Tape recording
31 The applicant in his Second Application seeks orders that "tape recording be permitted", that "signs prohibiting recording be taken down", "new signs stating that recording is expressly permitted be installed" and that "the Department officers to do their job - even if they are being recorded".
32 In the First Piotto Affidavit, the applicant mentions the following about the motivation behind his desire to record his appointments:
…
2. Argument
… The department has breached me for talking to my fellow unemployed clients in the waiting area. Taprecording is my only defence so that i can appropriately fight their allegations. I have been accosted by the security guards in the Preston office, because I pace when waiting. Recording these interaction is essential so that i can appropriately fight their allegations. I can be breached (my payments stopped), for "not trying hard enough" at a job interview (as has happen to others). Recording these interaction is essential so that I can appropriately fight their allegations
3. Further Argument
… The Fact the taperecording is necessary due to their continued high handed and dubious actions is no excuse for them to fail to perform their required duties.
33 The applicant also expressed the following in relation to his complaints regarding tape recording in his written submissions filed 2 August 2019:
…
(g) The Applicant was able to tape-record interviews with Job Service providers up until Sarina Russo breached the applicant for conduct making an interview impossible. These normally required some communication with higher authority in the Department of Human services - but it was eventually allowed. It is not the Applicant Job to train staff in what is permissible - that is the departments responsibility.
(h) The Applicant has never been able to tape-record at a Centrelink office. Notifications in writing, informing the front desk, informing the interview officer and the manager - just turning the tape-recorder on. Now of these have worked.
(i) Regarding the excuse given by the Manager on 15/11/'11 - that can't record because it is an open space office. We the clients have to do our interviews in an open space office - where other nearby people; staff or clients, might overhear our personnel details. If it is good enough for an interview to happen - it is good enough for a tape-recording to happen. The applicant notes the Sarina Russo uses an Open plan office.
…
34 In his written submissions filed 2 October 2019, the applicant further submitted that "[h]aving an accurate record of interactions is Not a Theoretically Necessity", and expressed, broadly, that only tape recording could prevent public abuses.
35 The applicant raised similar complaints in previous litigation in this Court. That litigation arose from certain decisions in 2007 by Centrelink to impose "Newstart participation failures" upon the applicant for the applicant's failures to enter into Newstart Activity Agreements without reasonable cause. The applicant sought review of Centrelink's decisions by the Social Security Appeals Tribunal and subsequently by the Administrative Appeals Tribunal (Tribunal). The applicant then appealed to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to have the Tribunal's decision quashed.
36 One of the issues raised by the applicant on appeal to this Court was the refusal by MatchWorks (who provided job search and other assistance on behalf of Centrelink) to consent to the applicant recording their discussions. The Tribunal had made no finding in respect of the applicant's entitled to use a tape recorder, but found that the applicant's refusal to negotiate the activity agreement without a tape recording being made was evidence of the applicant's unwillingness to enter into a Newstart Activity Agreement. At first instance, Marshall J held that this finding was open to the Tribunal: Piotto v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1115 at [36].
37 On appeal, the Full Court (constituted by Ryan, Mansfield and McKerracher JJ) held that the Tribunal had erred on a question of law unrelated to the issue of the tape recording: Piotto v Secretary, Department of Education, Employment and Workplace Relations [2010] FCAFC 48 (Piotto (FC)) at [29]. However, the Full Court proceeded to make observations in passing about other issues raised by the applicant. In relation to the tape recording, the Full Court expressed the following at [31]:
The Tribunal's findings about the proposed use of a tape recorder on 14 August 2007 are not totally clear. It does not find expressly what the appellant said to the officer of MatchWorks, or what was said in reply. There is an interpretation of the conversation. Counsel for the Secretary on the appeal said that recording an interview by a newstart allowance recipient was permitted subject to certain protocols. In any event, if that delegate in effect precluded the appellant from recording the interview (so that he had no accurate record of it) as a condition of the interview proceeding, it is difficult to see that it was the appellant who terminated the interview. It may also be an error of law to permit a prohibition on the making of a record of such an interview (provided it did not impede the course of the interview and provided any reasonable protocols were complied with), but to regard the request to make such a record as being incapable of showing the appellant's refusal to enter the proposed agreement was reasonable. It is clear that, on that matter, more specific factual findings would be necessary than those made by the Tribunal.
(Emphasis added.)
38 Although his submissions are not clear, the applicant ostensibly relies on this passage in support of his argument that the Secretary, of the Secretary's delegate, erred in prohibiting tape recording in the past, and that the respondents would be acting unlawfully if they prohibited tape recording by the applicant at future appointments.
39 To the extent that the applicant's Second Application seeks for the Court to authenticate future procedural protocols in the abstract, then the applicant's complaints are not fit for judicial resolution. In this regard, although the ADJR Act may apply to conduct that is proposed to be engaged in (see s 6(1)), no such potential future conduct was adequately particularised by the applicant.
40 The first ground of the Second Application provides some foundation for analysis. That ground is that, pursuant to the ADJR Act, "the respondents had no grounds for their decision". Although this claim was not clearly particularised, based on the balance of the terms of the Second Application, and the submissions filed in support of that application, the "decision" to which the applicant was referring is most likely the refusal of a delegate of the Secretary to permit the applicant's tape recording of the appointment on 15 April 2019. The threshold issue is whether this refusal is subject to review under the ADJR Act.
41 The refusal to permit tape recording at the appointment is, of itself, not a decision to which the ADJR Act applies. The key reason for this is that the refusal was not a "decision" within the meaning employed by the ADJR Act as it was "essentially procedural in character": Australia Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 (Bond) at 337 per Mason CJ; see also, Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877; 64 ALD 325; 32 AAR 169 at [28] per von Doussa, O'Loughlin and Mansfield JJ. Moreover, even if it were a "decision", it is questionable whether it was made "under an enactment". Even though the delegate's power in respect of the conduct of the appointment is derived incidentally from s 63(2) of the SSA Act (as discussed below), this may be insufficient to conclude that the refusal was made "under" the SSA Act. Although I accept that the plurality of Gummow, Callinan and Heydon JJ in Griffith University v Tang [2005] HCA 7; 221 CLR 99 expressed at [89] that it was sufficient for the purposes of the ADJR Act that a "decision" be "impliedly … authorised by the enactment", administrative actions authorised only in a general way have previously been held not be reviewable under the ADJR Act: see, for example, Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 272 per Black CJ, quoted in Schlaepfer v Australian Securities and Investments Commission [2017] FCA 1122 (Schlaepfer) at [34] per Wigney J.
42 The refusal to permit tape recording at an appointment will, in certain circumstances, constitute "conduct" for the purposes of s 6(1) of the ADJR Act as it relates to the way in which the administrative decision-making process is conducted: see Bond at 342 per Mason CJ (albeit in the context of a decision by the Australian Broadcasting Tribunal). Where applicable, s 16(2) of the ADJR Act confers power on this Court to make declarations in respect of any matter to which such conduct relates, or make an order directing a party to do, or refrain from doing, any act or thing which is necessary to do justice between the parties.
43 "Conduct" is only reviewable under the ADJR Act to the extent it has been, is being, or is proposed to be, engaged in for purpose of making a "decision" in the sense employed in the ADJR Act: Collie v Behan (1997) 48 ALD 583 at 584-585; 25 ACSR 644 at 645-647; 16 ACLC 41 at 43-44 per Spender J, cited in Schlaepfer at [39]. In the present case, the only clear decision for consideration by the Court is the decision of the Secretary to suspend the applicant's NSA payments (which was ultimately reversed soon thereafter). In my view, the fact that review of that decision is now moot (see above at [28]-[30]), does not mean that review of conduct preliminary to that decision is moot. The ADJR Act provides separate channels of review in respect of "decisions" and "conduct". The applicant's Second Application must be considered on that basis.
44 Based on the applicant's broad submissions, the most relevant ground of review to the refusal to permit the tape recording is, in accordance with s 6(1)(f) of the ADJR Act, "that an error of law had been … committed in the course of the conduct" engaged in for the purpose of making a decision. (A number of the other grounds in s 6(1) are irrelevant because they pertain to a "proposed decision" (whereas a decision was actually made on the facts in the present case).) As extracted above at [37], the Full Court expressed in Piotto (FC) at [31] that it may be an error of law to permit the prohibition of the recording of an appointment, but it is clear from the surrounding comments in these reasons that this was merely an observation in passing as to the possibility of unlawfulness. It is therefore necessary to look to the terms of the statute.
45 Section 63(2) of the SSA Act empowers the Secretary to require a relevant person to, among other things, attend a particular place for a particular purpose and give information to the Secretary. This, according to the departmental respondents' submissions, founds the basis upon which the applicant was required to attend the appointment on 15 April 2019. As noted above, however, the SSA Act does not regulate the manner in which such an appointment is to be conducted.
46 In these circumstances, my view is that the Secretary, or the Secretary's delegate, is conferred an incidental statutory power to regulate the conduct of such an appointment for the purposes of s 63(2) of the SSA Act, but only insofar as such action is reasonably appropriate and adapted to serve a legitimate statutory end. In the present statutory context, this means that any action taken by the Secretary, or the Secretary's delegate, to regulate the conduct of such appointments must be reasonably directed to achieving the purposes of the SSA Act, and its ancillary legislation. This requires consideration of the nature and purposes of the appointment, and the object of the regulation imposed.
47 Although the question will be one of degree, I expect that the prohibition by the Secretary, or the Secretary's delegate, of the informal tape recording of an appointment required under s 63(2) of the SSA Act will ordinarily be reasonably appropriate and adapted to the aims of SSA Act, and its ancillary legislation, which include ensuring that persons receiving social security benefits are complying with their obligations in relation to the receipt of the benefits (see ss 8(a)(v) and 42AA of the SSA Act). In this regard, the remarks of Ashley J in Willis v McColl (unreported, VSC, 12 May 1994) at 35-37 (affirmed in Stefanovski v Murphy [1996] 2 VR 442 per Tadgell, Ormiston and Teague JJ) concerning the risks of informal tape recording are relevant, even if those remarks are slightly dated and were made in the context of curial proceedings.
48 That said, it is unnecessary to form an opinion in the present case as to whether the refusal to permit tape recording at the appointment at 15 April 2019 was reasonably appropriate and adapted to a legitimate statutory end. This is because there is insufficient evidence before the Court as to what occurred at that appointment. Although the First Piotto Affidavit refers to attendance at Preston Centrelink on 19 June 2019, that, of course, post-dates the appointment on 15 April 2019 and is otherwise not connected to the making of any known "decision" for the purposes of enabling review under the ADJR Act. Although the departmental respondents' submissions appear to accept that the appointment on 15 April 2019 did not proceed on the basis that the applicant attempted to record the appointment, in the absence of any detailed evidence, the Court is left to speculate, and there is accordingly no adequate factual basis to conclude that an error of law was committed by the Secretary's delegate in the course of conduct at the appointment.