Rajcinoski v Secretary, Department of Employment and Workplace Relations

Statutory background 6 Division 2 of the Social Security Act 1991 (Cth) ('the Act') provides for the circumstances in which social security payments will be paid during a period throughout which a person is continuously absent from Australia. New legislation regarding the portability of payments was introduced by the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (Cth) amending, amongst other things, Division 2 of the Act. Section 1217(1) of the Act, as amended, provides as follows: 1217(1) The person's maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to: (a) the payment (as specified in column 2 of the table); and (b) the class of persons to which the person belongs (as specified in column 3 of the table). The table relevantly provides that the maximum portability period for a person in receipt of disability support pension is 13 weeks. 7 However, s 1218AA allows for an extension of the maximum portability period if, and only if, all of the qualifying circumstances exist: 1218AA(1) The Secretary may determine that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist: (a) the person is severely disabled (see subsection 23(4B)); and (b) the person is receiving disability support pension; and (c) the person is terminally ill; and (d) the person's absence from Australia is or will be permanent; and (e) the purpose of the person's absence is: (i) to be with or near a family member of the person (see subsection 23(14)); or (ii) to return to the person's country of origin. 8 Along with the changes relating to the portability of payments, a savings provision was inserted as cl 135 sch 1A to the Act. Clause 135(1) provides as follows: The Secretary may determine that a person's maximum portability period for disability support pension is an unlimited period if: (a) at the commencement of this clause, the person is absent from Australia and receiving disability support pension; and (b) under this Act as in force immediately before the commencement, that absence could not affect the person's right to continue to be paid the disability support pension through the period that absence; and (c) after the commencement, the person enters Australia but does not become an Australian resident again. The relevant amendments took effect and commenced on 1 July 2004.

ISSUEs IN THE PROCEEDING 9 There are two main issues in this proceeding. The first is whether the advice given by the Centrelink officer on 19 April 2004 was incorrect, and if so, given that the appellant relied on it in returning to Australia, whether the respondent is now estopped from refusing to determine that the appellant's maximum portability period for disability support pension is an unlimited period. 10 The second issue is a matter of statutory interpretation of cl 135 sch 1A of the Act. It is not in issue that s 1217 limits the portability period of the appellant's pension payment to 13 weeks. Furthermore, there is no doubt that s 1218AA does not apply to the appellant as the criteria in s 1218AA(1)(c) is not satisfied. The issue is whether the savings provision in cl 135 sch 1A to the Act applies to the appellant in the circumstances, in particular the meaning to be given to the words 'absent' and 'absence'.

Consideration 11 The Tribunal considered whether the advice given by the Centrelink officer to the appellant on 19 April 2004 was in fact wrong. At paragraphs [8] and [9] of its reasons for decision, the Tribunal stated: After hearing the oral evidence and considering the written material the Tribunal is reasonably satisfied that Mr Rajcinoski received the letter sent by Centrelink on 5 April 2004. The Tribunal takes the view that Mr Rajcinoski's telephone contact with Centrelink on 19 April 2004, in which he queried the portability arrangements, was in response to that letter. Centrelink's record of the telephone conversation: "Advised customer that as long as he does not return to Australia to live new rules will not apply to him". In the context of providing information to a person who is already out of Australia, it is reasonable to conclude that the Centrelink officer may, in effect, have been advising Mr Rajcinoski not to return to Australia before 1 July 2004; particularly as the telephone enquiry seems to have been made in general terms, rather than a request for specific information about the applicant's situation. In the absence of a full record of the conversation, and given that Mr Rajcinoski appears to have interpreted the words "to live" as meaning to reside permanently in Australia, the Tribunal finds that the advice was not necessarily incorrect. The Tribunal notes that Mr Rajcinoski did not contact Centrelink on his arrival in Australia or before 1 July 2004 to seek clarification of the new rules or the contents of the letter dated 5 April 2004. 12 The appellant contended that the findings of the Tribunal in these paragraphs were wrong, and that upon the basis of the alleged incorrect advice given by Centrelink, the appellant returned to Australia. I do not find any error (of law or otherwise) in those two paragraphs. Having regard to the sequence of events described, namely, the appellant's receipt of the letter and the subsequent telephone conversation and the nature of the telephone inquiry, it seems to me that the conclusions reached by the Tribunal were correct. It may well be that the appellant misunderstood the terms of the information, and upon the basis of the communication did act in returning to Australia before 1 July 2004. Later on in its reasons, the Tribunal accepted that had the appellant realised that if he came back to Australia and was not absent on 1 July 2004, there would be a limitation of his disability support pension, he would not have returned to Australia on 22 June 2004. However, this does not mean the advice was incorrect, just that it may have been misunderstood, and upon that basis, it was acted upon. In any event, paragraphs [8] and [9] represent findings of fact of the Tribunal and are not reviewable by this Court (see s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)). Even if the findings of fact were erroneous, it would not constitute an error of law: see Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J. 13 The appellant contends that the respondent is now estopped from not exercising the discretion found in cl 135 in his favour. If I am wrong and the advice given to the appellant was incorrect, the respondent is not estopped from refusing to determine that the appellant's maximum portability period for disability support pension is for an unlimited period, where the Act now limits the portability period for disability support pension to 13 weeks. 14 Putting aside the question of whether the advice given to the appellant was not sufficiently clear and unambiguous so as to be capable of giving rise to an estoppel (see Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 196, 200 and 207-8 ('Kurtovic')) in my view, no estoppel can arise when the provisions of the Act are mandatory (see discussion in Kurtovic at 208-10 per Gummow J; Theo v Department of Family and Community Services [2005] FCAFC 239 at [20] per Kiefel, Jacobson and Greenwood JJ; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 104-7 per Davies and Branson JJ ('Polat'); and Formosa v Department of Social Security (1988) 46 FCR 117 at 125 per Davies and Gummow JJ). 15 Kurtovic was not a case where a party asserted that the public authority was estopped from asserting that a particular action, of which the other party sought performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. However, Gummow J considered the applicability of the doctrine of estoppel in such a case, and stated, at 208: Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying. 16 The inapplicability of the doctrine of estoppel to this case ensures the performance of a statutory duty: see Kurtovic at 208-10 per Gummow J. In my view, the authorities clearly provide that the doctrine of estoppel cannot be called on to aid the appellant in this case. 17 Any suggested exceptions or qualifications to the general rejection of estoppel in public law (see Kurtovic at 213 per Gummow J) have no application to the present case. Further, this is not a case dealing with the exercise of a statutory discretion that is capable of being exercised in favour of the appellant and certainly not at an operational level. It is true that cl 135(1) of sch 1A to the Act gives the respondent discretion to extend a person's maximum portability period, but the respondent can only exercise it in favour of a person who satisfies the criteria set out in subclauses (a), (b) and (c). 18 It was further argued by the appellant that the provision of incorrect advice involves a breach of duty on the part of the respondent. I do not accept that the findings of the Tribunal establish any such breach of duty, but any such breach would, in any event, not constitute an error of law such as to enable me to grant the relief sought in this proceeding (Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 52-3 per Davies, Lockhart and Gummow JJ; Polat at 103-4 per Davies and Branson JJ. 19 It was also argued that the words 'absent' and 'absence' in cl 135(1) sch 1A to the Act should be read in the context of the Act as a whole and should be interpreted as more than just not physically present. It was submitted that I should adopt a purposive approach to interpreting the legislation and take into account that if one construction will manifestly work an injustice and the other avoid it, the latter construction should be adopted. It was submitted that the appellant was absent from Australia in that while physically present, he was not a resident of Australia. Reference was made to Re Alderson; ex parte Jackson [1895] 1 QB 183, where Vaughan Williams J held that in order to come within s 4 of the Bankruptcy Act 1883, which constituted an act of bankruptcy where a debtor with certain intent 'absents himself' a debtor need not absent himself from any particular place by physical bodily absence. 20 In the context of the Act I am unable to accept that the word 'absent' or 'absence' has any other meaning than its ordinary meaning as found in the dictionary, namely: 'away, not present' (Shorter Oxford English Dictionary); 'being away: not present' (Chambers English Dictionary); and 'not in a certain place at a given time' (Macquarie Dictionary). It is clear that in the case of the appellant, he was not absent from Australia on, relevantly, 1 July 2004. 21 Reliance was placed by the appellant upon the second reading speech of the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures)Bill 2003 (Cth) ('the Bill'). In my view, the provisions of the Act are clear and unambiguous. Extrinsic material cannot be used to contradict the meaning of the legislation itself: see Deputy Commissioner of Taxation v Roger Crook & Associates Pty Ltd (2005) 142 FCR 273 at 277-8. In any event, nothing in the second reading speech deals specifically with the issue for determination here, particularly the requirement that as at 1 July 2004, the person is absent from Australia. 22 I also observe that the Tribunal itself referred to the Explanatory Memorandum to the Bill, which provides, in relation to cl 135(1) sch 1A that: This new provision enables the Secretary to determine unlimited portability for DSP where a disability support pensioner with an unlimited portability period is absent from Australia on 1 July 2004 comes to Australia after that date and does not become an Australian resident again. 23 This part of the Explanatory Memorandum takes away nothing from the ordinary meaning to be given to the legislation itself and may in fact support the ordinary and natural meaning of the word "absent".

Conclusion 24 The appeal is dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Solicitor for the Appellant: Victoria Legal Aid Commission

Solicitor for the Respondent: Australia Government Solicitor