Luck v Secretary, Services Australia

BACKGROUND FACTS 5 There was no dispute that, prior to April 2024, Ms Luck received an age pension and a mobility allowance. The mobility allowance was described by the Secretary as a payment to assist people who have difficulty using public transport, with their travel costs to work, study or to look for work. 6 On 2 April 2024, Services Australia wrote to Ms Luck advising that her mobility allowance would stop on 25 June 2024 because she was not working enough hours to be eligible for the payment (the mobility allowance decision). Ms Luck says she received that letter on 14 April 2024. There was no dispute about the contents of the letter, that it was sent, and that it was received on 14 April 2024. 7 The letter dated 2 April 2024 communicating the mobility allowance decision included the following: If you do not agree with the decision we have made Contact us so we can check the details and explain the decision. Contact us and ask for a review of the decision. We will change it if it is wrong. Contact the Administrative Appeals Tribunal if you do not agree with the review officer's decision. If you do not agree with the decision of the AAT you may be able to appeal further. For more information about the AAT, please go to aat.gov.au. All of the above are free of charge. 8 There is no dispute that Ms Luck did not, and did not seek to, use any of those review mechanisms. 9 On 3 May 2024, Services Australia wrote to Ms Luck asking for further information to "to help [them] make the right decision about [her] age pension" (the age pension letter). The age pension letter was headed "request for information" and stated that it was requesting information under s 63 of the Social Security (Administration) Act 1999 (Cth) (Administration Act). Ms Luck says she received the letter on 6 May 2024. Again, there was no dispute about the contents of the letter, that it was sent, and that it was received on 6 May 2024. 10 The age pension letter included the following: More information If you have any questions about this letter, please go to servicesaustralia.gov.au or call us on 132 300 … To make a complaint or give us feedback We aim to resolve your concerns as quickly as possible. If you want to make a complaint or give us feedback you can: Call our feedback and complaints line on 1800 132 468 Go to servicesaustralia.gov.au/feedback for other options If this does not resolve your concerns, you can make a complaint to the Commonwealth Ombudsman at ombudsman.gov.au using the online complaints form. If you are unable to complete the online form, you can call them on 1300 362 072. 11 There is no dispute that Ms Luck did not seek information or make a complaint under those processes. 12 On 10 May 2024, Ms Luck filed this proceeding seeking judicial review, on the grounds set out at [1] above, of the Secretary's conduct in respect of the mobility allowance decision and the age pension letter. 13 On 18 July 2024, I made orders in the proceeding, including orders that the Secretary file any interlocutory application for the dismissal of the proceeding by 2 August 2024. That date was extended, and on 9 August 2024, the Secretary filed an interlocutory application seeking orders that: (a) the Court determine, as a preliminary issue, the question of whether the proceedings should be dismissed pursuant to s 10(2)(b)(ii) and/or s 16(1) of the ADJR Act and the Court's residual discretion to decline to grant prerogative writ relief; and (b) the proceeding be dismissed with costs. 14 The Secretary filed written submissions in support of his interlocutory application on 9 August 2024. Ms Luck filed submissions opposing the interlocutory application on 12 August 2024. The interlocutory application was heard by me on 23 September 2024. 15 Further, on 22 July 2024 Ms Luck filed her own interlocutory application seeking, amongst other matters, a stay of the Secretary's decision to cancel her mobility allowance. That application was listed to be heard before me on 4 October 2024.

THE MATTER AS A PRELIMINARY ISSUE 16 In considering whether the matter should be dealt with as a preliminary issue I take into account the following: (a) The relevant facts, including all of those necessary to resolve the preliminary issue, are not in dispute: see Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; 240 FCR 276 (Branson J) at [8]. (b) The preliminary issue has been clearly stated and is capable of adjudication in favour of one party or the other: Reading at [8]. (c) The preliminary issue is capable of saving time and costs: Reading at [8]. (d) In the present circumstances the preliminary issue is consistent with the overarching purpose of the civil practice and procedure set out in s 37M of the Federal Court Act 1976 (Cth); namely, facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible: see University of Sydney v Resmed Ltd (No 5) [2012] FCA 232 (Stone J) at [41]. (e) The preliminary issue is capable of disposing of the proceeding: Reading at [8]. 17 In all of those circumstances I consider that it is appropriate that the matter be dealt with as a preliminary issue pursuant to r 30.01 of the Federal Court Rules 2011 (Cth).

ADJR Act sections 10 and 16 18 Section 5 of the ADJR Act entitles a person who is aggrieved by a decision to apply to this Court for an order of review in respect of that decision on certain grounds. Section 6 is to similar effect but directed at a review of conduct engaged in "for the purpose of making a decision". Section 7 is directed at reviewing a failure to make a decision. 19 Section 10(1) of the ADJR Act relevantly provides that the rights conferred by ss 5, 6 and 7 are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the Court, by another court, or by another tribunal, authority or person, of that decision or conduct. 20 Section 10(2)(b)(ii) of the ADJR Act then provides: (1) Notwithstanding subsection (1): … (b) the Federal Court … may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason: … (ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure. (2) In this section, review includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order. 21 Once the Court is satisfied that another law makes adequate provision for review pursuant to s 10(2)(b)(ii), the Court is required to consider and weigh all relevant circumstances in determining whether or not to exercise the discretion to dismiss the proceeding: Cremona v Administration Appeals Tribunal [2015] FCAFC 72; 230 FCR 1 (Tracey, Griffiths and Mortimer JJ) at [52]. 22 In Murphy v Secretary, Department of Social Services [2022] FCA 1605; 180 ALD 347, Logan J upheld a decision of the Federal Circuit Court dismissing an application for review because there were modes of adequate alternative review which remained available under the social security legislation. At [19], Logan J extracted with approval the Full Federal Court in Swan Portland Cement Ltd v The Comptroller-General of Customs (1989) 25 FCR 523 at 530 (per Morling, Pincus and O'Loughlin JJ): The learned primary judge pointed out that the legislation provided 'its own method of review', referring to the applicant's right to go to the Anti-Dumping Authority referred to above. His Honour also remarked that, 'it should not be thought that it is always appropriate to bring a matter of this kind before the court.' We agree and express the view that in many (perhaps most) circumstances, the Court's proper response to an application of this particular sort should not be to embark upon a full hearing, but rather to exercise the discretion under s 10(2)(b)(ii) adversely to the applicant. 23 More recently in Haque v Secretary Department of Social Services (Centrelink) [2024] FCA 295, Wheelahan J said (as obiter) at [74] that "generally speaking, unsuccessful claimants for payments under the Social Security Act should pursue" the internal and AAT review "remedies rather than approaching the Court seeking judicial review". 24 Section 16(1) of the ADJR provides for the powers of the Federal Court in respect of applications for judicial review. It provides that the Court, in its discretion, may quash, set aside, or remit the decision, and declare rights or make other directions. The Court has discretion as to whether relief is to be granted under the ADJR Act: see Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248; 147 FCR 516 at [29]. Further, the Court's specific discretion under s 10(2) of the ADJR Act does not derogate from its general discretion under s 16: see Kamha at [87]. 25 Whether the Court should exercise its general discretion under s 16(1) of the ADJR Act will depend on all the circumstances of the matter: see Dalian Steelforce Hi-Tech Co Ltd v Minister for Home Affairs [2012] FCA 1192; 243 FCR 176 (Nicholas J) at [43].

Judiciary Act s 39B 26 Section 39B of the Judiciary Act relevantly provides, subject to some exceptions, that the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. 27 The Court may (and often will) refuse to exercise its original jurisdiction under s 39B of the Judiciary Act for relief where there is another remedy provided: see Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; 237 CLR 146 at [10] per Gummow, Hayne, Heydon and Crennan JJ and Kirby J at [156]-[159].

Relevant social security law provisions for review 28 The Administration Act is an Act providing for the administration of the social security law. The 'social security law' is defined by s 23(17) of the Social Security Act 1991 (Cth) to include the Social Security Act and the Administration Act. 29 Section 129 of the Administration Act relevantly provides that a person affected by a decision of "an officer under the social security law" may apply to the Secretary for review of the decision. Section 23(1) of the Social Security Act defines an "officer" as "a person performing duties, or exercising powers or functions, under or in relation to the social security law". 30 Section 126 of the Administration Act provides that the Secretary may review a decision of "an officer under the social security law" if the Secretary is satisfied there is sufficient reason to review the decision. Unlike s 129, s 126 authorises a review of such a decision whether or not an application is made. 31 Section 135 of the Administration Act provides that, subject to an irrelevant exception, if a person applies under s 129 for review of a decision, the Secretary (or the Chief Executive of Centrelink or an authorised officer) must review the decision and affirm the decision, vary the decision, or set aside the decision and substitute a new decision. 32 Part 4A of the Administration Act provides for review of certain decisions by the AAT. Division 2 of Part 4A deals with the "AAT First Review". In that Division, s 142 relevantly provides, subject to some irrelevant exceptions, that an application may be made to the AAT for review of a decision of the Secretary (or an authorised officer) under ss 126 or 135. By s 43 of the Administrative Appeals Act 1975 (Cth) (AAT Act), in such a review conducted by the AAT it relevantly has the powers conferred on the decision maker in the internal review under ss 129 and 135 of the Administration Act. 33 Division 3 of Part 4A deals with the "AAT Second Review." In that Division, s 179 provides that an application may be made to the AAT for a review of a decision of the AAT on the AAT First Review made under subsection 43(1) of the AAT Act. In other words the AAT Second Review is a review of the AAT First Review. 34 In Ambrose v Commonwealth of Australia [2020] FCA 1439, Perry J found that the avenues for review to the AAT under ss 142 and 179: clearly constitute "adequate provision" for review capable of attracting the discretion in s 10(2)(b)(ii). Furthermore, these avenues would have been better suited to the efficient resolution of the dispute and enabled a full merits review to be undertaken, if there had been any issues remaining between the parties to resolve.

Mobility allowance decision - adequate alternative review 35 The Secretary submitted that the Court should exercise its discretion to refuse to grant the relief sought by Ms Luck because she had other adequate opportunities for review of the mobility allowance decision under the Administration Act. Consistent with the scheme described above, the Secretary relied upon three available mechanisms for review under the Administration Act. First, the ss 129 and 135 mechanism for review (described by the Secretary as internal review). Second, the s 142 mechanism providing for a first review of that internal review, in the AAT. Third, the s 179 mechanism providing for a second review, being a review of the first AAT review, in the AAT. As well as being consistent with the Administration Act scheme described above, those mechanisms are consistent with the review options explained to Ms Luck in the letter from Services Australia dated 2 April 2024 communicating the mobility allowance decision (see [7] above). That letter also described each of those mechanisms as "free of charge." 36 Ms Luck seeks to review the mobility allowance decision, as communicated by the correspondence from Services Australia dated 2 April 2024, and what she describes as a failure to seek critical information from her prior to that decision. The alleged failure to seek critical information is another form of challenge to the decision itself. 37 The mobility allowance decision is a decision of "an officer under the social security law" that affects Ms Luck. There is little doubt that Ms Luck is able to seek internal review of the mobility allowance decision under s 129 of the Administration Act. That process is described above. The correspondence from Services Australia dated 2 April 2024 explained "contact us and ask for a review of the decision. We will change it if it is wrong." 38 The Secretary made clear at the hearing that a review under s 129 of the Administration Act is still available to Ms Luck, albeit any reinstated allowance may only be paid from the date of the review. That position is consistent with the 2 April 2024 correspondence which also stated: If you do not agree with a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review. 39 Likewise there appears to be little doubt that Ms Luck was able to seek a review of any internal review of the mobility allowance decision, in the AAT pursuant to s 142 of the Administration Act. If Ms Luck remained dissatisfied after that further review she was able to seek a second review by the AAT under s 179 of the Administration Act. The AAT review processes are explained above. Consistently, the correspondence from Services Australia to Ms Luck dated 2 April 2024 explained "contact the…AAT if you do not agree with the review officer's decision." The Secretary made clear at the hearing that those AAT review processes would still be available to Ms Luck after any internal review. 40 Ms Luck did not directly challenge the availability of those review mechanisms. Rather she submitted that the internal and AAT review mechanisms were inadequate to address the jurisdictional errors, breaches of discrimination legislation, constitutional issues and denial of procedural fairness involved in her case. 41 First, Ms Luck submitted that the internal and AAT review mechanisms "are not equipped to address jurisdictional errors or breaches of procedural fairness". Ms Luck submitted that merits review is insufficient because the alleged "error is not merely about the merits of the decision but rather the legality of the decision-making process". That submission largely ignores the prospect that the decision could be set aside and replaced with a new decision in Ms Luck's favour. Ms Luck cited Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 at [51]-[58] for the principle that "a jurisdictional error justifies judicial review even where internal review mechanisms are available". I do not understand those paragraphs to stand for that proposition. I do not understand those paragraphs to prevent the exercise of my discretion under ss 10(2)(b)(ii) or 16 of the ADJR Act. 42 Ms Luck cited "Nicholson v Heaven [2000] FCA 191" for the principle that "internal reviews are limited in scope and cannot substitute judicial review where procedural fairness has been violated". Ms Luck attributed that authority to French J at one point in her submissions and to Finkelstein J at another. An authority by that name with that citation does not appear to exist. The authority with that citation (Western Australia v Ward) does not stand for the proposition contended for by Ms Luck. My chambers forwarded correspondence to Ms Luck seeking a copy of the authority cited by her. Ms Luck did not provide the authority but rather said that the authority was a mistaken reference to "Nicholson v Heaven and Earth Gallery Pty Limited (1994) 57 IR 50" which she explained "does not specifically address the administrative law and jurisdictional error issues required in the present matter". 43 Ms Luck also cited Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 for the principle that "where there is a breach of procedural fairness or jurisdictional error, judicial review is necessary regardless of available merits review mechanisms". I do not understand that authority to stand for that proposition. I do not understand that authority to prevent the exercise of my discretion under ss 10(2)(b)(ii) or 16 of the ADJR Act in the present circumstances. 44 Second, Ms Luck submitted that "only the Federal Court, through its judicial review jurisdiction, can provide a comprehensive remedy that addresses both the procedural and substantive issues raised in the case". Again, that submission seems to ignore the prospect that the decision could be set aside and wholly replaced with a new decision in Ms Luck's favour. 45 Third, Ms Luck says that s 16 of the ADJR Act gives the Court a broad discretion and the Court should exercise its discretion not to dismiss her case. Ms Luck put this submission on the basis that there were jurisdictional errors and the nature of her claims meant that the Court should not exercise its discretion to dismiss her proceedings. For reasons set out below I reject this submission. 46 Fourth, Ms Luck submits that "unlike internal reviews of AHRC processes, the Federal Court provides an independent and impartial forum to adjudicate the applicant's claims". There is no basis for the submission that tribunal reviews are not independent or impartial. 47 Fifth, Ms Luck also claims that the mobility allowance decision contravened the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth). The Secretary submits, correctly, that: (i) any claims under those Acts are governed by the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act); (ii) any complaint under the Disability Discrimination Act and the Age Discrimination Act should be lodged with the Australian Human Rights Commission; and (iii) that the AHRC Act provides for the circumstances where any application made to the Court can only be made after the complaint has been terminated by the Commission. I am not satisfied Ms Luck's complaints of discrimination are a proper reason to refuse to exercise my discretion to dismiss her application for review. 48 Ms Luck cited "Victoria v Humphries (2013) 228 FCR 145" in support of her claim that the Secretary's conduct was discriminatory, disproportionate and unjust. That authority was described in her list of authorities as "per Kenny and Besanko JJ at [45]-[55]." An authority by that name or with that citation does not appear to exist. The authority at that page of that volume of the Federal Court Reports (Kerrison v Melbourne City Council) does not stand for the proposition contended for by Ms Luck. My chambers forwarded correspondence to Ms Luck seeking a copy of the authority cited by her. Ms Luck did not provide the authority. 49 As I understood the balance of Ms Luck's submissions they were about the merits of her claims for the continuation or assessment of the mobility allowance. Those are matters that can be raised and assessed in the internal and AAT review mechanisms available to Ms Luck.

Conclusions on mobility allowance and adequate alternative review 50 I am satisfied that another law makes adequate provision for review of the mobility allowance decision as contemplated by s 10(2)(b)(ii) of the ADJR Act. In those circumstances I am required to consider and weigh all of the relevant circumstances in determining whether or not to exercise my discretion to dismiss the proceeding. 51 Those relevant circumstances, together with the undisputed facts at [5]-[12] above, are that: (a) The three mechanisms of review under the Administration Act were clearly adequate and available to Ms Luck in respect of the mobility allowance decision; (a) The three mechanisms of review were advised to Ms Luck in the correspondence to her of 2 April 2024 and there appears to be no dispute that she was aware of them; (b) All of the mechanisms are described by the Secretary as free; (c) All of the mechanisms provide for a full merits review; (d) Those mechanisms would enable Ms Luck to have the decision varied or set aside and substituted by a new decision; and (e) All of the mechanisms are still available to Ms Luck. 52 I consider that it is appropriate to exercise my discretion to refuse to grant the application for review of the mobility allowance decision under ss 5, 6 or 7 of the ADJR Act because adequate provision is made in the Administration Act under which Ms Luck is entitled to seek review of the mobility allowance decision by another person or tribunal. 53 Consistent with Logan J in Murphy, and his adoption of Swan Portland, the Court's proper response to an application of this kind should not be to embark upon a full hearing, but rather to exercise the discretion under s 10(2)(b)(ii). 54 Consistent with Wheelahan J's obiter comments in Haque at [74], ordinarily, aggrieved recipients of payments under the Social Security Act should pursue the internal and AAT review remedies rather than approaching the Court seeking judicial review. 55 I come to the same view, having considered and weighed all of those relevant circumstances, in the exercise of my general discretion under s 16 of the ADJR Act. 56 Further, having considered and weighed all of those relevant circumstances, I come to the same view in the exercise of my residual discretion to decline to grant prerogative writ relief under s 39B of the Judiciary Act.

Age pension letter circumstances 57 As set out above the age pension letter sent to Ms Luck was headed "request for information" and sought further information to "to help [Services Australia] make the right decision about [Ms Luck's] age pension." The age pension letter provided options to Ms Luck to obtain more information, to make a complaint, or to give feedback: see [10] above. 58 The Secretary conceded in the hearing that the age pension letter was "conduct engaged in for the purpose of making a decision" pursuant to ss 6 and 10(1) of the ADJR Act. However, the Secretary submits that no reviewable decision has been made subsequent to that conduct. The Secretary submits, and I accept, that the letter does not constitute a decision for the purposes of s 5 of the ADJR Act. He says that the letter was not a decision of an administrative character made under an enactment because it was not a decision of an administrative character that affected the legal rights and obligations of Ms Luck: see Griffith University v Tang [2005] HCA 7; 221 CLR 99 at [80]. 59 The Secretary submits that the age pension letter was, as it stated, a request for information pursuant to s 63 of the Administration Act. Section 63 relevantly provides that if the Secretary is of the opinion that a person, being a person who is receiving a social security payment (which includes the age pension), should give information, then the Secretary may notify that person that they are required to give that information to the Secretary within a specified time: see s 63(2)(d). The Secretary submits that the purpose of the power to request information under the Administration Act is to ensure that the Secretary has sufficient and up to date information, so that recipients of social security payments continue to be qualified for the relevant payment and receive the correct amount having regard to their particular circumstances. 60 The Secretary submits that there was a reasonable basis to send the letter because the Secretary was entitled to obtain information to enable him to assess Ms Luck's ongoing eligibility for the age pension. 61 Ms Luck says the age pension letter was "legally improper and discriminatory" because it "improperly conflated" the age pension and the mobility allowance. The Secretary says in response that where the age pension is means-tested any income earned by Ms Luck is relevant to the ongoing entitlement to that pension. Accordingly, he says where Ms Luck was in receipt of the mobility allowance (to assist with travel costs for work, study or looking for work) that it was proper of him to request information about whether Ms Luck was employed and her income. I accept, as the Secretary submits, that that request for information was a reasonable and proper exercise of the Secretary's power under s 63 of the Administration Act. 62 Further, the Secretary submits if any decision is made on the age pension, as the result of the age pension letter, Ms Luck would be entitled to seek: an internal review under s 129 of the Administration Act; a review of that internal review, in the AAT under s 142 of the Administration Act; and, a second AAT review of the first AAT review under s 179 of the Administration Act. 63 Insofar as Ms Luck repeats the arguments set out at [42]-[49] above in respect of any alleged decision concerning the age pension letter, I reject those arguments for the reasons given above.

Age pension letter consideration 64 I am satisfied that, considering and weighing all of the circumstances concerning the age pension letter, that it is appropriate to exercise my general discretion under s 16 of the ADJR Act to dismiss the proceeding. 65 Those relevant circumstances, together with the undisputed facts at [5]-[12] above, are that: (a) The age pension letter was a "request for information" and did not constitute a decision on Ms Luck's age pension; (b) The age pension letter was a reasonable and proper exercise of the Secretary's power to request information; (c) The age pension letter presented Ms Luck with options to seek more information, make a complaint or provide feedback; (d) Had the age pension letter resulted in a decision, Ms Luck would have had the three mechanisms of review under ss 129, 142 and 179 of the Administration Act; (e) All of those mechanisms are described by the Secretary as free; (f) All of those mechanisms provide for a full merits review; (g) Those mechanisms would enable Ms Luck to have the decision varied or set aside and substituted by a new decision. 66 I come to the same view, having considered and weighed all of those relevant circumstances of the age pension letter, in the exercise of my residual discretion to decline to grant a prerogative writ under s 39B of the Judiciary Act. 67 It is important to say again that ordinarily, those aggrieved by the conduct of the Secretary should pursue all adequate available options of review or redress rather than approaching the Court seeking judicial review.

DISPOSITION 68 For those reasons I consider that it is appropriate that the matter be dealt with as a preliminary issue. I determine that preliminary issue in favour of the Secretary. The proceeding is dismissed with costs. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling.