'Jobseeker signed PFWA agreeing to attend Jobs Australia for jobsearching activities on Mondays and Wednesdays. Jobseeker told me that he had 2 interviews and one on Wednesday, however when I contacted the employers they had not heard from him, and indeed one of them was closed on the day. Jobseeker is not contactable by telephone, and has not provided us with a resume.'
An officer of Centrelink spoke to Mr Simpson on 20 May. Mr Simpson told him that Mr Despot was avoiding doing Intensive Assistance.
11 On 4 June 2002, an officer of Centrelink, being a delegate of the Secretary of the Department of Family and Community Services, decided to impose an 18% reduction on Mr Despot's Newstart Allowance payments from 4 June 2002 until 20 December 2002. That decision was reviewed and affirmed on 12 July 2002 by an Authorised Review Officer.
12 Mr Despot applied to the SSAT for review of the decision to reduce his Newstart Allowance. On 3 September 2002, the SSAT affirmed the decision under review. Mr Despot then applied to the AAT on 10 September 2002 for review of the SSAT decision. The SSAT decision was affirmed by the AAT on 4 July 2003. Mr Despot then filed a notice of appeal in this Court on 12 August 2003 alleging denial of natural justice by the AAT.
The AAT Decision
13 The AAT referred to Mr Despot's written statement and his oral evidence. He told the AAT that he was appealing against the decision of the SSAT because he had not signed the Schedule of Agreed Activities and had not been told that he had to supply written evidence of job interviews which he had attended.
14 Mr Despot told the AAT that he had signed the Preparing for Work Agreement on 30 April 2002. He had attended an appointment with Cliff Simpson on 6 May 2002 about the Schedule. He had attempted to negotiate the Schedule with Mr Simpson who would not negotiate and so he refused to sign. The first time he saw the signed Schedule was when he was sent the documents from the decision-maker which were to be tendered before the AAT. He had no idea who had signed or initialled the Schedule and did not believe it was his writing. He said he had refused to sign because Mr Simpson would not add in writing that if he were seeking work on Mondays and Wednesdays mornings when he was expected to attend the Community Services Room at Jobs Australia, he did not have to attend. He claimed that Mr Simpson had agreed this would be acceptable but would not put it in writing. He told the AAT that on 13 May he called Mr Simpson and told him he was going to look for work at Caesars Restaurant in Fremantle on that day and at the Lavender Patch on Wednesday of that week. He said Mr Simpson wished him good luck. He attended each restaurant leaving his CV. Mr Despot was cross-examined before the AAT and asked why he had chosen to arrange to go to the restaurants at the times set aside for attendance at the Community Services Room. Mr Despot claimed that if he left it later in the day the restaurants would be busy. He chose to visit restaurants on days that they are closed because it was easier to speak to the management. It was his normal practice to look for jobs on Saturday and Wednesday mornings in the newspapers.
15 Mr Simpson gave evidence to the AAT. He told the AAT that on 6 May 2002 he had completed a skills audit with Mr Despot and negotiated the Schedule with him. Mr Despot had signed and initialled it and he also signed it. He believed that Mr Despot received a copy. There was no verbal agreement that Mr Despot could cold canvass rather than attend at the Community Services Room on days such as 13 and 15 May. Mr Simpson had attempted to negotiate with Mr Despot but found him fairly non-responsive. Mr Simpson told the Tribunal that Mr Despot contacted him on 13 May 2002, and advised he was attending interviews at Caesars and Louisiana's on that day and the Lavender Patch on Wednesday 15 May and so could not attend Jobs Australia. When Mr Simpson subsequently rang to check he was told by all three restaurants that they had neither interviewed anyone on those days nor, in one case, had even been open.
16 Mr Simpson was asked why the Schedule of Agreed Activities was not attached to the Agreement of 30 April. Mr Simpson said it was standard procedure to set up a one to one interview a week or so after the signing of the Agreement in order to do the skills audit and sign up the Schedule. He was asked in cross-examination why the need to provide proof about job searching activities was not included in the Schedule. He replied that it was taken for granted that a client would know that if they said they were doing something they might need to provide proof.
17 The AAT found that Mr Despot was properly required by the respondent to enter into a Newstart Activity Agreement and that he did so on 30 April 2002. Although part of the Agreement appears to assume that the jobseeking party already has in place a Preparing for Work Agreement, inquiries by the AAT had revealed that in fact this was not the case and that the Agreement of 30 April 2002 was the first that Mr Despot had entered into.
18 The AAT considered whether the Schedule of Agreed Activities formed part of the Agreement. The AAT had no evidence before it as to whether the Schedule was ever physically attached to the Agreement. However, it was of the view that the word 'attached' did not require the Agreement and the Schedule to be prepared and physically joined at the same time. It is envisaged that there is a connection between them and the evidence supported the conclusion that Mr Despot knew that he had to attend and did attend Jobs Australia on 6 May 2002 to negotiate the Schedule. The AAT preferred and accepted Mr Simpson's evidence that Mr Despot did enter into and initial the Schedule on 6 May 2002. The fact that he subsequently contacted Mr Simpson on 13 May 2002 indicated that he was cognisant of the terms of the Schedule, in particular, the need to attend Jobs Australia on that day or provide a reason why he would not be attending.
19 The AAT was satisfied also that the evidence supported the view that there was no additional agreement between Mr Simpson and Mr Despot that cold canvassing was an acceptable alternative to attending Jobs Australia on 13 May and 15 May 2002. The Tribunal said:
'The Tribunal is satisfied that the applicant was properly required by the respondent to enter into the agreement of 30 April 2002 as he did and that the agreement and the schedule required the applicant to attend JA for intensive assistance. The applicant failed to attend on 13 and 15 May 2002 and so did not comply with the agreement.'
20 The AAT then identified the question before it as whether, pursuant to s 593(1)(f) and s 593(2A) of the Act, Mr Despot took reasonable steps to comply with the terms of the Agreement. The AAT identified two elements to be considered in that determination. Section 593(2A) provides that a person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement unless there has been a failure to comply with the agreement and unless the main reason for failing to comply with the agreement involved a matter that was within the person's control or reasonably foreseeable by the person.
21 The AAT referred to the judgment of Mansfield J in Secretary, Department of Employment, Education and Youth Affairs v Ferguson [1997] FCA 663 where his Honour considered the construction of the terms 'within the person's control' and 'reasonably foreseeable' in the context of the Employment Services Act 1994.
22 The AAT concluded that it was clearly within the applicant's control to attend at Jobs Australia on 13 and 15 May 2002 in accordance with the Schedule. Regardless of whether he appreciated the difference between an interview and cold canvassing he had not had an interview and could not provide any compelling reason why he needed to cold canvass on the mornings of 13 and 15 May 2002. The AAT went on to say that there was nothing in the evidence that could show that the circumstance which prevented him from attending the interview was not reasonably foreseeable by him. It did not accept that Mr Despot believed he could cold canvass instead of attending Jobs Australia. His decision to cold canvass on those mornings did not result from job advertisements, but was his usual and preferred form of job-hunting. He gave no reason why they could not be done at other times or needed to be specifically done at those times. The AAT accepted that the relationship between Mr Despot and Mr Simpson was strained and not an ideal basis on which to work together to improve the applicant's job prospects. It concluded however that it was reasonably foreseeable that the decision to cold canvass at that time would prevent him from attending Jobs Australia.
23 The AAT was satisfied that Mr Despot had not taken reasonable steps to comply with his Preparing for Work Agreement and it affirmed the decision 'to impose an 18% activity test breach rate reduction'. It may be noted that the AAT published some supplementary reasons on 16 July 2003 making corrections to pars 20, 24 and 34 of its decision. These each related to a misstatement of the date of the Preparing for Work Agreement.
Grounds of Appeal
24 The notice of appeal originally lodged on 9 July 2003 by Mr Despot simply raised a question of fact which picked up the misdating of the Preparing for Work Agreement referred to in the AAT's reasons. It also referred to another paragraph of the decision which was said to contradict evidence in Mr Simpson's statement tendered to the AAT.
25 The original notice of appeal purported to take issue with factual findings of the AAT. This Court does not have jurisdiction to review AAT decisions on questions of fact, but only on questions of law. On 31 July 2003, I made an order striking out the notice of appeal and an order in the following terms:
'The appeal will stand dismissed from 15 August 2003 unless on or before 14 August 2003 the applicant has filed a substituted notice of appeal.'
26 On 12 August 2003, a substituted notice of appeal was filed asserting that the questions of law raised on the appeal involved denial of natural justice. The grounds were specified as follows:
'1. Denial of right to tender evidence.
2. Unlawful Contract.
3. Denial of right to negotiate contract.'
27 On 25 August 2003, I made an order that Mr Despot file and serve written submissions on each of the grounds relied upon by 3 November 2003 and that the respondent file and serve written submissions in reply by 17 November 2003.
The Applicant's Submissions
28 The hearing of the appeal was brief. Mr Despot relied upon his written submissions, which were also brief, and can be reproduced as follows:
'1. Denial of right to tender evidence.
At the AAT hearing, I asked Ms Linda Savage Davis if I would submit character referances (sic) to the tribunal. She replied, "it wasn't necessary because my character wasn't in question. However, when I received her decission (sic), the contrary of everything she said on the matter seemed to be so.
(Ref. P 12 T8, P10 T7)
2. Unlawful Contract.
Ms Carol Gillett, a team leader in the Contracts Section of the Department of Employment and Workplace Relations, says the practice Mr Cliff Simpson and Ms Jodi Hood (Jobs Australia) engaged in, contravenes their contractual requirements.
(Ref. P 16 DESPOT FACTS AND CONTENTIONS point 82, p 45 AAT Judgement point 27).
3. Denial of right to negotiate contract.
Mr Cliff Simpson at no time gave me the opportunity to negotiate any of the contracts he asked me to sign.'
Statutory Framework
29 Relevant parts of the provisions of the Social Security Act relating to Newstart Allowances and Newstart Activity Agreements are as follows:
'593(1) Subject to sections 596A, 597 and 598, 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; or
(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
…
(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; and
(f) while the agreement is in force, the person satisfies the Secretary that the person is taking reasonable steps to comply with the terms of the agreement;
593(2A) For the purposes of paragraph (1)(f) or (2)(f), a person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement unless the person has failed to comply with the terms of the agreement and:
(a) the main reason for failing to comply involved a matter that was within the person's control; or
(b) the circumstances that prevented the person from complying were reasonably foreseeable by the person.'
30 Section 601 of the Act sets out the ways in which persons may satisfy the activity test which is referred to in s 593(1). One of those ways is by compliance with the terms of a Newstart Activity Agreement. This is covered in ss 601(4) to (6):
'601(4) A person also satisfies the activity test in respect of a period if, throughout the period, the person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement between the Secretary and the person.
601(5) If a person fails to take reasonable steps to comply, throughout a period, with the terms of a Newstart Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1).
601(6) For the purposes of this section, a person takes reasonable steps to comply with a notice under subsection (1A), with a requirement of the Secretary under subsection (2), or with the terms of a Newstart Activity Agreement (as the case requires) unless the person has failed so to comply and:
(a) the main reason for failing to comply involved a matter that was within the person's control; or
(b) the circumstances that prevented the person from complying were reasonably foreseeable by the person.'
31 Section 604 of the Act provides for Newstart Activity Agreements as follows:
'604(1) Subject to subsection (1A), if a person is in receipt of a newstart allowance, the Secretary may require the person to enter into a Newstart Activity Agreement.
604(1A) A person who, under Subdivision BA, is not required to satisfy the activity test is not to be required to enter into a Newstart Activity Agreement.
604(1B) 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 agreement is to be negotiated.
604(1C) A Newstart Activity Agreement is a written agreement in a form approved by the Secretary and the Employment Secretary. The agreement is between the person and the Secretary.
Sections 605 and 606 provide:
'605(1) Subject to this section, if a person who has made a claim for, or who is in receipt of, a newstart allowance is not a party to a Newstart Activity Agreement, the Secretary may require the person to enter into such an agreement.
605(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.
605(2A) Subsections (1) and (2) do not apply to a person who is qualified for a newstart allowance only under subsection 593(1B).
605(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 agreement is to be negotiated.
606(1) A Newstart Activity Agreement with a person is to require the person to undertake one or more of the following activities approved by the Secretary:
(a) a job search;
(b) a vocational training course;
(c) training that would help in searching for work;
(d) paid work experience;
(e) measures designed to eliminate or reduce any disadvantage the person has in the labour market;
(ea) subject to section 607A, development of self-employment;
(eb) subject to section 607B, development of and/or participation in group enterprises or co-operative enterprises;
(ec) an approved program of work for unemployment payment;
(f) participation in a labour market program;
(fa) participation in a rehabilitation program;
(fb) an activity approved by the Employment Secretary under the CSP;
(g) an activity proposed by the person (such as unpaid voluntary work proposed by the person).
606(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.
…
606(5) An agreement with a person:
(a) may be varied or suspended; and
(b) if another Newstart Activity Agreement is made with the person, may be cancelled; and
(c) may be reviewed from time to time at the request of either party to the agreement; and
(d) may be cancelled by the Secretary after a review under paragraph (c).
606(6) An allowee who is a party to an agreement is to notify the Secretary of any circumstances preventing or affecting the allowee's compliance with the agreement.'
32 There are penalties for failure to comply with a Newstart Activity Agreement which are referred to in s 626 thus:
'626(1) Subject to subsection (2), if
(a) a person is required to take reasonable steps to comply with the terms of a Newstart Activity Agreement in order to qualify, or to continue to qualify, for a newstart allowance; and
(b) the person fails to take reasonable steps to comply with the terms of the Newstart Activity Agreement (the failure);
a newstart allowance is not payable to the person because of the failure.'
33 It is also necessary to refer to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) which restricts the grounds upon which decisions by the AAT can be reviewed in this Court as follows:
'A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.'
The effect of that provision is that the AAT's findings on matters of fact cannot be reviewed on appeal unless those findings are invalidated by an error of law. The error of law must arise on the facts which the Tribunal has found or it must invalidate the findings made or must have led the Tribunal to omit to make a finding it was required to make - Waterford v Commonwealth (1987) 163 CLR 54 at 77. The identification of a question of law does not open the door to a general review of the AAT's findings of fact:
'The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal, rather, it and it alone is the subject matter of the appeal and the ambit of the appeal is confined to it.'
Brown v Repatriation Commission (1985) 60 ALR 289 at 291
Ground 1 - Denial of Right to Tender Character Evidence
34 It was conceded by the respondent that, although it did not appear in the transcript of the hearing before the AAT, there was an exchange between Mr Despot and the AAT member to the effect set out in Mr Despot's first ground of appeal, namely that when he sought to submit character references he was told it was not necessary because his character wasn't in issue.
35 Nothing in the AAT's reasons for decision depended upon an assessment of Mr Despot's character. Certainly, the AAT preferred Mr Simpson's evidence over that of Mr Despot on the question whether he entered into and initialled the Schedule on 6 May 2002. It did so on the following stated basis, set out in [28] of the reasons:
'The applicant's recollection of a number of issues was unclear. The applicant was uncertain whether the signature on the agreement was his, although he did not deny signing it. He had difficulty recalling any other work-related activities he undertook in the week commencing 13 May 2002. Mr Simpson on the other hand was unequivocal in his recollection of the evidence of 6 May 20002. The applicant's evidence that he contacted Mr Simpson on 13 May 2002, indicates to the Tribunal that he was cognisant of the terms of the schedule, in particular the need to attend JA on that day or provide a reason as to why he would not be attending.'
36 Moreover, in finding against Mr Despot the AAT did so, on the assumption favourable to him, that he had actually engaged in cold canvassing on the dates and at the times which he claimed. There was no adverse finding that could be said to turn on his credibility in any way that would have been assisted by character references. There was therefore no basis in the first ground of appeal.
Ground 2 - Unlawful Contract
37 The second ground of appeal refers back to the statement of facts and contentions submitted by Mr Despot to the Tribunal. In par 82 of that statement, Mr Despot quoted a statement attributed to Ms Carol Gillett a Team Leader in the Contracts Section of the Department of Employment and Workplace Relations in Perth. According to his statement, she said that the Department of Employment and Workplace Relations expects that when Job Network Providers have the Preparing for Work Agreement signed there is a Schedule of Agreed Activities attached. She was said to have stated that before signing the Preparing for Work Agreement it is expected the relevant case manager will have negotiated an individualised plan of activities taking into account the particular circumstances of the client. The Schedule of Agreed Activities is a requisite part of the Preparing for Work Agreement. The Preparing for Work Agreement, including the Schedule of Agreed Activities, is referred electronically for approval by a Contract Manager in the Department of Employment and Workplace Relations. If a Job Network Provider were having individuals sign the Preparing for Work Agreement form without an attached Schedule of Agreed Activities, this would be a matter for investigation by the Department of the Job Network Provider as such a practice contravenes its contractual requirements.
38 Assuming that the report of what Ms Gillett said was accurate, she was referring simply to administrative requirements or practices. Those do not go to the lawfulness of the contract. In any event, her opinion is not relevant to the question of the lawfulness of the contract.
39 The question of law that emerges here is whether non-compliance with a Schedule of Agreed Activities, negotiated and signed after the signing of the Preparing for Work Agreement could constitute non-compliance with the Preparing for Work Agreement. On the facts as found by the AAT the Preparing for Work Agreement was not complete until the content of the Schedule of Agreed Activities was agreed. As the AAT found, the Schedule of Agreed Activities was negotiated on 6 May 2002 and initialled by Mr Despot on that date. Whether or not the Schedule was physically attached to the Preparing for Work Agreement was immaterial. On the facts as found by the AAT, it was the Schedule referred to in the Agreement. Non-compliance with the Schedule therefore constituted non-compliance with the Agreement. The second ground of appeal therefore fails.
Ground 3 - Denial of Right to Negotiate Contract
40 This is not a ground which raises any question of law upon which a review of the AAT decision could be based. The third ground fails.
CONCLUSION
41 For the preceding reasons the appeal will be dismissed with costs.
I certify that the preceding forty-one
(41) numbered paragraphs are a true
copy of the Reasons for Judgment
herein of the Honourable Justice
French.
Associate:
Dated: 25 February 2004
The applicant appeared in person