Luck v Chief Executive Officer of Centrelink

MS LUCK'S APPLICATION 16 Ms Luck sought review of decisions by the respondent and the Secretary of the Department of Human Services on 31 July 2006, 10 August 2007 and 3 June 2008. These decisions related to the means by which Ms Luck would be permitted to have access to Centrelink in order to deal with her affairs. The respondents filed a notice of objection to the competency of the application in so far as it sought review of the decisions made on 31 July 2006 and 10 August 2007 on the basis that the application, in so far as it related to those decisions, was made outside of the time limits imposed by s 11(3) of the ADJR Act. The Secretary of the Department of Human Services sought an order that she be removed as a respondent on the ground that neither she nor any delegate of hers had made or could make any of the impugned decisions. On 10 December 2008, I refused Ms Luck's application to enlarge the time within which to lodge an application in respect of the decisions made on 31 July 2006 and 10 August 2007. I also ordered that the Secretary of the Department of Human Services cease to be a party to the proceeding: see Luck v Chief Executive Officer of Centrelink [2008] FCA 1879. 17 The remaining decision to which the application relates is the decision in June 2008, which restricted Ms Luck's means of communication with Centrelink to telephone, fax or email. Ms Luck received notice of the decision by letter on 3 June 2008. The letter stated: "I refer to your contacts with Centrelink over the past 6 months most recently on 7 May 2008. On 24 December 2007, 1 May 2008 and 7 May 2008 you spoke with Centrelink Call Centre staff regarding your Centrelink entitlements and on all 3 occasions it has been reported that you were not prepared to listen when an explanation was being offered. It has been noted that on 7 May 2008 the call was terminated after 2 warnings, due to you yelling at the staff member. Because of your unacceptable behaviour, I have decided that you can contact Centrelink only by telephone, fax or e mail, when you need to access our services or when you have a query about any of the payments or services to which you are entitled. These arrangements will be in place for three months until 28 August 2008 and their duration will be reviewed on a regular basis. You will be advised when the review will occur and you will be given the opportunity to contribute. Please call 136150 if you want to talk about what happened on any of the dates mentioned or if you have any queries about any of the information contained in this letter. You may ask another person to do so on your behalf. If you want to take this option, you will need to authorise this person, in writing to us, to talk to Centrelink on your behalf. I am asking you to behave with respect and courtesy in your telephone contact or in any future dealings with Centrelink." 18 Ms Luck relied on a number of grounds of review under s 5 of the ADJR Act, including that there had been a breach of natural justice, that procedures required by law were not observed, that persons who made the decision did not have jurisdiction to make it, that the decision was not authorized by an enactment and that the making of the decision was an improper exercise of power. Despite the number of grounds advanced by Ms Luck, her principal complaint was that the decision had been based on what she claimed were inaccurate notations, made by Centrelink call centre operators, of conversations which occurred when she telephoned Centrelink. Ms Luck did not agree with the call centre operators' descriptions of her manner towards them during these conversations. In particular, she disputed statements made by the operators that she was "unwilling to listen" to them and that she had been "yelling" at them.

DECISION UNDER AN ENACTMENT 19 The respondent contended that its decision in June 2008 was not a decision made "under an enactment" for the purpose of the definition of "decision to which this Act applies" in s 3(1) of the ADJR Act. Accordingly, it submitted that the decision was not susceptible to review under the ADJR Act. 20 In order to deal with the respondent's objection to competency it is necessary first to examine the complicated statutory framework under which Centrelink operates. 21 The Commonwealth Services Delivery Agency, known as Centrelink, was established by s 6 of the Commonwealth Services Delivery Agency Act 1997 (Cth) ("the CSDA Act"). The function of Centrelink is to assist the respondent in the performance of his or her functions: see s 6A of the CSDA Act. 22 Section 7 of the CSDA Act provides that the CEO of Centrelink "may enter into arrangements with the principal officer of a Commonwealth authority for the provision of the Commonwealth services specified in the arrangements, subject to the conditions specified in the arrangements". "Commonwealth service" is defined in s 3 as "a service, benefit, program or facility for some or all members of the public that is provided for by the Commonwealth, whether under an enactment or otherwise." 23 Section 7(2) provides that "arrangements for the provision of Commonwealth services may include arrangements for doing anything incidental, conducive or related to the provision of the services." 24 Section 7(3) provides a list of arrangements for the provision of Commonwealth services which includes, without limitation, arrangements for "determining a person's eligibility for, or entitlement to receive or have access to, the services" and "providing Commonwealth authorities and other persons with information related to the provision of the services": see ss 7(3)(b) and 7(3)(d) of the CSDA Act. 25 Section 7(5) provides that "an approval given by the Minister under this section is not a legislative instrument". 26 Section 8(1) of the CSDA Act provides that the functions of the CEO are, inter alia, the provision of Commonwealth services in accordance with service arrangements and doing anything incidental, conducive or related to the performance of any of his or her other functions. 27 Section 7 of the Social Security (Administration) Act 1999 (Cth) ("the SS(A) Act") provides that the Secretary is to have the general administration of the social security law. The social security law includes that Act and the SS(A) Act. 28 On or about 5 October 2006, the Secretary and the CEO of Centrelink entered into the Business Partnership Agreement 2006-2010 ("the Agreement"), which was an arrangement for the purpose of s 7(1) of the CSDA Act. In accordance with the Agreement, in June 2008, Centrelink was responsible for administering the payment of disability support pensions, and rental assistance, on behalf of the Secretary of the Department of Families, Community Services and Indigenous Affairs. The services and activities to be provided by the respondent included dealing with claims, notifiable events and general enquiry calls. 29 There is nothing in the CSDA Act, the SS(A) Act or the SS Act which deals specifically with the means by which customers can access the services provided by the respondent. Such matters may be comprehended, at a general level, by s 8 of the CSDA Act, which deals with the CEO's functions and the general power to do anything included in the arrangement that is incidental, conducive or related to the provision of the services. 30 Officers of the respondent, including customer service officers, are required to follow the procedures set out in the respondent's reference instruction "People Handbook" and e-reference, which details the procedures for dealing with customer aggression and/or dealing with objectionable callers. The decision about which Ms Luck complains was made (assuming that she engaged in the alleged conduct - a matter which the Court is not required to determine, at least at this stage) consistently with the policies as set out in section 1.6 of the People Handbook, which was in effect at the time of the decision and provided: "1.6 Deal with the Customer Introduction Decisions about how to deal with an aggressive customer should be made by the Area or Office Manager following consultation with the employees involved. The HR/People Team may be contacted by employees and/or manager to discuss appropriate action, which depends on a number of factors, including the: • seriousness of the incident, • customer's previous behaviour, and • background to the incident. Possible actions The action taken by Centrelink after a customer has been aggressive or violent could be: • to warn the customer, or • withdraw services. … Withdrawal of public contact services … In cases where the customer, after persistent warnings or charges, continues to harass employees, the Office Manager may consider withdrawing public contact services to the customer and making arrangements for the customer to deal with the office only by phone or post." 31 This Handbook was, as has been noted, a "reference instruction". It was not expressed to have been (nor was it) made under any express statutory authority. The Handbook took the form of a guide prepared by managers to ensure the occupational, health and safety of the respondent's employees.

SUBMISSIONS 32 The respondent founded its competency argument on the decision of the High Court in Griffith University v Tang (2005) 221 CLR 99. Gummow, Callinan and Heydon JJ there held (at 130-1) that: "The determination of whether a decision is "made … under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made … under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rules or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice." 33 Noting that the decision is not expressed to have been made pursuant to a particular legislative or regulatory provision, the respondent submitted that, the decision is, "at best" for Ms Luck, impliedly authorised by s 8 of the CSDA Act, s 6A of the CSDA Act and/or ss 7 and 8 of the SS(A) Act. In this respect, the respondent described the decision as "incidental, conducive or related to the performance of the [its] functions, which includes the provision of services to the public in accordance with [the Agreement]". 34 The respondent submitted that the decision did not satisfy the second Tang criterion that the decision "confer, alter or otherwise affect legal rights or obligations". The decision affected the applicant's ability to enter the Centrelink premises in person in order to access its services. Ms Luck continued to be able to access the respondent's services by telephone, fax or email. The respondent contended that the decision constituted "an exercise of the [its] power, as an occupier of premises, to withdraw the [a]pplicant's permission to enter Centrelink premises, which is a permission granted to members of the public generally". The decision, it was submitted, affected the applicant's legal rights under general law and not by virtue of the CSDA Act, the SS(A) Act or the SS Act. 35 Ms Luck submitted that the decision had been made under s 8 of the CSDA Act and that the decision "altered and otherwise affected [her] rights and obligations and was directly related to the Secretary's determination to pay … her benefits".

CONSIDERATION 36 Tang was decided under the Queensland equivalent of the ADJR Act. There were, however, no material differences between the two statutes: they both applied to decisions made "under" enactments. Griffith University had terminated Ms Tang's enrolment on the ground that she had fabricated research results. Under the Griffith University Act 1998 (Qld) the University was governed by a council and the council had power "to manage and control the university's affairs and property." The council had promulgated policies relating to academic misconduct which were reflected in a disciplinary code. The action had been taken against the student under that code. Although the code had been made and promulgated under the University's governing statute, the decision to terminate her candidature was held to have been authorised by but not made under that Act. Nor did the Act give legal force or effect to the disciplinary decision. The relationship between Ms Tang and the university was consensual in nature and had ended when the university was no longer willing to allow her to continue her studies. The decision to terminate the student's enrolment did not alter or otherwise affect any existing rights or obligations enjoyed by her. It followed that the decision to terminate Ms Tang's candidature was not made under the Act in the necessary sense. 37 It has been suggested that Tang gives rise to "doubts about the possibility of seeking judicial protection of any kind under relationships covered only by 'soft law' - guidelines, procedure manuals, internal disciplinary codes, and so forth": see Aronson M, "Private Bodies, Public Power and Soft Law in the High Court" (2007) 35 Fed L Rev 1 at 2 (emphasis added). The Handbook pursuant to which the decision impugned in this case was made, falls squarely within the genre of "soft law" to which Professor Aronson refers. 38 Whether those doubts are warranted or not need not be determined. What can be said is that the Handbook did not have statutory force. Nor did any of its contents (including those relating to the means by which clients could communicate with Centrelink) create, alter or impose any legal rights, duties or liabilities on Centrelink officers or Ms Luck. Ms Luck had no right, either under statute or otherwise, to communicate with the Centrelink office in any particular manner. The decision which she seeks to have reviewed did not deprive her of the ability to claim or receive benefits or to raise queries relating to her social welfare entitlements. 39 The decision about which Ms Luck complains is not a decision under an enactment for the purposes of the ADJR Act. The respondent's objection to competency must, therefore, succeed. 40 The application must be dismissed with costs.

DISCRETION 41 I should add that, even had the proceeding gone to trial and Ms Luck had established that the impugned decision was a reviewable decision under the ADJR Act, I would not have been disposed to grant her relief in the absence of any evidence that the alleged decision had any ongoing effect on her dealings with Centrelink. It was made in 2008 and was expressed to operate, subject to review, for a period of three months. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.