Zoia v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 924 | Case summary

Federal Court of Australia|2009-08-21|Before: McKerracher J

INTRODUCTION 1 The applicant (Mr Zoia) 'appeals' pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT). On 4 September 2008, the Administrative Appeals Tribunal (the AAT) affirmed a decision of the Social Security Appeals Tribunal (SSAT) of 23 November 2007. The SSAT found that the decision of the authorised review officer of Centrelink of 27 September 2007 to cancel Mr Zoia's Newstart allowance from 24 July 2007 was correct. The AAT affirmed that decision. 2 In that hearing, Mr Zoia had sought an adjournment of his hearing on the basis that he did not want the AAT to make a decision in the matter but that he wanted the Minister for Centrelink to do so. The AAT declined that application for an adjournment on the basis that it had a duty to make a decision. 3 The relevant issues before the AAT were: · whether Mr Zoia had failed to enter into a Newstart Activity Agreement as he was required to do; · whether he had a reasonable excuse for not doing so; and · whether his Newstart allowance should have been cancelled from 24 July 2007. 4 Section 605(2) and (3) of the Social Security Act 1991 (Cth) (the SS Act) provides that the Secretary can require a person who has entered into a Newstart Activity Agreement to enter a new agreement by giving a person notice of the requirement and the place and time the agreement is to be negotiated. Such notices were sent to Mr Zoia. Mr Zoia acknowledged that in response he had attended at Centrelink offices several times but that he did not sign the Agreement despite a number of requests to do so. He was also warned of the consequences of failing to sign the Agreement but declined to do so. 5 The AAT concluded that Mr Zoia by his own admissions made at the AAT acknowledged that he had no reasonable excuse pursuant to s 626 of the SS Act for not entering into the Newstart Activity Agreement. 6 At the heart of Mr Zoia's appeal as best one can discern it is the argument that his Newstart allowance should not have been cancelled as there was no power to compel him to sign the new Newstart Activity Agreement.

APPLICATIONS TO ADJOURN 7 Shortly prior to the hearing of this appeal on 5 August 2009, Mr Zoia wrote to the Western Australia District Registry of this Court requesting an opportunity to read the transcript of a hearing to which the reasons in Zoia v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 661 relate. On the occasion of that hearing (which was to be the hearing of the appeal) it had been necessary to adjourn the substantive hearing of the appeal in order to consider Mr Zoia's argument that the appeal was a nullity. While the discussion which ensued at that hearing could have no possible bearing on the substantive appeal, the starting time of the appeal was nevertheless deferred to permit Mr Zoia the opportunity to read the transcript. 8 At the re-listed hearing of the appeal on 5 August 2009 Mr Zoia sought to re-agitate the issues dealt with in that interlocutory hearing. I did not permit that course. 9 Mr Zoia sought a further adjournment of the hearing of the appeal on two grounds. The respondent opposed the application. The first ground was that he has sought access to a transcript of a directions hearing in which orders had been made pursuant to O 53 of the Federal Court Rules dealing with the procedural aspects of the appeal. In particular, he complained that he did not know what was involved in the settling of an appeal book index. To the extent that access to that transcript was required, it would inevitably have occasioned an adjournment because no transcript had been produced. I will assume that there is a recording in existence of that directions hearing which was conducted in October 2008. A further adjournment would not have been in the interests of justice. Mr Zoia apparently did not attend on the adjourned appointment for the settling of his appeal book index. I was informed by counsel for the respondent, and accept, that in light of his non-attendance, the respondent ensured that all of the material that had been before the AAT was made available in the appeal book for this hearing. In those circumstances, Mr Zoia was unable to identify and I was unable to discern any prejudice which would have been occasioned to him by proceeding with the hearing of the appeal. I also note, as submitted by counsel for the respondent, that Mr Zoia is no stranger to litigation and, in particular, has previously been involved in at least one appeal from the AAT and has some familiarity with the process. 10 The second ground on which Mr Zoia sought an adjournment was in order to obtain legal advice. I accept Mr Zoia's argument that he is not well versed in the law. But I also concluded that the interests of justice did not support the granting of a further adjournment for the following grounds and I declined to permit it. 11 Mr Zoia made a further application for legal assistance to the Attorney-General's Department which was rejected in March this year on the basis that the view was formed that his appeal did not appear to have sufficient prospects of success. As late as July this year following the adjournment of the first return date for the hearing of the appeal (too late in my opinion) he pursued a further application knowing, however, that the matter was listed for hearing on 5 August 2009. There is little reason to think that that late application would have met with success, that is to say, that the Attorney-General would have formed a contrary view to that expressed some months ago as to the prospects of success of the appeal. 12 Steps were taken last year to endeavour to find a pro bono legal practitioner to advise Mr Zoia in relation to his appeal. Those steps were unsuccessful. As will be evident from the reasons which follow, the grounds of appeal on their face are barely intelligible and Mr Zoia's argument in support of them which has been raised at previous interlocutory hearings is equally lacking in clarity. On the other hand, Mr Zoia has raised similar points to those which he seemingly wishes to raise in this appeal in an appeal which is the subject of a decision by Siopis J in Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988. Mr Zoia was self-represented and argued that appeal himself apparently with sufficient ability to at least convey to his Honourpart of thenature of his complaint. His Honour having ruled against him on that complaint already, it is not particularly surprising that Mr Zoia's attempts to obtain legal assistance have not met with success. 13 On the basis therefore of delay in bringing the oral application, or the repetition of earlier argument which had been rejected and that a reasonable opportunity had been given already to attempt to obtain legal representation, the request for a further adjournment for that purpose was declined. 14 The appeal therefore proceeded. On a number of occasions in the course of argument on the appeal, Mr Zoia indicated that he would like leave to appeal to the High Court to ventilate both the need for legal counsel and certain constitutional arguments. I made it clear to Mr Zoia that if his appeal before me was unsuccessful, he would have the opportunity to appeal to the Full Federal Court and a further opportunity from there if he was unsuccessful again, to seek leave to appeal to the High Court. It was made clear to Mr Zoia that it was not within my power to grant him leave to appeal to the High Court.

AN UNREPRESENTED LITIGANT 15 I have endeavoured to be mindful of special considerations applicable when a litigant is unrepresented (Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, Sahtout v Minister for Immigration and Multicultural Affairs [2002] FCAFC 16 at [42]; Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181). In Platcher v Joseph [2004] FCAFC 68, the Full Court (at [104]-[106]) addressed the several authorities on this topic. In a civil case, the balance between affording assistance to an unrepresented party and not conferring an advantage on that party is to be observed. The degree of assistance necessary will vary according to the circumstances (at [105]). 16 Consistently with the approach suggested by these authorities, the notice and grounds of appeal needed a deal of interpretation to be understood. The pursuit of that course has been attempted.

THE APPEAL 17 For convenience, I again set out the notice of appeal, the orders sought and the grounds in support of the notice of appeal in this matter: 1. TAKE NOTICE that the applicant appeals from the decision of constituted by Ms G Ettinger given on 4 September 2008 at Perth whereby the Tribunal decided affirms the decision of the SSAT dated 23 November 2007 2. THE QUESTIONS OF LAW raised on the appeal are 1. The Constitution of the Commonwealth of Australia. 2. The High Court Judgment - Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330. 3. Failed Justice. 4. Failed Natural Justice. 5. Failed Magna Carta, any charter guaranteeing liberty, any fundamental constitution or law guaranteeing rights. 6. Failed Liberty, freedom to do as one please: power of free choice: privileges, rights, etc. 7. "CATCHWORDS", "Applicant refused to sign new Agreement", where is Peter Langley affidavit saying that. My Unemployment Benefits was cancel on Peter Langley information. I said to Peter, could you make the date after the hearing. 8. Set the decision aside and substitute a new decision, that is despot justice, and also make them judge and jury. 9. Set the decision aside, cancel, and substitute a new decision, that new decision can not be cancel. 10. ARO, Brenda Parker can not correct a deception. Centrelink was trying to collect a debt from me. 11. Constitution 64. can not be delegated. 12. This month at Max Employment, I was told, a Lawyer can get it but I can't. About Peter Langley information or notes 3. ORDERS SOUGHT 1. My Unemployment Benefits to be fully restored plus compensation or ex gratia. 2. Federal Court Rules - Pro Bono Publico. 3. The Hon Court to summon Peter Langley to give his information. 4. Secretary, Department of Employment and Workplace Relations to be changed to Minister, for Centrelink, under Constitution 64. 4. GROUNDS: 1. The Constitution of the Commonwealth of Australia. 2. The High Court Judgment - Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330. 3. Magna Carta 4. Peter Langley information and notes. 5. Justice and Natural Justice. 18 There is no obvious question of law disclosed in this notice of appeal filed. 19 Although the notice and grounds of appeal together with the oral argument were difficult to comprehend, the main thrust of the complaint raised by Mr Zoia was that there was no power on the part of the respondent or anyone else to compel him to sign an agreement before paying him a Newstart allowance. This appears to be similar to one of the arguments that was advanced without success before Siopis J in Zoia [2008] FCA 988. There has been no appeal from that decision although Mr Zoia did contend before me that it was incorrect. 20 The second aspect of the argument appears to be that, in fact, Mr Zoia had indicated that he was prepared to sign the agreement notwithstanding his primary position that he was not obliged to do so and that his willingness to sign the agreement was not taken into account. As to this argument, there was no evidence in support of this suggestion but, in any event, it could not constitute any reviewable error of law on the part of the AAT. 21 There were subsidiary issues which I have also endeavoured to address.

CONSTITUTIONAL POINTS 22 Although reference is made to the Constitution in the grounds of appeal in this matter, s 78B of the Judiciary Act 1903 (Cth) does not apply in circumstances where the constitutional question is manifestly unarguable (Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at 297 per French J and Daniels v Deputy Commissioner of Taxation [2007] SASC 431 at [17]-[19]). That is so in this instance.

RESTRICTION OF PERSONAL FREEDOMS AND PRIVILEGES 23 Paragraphs 5 and 6 of the notice of appeal appear to assert that personal freedoms and privileges guaranteed by the Magna Carta and the Constitution have been breached. 24 There is no freedom 'to do as one please(s)' to be found in the Constitution. Nor is there a charter guaranteeing a subject's liberty. The High Court in Kruger v Commonwealth (1997) 190 CLR 1 held (at 61) (footnotes omitted): In a number of recent cases it has been pointed out that the Australian Constitution, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by placing restrictions upon the exercise of governmental power. Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of parliament. Thus the Constitution deals, almost without exception, with the structure and relationship of government rather than with individual rights. The fetters which are placed upon legislative action are, for the most part, for the purpose of distributing power between the federal government on the one hand and State governments on the other, rather than for the purpose of placing certain matters beyond the reach of any parliament. The Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights based largely upon the Fourteenth Amendment to the United States Constitution and including a right to due process of law and the equal protection of laws. The framers preferred to place their faith in the democratic process for the protection of individual rights and saw constitutional guarantees as restricting that process. (emphasis added) 25 The Courts have previously considered the Commonwealth's power to impose conditions on the grant and payment of Newstart allowance. In Higgins v Commonwealth (1998) 79 FCR 528, Finn J considered the scope of the power of the Commonwealth to provide unemployment benefits. His Honour said (at 532): As a matter of characterisation, it is not open to serious argument that s 634 is a law with respect to the provision of unemployment benefits. The "sufficiency of [s 634's] connection" with the head of power - cf Leask v Commonwealth (1996) 140 ALR 1 at 33 - is incontrovertible. The power to provide such benefits must, I consider, include at its "core" … powers (a) to stipulate qualifications for entitlement to, and for continuing entitlement to, unemployment benefits; and (b) to impose disqualifications (temporary or permanent) on entitlement to … or continuing entitlement to … unemployment benefits. Provided the criteria adopted do not otherwise offend a constitutional provision or limitation, the "justice and wisdom" of the criteria so selected are matters for the legislature not the courts … (emphasis added) 26 A person does not have a right to receive a social security payment, benefit or allowance. The requirements prescribed by the SS Act are to be satisfied before such support is given. As found in Higgins 79 FCR 528, it is within the Parliament's legislative power to impose conditions for the qualification and payability of social security payments.

NATURAL JUSTICE 27 The applicant appears to claim he has been denied natural justice in relation to this matter. There is no support for that contention on the evidence. The applicant was afforded the opportunity to put material before the decision-maker as part of the internal review processes, to present his case to the Social Security Appeals Tribunal and to present his case to the Administrative Appeals Tribunal (the AAT). The argument as to a lack of natural justice is rejected.

DELEGATION OF DECISION-MAKING POWERS 28 The applicant also appears to assert that s 64 of the Constitution cannot be delegated. 29 Section 64 of the Constitution provides as follows: 64 Ministers of State The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth. Ministers to sit in Parliament After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives. 30 As best it can be understood, the applicant's argument appears to be that only the relevant Minister can make a valid decision to cancel a person's Newstart allowance under the SS Act. This argument is incorrect. One of the functions of a Minister of State of the Commonwealth as specified in s 64 of the Constitution is to administer such departments of the Commonwealth as the Governor-General in Council may establish. From time to time administrative arrangement orders (AAO) are issued to specify matters for which a department is responsible, namely: (a) the matters referred to in the Part of the Schedule relating to that Department; and (b) matters arising under the legislation administered by a Minister of State administering the Department. (emphasis added) 31 The following table sets out the department which was responsible for 'matters arising' under the SS Act with respect to Newstart allowance at the time of various key events in relation to these proceedings: Date Event AAO in Force Responsible Department 07/08/2007 Applicant's Newstart allowance cancelled AAO issued on 21/09/2006, covering the period 30/01/2007 to 21/12/2007 Department of Employment and Workplace Relations 27/09/2007 Authorised review officer reviewed and affirmed the cancellation decision AAO issued on 29/09/2006, covering the period 30/01/2007 to 21/12/2007 Department of Employment and Workplace Relations 23/11/2007 Social Security Appeals Tribunal reviewed and affirmed the cancellation decision AAO issued on 21/09/2006, covering the period 31/01/2007 to 21/12/2007 Department of Employment and Workplace Relations 10/12/2007 Application filed with the AAT AAO issued on 03/12/2007, covering the period 03/12/2007 to 24/01/2008 Department of Education, Employment and Workplace Relations 04/09/2008 AAT's decision issued AAO issued on 25/01/2008 (as amended on 01/05/2008), which commenced on 25/01/2008 and which continues in force Department of Education, Employment and Workplace Relations 24/09/2008 Notice of Appeal filed AAO issued on 25/01/2008 (as amended on 01/05/2008), which commenced on 25/01/2008 and continues in force Department of Education, Employment and Workplace Relations

DELEGATION OF DECISION-MAKING/REVIEW POWERS TO OFFICERS AND AAT 32 Paragraphs 8-10 of the notice of appeal appear to assert that the power to make a decision as to the qualification of a person for the Newstart allowance cannot be delegated. This is not correct. The broad power of delegation granted to the Secretary in s 234 of the Social Security (Administration) Act 1999 makes this clear. See also s 126(3) and s 149 of that Act and s 43(1) of the AAT Act which permits review of decisions made under the social security law and to affirm, vary, set aside, substitute a new decision or remit the matter to the Secretary for reconsideration.

INTELLIGIBILITY OF NOTICE OF APPEAL 33 Although the Court and the respondent have endeavoured to interpret what it is that Mr Zoia was seeking to contend in his notice of appeal, shortly put, most of the notice of appeal is almost unintelligible. 34 Mr Zoia is a reasonably frequent litigant in this Court and may recall the decision of French J (as his Honour then was) in Zoia v Secretary, Department of Family and Community Services [2004] FCA 863 where his Honour said (at [5]): On the face of the notice of appeal there is no intelligible appeal or matter put before the Court. In my opinion the notice of appeal should be struck out without any further delay and the application dismissed. The time of the Court and of the respondent is not to be taken up by responding to matters which do not contain any intelligible basis upon which the dispute or matter in question can be identified. 35 To the extent I have not already rejected Mr Zoia's apparent contentions, I adopt his Honour's approach to the matter. For the same additional reasons, this application will be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 21 August 2009 The Applicant represented himself

Solicitor for the Respondent: Australian Government Solicitor

Social Security Act 1991(Cth)ss 605(2), 605(3), 626

Zoia v Secretary, Department of Education, Employment and Workplace Relations

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