Piotto v Chief Executive Officer, Services Australia

Consideration 18 The applicant's attempts in his Applications to invoke criminal liability under s 42 of the Crimes Act 1914 (Cth) and contempt of court under s 31 of the Federal Court of Australia Act 1976 (Cth) are without merit and may be disregarded. Given the underlying conduct complained of by the applicant, it is more useful to focus on the Court's jurisdiction under the ADJR Act (as invoked in the terms of the Applications). 19 Under the ADJR Act, persons who have been aggrieved by a decision, or conduct preparatory to a decision, to which the Act applies may apply to the Federal Court of Australia or the Federal Circuit Court of Australia for review of that decision or conduct on certain prescribed grounds: see ibid, ss 5-6. These courts have power, in their discretion, to make all or any of certain prescribed orders: ibid, s 16. 20 The precise allegations advanced by the applicant are difficult to discern from the terms of the Applications. However, having regard to the applicant's written and oral submissions, the issues raised in the Applications may be broadly summarised as follows: (1) whether the Secretary was entitled to suspend the applicant's NSA payments; (2) whether the Secretary, or a delegate of the Secretary, was entitled to prevent the applicant's use of a tape recorder at appointments attended by the applicant; and (3) whether the Secretary had lawfully delegated statutory functions to Sarina Russo. Each of these issues are now considered in turn.

Legislative framework 21 Part 3 of the SSA Act broadly governs the administration of the provision of social security benefits by the Commonwealth Government. The power for the Secretary to compel attendance at an appointment in relation to the provision of such benefits is conferred by s 63 of the SSA Act (as contained in Div 6 of Pt 3). That provision relevantly provides as follows: Requirement to attend Department etc. Secretary may require person to attend Department etc. (1) Subsection (2) applies to a person if: (a) the person is receiving, or has made a claim for, a social security payment; or (b) the person is the holder of, or has made a claim for, a concession card; or (c) the Department is contacted by or on behalf of the person in relation to a claim for: (i) if the person is not undertaking full-time study and is not a new apprentice - youth allowance; or (ii) in any case - jobseeker payment; to be paid to the person. (2) If the Secretary is of the opinion that a person to whom this subsection applies should: (a) attend an office of the Department; or (b) contact the Department; or (c) attend a particular place for a particular purpose; or (d) give information to the Secretary; the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing. However, the Secretary may not, under this subsection, notify a person that he or she is required to do an act or thing referred to in paragraph (4)(a) or (b). … 22 The SSA Act does not otherwise prescribe the manner in which an appointment for the purposes of s 63(2) is to be conducted. 23 Division 3AA of Pt 3 of the SSA Act is entitled "Compliance with participation payment obligations: persons other than declared program participants". As the simplified outline to the division in s 42AA explains, Div 3AA of Pt 3 "is about the Secretary taking action to ensure that people (other than declared program participants) meet their obligations in relation to participation payments". 24 A concept central to the operation of Div 3AA of Pt 3 is a "mutual obligation failure", which is defined in s 42AC(1). Relevantly for present purposes, that provision provides as follows: Mutual obligation failures (1) A person commits a mutual obligation failure if the person is receiving a participation payment and any of the following applies: (a) the person fails to comply with a requirement that was notified to the person under subsection 63(2) or (4); … (c) the person fails to attend, or to be punctual for, an appointment that the person is required to attend by: (i) a notice under subsection 63(2); or (ii) an employment pathway plan that is in force in relation to the person; … (g) the Secretary is satisfied that the person acted in an inappropriate manner: (i) during an appointment to which paragraph (c) applies that the person attended; … … 25 Section 42AF of the SSA Act prescribes the consequences of a mutual obligation failure. The "usual rule", as addressed in s 42AF(1), is as follows: Compliance action for mutual obligation failures Usual rule (1) If a person commits a mutual obligation failure (the relevant failure), the Secretary must: (a) determine that the person's participation payment is not payable to the person for a period (see section 42AL); and (b) take action under subsection (2) (if applicable). Note: The person may be eligible for back pay once the payment suspension period ends (see subsection 42AL(4)). … 26 The result of a determination made by the Secretary under s 42AF of the SSA Act is addressed by s 42AL, which relevantly provides as follows: Payment suspension periods for mutual obligation failures and work refusal failures (1) If the Secretary determines under section 42AF or 42AG that a participation payment is not payable to a person for a period, the participation payment is not payable for the period (the payment suspension period) worked out under this section. (2) The payment suspension period begins at the start of: (a) the instalment period in which the person commits the mutual obligation failure or the work refusal failure (unless paragraph (b) applies); or (b) if the Secretary determines that a later instalment period is more appropriate - that later instalment period. (3) The payment suspension period ends immediately before: (a) the day the person complies with the reconnection requirement imposed under subsection 42AM(1) (unless paragraph (b) of this subsection applies); or (b) if the Secretary determines that an earlier day is more appropriate - that earlier day. (4) If the payment suspension period ends under subsection (3) for a person, then, for the purposes of the social security law after the end of that period: (a) the participation payment is taken to be payable to the person from the start of that period (subject to the social security law); and (b) the Secretary is taken to have made a determination to the effect mentioned in paragraph (a). … 27 According to the departmental respondents' written submissions, it was in accordance with the provisions set out above that the applicant's NSA payments were suspended.

Analysis of the applicant's circumstances 28 The applicant commenced the First Application seeking to have the suspension of his NSA payments lifted. According to the departmental respondents' submissions, the suspension of the applicant's NSA payments took effect from about 16 April 2019 and related to the period commencing on 10 April 2019. However, the suspension of the payments was lifted with effect from 18 April 2019, and the applicant has subsequently been paid all the money which he would have received had there not been a suspension. This was confirmed by the applicant at the hearing. 29 In these circumstances, the applicant, even assuming he suffered a temporary administrative injustice, has not suffered any material financial loss. The applicant is not suffering from any continuing or future financial detriment as a result of the decision to suspend his payments in April 2019. Consequently, the relevant relief which the applicant seeks in the First Application - that "suspending payments is no longer permitted" - is of no utility as the applicant's NSA payments had been reinstated. 30 Accordingly, even if the applicant could establish that the Secretary's decision to suspend the applicant's NSA contravened one or more grounds under s 5(1) of the ADJR Act, I would, exercising my discretion under s 16 of that Act, refuse to award the applicant any relief because: (1) firstly, as the applicant's NSA payments were reinstated on 18 April 2019, the question as to the legality of the Secretary's decision is moot: see Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201 at 204 per Morling, Neaves and Spender JJ and Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 136 per Wilcox J; and (2) secondly, the applicant did not pursue a merits review remedy that was available to him: Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248; 147 FCR 516 at [87] per Emmett, Allsop and Graham JJ and Dalian Steelforce Hi-Tech Co Ltd v Minister for Home Affairs of The Commonwealth of Australia [2012] FCA 1192; 243 FCR 176 at [39]-[40] per Nicholas J. As extracted above at [8]-[9], the applicant, upon being notified of the suspension of his NSA payments, was informed of his rights to seek an internal review of the decision, and of his subsequent rights to challenge the merits review officer's decision in the Administrative Appeals Tribunal.

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.

Delegation 49 The applicant finally raises complaints regarding the delegation by the Secretary of statutory functions under the SSA Act. In his First Application, the applicant seeks an order that "the delegations of authority be included in the first correspondence which demands clients attendance upon a Job Service Provider". 50 In this regard, the applicant expressed the following in his written submissions filed 2 August 2019: … (c) The delegation of authority was found to be defective. The Applicant has been breached for insisting on seeing a delegation of authority. If delegations of authority exist they should be produced so they can be examined. The Applicant did not feel he had a strong enough case to take the year it would take to appeal the matter to a Court. … 51 In further written submissions filed 26 February 2020, the applicant also stated the following: 1. On the Subject of delegation of Authority. [Name redacted] is the person who summons the applicant and who presents the job activity agreement for the applicant to sign. Is [name redacted] a delegate of the Secretary? The applicant would need a copy of [name redacted] employment contract to see if that was the case. To examine if she was employed in the capacity specified in the deed document. Rather than say; and administrative assisant or office manager. No doubt such a document would be considered commerically confident. There is no such document in the respondents submissions. No delagation of authority has been established. The applicant has been asking to see a delagation of authority for over twelve years and has never seen one. These documents ought to be produced - when the applicant asks to see their delegation of authority on first attending their summons. And by preference before that - when he is summoned to their offices 52 Although there was no clearly particularised evidence to this effect, I infer from the applicant's evidence and submissions that there have been occasions during appointments on which the applicant has asked representatives of Sarina Russo for proof of their authorisation from the Secretary, and that the applicant evidently did not receive proof of that matter to the quality that he had sought. 53 Given the lack of clear particularisation of the applicant's complaints in this regard, it is difficult to connect this complaint to particular decisions or conduct that would form the subject of review under the ADJR Act. However, to the extent that the applicant is arguing that representatives of Sarina Russo were not authorised to conduct appointments with the applicant for purposes contemplated by the SSA Act, I note the following. 54 Section 234(1) of the SSA Act permits the Secretary, subject to particular exceptions, to delegate, in writing, all or any of the powers of a Secretary under the social security law to an officer. The SSA Act forms part of the "social security law": ibid, ss 3(3) and 4. An "officer" is primary defined "a person performing duties, or exercising powers or functions, under or in relation to the social security law": s 23(1) of the Social Security Act 1991 (Cth) (1991 Act). Subsection 234(7) additionally provides as follows: (7) Without limiting the operation of the definition of officer in subsection 23(1) of the 1991 Act, in this section officer includes a person engaged (whether as an employee or otherwise) by: (a) an Agency (within the meaning of the Public Service Act 1999); or (b) another authority of the Commonwealth; or (c) an organisation that performs services for the Commonwealth; but does not include the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997). (Emphasis added.) 55 At the time of the central appointment raised by the applicant (on 15 April 2019), the Social Security (Administration) (Secretary of the Department of Jobs and Small Business Delegation (No.1) 2019 (Delegation), which was made on 28 February 2019 pursuant to s 234 of the SSA Act, was in operation. The Delegation delegated particular statutory powers under the 1991 Act and the SSA Act to particular persons, each as specified in the schedule to the Delegation. 56 Relevantly for present purposes, item 2 in the schedule to the Delegation delegates, amongst other powers, power under ss 63(2) and 63(4) of the SSA Act to, amongst other persons, "[e]ach person engaged by an organisation to perform functions or provide services to the Commonwealth under the … jobactive Deed 2015-2020". Sarina Russo is a party to a "jobactive Deed 2015-2020" with the Commonwealth of Australia dated 2 April 2015 (Deed) (a copy of which was annexed to the departmental respondents' written submissions). Although it is unclear from the evidence the location at which the appointment on 15 April 2019 took place, I note that Sch 1 to the Deed refers to a Preston site (the applicant having mentioned other attendances at Sarina Russo's Preston office in his evidence and submissions). 57 Given the trail of authority explained above, I am satisfied that any decision or conduct of Sarina Russo to which the Applications relate (to the extent that can be discerned) were actions performed under valid delegations pursuant to the SSA Act.

Conclusion 58 For the reasons expressed above, the Applications will be dismissed. The applicant will pay the respondents' costs of, and incidental to, each Application. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson.