Secretary, Department of Family & Community Services v Lind [2004] FCAFC 20 (13 February 2004)

Last Updated: 13 February 2004

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Family & Community Services v Lind

[2004] FCAFC 20

SOCIAL SECURITY – whether a notice issued under s 68 of the Social Security (Administration) Act 1999 (Cth) requiring a person to provide information can be construed as imposing an obligation to do so under s 630AA of the Social Security Act 1991 (Cth) – application of s 244 of the Social Security (Administration) Act 1999 (Cth) following repeal of ss 657 and 658 of the Social Security Act 1991 (Cth)




Administrative Appeals Tribunal Act 1975 (Cth), s 44
Family and Community Services Legislation Amendment Act 2003 (Cth), Schedule 4 Item 53
Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 (Cth)
Social Security (Administration) Act 1999 (Cth), ss 3, 67, 68, 244, 245
Social Security Act 1991 (Cth), ss 23, 550A, 576A, 630AA, 657, 658
















SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v MOIRA LIND
W 79 OF 2003




SPENDER, BRANSON AND STONE JJ
13 FEBRUARY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 79 OF 2003

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A DEPUTY PRESIDENT

BETWEEN:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPELLANT
AND:	MOIRA LIND RESPONDENT
JUDGES:	SPENDER, BRANSON AND STONE JJ
DATE OF ORDER:	13 FEBRUARY 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be allowed;
2. The decision of the Administrative Appeals Tribunal made on 13 March 2003 be set aside;
3. The matter be remitted to the Administrative Appeals Tribunal for reconsideration in accordance with these reasons; and
4. There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 79 OF 2003

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A DEPUTY PRESIDENT

BETWEEN:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPELLANT
AND:	MOIRA LIND RESPONDENT

JUDGES:	SPENDER, BRANSON AND STONE JJ
DATE:	13 FEBRUARY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of the Administrative Appeals Tribunal (‘Tribunal’) brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The factual background to the appeal is not in dispute.

2 The respondent was employed by Caltex on a casual basis from 1 to 15 November 2000. Although at the time the respondent was in receipt of a Centrelink payment, namely a newstart allowance, she did not notify Centrelink of her employment with Caltex. In February 2001, in response to a Centrelink enquiry, Caltex advised Centrelink of the details of the respondent’s employment. On 18 June 2001 Centrelink decided that, as a consequence of the respondent not declaring her income from Caltex, her newstart allowance would be reduced by 18% from 18 June 2001 for 26 weeks. An authorised review officer in Centrelink affirmed this decision on 17 July 2001. On 3 September 2001 the Social Security Appeals Tribunal (‘SSAT’) set aside the decision and on 13 March 2003 the Administrative Appeals Tribunal (‘Tribunal’) affirmed the decision of the SSAT although on different grounds.

3 The appellant’s claim before this Court is founded on s 630AA of the Social Security Act 1991 (Cth) (‘Social Security Act’) which provides for the withdrawal or reduction of a newstart allowance where a person has failed to supply information concerning employment. Section 630AA states:

‘(1) If a person:

(a) refuses or fails, without reasonable excuse, to provide information in relation to a person’s income from remunerative work (the failure); or
(b) knowingly or recklessly provides false or misleading information in relation to the person’s income from remunerative work (the provision of information);

when required to do so under a provision of this Act, a newstart allowance is not payable to the person.
(2) If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:

(a) if the failure or the provision of information is the person’s first or second activity test breach in the 2 years immediately before the day after the failure or the provision of information – an activity test breach rate reduction period applies to the person; or
(b) if the failure or the provision of information is the person’s third or subsequent activity test breach in the 2 years immediately before the day after the failure or the provision of information – an activity test non-payment period applies to the person’

Legislative history

4 To understand the issue in this appeal it is necessary to consider the legislative history of the relevant provisions. Before 20 March 2000, ss 657 and 658 of the Social Security Act provided that the appellant might give written notice to a recipient of a newstart allowance requiring him or her to provide information about any matter that might affect the payment of the allowance. On 20 March 2000 these sections were repealed by the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 (Cth) (‘Amendment Act’). On the same day the relevant provisions of the Social Security (Administration) Act 1999 (Cth) (‘Administration Act’), including ss 67 and 68, commenced. These sections provide that the appellant may give notice requiring any person in receipt of social security payments (which includes a person in receipt of a newstart allowance), or who has made a claim for payment that has not been rejected, to provide information about any matter that might affect such payments. While the Amendment Act replaced some references in the Social Security Act to repealed provisions with references to the substitute sections in the Administration Act, there was no amendment to s 630AA, which continued to refer to ‘a provision under this Act’.

5 The Administration Act was designed to consolidate the administrative provisions relating to social security and, in doing so, introduced the concept of the ‘social security law’; see Explanatory Memorandum to the Social Security (Administration) Bill 1999. Section 3(3) of the Administration Act provides that the term ‘social security law’ is a reference to the Administration Act, the Social Security Act and ‘any other Act that is expressed to form part of the social security law’. Section 3(4) reinforces the concept by providing that a reference in the Administration Act to a provision of the social security law is a reference to a provision of those Acts. Similar provision is made in s 23(15) and (16) of the Social Security Act. This approach is also reflected in ss 244 and 245 of the Administration Act, which respectively, concern the construction of references to the Social Security Act and the correspondence of provisions.

Construction of s 630AA(1)

6 The appellant claims that the respondent failed to provide information about her employment with Caltex despite being required to do so ‘under a provision of this Act’. In making this claim the appellant relies on a letter dated 29 August 2000 that had been sent to the respondent pursuant to s 68 of the Administration Act. The respondent takes issue with this claim and submits that notification of a requirement to provide information under the Administration Act does not come within the terms of s 630AA(1).

7 The respondent, in support of this submission, relies on the definition of ‘this Act’ in s 23 of the Social Security Act which, at all relevant times, was:

‘this Act means this Act as originally enacted or as amended and in force at any time.’

The respondent submits that the words, ‘this Act’ in s 630AA(1) are ‘unambiguous’ and that the section can only apply to someone who has failed to comply with a provision of the Social Security Act and not to a person who has failed to comply with a provision of another Act, including the Administration Act. The respondent points out that there is no direction in the Social Security Act extending the definition of ‘this Act’ to include the Administration Act. Moreover, the respondent contends that the references in s 23(15) and (16) of the Social Security Act and s 3(3) and (4) of the Administration Act to the social security law (see [5] above) could not have been intended to repeal the words, ‘this Act’ in s 630AA(1).

8 In passing, it should be noted that any problem arsising from the term, ‘this Act’ in s 630AA(1) was remedied as from 15 April 2003 by the Family and Community Services Legislation Amendment Act 2003 (Cth), Schedule 4 Item 53 which replaced the words, ‘this Act’ with ‘the social security law’.

9 In his oral submissions at the hearing of this appeal, counsel for the respondent expressly conceded that prior to the repeal of s 658 the reference in s 630AA(1) to a ‘provision of this Act’ was a reference to ss 657 or 658 of that Act. He submitted however that s 244 has only a limited effect and

‘does no more than treat the repealed provision as being construed as a reference to the corresponding provision of the Administration Act. It does not incorporate the provisions of the Administration Act into the [Social Security Act].’

10 This is the approach adopted by the Tribunal in this matter. The Tribunal held that in the absence of any provision having the effect that the Administration Act and the Social Security Act are to be read and construed as one or that they are incorporated into one Act, the appellant’s claim could not succeed unless the Tribunal was prepared to ascribe to s 630AA ‘a meaning which the plain words will not bear’ and which could not be implied under accepted rules of statutory construction.

11 On the construction advanced by the respondent, and accepted by the Tribunal, the effect of the repeal of ss 657 and 658 was that, despite references in ss 550A, 576A and 630AA to a person being required to provide information ‘under this Act’, there was no means under the Social Security Act of imposing such a requirement on the recipient of a newstart allowance. While this possibility should not be dismissed peremptorily, it is not a construction that should be lightly adopted.

12 The appellant’s submission that the respondent was required to provide the information about her employment with Caltex relies on s 244 of the Administration Act which provides as follows:

‘A reference in:

(a) a provision of a law of the Commonwealth or a Territory enacted before 20 March 2000 (whether or not the provision has come into operation); or
(b) an instrument or a document;

to a provision of the [Social Security Act] that has been repealed by the [Amendment Act] is, on and after 20 March 2000, to be construed as a reference to the corresponding provision of this Act.

13 The appellant submits that before the repeal of s 658, the closing words of s 630AA, ‘when required to do so under a provision of this Act’, referred to s 658 which is a provision of the Social Security Act. The reference to s 658 falls within s 244(a) as it occurs in ‘a provision of a law of the Commonwealth ... enacted before 20 March 2000’. Section 658 of the Social Security Act was repealed by the Amendment Act. Consequently after its repeal s 244 applied so that the reference is now to be construed as a reference to s 68 of the Administration Act.

14 On this construction of s 244 and 630AA(1), it is not necessary for the provisions of the Administration Act to be incorporated into the Social Security Act. It is only required to construe the reference to ‘a provision of this Act’ in s 630AA(1) as a reference to s 658 which, it is not in contention, was repealed by the Amendment Act. That being so the obligation to provide information arises where notice is given under the corresponding provision of the Administration Act.

15 In our view the appellant’s construction is correct. In addition to according with a sensible interpretation of the relevant sections, it has the virtue of avoiding a void or hiatus in the legislation. As the Tribunal commented, such a construction is not always possible. In this case, however, such a construction is available without any distortion to the words of the provisions under consideration. For this reason the decision of the Tribunal must be set aside.

16 In the light of the conclusion expressed in the previous paragraph this matter must be remitted to the Tribunal for reconsideration in accordance with the reasons of the Court. The Tribunal’s conclusion on the question of construction meant that it did not need to make any findings as to whether the respondent failed to provide information ‘without reasonable excuse’ or ‘knowingly or recklessly’ provided false or misleading information within the meaning of s 630AA(1). Those findings are crucial to a decision as to whether the respondent’s newstart allowance should be subject to the reduction referred to in [2] above.

17 The parties are in agreement that there should be no order as to costs and accordingly the orders of the Court are:

1. The appeal be allowed;

2. The decision of the Administrative Appeals Tribunal made on 13 March 2003 be set aside;
3. The matter be remitted to the Administrative Appeals Tribunal for reconsideration in accordance with these reasons; and

4. There be no order as to costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Branson and Stone.

Associate:

Dated: 13 February 2004

Counsel for the Appellant:	Mr Allanson
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr Tsaknis
Solicitor for the Respondent:	PE Purvis & Co
Date of Hearing:	10 February 2004
Date of Judgment:	13 February 2004