Lim v Secretary, Department of Education, Employment and Workplace Relations

Federal Court of Australia|2008-11-21|Before: Bennett J

REASONS FOR JUDGMENT 1 The applicant, Mr Lim, appeals from a decision of the Administrative Appeals Tribunal ('the Tribunal'). In the Tribunal, Mr Lim sought a review of a decision of the Social Security Appeals Tribunal which affirmed a prior determination to impose an eight-week non-payment period on Mr Lim's "Newstart Allowance". A Newstart Allowance is made to job seekers, such as Mr Lim, who are unemployed and are looking for work. 2 The issue before the Tribunal was whether Mr Lim had a reasonable excuse for his failure to comply with his "Newstart Activity Agreements". A Newstart Activity Agreement entered into by a job seeker is an agreement with which he or she must comply in order to continue to qualify for the Newstart Allowance. If the job seeker fails to comply with the Newstart Activity Agreement, the job seeker commits a "newstart participation failure" and a Newstart Allowance is not payable. Failure to comply with a Newstart Activity Agreement is not regarded as a newstart participation failure if the job seeker can show that he or she has a reasonable excuse for non-compliance. 3 Mr Lim executed three Newstart Activity Agreements ('the Lim Activity Agreements') on 20 December 2006, 26 February 2007 and 7 March 2007. The other party to each of the agreements was denoted as WorkDirections Pty Ltd ('WorkDirections'), described on the Lim Activity Agreements as a "Job Network Member". The Lim Activity Agreements also contain a number of references to Centrelink. For example, the agreements state that they show the activities that Mr Lim must perform in order to receive income support payments from Centrelink and that Mr Lim must contact Centrelink when he ceases an activity or his circumstances change. Centrelink is not, however, a party to the Lim Activity Agreements. 4 The hearing before the Tribunal concerned three breaches of the Lim Activity Agreements ('the participation breaches'). The participation breaches were committed under s 624(1)(d) of the Social Security Act 1991 (Cth) ('the Act'). As Mr Lim had committed three such participation failures within a 12 month period, his payment was suspended pursuant to s 629(1)(a) of the Act. 5 The Tribunal found, and Mr Lim does not challenge, that the three alleged breaches had occurred and that no reasonable excuse had been offered for those breaches. Accordingly, the decision under review was affirmed. It is not necessary to examine further the nature of the participation breaches or the excuses offered for them, as those findings are not challenged on appeal. 6 Mr Lim has challenged the validity of the Lim Activity Agreements. The validity of the Lim Activity Agreements was not raised before the Tribunal. Mr Lim conducted his application in the Tribunal on the basis that he was subject to valid Newstart Activity Agreements but that he had excuses for not complying with the terms of the agreements.

The notice of appeal 7 In the appeal as originally filed, the only relevant questions of law raised were: Mr Lim has already made arrangements with Rebecca Dean and also business manager to reschedule job search of 27th April to following week. Application of law on "attendance" and "reasonable excuse" on 27th April is irrelevant. 8 The respondent challenged the competency of the appeal on the ground that it did not disclose a question of law as required by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). That objection to competency came before Branson J who accepted that the notice of appeal did not identify a question of law capable of constituting the subject matter of the purported appeal (Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058). Her Honour concluded at [12] that the: … factual assertion that Mr Lim had made arrangements, apparently after breaching one of his agreements, to attend at WorkDirections on an extra day in a later week does not itself constitute a question of law. Nor does it by implication raise a question of law the answer to which could throw doubt on the correctness of the decision of the Tribunal. The references in the notice of appeal to the law of "attendance" and "reasonable excuse" do not assist Mr Lim in this regard. 9 However, her Honour gave consideration to any questions of law that Mr Lim could reasonably expect to be able to obtain leave to include in his notice of appeal were he to apply to amend the document. Her Honour said at [15]: However, it seems to me that it is at least arguable that none of the agreements between Mr Lim and WorkDirections is "a Newstart Activity Agreement between the Secretary and the person" within the meaning of s 624 of [the Act]. In particular I consider it arguable that the Secretary has not approved a form of Newstart Activity Agreement for an agreement between a person and a party other than Centrelink. It may also be arguable that the authority of the Secretary to delegate all or any of the Secretary's powers under [the Act] is insufficient to alter the requirements of s 605(4) that a Newstart Activity Agreement be between the person and the Secretary. I do not mean thereby to suggest that the Secretary could not delegate his or her power to sign such an agreement. However, the agreements entered into by Mr Lim do not purport to be agreements between him and the Secretary. They purport to be agreements between him and WorkDirections.

10 Mr Lim filed an amended notice of appeal on 25 July 2008 and a further amended notice of appeal on 20 August 2008. In the further amended notice of appeal the questions of law raised are: 1. Whether it was open to the Tribunal to be satisfied that the agreements entered into by Mr Lim were Newstart Activity agreements within the meaning of s 624 of [the Act]. 2. Whether it was open to the Tribunal to proceed hearing when the respondent (Secretary, DEWR) was not the same person who purported to have activity agreement with Mr Lim within the meaning of s 624 of [the Act]. 11 The ground stated in the further amended notice of appeal is 'covering up the truth and deceiving the court process'. I do not propose to deal with this ground further. Nothing was raised that would support any such conclusion. 12 The findings of fact that Mr Lim asks the Court to make are: 1. Agreements which Mr Lim signed are not approved by the Secretary s 234 instrument. Agreements which Mr Lim signed are purported to be agreement between Mr Lim and Workdirections. 2. The newstart agreement was purported between Mr Lim and the Secretary of liberal govt. At the AAT hearing, the solicitor of respondent represent Miss Lisa Paul, Secretary of labour govt. Miss Paul was not privity to the newstart agreement with Mr Lim. 13 The first proposed finding of fact relates to the two questions of law identified in the further amended notice of appeal. The second proposed finding raises a different issue. This issue does not relate to either of the questions of law identified in the further amended notice of appeal. The respondent points out that the issue is not reflected in the questions of law and no leave was granted to raise this fresh issue when leave was granted on 13 August 2008 to amend the orders sought. The respondent does, however, provide submissions addressing this question. 14 The hearing of the appeal took place on 8 October 2008. Following the hearing, I gave the parties the opportunity to file further evidence and written submissions and also to make oral submissions addressing, primarily, the delegations made by the Secretary and the identity of WorkDirections as described on the Lim Activity Agreements.

The legislation 15 The Act relevantly provides: Section 629: (1) A newstart allowance is not payable to a person, for the period of 8 weeks … if the person: (a) commits a newstart participation failure (the repeated failure), having committed newstart participation failures (the earlier failures) on 2 or more other occasions during the period of 12 months preceding that failure; … Section 624: (1) A person commits anewstart participation failure if the person: … (d) fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person; … (2) Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure. Section 605(4): A Newstart Activity Agreement is a written agreement in a form approved by the Secretary. The agreement is between the person and the Secretary. [original emphasis] 16 Section 234(1) of the Social Security (Administration) Act 1999 (Cth) ('the SS Administration Act') authorises the Secretary to delegate all or any of the Secretary's powers under the Act to "an officer", including a person engaged by an organisation that performs services for the Commonwealth (s 234(7)(c) of the SS Administration Act).

The delegations 17 By an instrument to take effect on 1 July 2006 ('the first instrument'), the Secretary of the Department of Employment and Workplace Relations ('DEWR') (as the Department then was) delegated 'to each person engaged by an Employment Services Provider to perform functions or to provide services under a relevant arrangement' his powers under, relevantly, s 605 of the Act, subject to limitations which are not presently relevant. By another instrument, commencing on the same date, the Secretary approved the form of Activity Agreement under, relevantly, s 605(4) of the Act as an approved form of Activity Agreement for a job seeker to enter into with an Employment Services Provider or with Centrelink ('the Approved Activity Agreement'). 18 "Employment Services Provider" is defined in clause 5 of the first instrument to mean, relevantly: … an organisation that performs functions or provides services for the purposes of the social security law under one or more of the following arrangements with the Commonwealth ("relevant arrangement"): … (b) Employment Services Contract 2006-2009; … [original emphasis] 19 The respondent has established that: · Pursuant to an Employment Services Contract 2006-2009 between WorkDirections Australia Pty Ltd ('WorkDirections Australia') and DEWR (for the Commonwealth), WorkDirections Australia was an Employment Services Provider during the relevant period (between December 2006 and April 2007). · Gregor Ptok (who signed the first Lim Activity Agreement) was employed by WorkDirections Australia as an Employment Advisor Intensive Support from January 2006 until August 2007 and was a person engaged by the Employment Services Provider, WorkDirections Australia, to perform functions and to provide services under the Employment Services Contract 2006-2009. · Rebecca Dean (who signed the second and third Lim Activity Agreements) was employed by WorkDirections Australia as an Employment Advisor Intensive Support from August 2006 until July 2007 and was a person engaged by the Employment Services Provider, WorkDirections Australia, to perform functions and to provide services under the Employment Services Contract 2006-2009. 20 WorkDirections Australia was contracted to provide job network services and, as part of that contractual obligation, was required to enter into Activity Agreements with job seekers. Mr Ptok and Ms Dean were, in accordance with their Employment Advisor position descriptions, required to perform functions and to provide services under the Employment Services Contract 2006-2009 between WorkDirections Australia and DEWR. 21 There is no basis for Mr Lim's assertion that Mr Ptok and Ms Dean were not so engaged.

Mr Lim's Submissions 22 Mr Lim raises a number of issues in relation to the Lim Activity Agreements. He contends that: · the Lim Activity Agreements are not in a form approved by the Secretary; · the Lim Activity Agreements are not between him and the Secretary but between him and WorkDirections and signed by a person on behalf of that company; · the Lim Activity Agreements were signed on behalf of WorkDirections without reference to the Secretary or a delegation from the Secretary; · delegates must reveal the source of their power when entering into agreements; · the Lim Activity Agreements were signed by individuals, not by WorkDirections; · the Employment Services Contract 2006-2009 is with WorkDirections Australia, not WorkDirections; and · to the extent that the Secretary delegated matters arising under s 605 of the Act, the delegation does not operate after the change of Government, Department and Secretary following the election of the Labor government in 2007.

The form of the Lim Activity Agreements 23 The Approved Activity Agreement has a provision not only for "Part A - Compulsory activities", being the activities that the job seeker must do to receive a payment, but also for "Part B - Other activities", which relates to voluntary activities agreed to be undertaken. The Approved Activity Agreement states, before the section headed Part B: (for use only use [sic] if Part B agreement entered into) Part B - Other activities I have also agreed to voluntarily undertake the following activities [original emphasis]. 24 There is also a reference on the next page of the Approved Activity Agreement to "Part A - Compulsory activities" and "Part B - Other activities" and, under the "Job seeker's Statement", it includes the statement 'I have agreed to voluntarily undertake the activities stated in Part B' [original emphasis]. 25 The Lim Activity Agreements refer to Part A but not to Part B. 26 There is no suggestion that Mr Lim entered into a Part B agreement or an agreement to undertake activities voluntarily, or to include any voluntary activities in his Activity Agreements. 27 The respondent submits that it is clear from the Approved Activity Agreement that Part B references are to be used only if a Part B agreement has been entered into. The respondent contends that it is expressly contemplated in the Approved Activity Agreement that a redundant reference to Part B activities may be deleted without invalidating the agreement. 28 I accept the respondent's submission that it is apparent that Part B is only to be used where applicable. If it is not applicable, there is no reason for it to be present in the document, as it is only "for use" when a Part B agreement is entered into. An Employment Services Provider may utilise a form that contains Part B when it is relevant and a form that does not contain Part B or a reference to it when it is not relevant. 29 The fact that Part B is not present in the Lim Activity Agreements does not prevent them from complying with the Approved Activity Agreement or from being Newstart Activity Agreements as defined in s 605(4) of the Act.

Is each Lim Activity Agreement between the person and the Secretary within the meaning of ss 605 and 624 of the Act? 30 With respect to the execution of the Approved Activity Agreement, the Approved Activity Agreement specifically provides for the " signature and date" and for that of the job seeker. On Mr Lim's Activity Agreements, that heading was "WORKDIRECTIONS PTY LTD (JNM)'s signature and date". Under "Contact Details" on the Approved Activity Agreement, the form provides: "Contact details of Centrelink and/or Employment Service Provider(s) inserted here". On the Lim Activity Agreements, the contact details provided were: Job Network Member WORKDIRECTIONS PTY LTD (JNM) - Darlinghurst Level 1, 121-129 Crown St DARLINGHURST NSW 2010 (02) 83747222 31 The Lim Activity Agreements were signed by Mr Ptok and Ms Dean, whose positions were as described in [19]. 32 Mr Lim submits that the Lim Activity Agreements were between himself and WorkDirections, or, alternatively between himself and Mr Ptok or Ms Dean; that they were signed by WorkDirections, or, alternatively Mr Ptok or Ms Dean, as the contracting party; and that, as there is no reference to the Secretary, the agreements are not "between the person and the Secretary" as required by ss 605(4) and 624 of the Act. 33 It is now established that the Secretary approved the form of the Activity Agreements with which the Lim Activity Agreements complied. The Secretary also delegated, to each person engaged by WorkDirections Australia (an Employment Services Provider) to perform functions or to provide services under the Employment Services Contract 2006-2009, the Secretary's power under s 605 of the Act to enter into Newstart Activity Agreements. Accordingly, the Lim Activity Agreements were signed by Mr Ptok and Ms Dean, persons engaged by WorkDirections Australia to perform functions and to provide services under the Employment Services Contract 2006-2009, each as the delegate of the Secretary. 34 It is apparent from an extract of the Australian Business Register, as provided by Mr Lim and tendered by the respondent, that WorkDirections traded from 19 March 2002 until 6 December 2002 and that WorkDirections Australia has traded from 6 December 2002 until now, under the trading name WorkDirections Australia Pty Ltd. The respondent's submissions state that WorkDirections Pty Ltd changed its name to WorkDirections Australia Pty Ltd on 28 February 2002. It follows that, at the time of the execution of the Lim Activity Agreements, the entity that should have been named on the Lim Activity Agreements as the Employment Services Provider and the employer of Mr Ptok and Ms Dean was WorkDirections Australia and not WorkDirections. 35 It follows that there was what the respondent describes as an "irregularity" in the description of the company that was the Employment Services Provider in the Lim Activity Agreements. Mr Lim contends that the Lim Activity Agreements are invalid or void because WorkDirections was not the Employment Services Provider. He further contends that the use of the name "WorkDirections Pty Ltd" on the Lim Activity Agreements is a 'cold and calculated ploy to deceive the legal system'. There is no basis for the latter contention and I reject it. 36 There was no lack of delegated power to enter into the Lim Activity Agreements. The Employment Services Contract 2006-2009 was between WorkDirections Australia and DEWR, Mr Ptok and Ms Dean were employed by WorkDirections Australia to perform functions and to provide services under the Employment Services Contract 2006-2009 and the delegation was made to each person engaged by WorkDirections Australia for this purpose. It follows that the Lim Activity Agreements were entered into by Mr Lim and delegates of the Secretary. 37 The misstatement of the identity of the contracting party or of the employer of Mr Ptok and Ms Dean, as a mistake in naming the source of the power to enter into the Lim Activity Agreements, does not affect the validity of those agreements (Brown v West (1990) 169 CLR 195 at 203). 38 Mr Lim also seems to contend that, whether or not the employees of WorkDirections Australia were exercising a power available as delegates of the Secretary, they were not entitled to sign without stating that it was on behalf of or as delegated by the Secretary. In this regard, Mr Lim contends that, while delegates may make decisions without revealing the source of their power, they cannot enter into agreements without indicating that they are doing so as delegates. Mr Lim says that his agreements were with a private contractor and that the Act has no application. Rather, he says, the Lim Activity Agreements are commercial contracts to which the common law applies. In a subsequent submission, Mr Lim stated that the failure to include any reference to the Secretary in the Lim Activity Agreements constitutes an 'operative mistake of law', thereby rendering the agreements void. 39 Each Lim Activity Agreement states that it is 'an Activity Agreement under the Social Security Act 1991'. Each states that it refers to activities necessary to receive income support payments from Centrelink. Mr Lim could not have believed that the Lim Activity Agreements were private arrangements. He could have been under no misapprehension that the agreements were under the Act and had consequences under the Act. 40 As was the case for the Departmental Officer in Luan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 72,an employee of WorkDirections Australia could only exercise the power to sign an agreement that resulted in Centrelink payments if delegated by the Secretary to do so. The Lim Activity Agreements are written agreements in a form approved by the Secretary. That approved form provides not for the signature of the Secretary but for the signature of the Employment Service Provider/Customer Service Adviser. This was the format of the Lim Activity Agreements. 41 The fact that the agreements were signed by employees of WorkDirections Australia, as delegates of the Secretary, does not preclude the agreements being between the Secretary and Mr Lim, despite the fact that the WorkDirections Australia employees did not indicate the source of power to enter into the agreements. Nor does it otherwise preclude the agreements being Newstart Activity Agreements within s 605(4). 42 The Lim Activity Agreements are agreements between the person (Mr Lim) and the Secretary for the purposes of ss 605(4) and 624 of the Act.

The change of Government, in the name of the Department and in the Secretary 43 Mr Lim appears to contend that the change of the party in government, the change in the name and portfolio responsibilities of the Department and the change in the Secretary require fresh delegations. 44 Despite the fact that this was not raised as a question of law or as a ground in the further amended notice of appeal, I note the following: · The Lim Activity Agreements were executed before the change of Government. · Mr Lim's participation and lack thereof in the activities the subject of the agreements and the subject of the Tribunal decision relate to a period of time prior to the change of Government. · The respondent is "the Secretary" as opposed to any personal reference to the present incumbent. Section 20 of the Acts Interpretation Act 1901 (Cth) ('the Acts Interpretation Act') provides: Where in an Act any person holding or occupying a particular office or position is mentioned or referred to in general terms, such mention or reference shall unless the contrary intention appears be deemed to include all persons who at any time occupy for the time being, or perform for the time being the duties of, the said office or position. There is no contrary intention apparent in the Act, nor is one suggested by Mr Lim. · Section 19A(3) of the Acts Interpretation Act provides that, where an Act refers to a Department, unless the contrary intention appears, the expression means, inter alia, the Department of State of the Commonwealth that deals with the matters to which the provision relates. The respondent has established that at all material times the relevant department was DEWR and that the reference to "the Secretary" in s 605(4) of the Act was a reference to the Secretary of DEWR who delegated his powers to enter into Newstart Activity Agreements. · The Employment Services Contract 2006-2009 between WorkDirections Australia and DEWR defines "DEWR" as 'the Commonwealth Department of Employment and Workplace Relations or such other agency or Department as may administer this Contract on behalf of the Commonwealth and, where the context so admits, includes the relevant Commonwealth's officers, delegates, employees and agents'. In any event, s 19C of the Acts Interpretation Act provides for continuity of agreements entered into by or on behalf of the Commonwealth when there is a change in the administration of matters to which the agreement relates. 45 A delegation is not revoked when the office of the delegator passes to a new holder (Aban v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 93 at 98 per Morling, Jenkinson and Heerey JJ). The effect of a delegation is to confer upon the delegate an authority which he or she must exercise in accordance with the requirement of the statute but with his or her own independent discretion. It is not a relationship of principal and agent (Kelly v Watson (1985) 10 FCR 305 at 318 per Neaves J). In Kelly Neaves J was considering whether a delegation continued to have operative effect notwithstanding the vacation of office of a particular permanent head who had executed the instrument of delegation. Justice Neaves was of the view (at 318) that clear and unambiguous language would be required before construing a statute to produce the result that the delegation ceased to operate when a delegator ceased to hold office (see also Johnson v Veterans' Review Board (2002) 71 ALD 16 at [31]-[32] per Mansfield J). There is nothing in the Act or the SS Administration Act to suggest that the relevant delegations should cease with the holding of office of the delegator.

Other matters raised in Mr Lim's submissions 46 In his written submissions and in the further amended notice of appeal, Mr Lim raises a number of matters that were not the subject of the hearing before the Tribunal and which do not raise questions of law arising from the Tribunal decision. Justice Branson permitted the validity of the Lim Activity Agreements to be raised in this application and I have considered this issue. Mr Lim also raises the circumstances of his signing of the Lim Activity Agreements, including whether or not he was afforded the opportunity for legal advice. There is no evidence relevant to those assertions. They do not arise from the Tribunal decision and they do not disclose a question of law under s 44 of the AAT Act.

CONCLUSION 47 Mr Lim has failed to establish the invalidity of the Lim Activity Agreements. Evidence filed by the respondent demonstrates that the Lim Activity Agreements accord with the form authorised by the Secretary. The agreements were between Mr Lim and the Secretary (through his delegates). They comply with s 605(4) of the Act. 48 The application is dismissed.

Costs 49 Although the respondent was unsuccessful in the objection to competency of the appeal, it was Branson J, not Mr Lim or his notice of appeal, that disclosed an arguable case. 50 While the respondent has established the validity of the Lim Activity Agreements and Mr Lim's application is to be dismissed, it was only after a series of attempts to validate the agreements and errors that were identified by Mr Lim and by the Court. In the circumstances, I note that the respondent has not sought an order as to costs and I will make no order as to costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 21 November 2008 The Applicant was self-represented

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 8 October 2008, 6 November 2008

Date of last written submissions: 13 November 2008

Date of Judgment: 21 November 2008

Secretary Acts Interpretation Act 1901(Cth)ss 19A, 19C, 20

Social Security Act 1991(Cth)ss 605, 624, 629

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