Applicants' submissions
14 The applicants filed detailed submissions on which I base the following account of their complaints. In effect these submissions are to be treated as particulars. To some extent they fill out the gaps in the initiating applications, although detailed particulars cannot overcome a fundamental problem of lack of jurisdiction which, for reasons discussed hereafter, I am satisfied exists in the present case.
15 I should also mention that in addition to the submissions Mr Wang addressed the Court through an interpreter. Also the applicants' son, who is apparently only 16, gave a polished and articulate address and demonstrated a natural talent for advocacy.
16 After their dismissal by Demos on 2 December 2003 the applicants on 22 December contacted Centrelink via telephone and made claims for Newstart Allowance. The significance of first contact is that, generally speaking, a Newstart Allowance when granted will be calculated from the date of first contact. However, there is an exception where payment has been received on termination, for example for accumulated leave. In such a case the start date is calculated by taking into account an "income maintenance period" which assumes the person has the support of the amount received. The allowance does not commence until that period has expired. The income maintenance period can be shortened in cases of "extreme financial difficulty".
17 On 22 December 2003 Centrelink wrote (to Mr Wang only) enclosing an application form. On 31 December Mr Wang contacted Centrelink by telephone to rectify this error.
18 On 5 January 2004 Centrelink wrote to Mr Wang mistakenly stating the initial contact date as 31 December 2003. Again Mrs Xiao was not mentioned and the application form was not enclosed.
19 On 6 January the applicants' son contacted Centrelink on his parents' behalf. An arrangement was made for an interview with the applicants in early February. Also on 6 January Centrelink wrote to Mrs Xiao wrongly confirming her initial contact date as the same date. The letter also failed to enclose a claim form for Newstart Allowance.
20 On 5 February the applicants attended at Centrelink and were interviewed separately. The Centrelink officer told Mr Wang to produce an "Employment Separation Certificate" (ESC), a document which provides various details about a termination, and also proof of bank account balances. Mr Wang immediately produced proof of his bank account balance, thus the only outstanding requirement was the ESC.
21 Mrs Xiao was separately interviewed by another Centrelink officer, Ms Ely Hanson, who asked the interpreter to leave. Mrs Xiao had to fill in forms she could barely understand. She signed documents without understanding their contents and left in confusion. She was given a letter by the Centrelink officer requiring her to produce certain documents, including bank balances and an ESC.
22 The applicants on 9 and 11 February supplied all the documents required to Centrelink, including loan statements and council rate notice. Still they did not receive social security.
23 Between 5 February and 5 March Mr Wang contacted Centrelink regularly to try and collect the social security benefits. However Centrelink officers told him that the records showed that his former employer had not completed the ESC.
24 On 5 March the applicants visited Centrelink. A lady named Cindy said that Centrelink had still not received the ESC. When asked to state that in writing, Cindy altered her response and told them that Centrelink had indeed already received the ESC. She said the applicants could obtain a copy if an application were made in writing.
25 The applicants, according to their submissions, "were immediately sent into outrage". They asked to see the manager but were referred to Mr Michael Harper, a supervisor. He said that two other documents were still required by Centrelink, a land valuation notice and a home loan statement. He said as soon as the two documents were produced the applicants' claims would be granted and the social security benefits paid. The applicants sent the documents to Centrelink and Ms Hanson provided them with copies of the ESCs.
26 On the same day, that is 5 March 2004, Mr Kevin Donnellan, an officer of the Commission, supplied the applicants with copies of their ESCs. In the case of Mr Wang the copy of the ESC obtained from the Commission was different from that supplied by Centrelink. The Centrelink copy listed the reason for termination as "threatening to kill superiors & poor work performance". In the copy obtained from the Commission that answer read "threatening", then there was a space, then the words "behaviour superiors & poor work performance". The words "to kill" appear to have been deleted and the word "behaviour" added. The fax date of transmission in the latter case is 4 March, in the earlier case 5 February 2004.
27 On 10 March, benefits still not having been received, the applicants again visited Centrelink and met Mr Harper. He said that he had not received the fax sent by the applicants on 5 March.
28 The applicants' son's social security was inexplicably cancelled, delayed unreasonably and was paid in wrong amounts.
29 The applicants complained to a number of authorities including the Commonwealth Ombudsman, Centrelink Customer Relations and Ms Julia Gillard MP.
30 On 18 March the applicants contacted Centrelink to ask for a review of its decision. Centrelink responded on the same day. Its letter referred to an enclosed form but did not in fact provide one.
31 The applicants and their son lodged forms on 2 April 2004 seeking review of their respective decisions by an Authorised Review Officer. A decision was not made until March 2005. The Ombudsman is seeking a reason for this delay.
32 On 22 September 2004 Mrs Xiao attended an interview with Ms Raelene Harrip, an Employment Consultant. Ms Harrip misled Mrs Xiao into signing a Job Seeker Statement and attached Job Seeker Plan. Ms Harrip gave her a letter from Centrelink advising her to attend an interview for the Work for the Dole Program. Ms Harrip threatened her that failure to attend the interview would result in automatic cancellation of her social security benefits. Mrs Xiao started her Work for the Dole Program on 2 October.
33 Mr Wang had signed his Preparing for Work Agreement on 5 February 2004 which required him to start a language, literacy and numeracy program by 22 June but he was not admitted into that program until 15 December 2004.
34 On 3 November 2004 the applicants attended another interview with Centrelink. Mrs Xiao was "further misled" to sign her second Preparing for Work Agreement "without comprehension of the outcome or consequence of committing to such agreements". This agreement was to "cover up" the fact that Mrs Xiao was forced into the Work for the Dole Program and imposed an incorrect starting date of 15 December 2004. This later resulted in her exclusion from the English language lessons, instead she was confined by this agreement to participation in Work for the Dole Program only.
35 Both applicants were offered places in Vocational Education, Certificate III in ESL Employment (Aged Care) at Victoria University, St Albans Campus. The applicants' tuition costs should have been fully funded by Centrelink. Soon after the applicants started this course Mrs Xiao was informed by the Head of Department at the University that she was no longer eligible for the course because she had not finished her Work for the Dole Program. Her teacher showed her a handwritten note to Centrelink.
36 The applicants having obtained the intervention of the Ombudsman, a Centrelink officer at Werribee, arranged a meeting with Mr Wang on 23 March 2005. Mr Wang asked for permission to use a voice recorder. Mr Harper of Centrelink immediately asked the applicants to leave or the police would be called. On the same day the manager wrote a letter to Mr Wang alleging verbally threatening behaviour by him.
37 The applicants appealed to the SSAT. On 30 May 2005 the SSAT handed down a decision dismissing their appeals. The applicants say that the SSAT failed to consider the evidence and arguments presented by way of submissions and erred in law.
38 The applicants sought review in the AAT. On 20 October 2005 their appeals were dismissed after the applicants filed notices of discontinuance.
39 The present proceedings were instituted in the Federal Court on 20 October 2005.
40 The applicants allege "serious criminal offences" by officials of Demos during the course of the Commission proceedings, including perjury and making false corrections to Mr Wang's ESC. It is also alleged that Mr Demos provided false information to Centrelink in regard to the applicants, including particulars as to their last working day, average daily working hours and reasons for termination of employment.
41 Under the heading "Serious Criminal Offences of Centrelink" it is said that Centrelink "conspired to defraud the applicants as defined under common and criminal law". Centrelink conspired with the applicants' former employer and used its authority, power and trust to take advantage of the applicants "appalling English skills and their severe hardship". Centrelink deceived the applicants in relation to their ESCs and assisted Mr Demos "to commit criminal acts to Mr Wang's ESC".
42 Centrelink disregarded and ignored evidence given by the applicants as to their last working day and average daily working hours and "instead based their decision using false and misleading information". Although the applicants have made it clear to the SSAT and the AAT that most information Demos had given to Centrelink was false and misleading, the SSAT and AAT "simply ignored this, and still naively accepted the false information without taking any further action".
43 Centrelink had current and comprehensive information in regard to the applicants and their family because they had claimed family tax benefits but nevertheless the applicants were sent an application form "for another unqualified payment, despite the disqualification was obvious to the officer".
44 Centrelink officers deceived Mrs Xiao into signing an agreement she could not understand and failed to act in her best interests. They forced her into a program which was not in her interests. Centrelink conspired and passed on private information to Victoria University. This was in breach of the Privacy Act 1998 (Cth).
45 Under the heading "Breaches of SSA 1991, SSAA 1999 and Respondent's Policies", it is said that Centrelink officers conspired with Demos to use false evidence in regard to the applicants' average daily working hours.
46 Centrelink failed to apply the relevant law to whether the applicants qualified as under "severe financial hardship". Centrelink noted that they had a total of $700.21 in cash at bank and liquid assets exceeding $694.60. Centrelink irresponsibly assumed that the applicants had more funds available to them on the day of termination of employment than on 5 February 2004, but that was not so because they had to pay mortgage instalments of $850 per fortnight. Thus the $700.21 was not available.