.

7    One of the terms of the applicant’s employment plan was that he attend all appointments with his ESP as required (Annexure ID-1, Das affidavit). The applicant was notified on 7 August 2019 by SMS of an appointment with his ESP, MatchWorks scheduled for 8 August 2019 (Annexure BDA-1, applicant’s June affidavit). That appointment was confirmed by subsequent emails (Annexures BDA-2 to BDA-4, applicant’s June affidavit). However, the applicant did not attend the scheduled appointment.

8    On 8 August 2019, the Secretary wrote to the applicant advising him that his Newstart allowance had been “stopped” from 1 August 2019 because Centrelink’s “records show that you did not go to, or were late for an appointment arranged by your provider on 08 August 2019” (annexure ID-3, Das affidavit). The letter explained that the decision was made under social security law. It also advised that, if the applicant did not agree with the decision and had discussed it with his ESP:

•    Contact us so we can check the details and explain the decision.

•    Contact us and ask for a review of the decision. We will change it if it is wrong.

•    Contact the Administrative Appeals Tribunal (AAT) if you do not agree with the review officer’s decision.

•    If you do not agree with the decision of the AAT, you may be able to appeal further.

9    A decision under s 42AF of the Administration Act can be reviewed by an authorised review officer under s 129 of the Administration Act (subject to exceptions not presently relevant) and is subject to two tiers of review in the Administrative Appeals Tribunal (the Tribunal): see ss 142 and 179, Administration Act.

10    On 8 August 2019, the applicant sought review of the suspension decision in the Tribunal. However, that application was incompetent because of the requirement to pursue internal review first: see s 138H, Administration Act.

11    On 9 August 2019, the applicant sought internal review pursuant to s 129 of the Administration Act of the decision to suspend his Newstart allowance and contacted his ESP on 12 August 2019. As a result, the applicant’s Newstart was reinstated on 20 August 2019 and he was repaid the allowance in full for the entirety of the suspension period in line with the provisions to which I have referred (Annexure ID-9, Das affidavit).

12    The authorised review officer concluded her internal review on 26 November 2019 (and therefore after the commencement of these proceedings on 27 August 2019) and sent a letter to the applicant advising him of the outcome and giving reasons (Annexure ID-10, Das affidavit). The review officer relevantly affirmed the decision of 8 August 2019 to suspend the applicant’s Newstart allowance. She found that the applicant had failed to comply with a mutual obligation requirement in that he had not attended the appointment with his ESP, MatchWorks, on 8 August 2019 and had not given MatchWorks prior notice that he would not be attending. However the review officer noted that the allowance had been restored and no penalty was applied. The internal review decision also made findings on the applicant’s eligibility for Newstart which are not the subject of the present application.

4.    CONSIDERATION

13    By his amended originating application, the applicant seeks to challenge the alleged refusal by Centrelink to review the decision to suspend his Newstart allowance. The amended originating application alleges that the applicant is aggrieved by the conduct on the following grounds:

1.    The [Department of Employment, Skills, Small and Family Business (DESSFB)] delegated power under social security law to employment service provider (ESP). ESP acting as delegate of DES made decision to suspend [Newstart Allowance (NSA)].

2.    Centrelink required to review ESP decision to suspend NSA. Centrelink refuses to review ESP decision suspend NSA.

3.    In refusing to review the ESP decision, Centrelink blocks access to the Administrative Appeals Tribunal (AAT) to review decision to suspend NSA.

4.    AAT refuses to review decision to suspend NSA until a Centrelink Authorised Review Officer has reviewed the decision to suspend NSA.

14    The amended originating application identifies the following grounds of the application:

1.    that a breach of the rules of natural justice has occurred in connection with the conduct (s. 6(1)(a) Administrative Decisions (Judicial Review) Act 1977).

2.    That procedures that are required by law to be observed in respect of the conduct have not been observed (s. 6(1)(a) Administrative Decisions (Judicial Review) Act 1977).

15    The applicant seeks a declaration “that all actions taken in relation to the conduct be invalid” and an order directing the respondent “to observe the procedures that are required by law to be followed in respect to the conduct.”

16    As the respondent submits, the precise nature of the applicant’s legal grievances are unclear. As best can be discerned, it would appear that the applicant’s complaint concerns the scheme for merits review established by the Administration Act. However, it is not open to the Court to go behind laws enacted by the Parliament or to advise as to the policies which underlie them. As I explained at the hearing on 30 September 2020, the Court is not merely a complaints body.

17    The applicant also complained that the review officer did not undertake a merits review of the ESP’s decision but merely confirmed that the benefit had been restored. In his submission this meant that “the cycle of decisions by ESP’s to suspend the benefit remaining unaccounted for with no real or actual merit review process available for a decision by an ESP to suspend a benefit.” The fundamental difficulty however with this submission is that the applicant had been successful in his internal review application in having the suspension brought to an end and his payments restored without penalty. As such, there was nothing further which he could achieve on a merits review.

18    It follows that the short point is that the proceedings lack any utility in circumstances where the suspension has ended and full repayment has occurred without penalty. In this regard, as a matter of general principle, “a Court should refuse to address an advisory opinion in respect of issues of which there is no longer a controversy between the parties…” Bonan v Hadgkiss [2007] FCAFC 113; (2007) 160 FCR 29 (Bonan) at [8] (the Court). There is no reason why this general principle should not be applied. This is not, for example, an appeal where competing contentions about costs orders made at first instance remain live and other considerations might therefore weigh in favour of exercising the discretion to grant relief: cf Bonan at [10]. Here, as the respondent submits, “[i]t would be pointless for the Secretary (or the delegate) to reconsider the issue. Quashing the decision would have no practical consequence.” As such, relief should be refused in the exercise of discretion under s 16 of the ADJR Act: Aalders v Tax Agents’ Board (Qld) [2006] FCA 1442; (2006) 64 ATR 500 at [13]-[17] (Collier J) and the authorities there cited.

19    I also agree with the respondent’s submission that relief would have been refused in any event in the exercise of discretion under s 10(2)(b)(ii) of the ADJR Act if indeed there had been any live issue between the parties. Section 10(2)(b)(ii) provides that the Federal Court has a discretion to refuse to grant relief under the ADJR Act where adequate provision is made by any law other than the ADJR Act for review of the decision in question by, relevantly, a tribunal. In this case, as I have earlier explained the internal review undertaken by the review officer was subject to two tiers of review in the Tribunal under the Administration Act. Those avenues of review clearly constitute “adequate provision” for review capable of attracting the discretion in s 10(2)(b)(ii). Furthermore, these avenues would have been better suited to the efficient resolution of the dispute and enabled a full merits review to be undertaken, if there had indeed been any issues remaining between the parties to resolve: see e.g. McGowan v Migration Agents Registration Authority [2003] FCA 482; (2003) 129 FCR 118 at [49] and [69] (Branson J); Dauguet v Centrelink [2015] FCA 395 at [159]-[160] (Mortimer J).

5.    CONCLUSION

20    The application must be dismissed. As the respondent has been wholly successful in defending the application, the applicant is to pay the respondent’s costs as agreed or assessed.

Associate:

Dated:    8 October 2020