Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999

SOCIAL SECURITY - practice and procedure - application for stay of reviewable decision - Tribunal's power to stay an application - compensation preclusion period - prejudice against Respondent if stay were granted - relevant discretions - stay granted

Administrative Review Tribunal Act 2024 (Cth)

Social Security Act 1991 (Cth)

GAP-AAA and GAP-AAB; Child Support Registrar [2024] ARTA 1

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA

1. These reasons relate to an application made by the Secretary, Department of Social Services, seeking a stay on a decision made by the Tribunal on 1 September 2025 on first review of a decision.
2. The substantive application relates to a decision by Services Australia (Centrelink) to impose a compensation preclusion period on the respondent and raise and recover debts.
3. The respondent subsequently made an application to the Tribunal for first review of those decisions and on 1 September 2025, the Administrative Review Tribunal varied the decisions reducing the compensation report period and waiving one of the debts.
4. On 21 September 2025, the Secretary made this substantive application for second review of the decisions and an application to stay the operation of the Tribunal decision on first review in relation ending the compensation preclusion period as of 21 September 2025.
5. On 16 October 2025, I made directions for the parties to provide any further written submissions and documents in relation to the stay application. The parties were also informed that the Tribunal proposed to determine the stay application on the papers. If parties required an oral hearing, they were to indicate that in their submissions and the Tribunal would consider such application in due course. Neither party sought an oral hearing, and the I am satisfied that it can proceed to determine the stay application on the documents before it.
6. I have considered the following relevant documents:

(i) The decision and statement of reasons dated 1 September 2025. > > (ii) The application for second review of the decision and the request for a stay made by the Secretary on 29 September 2025. > > (iii) The Secretary's written submissions. > > (iv) Documents provided by the secretary pursuant to section 25 of the Administrative Review Tribunal Act 2024 (Cth) (section 25 documents). > > (v) Two undated submissions from the respondent responding to correspondence from the Tribunal on 30 September 2025 and 16 October 2025. > > (vi) Various extracts from media articles provided by the respondent.

1. It is generally not in dispute that on 10 September 2017, the respondent sustained an injury while receiving medical treatment and made a compensation claim in that regard. From 10 October 2017, the respondent was in receipt of sickness allowance and on 17 April 2020, the respondent was transferred to jobseeker payment.
2. On 13 February 2025, the respondent settled the compensation claim in the amount of $1,250,000 inclusive of costs. On 17 February 2025, the lawyers representing the respondent in the compensation claim informed Centrelink of the respondent's compensation settlement, and as is required, sought clearance to pay the respondent
3. As a result of the settlement of the compensation claim, on 4 March 2025, Centrelink decided to impose a compensation preclusion period from 10 September 2017 to 3 April 2027 pursuant to 1184K of the Social Security Act 1991 (Cth). In effect, preventing the respondent from accessing social security payments during the compensation preclusion period. Centrelink also decided to raise and recover the following compensation charges:

(i) a sickness allowance and jobseeker debt of $116,451.84 for the period 10 October 2017 to 3 March 2025. > > (ii) a coronavirus supplement debt of $9,250 for the period 4 May 2020 to 29 March 2021.

4. On 26 March 2025, Centrelink made a further decision to raise and recover a jobseeker debt of $153.50 for the advance payment made on 4 November 2024.
5. The lawyers for the respondent in the compensation claim provided that the details of disbursement of his settlement of $1,250,000. After the Centrelink charge was deducted and various other costs and disbursements, the balance of the sum to be received by the respondent in relation to his claim totalled $754,438.87. An advance of $10,000 was paid to the respondent on 25 March 2025 and $6,583.97 was deposited into the respondent's account on 28 March 2025 (totalling $16,583.97). As had been directed by the respondent, $620,000 was deposited into his former wife's account on 28 March 2025.
6. On 14 May 2025 the respondent confirmed in a statement that while an amount of $1,250,000 was awarded, he was only left with $16,583.73. He stated that the amount of $620,000 was credited to his ex-wife by way of repayment of monies that she loaned to him for his business ventures. He states that those amounts loaned were lost due to bad business management and his bankruptcies. He also stated that he had come to an arrangement with his ex-wife that that he would repay her as soon as his case was settled and that the funds were not gifted to her, they were what he owed her.
7. As stated above, on 1 September 2025, the Tribunal on first review, varied the decisions under review so that the compensation preclusion period ended on 21 September 2025 and found that there were special circumstances that warranted the waiving of the jobseeker debt of $153.50. The Secretary subsequently lodged a second review application to the Tribunal on 29 September 2025, the application to stay the operation of the first review decision in relation to ending the compensation preclusion period on 21 September 2025.
8. The respondent is not currently on any Centrelink payments. On 12 February 2025, the respondent had lodged a claim for disability support pension with Centrelink. On 11 March 2025, Centrelink had decided to reject the respondent's claim for disability support pension on the basis that he was serving a compensation preclusion period until 3 April 2027. On 9 September 2025, the respondent lodged a further claim for disability support pension and on 25 September 2025, the respondent lodged a claim for jobseeker payment. The Secretary submits that those claims are presently on hold until the Tribunal makes the decision in relation to the application for the stay.
9. The Secretary's submits that they do not contest the Tribunal's decision at first review to waive the jobseeker payment debt of $153.50 for the advance payment made on 4 November 2024. They only dispute the decision of the Tribunal at first review to end the compensation preclusion period on 21 September 2025. They submit that the legislative intention of the lump sum preclusion period is that individuals who receive compensation payments ought to use that money to support themselves for a period before relying on Government assistance.
10. Section 32 of the Administrative Review Tribunal Act relevantly provides that:

(1) The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision. > > Exception--Tribunal may stay operation or implementation > > (2) However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.

11. In the matter GAP-AAA and GAP-AAB; Child Support Registrar [2024] ARTA 1 Kyrou J, the President of the Tribunal, summarised the relevant principles when considering a stay application in respect to section 127(1) of the Administrative Review Tribunal Act (where a party can seek a stay order in guidance and appeal panel decisions). Section 127(1) largely mirrors the provisions contained in section 32(2) of the Administrative Review Tribunal Act. These principles are set out at [12] - [15] of the statement of reasons for the decision as follows:

12. A stay order will not be granted as a matter of course. Section 127(2) of the ART Act makes it clear that the power to make such an order is discretionary. A precondition to the exercise of the discretion to grant a stay order is the existence of material before the Tribunal indicating that the effectiveness of the referral application will be adversely affected in the absence of a stay. The effectiveness of the referral application will be adversely affected if the party seeking the stay would suffer irreversible prejudice if the stay sought were not granted, such as where a successful outcome before the GAP would be rendered nugatory. The existence of such prejudice would militate in favour of granting a stay. > > 13. The fact that the party seeking a stay is able to point to material indicating that the effectiveness of the referral application will be adversely affected in the absence of a stay does not necessarily mean that the Tribunal is required to exercise the discretion in favour of granting a stay order. That is because any prejudice to the party seeking a stay if the stay sought is not granted must be balanced against any prejudice to the party opposing the stay if the stay sought is granted. Thus, if the party opposing a stay would suffer irreversible prejudice if the stay sought is granted, that would militate against the granting of the stay. > > 14. It follows that consideration of an application for a stay will involve an examination of any prejudice to the party seeking a stay if the stay sought is not granted and any prejudice to the party opposing a stay if the stay sought is granted. > > 15. Ultimately, a decision about whether to grant a stay will depend on a balancing of all the considerations militating in favour of a stay with those militating against granting it, and reaching a decision based on what the interests of justice require in the particular circumstances of the case.

Is it desirable to make the order staying the operation of the first review decision to ensure the effectiveness of the review?

1. The respondent has made submissions about alleged overpayments of Covid-19 jobkeeper payments. The respondent provides media articles relating to Covid-19 jobkeeker payments and alleges that corporations and wealthy individuals failed to pass on payments to employees or repay monies back to the government. He submits that those corporations are making large profits and are not in genuine hardship and are not being required to pay monies back. The respondent submits he feels victimised and targeted. The circumstances of other individuals and corporations as reported to in media outlets is not relevant to determining this stay. The Tribunal is required to weigh up the facts and circumstances in this review and determine whether to impose the stay.
2. The Secretary refers to the decision in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA which was an appeal from the Administrative Appeals Tribunal to the Federal Court dealt with a former provision which was similar in terms to section 32 of the Administrative Review Tribunal Act. At [20] of the judgement Dodds-Streeton J stated that the discretion to order a stay:

... should only be exercised only where special circumstances justify departure from the rule that a successful litigant is entitled to the fruits of judgment pending the appeal, because the appeal, although successful, may otherwise be rendered nugatory.

3. A second review application is not an appeal. However, the issues have already been determined on first review of the decision and it is presumed that as a starting point the respondent should have the entitlement to benefit of the decision at first review and that is a matter that weighs in favour of the respondent.
4. However, having considered the balance of the relevant matters raised by the parties, I find that it is desirable to make the order staying the operation of the first review decision to ensure the effectiveness of the review.
5. The respondent submits that his financial, mental, physical and emotional situations are worsening. He submits that his blood sugar levels, and diabetes are out of control and that he cannot afford to buy the medication that is needed to help control them. He has had to borrow money from his son, but his son has his own responsibilities and bills to pay. The applicant submits that he no longer has a healthcare card and so he is having to pay full price for medication. As his mental and physical health have both deteriorated, he states that he has require the services of his GP and specialists more frequently, however, he is not able to make these appointments because he cannot pay for them. The respondent states that his ex-wife does not support him, but that he is allowed to live rent free due to an agreement between them that he would be there for their two children who are unwell and suffer from mental and physical illnesses.
6. While the respondent states he is in financial hardship, he has provided no supporting documents that reveal his complete financial situation. More importantly, the section 25 documents contain a form which the respondent completed on 31 August 2023 informing Centrelink that he and his former wife were separated under the same roof. While the form indicates that the couple do not share finances and that the former wife does not support him, it is noted that the respondent does not pay rent. His wife pays for the phone, internet, electricity and gas. The respondent pays for his own food. The respondent completed the same form on 15 May 2024 and similarly, he noted that he does not pay rent, and his former wife pays for phone, internet, gas and electricity. The section 25 documents also contain the respondent application for disability support pension which was made on 9 September 2025. He records that he has no assets except a Ute valued at $1500 and his bank account is in overdraft of $32.
7. The respondent concedes he became aware of the preclusion period from his solicitor on 6 February 2025, when he had to sign documents agreeing to settle the compensation claim. Despite being on notice of the fact he would be subject to the compensation preclusion period, the respondent directed that the amount of $620,000 be disbursed to his wife. Except for the respondent's statements and assertions, there has been no supporting evidence regarding the purported amounts owed to his wife or the arrangement between them. More importantly the respondent has not provided any documentation that he was legally obligated to pay his wife from the settlement of the compensation claim.
8. Further, the section 25 documents also confirm that on 1 April 2025, the respondent received a Medicare refund of $117,854.90 which was paid to him by electronic funds transfer. The respondent again transferred those funds to his former wife. That was despite his first claim for disability support pension being rejected on 11 March 2025
9. If the stay is granted, the respondent will continue to be precluded from receiving social security payments until 3 April 2027. If the stay is not granted, then consistent with the decision at first review, there would be no preclusion period as of 21 September 2025 and the respondent may become entitled to income support subject to qualification and other payability criteria. The Secretary submits that in the case that they are successful on review then they would have to recover in monies paid as overpayments from the respondent and the potential quantum of any overpayment may be significant and there may be difficulty in recovering any overpayments from the respondent. I accept that the respondent's current financial circumstances as he has reported them would make it difficult for him to repaying any debt that may become owing to the Commonwealth.
10. I am mindful that the respondent has stated that he has medical his financial, mental, physical and emotional situations are worsening. Accordingly, the matter will be listed for directions shortly and directions made to progress the matter to hearing in an expedited manner.
11. Accordingly, the application for a stay on the operation of the decision to end the compensation preclusion period as of 21 September 2025 is granted.

The decision made by the Tribunal on 1 September 2025, that the compensation preclusion period ends on 21 September 2025, is stayed until further order of the Tribunal or finalisation of the review proceedings, whichever occurs earlier.