On 5 February 2015 a Centrelink authorised review officer affirmed that Dr Hollis's claim was ineffective by reason of being out of time. However, on 15 April 2015 the (then) Social Security Appeals Tribunal set aside that decision, on the basis that special circumstances existed which justified the exercise of the Secretary's discretion under s 49J(2)(b)(ii) in Dr Hollis's favour to extend the possible claim lodgement period. The Secretary has now appealed that decision to this Tribunal.
Dr Hollis appeared at the hearing on 29 September 2015 by telephone link from Greenland.
[2]
The intention of the Act appears to be that, in order for a claim for childcare benefit for a particular financial year (or "income year", in the language of the Act) is to be effective, it must be lodged during the following financial year, that is no sooner than 1 July on that following financial year and no later than 30 June of that following financial year. Similarly, it appears to have been the intention that this period could be extended by the Secretary if "special circumstances" prevent a claimant from lodging a claim within this time.
The application of these rules to Dr Hollis means that, for a childcare benefit claim covering the 2012/13, the claim should have been lodged by 30 June 2014. As her claim was in fact lodged on 25 July 2014, it was contended that she needed to establish that there were "special circumstances" which prevented her meeting this deadline, otherwise her claim was ineffective.
Centrelink wrote to Dr Hollis on 10 February 2014 notifying her of the lodgement requirements for a childcare benefit claim, which had changed as a result of amendments to the legislation which commenced in June 2013 and which effectively shortened the lodgement period for such claims. However, this letter was sent to a previous address in Perth of Dr Hollis and her partner and, as a result of Centrelink's error, they did not receive the advice.
From 23 May to 2 July 2014, Dr Hollis worked for a state government agency in a remote region of Western Australia, where she had no access to regular telephone or Internet services. Her claim was lodged a few weeks after her return to Perth.
(1) This section applies to a claim by an individual for payment of child care benefit for a past period for care provided by an approved child care service to a child (a past period claim).
[5]
Claim period must fall within one income year etc.
(2) A past period claim is ineffective if:
[6]
(a) the period does not fall wholly within one income year; or
(b) the period does fall wholly within one income year (the relevant income year) but the claim is made before the end of the relevant income year or after the end of:
(i) the first income year after the relevant income year; or
(ii) such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from lodging the claim before the end of that first income year.
[7]
(2A) The further period referred to in subparagraph (2)(b)(ii) must end no later than the end of the second income year after the relevant income year.
[8]
A claim that is not effective is taken not to have been made: s 13.
[9]
Both parties put to the Tribunal that Dr Hollis's claim could only be considered effective if it fell under s 49J(2)(b)(ii), that is, that special circumstances existed which prevented her from lodging the claim before the end of that first income year.
Section 49J is very curiously worded. The heading of the section is "Restrictions on claim by individual for payment of child care benefit for past period for care provided by an approved child care service". Although somewhat unwieldy, the heading makes clear that the section deals with circumstances where a childcare benefit claim will not be payable, that is, it is a disqualifying rather than a qualifying provision. Subsection (1) sets out the subject matter of the section, namely retrospective claims for childcare benefit provided by an approved service.
Subsection (2) then sets out four alternative circumstances where a retrospective childcare benefit claim will be considered "ineffective". Each constitutes a separate ground for disqualifying a claim from payment. The four circumstances are:
(a) the period of time covered by the claim does not fall wholly within one financial year;
(b) the period of time covered by the claim does fall wholly within one financial year, but the claim is made before the end of that financial year;
(c) the period of time covered by the claim does fall wholly within one financial year, but the claim is made after the end of the following financial year;
(d) the period of time covered by the claim does fall wholly within one financial year, but the claim is made after the end of a certain period of time after the end of the following financial year which the Secretary has allowed, based on being satisfied that there are special circumstances that prevented the claimant from lodging the claim before the end of that following financial year.
It is apparent that Dr Hollis's claim falls within paragraph (c) above, that is it is ineffective by virtue of having been made after the end of the following financial year to the year covered by the claim. Since the section must be interpreted as providing that a claim is ineffective if any of these circumstances is found to exist, her claim could be said to be defeated since it clearly falls within one of the specified, disqualifying grounds.
Notwithstanding that her claim clearly would be made ineffective by paragraph (c), it was contended by both parties that it might not be made ineffective as a result of (d), if special circumstances are found to exist. I am not sure that this disposes of the issue, however. Even if I were to find that special circumstances existed preventing Dr Hollis from making her claim before the end of the following financial year, paragraph (d) above would not necessarily act as a saving provision. The circumstances referred to in paragraph (d) are that a claim is ineffective where it is made after the expiry of whatever additional period a decision maker (be it the Secretary or the Tribunal on a merits review) has allowed. If, standing in the shoes of the Secretary, the Tribunal exercises the discretion conferred by s 49J(2)(b)(ii) and extends the period permitted for lodgement of her claim until 25 July 2014 - the date she actually lodged her claim - she still falls outside paragraph (d) since that provision only serves to disqualify applications made after that period.
So, even if her claim were to be caught by paragraph (d), it must be remembered that this ground is expressed as one that renders a claim ineffective. I concede that the intention of the Parliament must have been to render a claim covered by special circumstances as effective, but that appears to be the opposite of what the provision actually says.
One might argue that a claim covered by special circumstances in s 49J(2)(b)(ii) is no longer ineffective, and a claim which is not ineffective is therefore an effective claim. However, while logical, that construction is not consistent with the structure of the section. A claim which, for example, falls wholly within one income year is obviously not ineffective under s 49J(2)(a), but that does not make it effective if it offends against another provision of that section, say, s 49J(2)(b)(i).
At best, a claim which is considered to be attended by special circumstances will explicitly fall within subparagraph (i), explicitly rendering it ineffective, but may also fall under subparagraph (ii), with its implied conferral of effectiveness. As a matter of interpretation, one is compelled to give the explicit priority over the implied.
The position would be quite different if the section were drafted as follows:
[10]
(1) This section applies to a claim by an individual for payment of child care benefit for a past period for care provided by an approved child care service to a child (a past period claim).
[11]
Claim period must fall within one income year etc.
(2) A past period claim is ineffective if:
[12]
(a) the period does not fall wholly within one income year; or
(b) the period does fall wholly within one income year (the relevant income year) but the claim is made before the end of the relevant income year or after the end of the first income year after the relevant income year.
[13]
(3) Notwithstanding subsection (2), a past period claim is effective if it is made before the end of such further period, after the end of the first income year after the relevant income year, as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from lodging the claim before the end of that first income year.
(4) The further period referred to in subsection (3) must end no later than the end of the second income year after the relevant income year.
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
[T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v Commonwealth[1904] HCA 34; (1904) 1 CLR 668 at p 674; Wacal Developments Pty Ltd v Realty Developments Pty Ltd[1978] HCA 30; (1978) 140 CLR 503 at p 513. The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.
[18]
The latter point made by Dawson J in Mills v Meeking is relevant to the circumstances of this case. Section 15AA and equivalent provisions do not give courts or tribunals licence to ignore the actual words of a statute. The Full Federal Court in R v L(1994) 49 FCR 534 affirmed this when it commented (at 538):
[19]
The requirement of s 15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s 15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: Trevisan v Commissioner of Taxation(1991) 29 FCR 157 at 162 per Burchett J.
[20]
Does s 15AA, constrained by the considerations enunciated in Mills v Meeking, allow the Tribunal here to look beyond the words of s 49J to the assumed intention of the Parliament? In considering this question, the Tribunal also has regard to s 12 of the same Act, which provides:
[21]
Every section of an Act shall have effect as a substantive enactment without introductory words.
[22]
One could extrapolate that, just as every section of an enactment should do some work, so too should every subsection, indeed every paragraph and subparagraph. One objection to the interpretation of s 49J(2)(b)(ii) offered above is that it leaves the subparagraph with no effect, which Parliament could not have intended.
I think that to treat subparagraph 49J(2)(b)(ii) as a provision governing eligibility rather than ineligibility may be to redraft it rather than to construe it, but it is unnecessary for me to determine this question as I do not believe that special circumstances existed in this instance.
[23]
Did special circumstances prevent Dr Hollis from making her claim on time?
[24]
The Tribunal and the courts have previously considered the meaning of special circumstances for the purposes of social security law. It is an expression "by its very nature incapable of precise or exhaustive definition" and its meaning will depend on the context in which the circumstances occur. The circumstances need not be unique "but they must have a particular quality of unusualness that permits them to be described as special": Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3. In Groth v Secretary, Department of Social Security[1995] FCA 1708; (1995) 40 ALD 541 Kiefel J said (at 545) that if something "unfair, unintended or unjust" had occurred, this would demonstrate that it was "out of the ordinary" and thus special.
There are two features of Dr Hollis's circumstances which, it was contended, give rise to special circumstances. First, Centrelink's conceded failure to ensure information about the new lodgement rules reached her meant that, unlike other Centrelink clients, she was unaware of the changes in the law. Secondly, her absence in a remote part of the state for work purposes during the critical last few weeks of the financial year inhibited her ability to make other enquiries which might have avoided the late lodgement.
With respect to the second contention, I cannot accept that her isolation from standard means of communication during the final part of the financial year could be regarded as special circumstances (and indeed, I understood Dr Hollis to concede that point herself during the hearing). Had Dr Hollis been incommunicado for all or a substantial part of the year, the situation might have been different, but situations where citizens lack access to standard means of communication must be said to arise quite commonly for both work and recreational reasons; it might reasonably be expected that people would put their affairs in order before placing themselves in this position.
With respect to Centrelink's failure to notify her of the new lodgement rules, I accept that Dr Hollis' circumstances were unusual. It was conceded that most people affected by the change in lodgement rules would most probably have received advice of the new rules from Centrelink, and the failure by Centrelink to provide Dr Hollis with that advice put her into a disadvantaged minority.
However, Dr Hollis needs to show more than that the circumstances she faced were special. In Hooker and Secretary, Department of Social Services[2015] AATA 732 Senior Member Toohey considered the test in s 10(2) of the Act, which imposes a similar test for late lodgement of a claim for family tax benefit to the test in s 49J(2). She observed (at [19]):
[25]
In the case of a late claim for FTB, the special circumstances must prevent a person from making a claim on time. That is a more stringent, two-part test.
[26]
Thus, in order for the time for making a claim to be extended, the Secretary (and in turn the Tribunal) must be satisfied of two things: first, that circumstances existed that were special and, secondly, that those special circumstances prevented the claimant from making her claim within time.
Irrespective of whether her circumstances fall within the definition of special circumstances, I find that she fails to satisfy the second arm of the test in subparagraph (ii). I can readily see how Dr Hollis was relatively disadvantaged by not receiving the advice which her peers apparently received about the change in the law and the new timeframes for lodgement of claims. Dr Hollis contended in her submission to the Tribunal that
[27]
...Centrelink's failure to send a letter to the correct address so substantially contributed to an outcome that was unfair and, together with the other circumstances of the case, constitutes "special circumstances"...
[28]
This "unfair" outcome appears to have been the basis on which the (then) Social Security Appeals Tribunal determined at first instance that special circumstances existed in this matter.
However, I cannot agree that the circumstances of not receiving advice which went to other childcare benefit claimants amounted to circumstances which prevented Dr Hollis from lodging her claim within time. If we imagine for one moment that Centrelink had decided on this occasion not to send an advice to its clients about the change to the law, Dr Hollis's contention would disappear, as there would have been no relative unfairness to her. But the fact that, in this instance, others did receive advice to assist them making claims cannot have had the effect of preventing Dr Hollis making hers.
In Wilson and Director-General of Social Services[1981] AATA 88, the Tribunal found at [28] that:
[29]
On the views expressed in Re Davis, with which we respectfully agree, any special circumstances must be found apart from the applicant's mere unawareness of the existence of the legislation.
[30]
The situation would be different if subparagraph (ii) were expressed in broad terms, granting the Secretary a general discretion to allow late claims, but it is not so expressed. Dr Hollis draws attention in her written submissions to the analogy between her situation and those in other cases where administrative error and like circumstances have led to the waiver of a debt to the Commonwealth. I accept that analogy, but do not believe that the words of s 49J admit such considerations; it talks of "circumstances that prevented the claimant..." not "circumstances that were unfair to the claimant..."
[31]
Was there a duty to advise Dr Hollis of changes to the law?
[32]
The above conclusion, that the circumstances facing Dr Hollis did not prevent her from lodging her claim within time, might not have been reached had there been a duty on the part of the Commonwealth to advise people in her position of changes to social security law. The Secretary submitted that Centrelink is not under a legal duty to advise applicants for benefits of changes to legislation or how those changes affect their individual interests.
In Scott v Secretary[2000] FCA 1241 the Federal Court held that Centrelink is not under an obligation either to advise or correct applicants for benefits.
The Tribunal in Milroy and Secretary[2011] AATA 488 at [19] accepted the rule in Scott as authority for the point that:
[33]
...Centrelink is not responsible for informing any member of the public at large that he or she may be entitled to a social security payment, nor do they require Centrelink to correct errors made by a claimant.
[34]
There was some argument before the Tribunal that the decision in Unterrheiner and Secretary, Department of Family and Community Services[2003] AATA 487 should be followed. In that case the Tribunal found that Centrelink should have informed a claimant for Rent Assistance about legislative changes that affected her. I think that there were significant differences between the factual situation here and in Unterrheiner; in any case the Tribunal there did not consider Scott, which, as a decision of the Federal Court, is binding on the Tribunal.
It was also suggested before the Tribunal that section 8 of the Social Security (Administration) Act1999 gives rise to legal duties, in particular the duty to advise applicants for benefits of all legislative changes relevant to their interests. Section 8 provides:
[35]
Principles of administration
In administering the social security law, the Secretary is to have regard to:
(a) the desirability of achieving the following results:
(i) the ready availability to members of the public of advice and information services relating to income support generally and to the social security payments that are available;
(ii) the ready availability of publications containing clear statements about income support entitlements and procedural requirements;
(iii) the delivery of services under the law in a fair, courteous, prompt and cost-efficient manner;
(iv) the development of a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients;
(v) the establishment of procedures to ensure that abuses of the social security system are minimised; and
(b) the special needs of disadvantaged groups in the community; and
(c) the need to be responsive to the interests of the Aboriginal and Torres Strait Islander communities and to cultural and linguistic diversity; and
(d) the importance of the system of review of decisions under the social security law; and
(e) the need to ensure that social security recipients have adequate information regarding the system of review of decisions under the social security law; and
(f) the need to apply government policy in accordance with the law and with due regard to relevant decisions of the Administrative Appeals Tribunal.
[36]
This section sets out general principles. It does not operate however to create legal obligations on the Secretary or Centrelink. As a matter of logic this must be the correct position. The principle that ignorance of the law is no excuse is a reflection of the administrative reality that it would be impractical to exempt citizens from the operation of laws of which they were unaware.
[37]
I have a good deal of sympathy for Dr Hollis. As against other clients are Centrelink, who were advised of changes in the lodgement rules, Dr Hollis and her partner were disadvantaged by Centrelink's administrative error. But in a situation where Centrelink had no statutory obligation to provide her - or any of its other clients - with information regarding changes in the law, it is difficult to see a failure to include Dr Hollis in a general act of courtesy to those clients could be said to have prevented her from making her claim within time.
For the reasons I have given, I am not satisfied, even if Dr Hollis' circumstances were special, that they prevented her from making her claim by 30 June 2014.
I set aside the decision under review, and substitute instead the decision that the applicant's past period claim for childcare benefit dated 25 July 2014 was ineffective by reason of being out of time.
[38]
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries