DSDJ v Secretary, Department of Social Services

1. The solicitors for the respondent, by the senior partner in charge of the firm, make and file an affidavit forthwith explaining why the Court's orders for the filing and service of the application book were not complied with.
2. Consideration of the action, if any, to be taken in consequence of the non-compliance be reserved.
3. Insofar as the same may be necessary, leave to amend the notice of appeal is granted to the applicant in terms of the amended notice of appeal filed on 15 November 2024.
4. The appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 On 10 June 2024, the then Administrative Appeals Tribunal decided, amongst other things, that pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), a decision of 7 March 2023 by the Tribunal's Social Services and Child Support Division (2023/1617) with respect to the cancellation of the disability support pension of the applicant (who had been assigned the pseudonym "DSDJ") with effect from 28 June 2006 be affirmed. The applicant has appealed against that decision pursuant to s 44 of the AAT Act. Such an appeal lies only on a question of law. The questions and related grounds are expressed in the applicant's amended notice of appeal which was filed on 15 November 2024. 2 The applicant acted on her own behalf in the conduct of her appeal. It was obvious that the applicant is an intelligent lady who was seized with the subtleties raised by this case in relation to the construction and application of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). She conducted her case with the utmost courtesy and considerable focus, notwithstanding an affliction to which I shall shortly refer and, further, a quite understandable personal angst associated with both some of the background circumstances to her case, as well as its very particular impact upon her. 3 I should also record that I was much assisted as well by submissions made on behalf of the respondent Secretary to the Department of Social Services by Mr Freeburn of counsel. 4 Before going into detail in relation to the questions raised and how, in my view, they should be answered, it is first desirable to make some observations in relation to the venue of the hearing. The appeal was heard, and is now being determined, in Bundaberg. The applicant is functionally blind. She has been in receipt since 2013 of a disability support pension under the Social Security Act 1991 (Cth) as a sequel to a claim for such assistance based upon her condition. At an earlier case management hearing, it became obvious that to hear the case in Brisbane would visit a very particular hardship, more than mere inconvenience, upon the applicant, particularly in light of the condition mentioned. 5 In my view, it is singularly important in the administration of justice for this Court, which exercises a national jurisdiction, to deliver, as far as is reasonably possible, justice locally. In Queensland, of all the Australian states, that consideration has a very particular resonance. As is well-known to Queenslanders - although, with respect, not perhaps as well-known beyond Queensland - this State is the most decentralised in Australia. The Supreme Court in its administration recognises this by the outposting of resident judges in the major regional coastal cities, Rockhampton, Townsville and Cairns. It also recognises that by the conduct of regular circuits to other major population centres within Queensland, including Bundaberg. 6 Under the Constitution, it would have been possible for the federal jurisdiction I am exercising to have been conferred on a State Supreme Court, via the use of what has been termed to be the "autochthonous" expedient: R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, at 268 per Dixon CJ. Almost half a century ago, the Parliament made a value judgement to establish separate courts under Ch III: initially, the Family Court of Australia in 1975 and later, in 1976, the Federal Court of Australia. Later again, what was initially the Federal Magistrates Court was established in 2000. 7 It is neither necessary nor appropriate to comment upon the value judgement represented by these changes. Hitherto separate courts, apart from the High Court, had been established in highly specialist areas, namely bankruptcy and industrial relations, with those courts in turn not having resident judges outside Sydney or Melbourne. So there was quite a fundamental change half a century ago, but the effect of that should not, in my view, be to deny those in regional Queensland a different access to the exercise of Commonwealth judicial power. This Court is not a capital city court. That is not to say that there are not many cases where it is convenient and quite reasonably possible for the jurisdiction to be exercised in a capital city where judges are resident. But this particular case, in my considered view, was most emphatically not one of those. 8 I turn, then, to consider the questions raised. With considerable and commendable forensic discernment, the applicant came to focus upon whether or not a letter sent to her by an officer of the respondent's department, dated 31 May 2006, did or did not satisfy a jurisdictional condition, which enlivened a discretion to suspend, and then cancel, her then disability support pension under s 81 of the Administration Act. The applicant had been receiving such a pension from 1992 for reasons other than her present condition of blindness. 9 The letter of 31 May 2006, as extracted in the Tribunal's reasons, is set out below: ... The purpose of this letter is to gather information to help us make the right decision about your Disability Support Pension. I refer to our recent telephone conversation regarding the [name redacted] Family Trust, property, loans and other income & asset assessments which may affect your entitlement to the Disability Support Pension. We will require the following information to allow us to complete a review of your and your partner's entitlement. Would you please provide the following: 1/ A profit and loss statement for the trust from commencement of business. 2/ A balance sheet for the trust detailing individually all of the assets held in trust and all the liabilities owed by the trust. 3/ A copy of all loan documents held either personally or by [name redacted] Pty Ltd as trustee for the trust. We also require loan statements for these. 4/ The attached SA220 fully completed. 5/ Statement from you regarding how [name redacted] will pay you for [property name redacted]. Please mail any information we have requested to this office or personally bring it to your nearest Centrelink Office. Original documents can be returned by registered mail at your request. The authority for this request is under social security law. If you would like to talk about this letter or are unable to provide the requested documents please phone me on [number redacted]. You need to contact us or supply the documents within 21 days after the day on which this letter is given to you to avoid possible suspension of your Disability Support Pension..." [Tribunal redactions, line breaks in original letter added] 10 It will be noticed that the Tribunal redacted the name of the applicant in citing a relevant part of the letter of 31 May 2006. The Tribunal was persuaded that the circumstances of the case were such as to warrant the assignment of a pseudonym to the applicant. Those circumstances included a very lengthy, sad and unfortunate history of the applicant being a victim of domestic violence at the hands of a now ex-husband, who in turn had become the subject of apprehended violence orders. Having regard to the information concerning that history, which is to be found in the application book, I was likewise persuaded that the case was one which was desirably conducted with the assignment of a like pseudonym to the applicant. So much was recognised as well by the respondent, who did not oppose the assignment of a pseudonym. 11 Turning, then, to the letter, it is noteworthy for the generalised reference to it having been given, "under social security law". There is no reference to any more specific statutory authority. 12 Section 81 of the Administration Act provides: Cancellation or suspension for non-compliance with certain notices (1) If: (a) a person who is receiving a social security payment (other than a jobseeker payment) has been given: (i) a notice under section 67 or 68 that requires the person to give the Department a statement; or (ii) a notice embodying a requirement under Division 1 of Part 5; and (b) the person does not comply with the requirement of the notice; the Secretary may determine that the social security payment is to be cancelled or suspended. (2) If: (a) a person and his or her partner (the partner) are each receiving a social security payment; and (b) the partner has been given: (i) a notice under section 67 or 68 that requires the partner to give the Department a statement; or (ii) a notice embodying a requirement under Division 1 of Part 5; and (c) the notice relates to matters that might also affect the payment of the person's social security payment; and (d) the partner does not comply with the requirement of the notice; the Secretary may determine that the person's payment is to be cancelled or suspended. (3) If: (a) a person who is receiving a social security payment has been given a notice under section 67 or 68 that requires the person to inform the Department of a proposal by the person to leave Australia; and (b) the person does not comply with the requirement; and (c) the person leaves Australia; and (d) the person's portability period (see section 1217 of the 1991 Act) for the payment has not ended; the Secretary may determine that the payment is to be cancelled or suspended. Note: Subsection (3) lets the Secretary make one determination suspending the payment and later make another determination cancelling the payment. See subsection 33(1) of the Acts Interpretation Act 1901. 13 As can be seen, the power of suspension or cancellation in s 81 is dependent, flowing from the conditional clause in the section, upon satisfaction of a condition that a notice under s 67 or s 68 has been given and non-compliance with the requirements of the notice by the person receiving a social security payment to whom the notice has been given. 14 Section 67 is not presently material. The applicant's submission is that the notice is not one under s 68. In support of that, she draws attention, comparatively, to the terms of another provision in that same Act, s 192, which provides: General power to obtain information The Secretary may require a person to give information, or produce a document, to the Department if the Secretary considers that the information or document may be relevant to one or more of the following: (a) the question whether a person who has made a claim for a social security payment is or was qualified for a social security payment; (aa) the question whether a person is or was qualified for a social security payment for which a claim is not required; (b) the question whether a social security payment is payable to a person who is receiving the payment; (c) the question whether a social security payment was payable to a person who has received the payment; (d) the rate of social security payment that is or was applicable to a person; (daa) the operation of Division 3AA or 3A of Part 3; (da) the question whether a person who has made a claim under the Social Security (Fares Allowance) Rules 1998 was eligible for fares allowance; (daaa) the operation of Part 3AA; (db) the operation of Part 3B; (e) the administration of an agreement between Australia and a foreign country on social security matters; (f) the question whether a person who has been granted a concession card is or was qualified for the card; (g) the question whether a person who has applied for financial supplement is eligible for the supplement; (h) the question whether a person who has obtained a financial supplement is or was eligible for the supplement; (i) the determination of the maximum amount of financial supplement that a person is eligible for; (j) the question whether an assurance of support given under Chapter 2C of the 1991 Act should be accepted or rejected; (k) an inquiry or investigation into a matter mentioned in any of the above paragraphs. 15 By way of illustration, the applicant also referred to a separate letter, sent to her by an officer of the respondent's department, of 10 December 2013, which on its face makes it patent that the information sought in that letter is sought pursuant to s 192. That express reference to s 192 in that letter is hardly likely to have been coincidental. That is because section 196 of the Administration Act specifies very particular requirements which must attend a notice under s 192. Section 196 provides: Written notice of requirement (1) A requirement under this Division must be made by written notice given to the person of whom the requirement is made. (2) The notice: (a) may be given personally or by post or in any other manner approved by the Secretary; and (b) must specify: (ia) a description of the information or document to which the requirement relates; and (i) how the person is to give the information or produce the document to which the requirement relates; and (ii) the period within which the person is to give the information or produce the document to the Department; and (iii) the officer (if any) to whom the information is to be given or the document is to be produced; and (iv) that the notice is given under this section. Note: The notice may describe the information or documents by class (see subsection 33(3AB) of the Acts Interpretation Act 1901). (3) For the purposes of subparagraph (2)(b)(ii), the period must not end earlier than 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of the social security law, to specify a shorter period. (4) The notice may require the person to give the information by appearing before a specified officer to answer questions. (5) If the notice requires the person to appear before an officer, the notice must specify: (a) a time and place at which the person is to appear; and (b) that the person may be accompanied by a lawyer. (6) For the purposes of subsection (5), the time must be at least 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of the social security law, to specify an earlier time. 16 One such requirement, found in s 196(2)(b)(iv), is that the notice specify that it is given under "this section". Presumably, that requires the notice to specify that it is given under s 196, even though the information-gathering power is found in s 192. It is not there necessary to dwell upon what may be a quirk of drafting to resolve this appeal. It should also be recorded that a penal sanction attends a failure to comply with a notice given under s 192: see s 197. 17 Section 68 of the Act relevantly provides: Person receiving social security payment or holding concession card (1) Subsection (2) applies to a person to whom a social security payment (other than utilities allowance or energy supplement under Part 2.25B of the 1991 Act) is being paid. (2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following: (a) inform the Department if: (i) a specified event or change of circumstances occurs; or (ii) the person becomes aware that a specified event or change of circumstances is likely to occur; (b) give the Department one or more statements about a matter that might affect the payment to the person of the social security payment; (c) give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person. … (5) An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or change of circumstances might: (a) affect the payment of the social security payment or the person's qualification for the concession card, as the case requires; or (b) affect the operation, or prospective operation, of Part 3B in relation to the person. 18 The applicant's point is that, on its true construction, what she was required to do by the letter on 31 May 2006 was to provide documents and that s 68 of the Act is not a section which enables the Secretary to require the production of documents. She points to the express provision for production of documents in s 192. The further and consequential submission, which in my view would follow, is that in the event that a notice was not, as a matter of law, given under section 68, the condition precedent to the exercise of a cancellation or suspension decision would not have arisen, such that there was no authority to cancel or suspend her pension. 19 Depending on a conclusion reached in relation to that submission, it may become necessary to consider the meaning and effect of s 137 and s 147 of the Administration Act in relation to the extent, if any, of retroactivity of entitlement to payment of a disability support pension. 20 Section 68 of the Administration Act is not entirely free of judicial consideration, as I was helpfully reminded by Mr Freeburn in his submissions. Some aspects of the construction of the section were considered by a Full Court of which, coincidentally, I was a member in Towle v Secretary, Department of Social Services (2018) 264 FCR 127 (Towle). As is revealed at [1] in Towle, the letter to Mr Towle enclosed a questionnaire and was expressed to have been given "under social security law". Questions posed in the questionnaire sought information relating not just to Mr Towle's income and employments but also that of another person, a Ms Chan. 21 The Court in Towle did not embark upon a consideration of the meaning of the word "statement" in s 68. Even so, it is apparent, at [12], that I took the view that the enclosed questionnaire sought statements. Beyond that, Towle is not, in my view, of present relevance. 22 Towle contains a reference with approval, at [13], to an earlier judgment of the Full Court, which held that it was not necessary to specify in a notice the particular section under which the notice was given: see Theo v Department of Family and Community Services [2005] FCAFC 239, at [24]. 23 The applicant's point, though, does not turn on the absence of reference to a particular section, but rather on the meaning of s 68, and whether, fairly read, the letter of 31 May 2006 can be regarded as one falling within what s 68 authorises. 24 As a matter of ordinary English, the word "statement" means "...a communication or declaration in speech or writing setting forth facts, particulars, etcetera": Macquarie Concise Dictionary (2nd ed, 1996) p 976. Within the letter of 31 May, items 1, 2, and 3 do not, in terms, seek a statement as that word is, in my view, to be understood having regard to its ordinary meaning. Context does not dictate that it be anything other than its ordinary meaning. Items 1, 2 and 3 are documents. 25 It would be possible for the Secretary to seek a statement, which would require the giving of information as to the amount of profit or the amount of loss. In turn, a person might choose to comply with such request by giving a statement in terms that the amount of the profit and the amount of the loss is as recorded in the attached profit and loss statement. That would be responsive to such a question. It would provide a "statement". Merely to request a profit and loss statement, even though that word coincidentally appears, is not to request a statement from a person; it is to request a document. 26 The same is true, in my view, of item 2 in relation to a balance sheet. One might request under s 68 a person to provide a statement which details the amount of net assets of a particular entity. In return, a person might, by way of compliance, answer: "The amount of the net assets is as stated in the attached balance sheet". That would be a responsive answer. But s 68 does not, in my view, permit the Secretary to request the document itself. That is so even though a person may choose, in giving a statement in response, to incorporate by reference in that person's answer the document by way of attachment. 27 It may well be that the same is true even more so in relation to item 3, which requests a copy of all loan documents. That is not to request a statement; it is to request the production of the document. 28 It may very well be, having regard to the position assumed, at least, in Towle, that the provision of a completed SA220 form would amount to a requirement that complies with the requirement for a statement. However, it is not possible to determine that in this case, because, for one reason or another, it does not appear that the SA220 form attached to the 31 May 2006 letter formed part of the record before the Tribunal. 29 That leaves item 5. It requests: ... a statement from you regarding how [name redacted] will pay for [a particular location]. 30 There is a history to the sending of this letter, which is recited in the Tribunal's reasons. The history relates to dealings, including the interview, as between an officer of the respondent department and the applicant, concerning what one might term "wider financial arrangements", which included a business and a family trust. 31 It is necessary not to construe s 68 in any narrow way in terms of what may be the subject of inquiry. The section speaks of a statement about a matter that might affect the payment to the person of the social security payment. "Might" means just that, not "must", and, in turn, it is difficult to see a broader subject than that relation to the disability support pension, given that there are income attribution requirements which may become applicable. 32 It is by no means impossible to see, against the background of the earlier dealings with the applicant, how the subject of item 5 excited the interest of the author of the letter. So I have no doubt at all that item 5 fell within the remit of the author under s 68(2) of the Administration Act. What was sought was, indeed - and not just coincidentally - by the use of that word, a statement about a matter that might affect the payment of the applicant's disability support pension. 33 Thus, of each of the five items referenced in the letter, only one is certainly within the purview of s 68. I consider that the applicant was quite correct in highlighting that items 1, 2 and 3 were within the power of the Secretary, but that the relevant power was to be found in s 192, not s 68. Further, and as again the applicant, with respect, correctly highlighted, the letter is not compliant with requirements of s 196. However, there is no kindred requirement imposed in relation to a request under s 68. At the very least, item 5 was such a request. There was no need to specify in the letter anything other than it was "given under social security law": see s 72(1)(e). Indeed, even if that specification were not present, the statutory authority would nonetheless exist to make the request found in item 5: see s 72(2). 34 The result then is that the letter is something of a hybrid. It combines impermissible requests with a permissible request. I have reflected as to whether that means that it could not provide a foundation for an exercise of the discretionary power under s 81. The view, however, which I have reached is that, there being a lawful request made under s 68, in an absence of compliance with that request, the discretion was enlivened: see Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, at 376 - 377 (Northrop, Deane and Fisher JJ); Harris v Mathieson (in his capacity as an authorised officer under the Water Management Act 2000 (NSW) (2019) 245 LGERA 105, at [24(h)] (Davies J). 35 In turn then, that means that what falls to consideration is whether the discretion which came to be exercised in place of the primary tribunal merits review was in some way flawed. The applicant pointed to an absence of procedural fairness. This, however, does not survive scrutiny of the circumstances in which the hearing was conducted. It was conducted by way of hearing in person, with special arrangements having been made to facilitate the particular disadvantages to which the applicant was subject. She was given, in my view, on the evidence, an opportunity to be heard and took advantage of that. It is just that the Tribunal, having heard the evidence, which included evidence of the background that I have mentioned in terms of domestic violence, chose not to exercise the discretion in her favour. 36 It is singularly important in relation to exercises of discretion by administrators that the Court not substitute its own view for one reasonably open on the evidence by a person to whom the discretion is consigned by law. For the avoidance of doubt, it is nothing to the point as to whether or not I would, on that same material, have exercised the discretion in that same way. All that I do is recognise that it was open, on the part of the Tribunal, for the reasons the Tribunal gave and notwithstanding a recognition by the Tribunal of the lengthy history of domestic violence, nonetheless to have exercised the discretion to affirm the cancellation. 37 There was also canvassed in submissions whether s 63 might alternatively be a source of statutory authority for the letter of 31 May 2006. It is only necessary to observe that the provision of information is, in my view, different to the production of a document. That dichotomy is overt in s 192. 38 What follows from the foregoing is that, although I do not completely agree with the Tribunal's characterisation of the letter of 31 May 2006, I agree to the extent that item 5 contains within it a request for a statement which was not the subject of compliance. That being so, the question of law agitated by the applicant must fail, and the condition precedent to the exercise of the discretion was enlivened. 39 I therefore dismiss the appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.