The relevant factual history
13 The appellant first received the Newstart allowance from in or about December 1996: PJ [11]. From about 2004 until 22 October 2016, the appellant frequently received the Newstart allowance, other than during those periods it was suspended or cancelled on account of the appellant's overseas absences: PJ [11].
14 On 22 August 2016, a delegate of the Secretary wrote to the appellant directing the appellant to attend an appointment and "enter into or review" a "Job Plan": PJ [12]. He was informed that at the appointment he may be required to "review and agree to updates" to his Job Plan. The appellant was put on notice that payment of the Newstart Allowance may be stopped if he did not comply with the requirements set out in that letter.
15 The relevant appointment was scheduled for 10:00am on Wednesday, 31 August 2016: PJ [13]. The appellant attended the appointment with this "employment service provider" but did not enter into a Job Plan on the terms that were presented to him by that provider even though the provider explained that it needed to be agreed: PJ [14]. Instead, as mentioned below, the appellant struck through some of the terms contained in the Job Plan that was provided to him and would only sign the Job Plan if he "changed all the writing" on the plan.
16 On 3 October 2016, the Department gave the appellant a notice imposing on him an obligation to give the Department "all the information that [was] relevant to [his] payment": PJ [15]. The notice advised the appellant that he "must report every 2 weeks for each Reporting Period on the dates" set out in a table contained in that notice and stated that, once the reporting requirements had been met, his payment would be issued for each "Reporting Period". The notice also set out various matters that the appellant was to provide a report about during each Reporting Period.
17 Relevantly, the reporting notice provided as follows:
…
18 It will be evident from the abovementioned notice that the report to be provided in each Reporting Period had to not only identify a change in circumstances but also, amongst other things, the appellant's participation in activities as detailed in his Job Plan.
19 It would appear that on 21 October 2016, the appellant purported to make a report for the period of 8 October 2016 to 21 October 2016. Whilst this report was successfully submitted, the Department notified the appellant that his report "could not complete automatically because [he had] outstanding Mutual Obligations Requirements".
20 On 22 October 2016, the Department wrote to the appellant informing him that a decision had been made to suspend his Newstart Allowance because its "records show [that he] did not attend [his] activity or an appointment": PJ [16]. The letter provided some context and information as to the "Mutual Obligation Requirements" in that it contained the following information:
Job Plan and Mutual Obligation Requirements
A Job Plan is an Employment Pathway Plan under the Social Security Act 1991.
21 The letter also informed the appellant that he needed to contact "Centrelink" as soon as possible to discuss the activity or appointment that he had missed, and set out the relevant contact details for him to do so.
22 On 25 October 2016, the appellant attended an appointment with his employment service provider but (again) did not enter into a Job Plan: PJ [17]. As noted above, the appellant sought to make changes to the proposed terms of the Job Plan but was advised that the employment service provider could not sign off on the Plan in those circumstances.
23 On 1 November 2016, the Department wrote to the appellant informing him that its records showed that he may not have met one of the conditions for receiving the Newstart Allowance and that, if he did not have a reasonable excuse for his actions, he may lose that payment: PJ [18]. The appellant was further informed that if he did not contact the Department before his next payment date, his payment may be stopped.
24 On 7 November 2016, the Department wrote to the appellant advising that his "Newstart Allowance ha[d] been cancelled from 8 October 2016 because [he had] not reported" as required. This notification did not specify whether the cancellation had been made under s 80 or s 95 of the Administration Act.
25 On an application for review made by the appellant, an authorised review officer reviewed the cancellation decision under s 129 of the Administration Act: PJ [20].
26 On 29 November 2016, the review officer found that the cancellation decision was correct and determined that the appellant's review was unsuccessful: PJ [20]. Relevantly, the officer referred to s 80 of the Administration Act but did not specify whether the original decision made by the Department on 7 November 2016 was made under that section.
27 On 5 December 2016, the appellant applied to the Tribunal for review of the authorised review officer's decision. For the reasons set out in the First Tribunal Decision, the Tribunal found that the appellant was not qualified to receive the Newstart Allowance because he had not entered into a Job Plan as required by s 593(1)(c)-(f) of the Social Security Act. The Tribunal accepted that the appellant had signed a Job Plan on 16 August 2016 and on 25 October 2016 but found that neither of these Job Plans were valid as they were not signed by the appellant's employment service provider as the appellant had made changes to the Job Plan including by deleting a requirement that he attend job search activities with his employment service provider for three days a week for two hours each day. The Tribunal reasoned that, whilst the appellant was permitted to jointly develop and negotiate a Job Plan with his employment service provider, his "right to negotiate" did not extend to him deciding not to attend regular meetings and skills activities with his employment service provider. As to the final outcome, the First Tribunal Decision recorded the following:
Issue 3 - Was the decision to cancel the applicant's newstart allowance correct?
38. Subsection 80(1) of the Administration Act provides that, where a social security payment is being paid to a person who is not qualified for the payment, the payment is to be cancelled or suspended.
39. I am satisfied that Mr Manikantan did not meet the requirement of subsection 593(1), paragraphs (c)-(f) of the Act on 8 October 2016 because he did not have a newstart employment pathway plan in place. Consequently, he was not qualified to receive newstart allowance on this date.
40. I find that the decision to cancel Mr Manikantan's newstart allowance on 8 October 2016 was correct.
28 On 5 April 2017, the appellant applied for a review of the First Tribunal Decision, which involved an exercise of such a right of review under s 179 of the Administration Act. This led to the Second Tribunal Decision. On 29 March 2018, in that Second Tribunal Decision, the Tribunal commenced its reasons by referring to the legislative provisions of the Social Security Act and the Administration Act which it identified were relevant, being ss 593 and 601 of the Social Security Act and ss 68(2) and 95 of the Administration Act: see Manikantan No 1 at [8]. The Tribunal concluded that the appellant had refused to enter a Job Plan and had no intention of entering into a Job Plan which was acceptable to his employment service provider. The Tribunal found that the appellant had not met his fortnightly reporting requirements and failed to report for two consecutive fortnights being the weeks ending on 21 October and 4 November 2016. The Tribunal concluded as follows (see Manikantan No 1 at [9]):
21. Having careful regard to the applicant's evidence, I am satisfied that the applicant has failed to meet his requirements under subsections 593(1)(c)-(f) of the Act because he refused to sign an EPP and had no intention of entering into an EPP (which was acceptable to his job service provider).
22. As a consequence of the applicant's failure to enter an EPP and the subsequent suspension of the applicant's Newstart allowance on 22 October 2016, he was unable to meet his fortnightly reporting requirements. Consequently, he failed to report for two consecutive fortnights being the weeks ending on 21 October 2016 and 4 November 2016. In a letter dated 7 November 2016, the applicant was advised by Centrelink that his Newstart allowance had been cancelled from 8 October 2016 (the start of the first fortnightly reporting period) for failure to report. I am not satisfied that there are any special circumstances in this matter which prevented the applicant from contacting Centrelink to discuss his suspension and to ensure that he reported on time as per his reporting requirements.
23. For the above reasons, I am satisfied that the decision to cancel the applicant's Newstart allowance from 8 October 2016 was correct.
29 It would appear from the above that the Tribunal proceeded to determine that the original decision to cancel was the correct one based on the application of s 95 of the Administration Act. For example, the reference made by the Tribunal that it was not satisfied that there were any special circumstances appears to have been a reference to s 95(2) of the Administration Act. The Court in Manikantan No 1 proceeded on the basis, which was accepted by both the appellant and the respondent, that the Second Tribunal Decision affirmed the original decision on the basis that it was the correct or preferable one under s 95 of the Administration Act: see Manikantan No 1 at [20].
30 On 13 December 2019, a single judge of this Court set aside the Second Tribunal Decision and remitted the matter for hearing: see Manikantan No 1. This conclusion was arrived at on the basis that the Tribunal in its Second Tribunal Decision, without notice to the appellant, relied on s 95 of the Administration Act as the basis for the cancellation. Abraham J stated at [21]-[26]:
The applicant is correct that s 95 was not raised during the hearing, nor was it raised in any submission by the respondent prior to the hearing. Indeed, the respondent had submitted to the Tribunal (and to the AAT1) that the applicant's allowance was cancelled pursuant to s 80(1) of the Administration Act. The written and oral submissions of the respondent before the Tribunal were directed towards s 80(1). That provision was in the materials provided to the Tribunal, s 95 was not.
…
The difference between the s 80(1) and s 95, is that the former cancellation involves some decision by the Secretary, the latter is automatic.
It follows that no submission was advanced to the Tribunal about the application of s 95. Importantly, the applicant was not given an opportunity to address that provision. This is in the context where the applicant had submitted before the Tribunal that s 80(1) had not been satisfied. The Tribunal did not refer to or address those arguments. Indeed, the Tribunal did not refer at all to s 80(1) and why it did not accept the respondent's submission that the cancellation was made under that section.
The failure to raise with the applicant that it was considering concluding, contrary to what was relied on by the respondent, that the cancellation was pursuant to s 95 is, in the particular circumstances of this case, a denial of procedural fairness. Section 95 has a number of preconditions to its operation which require satisfaction of certain factual matters.
31 Abraham J also concluded that the Tribunal erred in another respect relating to the construction and application of s 593(1)(c)-(f) of the Social Security Act. Her Honour stated as follows at [37]-[40]:
The Tribunal's statement that it was satisfied in relation to s 593(1)(c)-(f), in so far as it related to each of those subsections, cannot be correct. The applicant submitted that this established that the Tribunal misinterpreted those provisions. As accepted by the respondent during the hearing, all of those subsections could not apply simultaneously, as some relate to a person entering an EPP and others contemplate the scenario where a person was already on an EPP. While originally contending in its written submission that this ground/question was nothing more than "a challenge with respect to the merits of the [Tribunal]'s decision", at the hearing, the respondent accepted there was an error.
However, the respondent submitted that the error was not a material one, relying on Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018); 264 CLR 123 at [30] per Kiefel CJ, Gageler and Keane JJ, in support of this contention. The applicant took issue with that submission.
Only two of the subsections of s 593 apply in this case. That the Tribunal considered that it was satisfied as to all four, reflects that it misapplied the provision. The relevant subsections which applied depended on the circumstances of the applicant; that is, if that person is to enter into an EPP or was already on an EPP which was being reviewed.
That error, by itself, may not have been material because it could be argued that the two that were applicable were addressed. However, the error is symptomatic of a broader issue (which is addressed in the next ground), that is, that the Tribunal did not address the applicant's argument that he was already on an EPP, and that the letters he had been sent were to review the EPP and not to enter an EPP. The respondent's argument throughout was that the letters related to entering an EPP as on their submission, the applicant was not already on one. In light of the issues noted below, the Tribunal's error has been established and it is a material one.
32 Finally, Abraham J also concluded that the Tribunal erred by failing to address the appellant's arguments relating to whether he was on a Job Plan or not at the relevant time. Her Honour reasoned as follows at [51]-[52]:
The applicant also raised the issue that the Tribunal's decision is based on the proposition that he had received a notice to enter into an EPP. The applicant had challenged this below, where he submitted that he was already on an EPP. An issue arose as to whether what was occurring was that he would not enter into an EPP or whether what was requested, was a review of an existing EPP. That has a significance to the nature of the powers being exercised. The relevant provisions are different depending on which of the two scenarios are in play. The applicant submitted to the Tribunal he was already on an EPP while the respondent submitted that the information notice was directed to entering into an EPP. As referred to above, his letters to Centrelink, reflect that at the time the applicant understood he was on such a plan. The Tribunal does not refer to the applicant's evidence and submission on this topic, nor does it reflect any reasoning as to resolving the issue. Rather, as is apparent from paragraph [9] of the Tribunal's reasons recited above, the Tribunal asserted the fact that the letter related to entering into an EPP. The Tribunal gave no reasons for that assertion. That finding underpinned the Tribunal's ultimate conclusion.
I express no view on the ultimate merit of these submissions, but rather, given the nature of these arguments, the fact that they were not addressed, reflects an error by the Tribunal. Suffice to say that the AAT1 accepted, based on the evidence and argument, that the applicant satisfied the activity test. The applicant also submitted this argument is relevant to the application of s 95 and the denial of procedural fairness (discussed above at [16]-[32]), on the basis that if he had been on notice about s 95 he would have advanced this argument in support of the contention that the conditions in s 95 had not been satisfied. It is a precondition to the application of s 95 that the person does not comply with the notice. I note also that the AAT1 had accepted this part of the applicant's argument.
33 It will be apparent from the above that Abraham J did not express any view as to the ultimate merit of the arguments advanced by the appellant as to whether he was on a Job Plan at the relevant time or not, but rather determined that the Tribunal had erred by failing to address the arguments that the appellant had raised.
34 As a result, Abraham J made the following orders:
1. The appeal is allowed.
2. The decision of the Administrative Appeals Tribunal dated 29 March 2018 be set aside, and the matter is to be remitted to the Administrative Appeals Tribunal to be determined according to law.
3. The respondent to pay the applicant's costs of this appeal, as agreed or taxed.
35 On 24 November 2022, the Tribunal made a fresh decision in the form of the Third Tribunal Decision. In this Decision, the Tribunal found that the effect of s 605 of the Act was that "the final substance of the job plan is to be determined by the Secretary". The Tribunal further found that whilst the appellant did not consider the Job Plan was suitable for him, he conceded that the Secretary had the last say in what was suitable: PJ [26]. The Tribunal found that the appellant had failed to submit compliance statements to Centrelink on the first two reporting dates of 21 October 2016 and 4 November 2016 and these were failures that were sufficient for the Newstart Allowance to be cancelled on 7 November 2016. The Tribunal further found that the appellant's failure to enter into a new Job Plan was a serious non-compliance: PJ [26]. For these and other reasons, the Tribunal concluded that the cancellation on 8 October 2016 was an automatic cancellation under s 95(1) of the Administration Act: PJ [26]. In arriving at these conclusions, the Tribunal made a finding that at the relevant time of the suspension and cancellation of the appellant's Newstart Allowance, the appellant did not have a Job Plan in place. The Tribunal stated as follows:
116. I am, on the evidence before me, satisfied that the applicant did not have an existing job plan at the date of 31 August 2016. The Department's record, produced in the T-documents, shows that the applicant entered a job plan on 23 July 2015 that was to expire on 24 August 2016. There is, in evidence, the signed job plan of 23 July 2015.As discussed above, even if the applicant's job plan dated 23 July 2015 continued to exist past 24 August 2016, the Secretary was able to require him to enter into a new EPP while there was an existing EPP in force.
36 The Tribunal further found that the letter dated 22 August 2016 issued by the Department covered both scenarios where an applicant is being required to enter into a new Job Plan or vary any existing one:
113. Mr Manikantan was required by the s 68(2) reporting statement of 3 October 2016 to provide details of how he had complied on each reporting day. It did not allow him to merely state formally that in his opinion, he had complied with the activities with which his job plan required compliance. He needed to provide appropriate evidence of compliance.
114. Of particular importance, the applicant was required to demonstrate that he had complied with his job search requirements and also the requirement of 22 August 2016 to enter into a new job plan. I do not accept Mr Manikantan's assertions that the reporting obligations did not include an obligation to enter into a new job plan. This requirement was not contingent on whether or not the job plan of 23 July 2015 was still extant, as s 605(2) of the Act allows the Secretary to require a person to enter into a new EPP while there is an existing EPP in force.
115. Further, I accept the Respondent's submissions that it is not material whether the applicant was on an existing EPP on 31 August 2016, as the letter from TSAEP adequately covered both scenarios. Relevantly, the letter stated:
If you do not attend this appointment and enter into or review your job plan as required, your payment may be stopped by Centrelink…This is a notice under Social Security Law.
37 Further, in concluding that it was not open to the appellant to, in effect, unilaterally amend the Job Plan that had been proposed to him by his employment service provider, the Tribunal relied upon the decision of this Court in Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268 (Finn J). The Tribunal stated as follows:
97. In determining the issue in this matter, it is important to have regard to the decision of the Federal Court in Kronen and the Secretary, Department of Education, Employment and Workplace Relations 2009 FCA 1268 and similar authorities relied upon by both the Applicant and the Respondent at hearing.
98. In Kronen, the Federal Court stated relevantly as follows at [38]-[39]:
[38] Central to this trio is Mr Kronen's conception of what is signified by the words "to be negotiated" in s 605(3). What is clear is that the level of permissible compromise and of required mutual agreement that this formula might otherwise suggest when used in other contexts, is radically curtailed in this statutory setting. Whether one can say that the ordinary meaning of "negotiate" is what is intended here (albeit what can be negotiated is limited by the Act and its purposes), hence the meaning is a question of fact: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (proposition 2); or that its meaning and hence proper construction is contrived by its legislative settings, hence are questions of law: Pozzolanic, 287 (propositions 1 and 4), what is clear is that Mr Kronen misapprehends the latitude the Act gives him. Elblematic [sic] of this was his presenting Maxima with negotiation procedures which included referral to an independent panel if any terms could not be agreed.
[39] If Mr Kronen is to qualify for a newstart allowance, he was required, in the circumstances, enter into an activity agreement: s 593(1)(e); he was required to undertake one or more activities that the Secretary regarded as suitable for the person: s 606(1); the terms of the agreement were to be approved by the Secretary. In this scheme, the "right to negotiate" could be illusory in quite some degree for some purposes and especially when the Secretary (or a delegate) takes decisions or actions in effectuation of the purposes of the Act itself. This is not to say that there was no room for discussion, accommodation and compromise. Rather, it is to recognise that the actual terms of the negotiation itself were something in relation to which the Secretary, acting reasonably and in good faith, could ultimately dictate, approve or disapprove, if there was to be an agreement.
38 In relation to the issue as to whether the cancellation decision was made under s 80 or s 95 of the Administration Act, the Tribunal stated:
120. There is some contention as to whether the Applicant's NSA was lawfully cancelled under either s 80(1) of the Administration Act or under s 95 of the Administration Act. The Respondent contends that, on 22 October 2016, the Secretary made a decision to suspend his NSA on the basis that Mr Manikantan had failed to comply with his EPP obligations as contained within s 593(1)(c) or (d), and s 593(1)(e) and/or (f) of the Act, namely his preparedness to enter into an EPP proposed by TSAEP on 31 August 2016, regardless of whether his 23 July 2015 job plan was still extant, actually entering into an EPP, and satisfying the Secretary that he was complying with the requirements of his EPP.
121. The Respondent asserts that the suspension under s 80(1) of the Act is not the decision reviewable by the Tribunal, and I accept that contention. The Respondent also asserts that, while not material to the reviewable decision, the suspension under s 80(1) of the Act "is relevant as it throws light on the lawfulness of the cancellation decision on 7 November 2016."
122. While I accept that either s 80(1) or s 95(1) may have been invoked to cancel the applicant's NSA, and that the applicant's submits that his NSA was cancelled under s 80(1), I note that there is evidence in the T-documents that the previous actions under s80(1) by the respondent were accompanied by a file note, and I accept the Respondent's submission that a cancellation under s 80(1) would have been accompanied by such a file note.
123. Section 80(1) requires a positive action by the Secretary to cancel the NSA - such an action would have, in my view been likely to have been accompanied by some internal correspondence and file noting which would have been produced in the T-documents. Cancellation under s 95(1) is automatic, following a failure to comply with a notice under s 68(2), from the first day in the period specified by the notice.
…
125. I note that the authorised review officer (ARO), when reviewing the cancellation of the applicant's NSA, referred to the cancellation occurring under s 80(1). It is not unlikely that the ARO may have been mistaken, or confused about the nature of the cancellation given the Applicant's existing suspension under s 80.
126. On the evidence available to the Tribunal, namely that the cancellation occurred on the first day of the reporting period specified in the s 68(2) notice, that no file note was made of the cancellation, and that there is no evidence before the Tribunal that the cancellation occurred under s 80(1) other than the ARO's decision, I find that the cancellation was an automatic cancellation under s 95(1) of the Administration Act.