SIT CATCHWORDS ADMINISTRATIVE LAW - Social Services Appeal - jurisdiction of Administrative Appeals Tribunal - decision to recover overpayment of Social Services benefit - whether a "decision" to collect a debt due to the Commonwealth - whether duty to collect such debt is imperative or discretionary. ADMINISTRATIVE LAW - Social Services Appeal - child endowment - eligibility to receive endowment whilst temporarily resident overseas - failure of endowee to notify absence overseas - liability of endowee to repay endowment received whilst ineligible. Administrative Appeals Tribunal Act 1975, ss. 25, 43, 44 and 45 Administrative Appeals Tribunal (Social Services Act) Regulations, 1980 Audit Act 1901, s. 70C Federal Court of Australia Act 1976, s. 44(3) Social Services Act 1947, ss. 7,15,103, 104, 104A, 140 DIRECTOR-GENERAL OF SOCIAL SERVICES v. KATHLEEN BEVERLEY HANGAN NG. G64 of 1982 ~ FITZGERALD J. BRISBANE 17 DECEMBER 1982 aIN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY } No. G64 of 1982 GENERAL DIVISION ) ON APPEAL FROM THE ADMINISTRATIVE APPEALS ~ TRIBUNAL GENERAL ADMINISTRATIVE DIVISION BETWEEN: DIRECTOR-GENERAL OF SOCIAL SERVICES Applicant AND: KATHLEEN BEVERLEY HANGAN Respondent ORDER JUDGE MAKING ORDER: Fitzgerald J. DATE OF ORDER: 17 December 1982 WHERE MADE: Brisbane THE COURT ORDERS THAT: » 1. It be declared - (a) that there was jurisdiction in the Administrative Appeals Tribunal to review the decision by the Director-General to recover an overpayment of child endowment of $3,370, a decision that affirmed a determination, direction, decision or approval of an officer that had been reviewed by a Social Security Appeals Tribunal, and did so otherwise than in accordance with the decision of that Tribunal. (b) that on the proper construction of s.140({1) of the Social Services Act it is not necessary that the failure or omission mentioned therein be the effective, and not merely a contributory cause of the overpayment; it is enough that payments of child endowment be made as a result of failure ayo = vy 2. by the endowee to comply with s.104A of the Act and that these payments would not have been made had there not been such a failure. + IN THE TEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. G64 of 1982 GENERAL DIVISION wey CORAM: FOX J. ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION BETWEEN: DIRECTOR-GENERAL OF SOCIAL SERVICES Applicant AND: KATHLEEN BEVERLEY HANGAN Respondent Fox, Toohey and Fitzgerald JJ. The REASONS FOR JUDGMENT 17 DECEMBER 1982 facts in this matter and relevant statutory provisions are set out in the judgments of Toohey and Fitzgerald JJ., and I shall deal with them only in so far as it 1s necessary to explain my views. The "appeal" comes before the Court in its original jurisdiction, and .1S being heard by a Full Court pursuant to a direction were of the Chief Judge given under s.44(3) of the Federal Court Act 1976. ee ee The first principal submission on behalf of the appellant was that the Administrative Appeals Tribunal did not have jurisdiction, because, as it was said, there was no decision of the Director-General within the meaning of Part XXIV A of the Schedule to. the Administrative Appeals Tribunal Act 1975. The first question which arises under that Schedule is whether the Director-General affirmed a determination or decision of an officer otherwise than in accordance with a decision of the Social Security Appeals Tribunal which reviewed the determination or decision of the officer. The ~Tribunal had retommended that no action be taken to recover any amount of family allowance paid to Mrs. Hangan. The Departmental officer had been of a contrary view. It appears from the papers that a letter dated 1 November 1978 was sent by the Department to Mrs. Hangan telling her she had been overpaid $3,373.00, and asking her at the same time to answer a questionnaire. On 13 February 1979 approval was given to a recommendation by an officer "to raise" an overpayment of that amount "against Mrs. Hangan. This decision was apparently communicated to her in those or similar terms, for she then appealed, on 12 June 1979, to the Social Security Appeals Tribunal "against an overpayment of $3,373 that has been raised against me'', The Chairman of the Tribunal was told by the Department, by letter dated 19 November 1979, that the overpayment claimed should be reduced to $2,968.20. The decision of the Tribunal, which was favourable to her, and to which I have . referred, was given on 28 November 1979. The matter was thereafter considered by a number of Departmental officers. Finally, a minute apparently dated 30 May 1980 was addressed to the Deputy Director-General recommending that payments in respect of some periods be recovered, and that others not be recovered. No ~ amounts were mentioned, but the case has proceeded on the basis that the total amount to be recovered under these recommendations was the sum of $2,968.20 already mentioned. The memorandum also made reference to the discretionary power under s.70C of the Audit Act 1901 given to the Minister for Finance to waive payment. This power can be delegated and apparently could at the time be exercised by one or more officers of the Department of Social Services (as it was then called). I can say at once that I disagree with the comment in the minute to the effect that the exercise of the power * by an officer of his Department was alien to matters the " administrative Appeals Tribunal could consider. I shall mention this matter again. The Deputy Director-General endorsed the minute as "approved". This decision was communicated to Mrs, Hangan. It would reasonably be _understood as an authoritative decision as to = recoverability, and itself in the nature of a demand. The application to the Administrative Appeals Tribunal by Mrs. Hangan described the decision as one "to_ recover an overpayment of child endowment of $3,373... .". It can be taken that the Director-General did affirm, or vary, the decision or determination of the officer of his Department, otherwise than in accordance with the decision of the Social Security Appeals "Tribunal. It seems to me to be plain that he made a decision to do so. There is no occasion to ask whether the decision satisfies the general words of s.25(1) of the Administrative Appeals Tribunal Act, although I have no reason to doubt that it does. At the relevant time, s.26(1) was as follows "26. (1) The provisions of the Schedule have effect according to their tenor notwithstanding anything contained in any other provision of this Act (other than sub-section 25(2) or an any provision of any other enactment in force at the commencement of this Act." iy - The word "decision" was and is widely defined in s.3(3) of that Act, and under para. (e) includes the making of a demand. Whether the officer made a determina- tion or decision within the meaning of Part XXIV A of the 5. Schedule has not been argued separately, but it is my view that he did so, as part of his administrative duties. It is submitted that there was no decision because, given the facts, the law operated thereon so as to create a debt. The argument is that if there were overpayments to which s.140(1) applied, the amounts thereof were recoverable as debts by force of that sub- section, without any need, or place, for intervention by a decision of the Director-General, or, for that . matter, any other person. If there were no such over- payments, there was no debt and recovery action would fail. This is an over-simplification, and is an incorrect view of the situation. I have already pointed out that the Schedule to the Administrative Appeals Act recognised specifically the function of making the decision in question and it was that decision which became the subject of the review, although, understandably, Mrs. Hangan expressed it differently in her application. The submission fails s+adequately to recognise that what is under examination *is an administrative process. It is a necessary pre- requisite to legal action, but not a determinant of legal rights. Facts are not facts in the abstract; they must be collected and evaluated. A subordinate 6. officer makes a decision or determination affecting matters such as the fact of overpayment, the amount of overpayment, and recoverability. There is a decision to approve this decision, and approval. The Social Security Appeals Tribunal considered the matter. Its decision that action not be taken was overruled, but it has not been suggested that it was not a legally proper decision. The fact is that action to recover, or even to demand, is not an inevitable conse~ quence of an administrative assessment that there is liability. There are reasons, apart from the application of s.70C of the Audit Act, why action may not be taken. It was not suggested that waiver under that section was not a legal possibility, but simply that it did not accord with policy, or practice. The possibility of applying the section was referred to within the Department, and a discretionary decision that no steps be taken to have an authorised person apply it was an important matter leading to the final decision of the Director-General. Certainly the possibility breaks the chain of inevitability, and the exercise of ; discretion was reviewable by the Administrative Appeals Tribunal. In my view this submission fails. 7. The next principal submission was that the Tribunal from whom this appeal comes was in error when it held that under s.140(1) of the Social Services Act 1947 failure or omission to comply with a provision of the Act had to be an effective cause of an overpayment, before there was a recoverable debt. Applying this interpretation to the facts, it held that s.140(1) did not apply, and no amount was recoverable against Mrs. Hangan. I agree with Toohey J. and Fitzgerald J. for the reasons they have given that this interpretation was wrong. I agree that it is sufficient if the failure or omission is a contributing cause. There was an error of law in the decision of the Tribunal and the usual result in a case such as the present would be that the decision would be set aside and the matter remitted for hearing, or re-hearing. It appeared in the course of argument before us that on the material presented to the Tribunal, but on the basis of our findings on the law, a finding that the full amount was recoverable or should be demanded, probably could not be sustained. I say probably, because I do not know that the matter was raised before the Tribunal or fully argued before us. A difficulty I have is that I am not sure that the Tribunal would necessarily have been driven to any particular course, or solution, and it is not for us to supplant its function of deciding the facts or how the matter should be disposed of. The matters formally raised before us are those with which I have dealt. I believe Mrs. Hangan has been sufficiently harrassed, due to the patently crude and inefficient handling of her case by the Department. I do not think it reasonable that she be invited to appear before this Court again to debate the form of order we should now make, or that she be subjected to a further hearing before the Tribunal. I agree with the orders proposed by Toohey J. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Fox, Dan & Fox Associate Dated:?7 December 1982 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. G64 of 1982 wee GENERAL DIVISION ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION BETWEEN - DIRECTOR-GENERAL OF SOCIAL SERVICES Applicant AND KATHLEEN BEVERLEY HANGAN Respondent CORAM : Fox, Toohey and Fitzgerald JJ. DATE: 17 December 1982 REASONS FOR JUDGMENT TOOHEY J. . The bureaucratic hand has come down heavily. This matter, which began in 1972, received the attention of several officers of the Department of Social Services, reaching the Director-General and the Social Setvices Appeal Tribunal; then proceeded to the Administrative Appeals Tribunal; and which is now before . the Full Court of this Court concerns an alleged overpayment of child endowment. The amount involved is $2,692.20; the time spent in the disposition of thé matter is incalculable. : Until 1972 the respondent Mrs. Hangan, her husband and their four children, Lisa, Andrew, Catherine and Ellen lived in Toowoomba, Quensland. Mrs. Hangan received child endowment in respect of each child. In that year Mr. Hangan entered into a one year contract to work for Union Oil Indonesia and on 8 July 1972 Mrs. Hangan and the children went to Indonesia to join him. With the exception of holiday breaks in Australia the family remained in Indonesia until September 1975 when they went to live in Singapore. They stayed there until the end of August 1976 when they moved to the Philippines. There they remained until May 1978 Between May 1974 and December 1976 Lisa was at school in Victoria and during that time lived with her grandparents She then returned to the Philippines. The family have been back in Australia since May 1981 although Mr. Hangan's work still obliges him to be in the Philippines on alternate months. Section 104A of the Social Services Act 1947 requires that where a child who is in the custody, care and control ef an "endowee" (that is a person to whom child endgwment has been granted) ceases to be in Australia, the endowee shall within 14 days notify a Director of Social Services. Failure to do so attracts a penalty of $40.00. The circumstances under which child endowment ceases to be payable are set out in s.103(1) of the Act One of those circumstances is that the child ceases to be in Australia, unless his absence is temporary only (para.(e)). Another is that the endowee ceases to have his usual place of residence in Australia, unless his absence from Australia is temporary only (para. (d)). Before Mrs. Hangan left Australia in July 1972, she did not notify the Department of her proposed departure. Her explanation was that she and the children had to pack up and leave hmriedly and that, expecting to be away for only ten months, it did not occur toher that payments of endowment would be affected. After her arrival in Indonesia Mrs. Hangan spoke to other Australians and, there being some uncertainty expressed about the position of child endowment, on her return to Australia in July 1973 she called at the Department's office in Toowoomba. She was given a form of application for payment of endowment abroad. She completed this on 8 August 1973, stating that the family had lived in Australia all of their lives except for the preceding 12 months and that they would be leaving Australia on 23 August for an anticipated period of one year. On 15 August 1973 the Registrar of the Toowoomba ,, Branch of the Department wrote to Mrs. Hangan in these terms: "Your child endowment payments will continue while you are overseas as long as you continue to satisfy the following conditions. - er a that your usual place of residence = will continue to be in Australia and that your absence is only temporary; 2. that you continue to have the custody, care and control of your child(ren); 3. that you do not receive a payment similar to child endowment under the law of any other country. Should you cease to satisfy any of these conditions you must notify this office immediately.". The implications of the letter include an acceptance by the Department that the family's absence frém Australia to date was of a temporary nature and, in particular, that payments of child endowment had been properly made and received. There the matter seems to have rested until on 14 July 1978 the Department received a claim from Mrs. Hangan for student family allowance for Lisa. This prompted a review of the relevant file. On 1 November 1978 the Department wrote to Mrs. Hangan saying that because of her prolonged absence overseas she could not be considered a permanent resident of Australia, that she was therefore not entitled to receive family allowance payments, that her entitlement to do so ceased on the payday following her departure on 8 July 1972, and that in consequence she had been overpaid the sum of $3,373. Mrs. Hangan appealed against this decision. Presumably she did so pursuant to s.15 of the Act which authorises an appeal from a decision of an officer to the Director-General of Social Services. Her appeal was referred to the Social Security Appeals Tribunal. That body is mentioned in various sections of the Social Services Act but, so far as I can see, it is not the creation of that Act or of any other statute. It appears to have been established by ministerial direction as part of a procedure designed to assist the Director-General in the administration of the Act. When the matter reached that tribunal the amount of the alleged overpayment had been reduced to $2,968.20, a figure arrived at by giving Mrs. Hangan credit for payments to which she would have been entitled during those periods between July 1972 and August 1978 when she and the children were in Australia. Having regard to the way in which the Act operates, it would seem that if endowment ceased to be payable by reason of any of the circumstances in s.103, a fresh application for endowment was necessary. But no point was taken on that score. The Tribunal reported to the Director of the Department in Brisbane in a letter which concluded with these words: "The Tribunal is of the opinion that Mrs. Hangan has been honest in her dealings with the Department and believed that she was legally entitled + to payment of Family Allowance. In these circumstances and having regard to the fact that the excess payments arose from a breakdown in office procedures the Tribunal recommends that no action be taken to recover any amount of Family Allowance paid to Mrs. Hangan.". But that was not the end of the matter. The appeal papers reveal a stream of correspondence and mémoranda within the Department, culminating in a letter dated 23 June 1980 written by the First Assistant Director- General (Legislation and Review) to Mrs. Hangan. That letter summarized the steps that had been taken internally following the Tribunal's recommendations and pointed out some of the factual and legal problems that had arisen. The letter laid stress upon the failure of Mrs. Hangan to notify the fact of her children ceasing to be in Australia after 8 July 1972 and asserted that payments made thereafter were the result of her failure to comply with s.104A(b) of the Act. Likewise, it was said, her failures to notify the Department of the family's departure on 6 September 1974 and of any later departures were in breach of the Act. The -letter continued: so *+ "Consequently, all payments made after the family's unnotified departures (excluding periods during which the family was physically present in Australia) are recoverable". It was then said that, Mrs. Hangan having notified the Department on 8 August 1973 of the family's intended departure, payments made from 22 August 1973 until their return on 8 August 1974 resulted from an error of the Department and not from a breach by Mrs Hangan of s.104A(b). Amounts paid during this period were therefore not recoverable. Notwithstanding the recommendation of the Social Security Appeals Tribunal, the letter went on to say that the "delegate" (that is the person to whom the Director-General had delegated his functions) had "concluded" that, because of failures to notify the Department, Mrs. Hangan had received child endowment to which she was not entitled; and that the delegate had "decided" that the overpayment recoverable pursuant to s.140(1) was all endowment paid from 18 July 1972 until 8 August 1978, less payments made during the periods Mrs. Hangan and her children were physically present in Atstralia and during that period from 22 August 1973 to 8 August 1974 in respect of which the Department had been notified. The letter concluded: "If you are dissatisfied with the delegate's decision, you may apply in writing, within twentyeight days of receiving this letter to the Administrative Appeals Tribunal for a review of the decision.". yy Mrs. Hangan might have been forgiven had she, at that point, decided that it was all too much for her. But, undaunted, she accepted the advice implicit in the letter of 23 June 1980 and appealed to the Administrative Appeals Tribunal. What she sought was a review of "The decision to recover an overpayment of child endowment of $3373 00 in respect of child endowment paydays from 18 July 1972 until 8 August 1978 inclusive". Section 25 of the Administrative Appeals Tribunal Act 1975 recognizes that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment, in which event the Tribunal is empowered to review any decision in respect of which application is made, Before this Court it was accepted that the relevant enactment providing for an appeal to the Administrative Appeals Tribunal under the Social Security Act arose from Statutory Rules 1980 No.62 - the Administrative Appeals Tribunal (Social Services Act) Regulations which came into operation on 1 April 1980. Those regulations amended the schedule to the Administrative Appeals Tribunal Act by inserting Part XXIVA. By force thereof, where the Director-General of Social Services has, pursuant to s 14 or*L5 of the Social Services Act, affirmed, varied or annulled a determination, direction, decision or approval of an officer that has been reviewed by a Social Security Appeals Tribunal; and has so affirmed, varied or annulled that determination, direction, decision or approval otherwise than in accordance with the decision of that Tribunal, application may be made to the Administrative Appeals Tribunal for a review of the Director-General's decision. No doubt very much to Mrs. Hangan's surprise, when she appeared before the Administrative Appeals Tribunal she was met with an argument that there had beén no decision or other act by the Director-General in respect of whichapplication for review could be made. The-Tribunal rejected that argument and did so by adopting the.reasons which the Tribunal (differently constituted) had delivered in Carmela Matteo and Director-General of Social Services (No.V/81). The argument was renewed before this Court. As to jurisdiction, the Director-General's submission may be summarized in this way. Section 140(1) of the Social Services Act reads: "Where ... in consequence of a failure or omission to comply with any provision of this Act, an amount has been paid by way of ... endowment ... Which would not have been paid but * for the ... failure or omission, the amount so paid shall be recoverable in a court of competent jurisdiction ... as a debt due to the Commonwealth.". Sub-section (2) empowers the Director-General, in his discretion, to deduct an amount, which should not havé been paid, from any other benefits the recipient may be receiving under the Act. There are some qualifications to the operation of this provision but it is unnecessary to mention them here. There was no decision, it is said, because s.140(1) does not require one. The sub-section simply expresses a proposition viz. that where in consequence of a failure to comply with the Act an amount has been paid which would not otherwise have been paid, the amount is recoverable in a court of competent jurisdiction, In other words recoverability springs from the existence of the circumstances set out in the sub-section; it is a self-operating provision. The submission goes further to point out that, under s.70C of the Audit Act 1901, the appropriate Minister has power to waive the right of the Commonwealth to payment of an amount payable to the Commonwealth, in accordance with procedures laid down in that section. The relevance of this, it is said, is that recoverability cannot depend upon a decision by the Director-General. A legal right is created by s.140(1); that right may be waived only by the Minister under s.70C of the Audit Act. Thus there is no relevant decision to be made or that can be made by the Director-General. = - Section 70C(3) of the Audit Act provides that the power conferred on the Minister by sub-s.(2) is in addition to and does not derozate from any other power conferred on the Minister by that Act or by any other Act. But it wa not suggested that there was any other power relevant in this regard. Let it be assumed that the recoverability of an overpayment as a debt due to the Commonwealth does not depend upon a decision by the Director-General and that such a debt may not be waived by him. It does not follow that a decision by the Director-General is not a pre-requisite to any action taken for that recovery. Indeed, as a matter of administration, it is hard to see how such recovery could \ be effected without a decision by the Director-General or some other officer competent to make it. Certainly s.140(2) vests in the Director-General a discretion to determine whether > any Overpayment may be deducted from future benefits. H - eeemnnmpnenininnes Tam As the Tribunal pointed out in Matteo at p.8 - "there are certain administrative processes that must precede any move to seek recovery in a court in = pursuance of s.140(1).". An officer must form an opinion or reach a conclusion that there has been a failure or omission to comply with a provision of the Social Services Act; he must satisfy himself that benefits have been paid in consequence of that failure or omission that would not otherwise have been paid; and that officer or another must decide to seek recovery. In my view the following passage from the Tribunal's reasons in Matteo at p.9 is apposite: * "We think that at least the determination of that amount and the decision to seek recovery of it are determinations or decisions of officers under the Social Services Act that are reviewable under s.14 and appealable under s.15 of that Act and, consequently, prima facie - reviewable by this Tribunal under s.15A of that Act if they have been reviewed by a Social Security Appeals Tribunal and, as in the present case, affirmed by the Director-General or his delegate.". Ww, The appeal papers contain a minute to the Deputy Director-General with recommendations that payments made during the dates therementioned "should be recovered". The memorandum concludes "I suggest approval to the above recommendations". The memorandum bears the endorsement by the Deputy Director-General "approved" and dated 3 June 1980. When the Department wrote to Mrs. Hangan on 23 June 1980 the letter already mentioned, referring to what the delegate had_ "concluded" and "decided", presumably that was a reference to the memorandum and endorsement just mentioned, In my view there was a decision by the Director- General made after the Administrative Appeals Tribunal (Social Services Act) Regulations came into operation, a décision made under s.15 of the Social Services Act and a decision that affirmed a determination, direction, decision or approval of an officer that had been reviewed by a Social Security Appeals Tribunal, and did so otherwise than in accordance with the decision of that tribunal. It was a decision that endowment that had been vaid was not payable, that it had been paid in consequence of a failure or omission to comply with s.104A, that it would not otherwise have been paid, that it was recoverable and tfat it should be recovered. Hence Mrs. Hangan was entitled to seek a review of the Director-General's decision by the Administrative Appeals Tribunal. The other submission of the Department assumes that there was jurisdiction in the Administrative Appeals Tribunal to review the Director-General's decision but challenges the decision of the Tribunal itself. The formal decision of the Tribunal was that the overpayment was not recoverable as a debt due to the Commonwealth pursuant to s.140(1) of the Social Services Act. In the view of the Tribunal, a failure of the sort referred to in sub-s.(1) must be the "effective" and not merely a "contributory" cause of the overpayment. While there was a failure by Mrs. Hangan to comply with s.104A of the Act, the effective cause of the overpayment was the failure of the Department to review Mrs. Hangan's situation when learning from her in August 1973 that she and her family expected to be away from Australia from- 23 August for a period of 12 months. - The Director-General challenges that view of s.140(1). He submits that, for the sub-section to operate, it is sufficient that an omission by an endowee to comply with a provision of the Act be a cause of overpayment and that the section does not justify a consideration of effective or contributory causes or any such characterisation. This submission makes it necessary to return to the precise wording of s.140(1). An amount vaid by way of endowment becomes recoverable where it is paid "in = consequence of a ... failure or omission ... to comply with any provision of this Act" and it "would not have been paid but for the ... failure or omission". The expression "in consequence of" appears in s.26(d) of the Income Tax Assessment Act 1936 which makes taxable 5% of the capital amount of any allowance, gratuity or compensation "where that amount is paid in a lump sum in consequence of retirement". In Reseck v. Federal Commissioner of Taxation (1975) 133 CLR 45 Gibbs J. (as he then was) said at p.51. "Within the ordinary meaning of the words a sum is paid in consequence of the termination of employment when the payment follows as an effect or result of the termination ... It is not in my opinion necessary that the termination of the services should be the dominant cause of the payment". Jacobs J. rejected the notion that the words "in consequence of" import causation. In his view they connote a "following on". P x & In McIntosh v. Federal Commissioner of Taxation (1979) 25 A.L.R. 557 the Full Court of the Federal Court held that the words "in consequence of" in s.26(d) do not require that the termination of employment be the dominant cause of payment, The paragraph demands a sufficient relation between the payment of an amount in a lump sum and the retirement, a mere temporal sequence being insufficient. In my opinion, the judgmentsin both cases offer a guide to the proper construction of s.140(1) of the Social Services Act. The Administrative Appeals Tribunal, relying upon what had been said in Matteo, thought otherwise. In the Tribunal's view, the failure or omission mentioned in the sub-section must be "the effective, and not merely a contributory, cause of the overpayment". Recognizing that there had been a failure by Mrs. Hangan to comply with s.104A, the Tribunal was of the opinion "that the effective cause of the overpayment was the department's failure to review when learning of the applicant's circumstances". It followed that there was no proper basis for the recovery of any overpayment pursuant to s.140(1). In Matteo the Tribunal distinguished Reseck and McIntosh because of the further ingredient of s.140(1) that not only must there have been an amount paid "in consequence of a ... failure or omission to comply with any provision of this Act" but also that the amount "would not have been paid but for the ... failure or omission". s In the opinion of the Tribunal - "s.140(1), considered as a whole, requires that the failure or omission be the effective, not merely a contributory, cause of the overpayment.". With respect to the members of the Tribunal, I do not think that this is so. The sub-section does not have two components. Rather there is a composite provision which speaks of an amount being paid in consequence of something, which would not have been paid but for that something. The words "but for" are a corollary of the words "in consequence of" and serve to explain those words. It is of some interest that in McIntosh, Brennan J., at p.560, referring to the judgment of Jacobs J. in Reseck, said: Py "I apprehend his Honour to hold the required nexus to be (at least) that the payment would not have been made but for the retirement."' (emphasis added). As already mentioned Jacobs J. rejected the notion of causation in s.26(d) of the Income Tax Assessment Act. = In my view the Administrative Appeals Tribunal in the present case should have asked itself whether any of the payments of child endowment made to Mrs. Hangan between 1972 and 1978 were made as a result of any failure on her part to comply with s.104A and whether any of those payments would have been made had there not been such a failure. It is important to emphasise the distinction between ss.103 and 104A of the Social Services Act. The latter creates an offence but it is the former that controls the circumstances in which endowment ceases to be payable. If an endowee fails to notify a Director, within 14 days of a child ceasing to be in Australia, there has been a 'breach of s.104A. But endowment does not cease to be 'payable if the child's absence from Australia is temporary only. Of course a failure to notify a Director may deprive the Department of an opportunity to consider whether the child's absence is merely temporary. In those circumstances it may well be the case that failure to notify a Director leads to the overpayment, which then is recoverable by reason of the operation of s.140(1). After an examination of the relevant sections of the Social Services Act and of the facts surrounding the "Hangan family's departures and absences from Australia, the Tribunal said. "We accordingly are of the view that endowment granted to the applicant ceased to be payable to her by reason of the operation of each paras. (d) and (e) of Section 103(1).". = As mentioned earlier, para.(d) operates when the endowee ceases to have his usual place of residence in Australia, unless his absence is temporary. Paragraph (e) operates when the child ceases to be in Australia, unless his absence is temporary. Because of the view it took regarding effective and contributory causes, the Tribunal concluded that the amount paid during the period 1972 to 1978 was not recoverable as a debt due to the Commonwealth pursuant to s 140(1). It excepted from this decision payments made during Mrs Hangan's absence in 1974 when the Department had no knowledge of her absence and, in' the view of the Tribunal, "it might be said that the effect- s- ive cause of any overpayment which occurred during this period was the fault or omission of the applicant". Py However the Tribunal went on to say that they did not think it would be in the proper exercise of the Director-General's discretion to seek to recover this amount, having regard to the Department's letter of 15° August 1973 impliedly acknowledging that endowment had been correctly paid and might continue to be paid. For reasons already given, I am of the view that the Tribunal did not answer the questions to which it should have addressed itself. It applied a test which, in my respectful view, was incorrect. An issue then arises as to what this Court should do in the circumstances. fhe jurisdiction of the Tribunal to entertain Mrs. Hangan's appeal and the proper construction of s.140(1)is each a question of law; hence each matter is properly before this Cowt. Section 44(4) of the Administrative Appeals Tribunal Act empowers the Court to hear and determine an appeal and to make such order as it thinks appropriate by reason of its decision. Orders may include affirming or setting aside the decision of the Tribunal, and remitting the case tobe heard and decided again by the Tribunal in accordance with the directions of the Court (s.44(5)). The limitations of the Federal Court when hearing an appeal from the Administrative Appeals Tribunal were discussed by Sheppard J. in Minister for Immigration and Ethnic Affairs v. Nizam Gungor (1982) 42 ALR 209 at p.220. His Honour said: "It is in my opinion,not correct to say that this Court is by these pro- visions given wide powers to make 'such order as it thinks fit. Implicit «- in its powers are a number of restrictions. The appeal is expressly limited to error of law which alleged error is the sole matter before this Court and is the only subject matter of any order made consequent on the appeal. The order which this Court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision." . With respect I agree with Sheppard J.'s view of s.44 of the Administrative Appeals Tribumal Act. Unlike the Tribunal itself, it is not the function of this Court to determine whether the decision appealed from is "the right or preferable decision" (Brennan J, in Re Becker (1977) 15 A.L.R. 696 at p.700. In any event the circumstances of Mrs. Hangan's various departures and absences from Australia and the circumstances surrounding the payment of child endowment during these periods were not explored in any detail before this Court. We are not in a position to ask the correct questions, answer them and apply the answers to the facts of the case. What courses then are open to this Court? We might allow the appeal and remit the matter to be heard and decided again by the Tribunal in accordance with directions of the Court. Strongly against such a step is the fact that Mrs. Hangan, whose good faith is not in question, has had four years of dealing with the Department, the Tribunal and now this Court, At all times she has been unrepresented. To require her to return to the Tribunal would be unduly onerous and is a step to be avoided if at all possible. The Court might instead allow ns the appeal, set aside the decision of the Tribunal and make declarations regarding the proper construction and operation of s.140(1). It would be appropriate then for the Director-General to seek no further order. If thought necessary the Director-General could apply to the Minister to waive any right the Commonwealth might have to the payment of an amount by Mrs. Hangan. Either course tends to assume that there was within the Department an adequate exploration of the relevant circumstances so that the matter might be considered by the Tribunal or perhaps reconsidered by the Department in the light of the considerations necessary for s.140(1) toszoperate. Such an assumption may be misplaced. Since writing these reasons I have had the advantage of reading Fitzgerald J.'s reasons, including his analysis of the material before the Department and the Department's assessment of that material. I find his Honour's analysis persuasive, including his conclusion " l.. the highest that the position can be put for the Director-General is that he was deprived by breaches of s.104A of an opportunity to reconsider the position". But, with respect, I am not satisfied that it is open to this Court simply to dismiss the appeal. By reason of s.44(1) of the Administrative Appeals Tribunal Act an appeal must be on a question of law. The Federal Court is then required to hear and determine the appeal and to make such order as it considers "appropriate" by reason of its decision (s.44(4)). The decision there s * mentioned is that arising from the determination of the appeal on the question or questions of law. The relevant decision I have made is that in its consideration of s.140(1) of the Social Services Act the Tribunal erred. It is not, I think, taking too narrow a view of s.44(4) to say that an order simply dismissing the appeal is not appropriate by reason of that decision. It could only become appropriate if in the course of the appeal all matters which the Director-General was entitled to take into account sufficiently appeared and the Court was able to say that on nc view of the relevant material could the Director- General arrive at a decision that endowment had been paid to Mrs. Hangan which would not have been paid but for gome failure or omission on her behalf. If the material falls short of such a conclusion as I think it does, this Court would, in simply dismissing the appeal, be in truth reviewing a decision of the Director-General. A Nevertheless, it is clearly undesirable that this matter should be the subject of further debate before this Court or indeed before the Tribunal, In the circumstances it is appropriate to do no more than make declarations (a) that there was jurisdiction in the Administrative Appeals Tribunal to review the decision by the Director-General to recover an overpayment of child endowment of $3,370, a decision that affirmed a determination, direction, decision or approval of an officer that had been reviewed by a Social Security Appeals Tribunal, and did so otherwise thar in accordance with the decision of that Tribunal and (b) that on the proper construction of s.140(1) of the Social Services Act it is not necessary that the failure or omission mentioned therein be the effective, and not merely a contributory cause of the overpayment; it is enough that payments of child endowment be made as a result of failure by the endowee to comply with s.104A of the Act and that these payments would not have been made had there not been such a failure. 4 It is then for the Director-General to consider whether he should take any further steps in the matter. In the circumstances it would be quite inappropriate for him to ao so. There should be no order for the costs of this appeal. I certify that this and the twenty preceding pages are a true copy of the Peasons for Judgment herein of his Honour Mr. Justice Toohey Soin flocbik Associate Dated: December 1982 a IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) No. G64 of 1982 GENERAL DIVISION ) ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION BETWEEN ; DIRECTOR-GENERAL OF SOCIAL SERVICES Applicant AND: KATHLEEN BEVERLEY HANGAN Respondent CORAM: Fox, Toohey & Fitzgerald JJ DATE: 17 December 1982 REASONS FOR JUDGMENTFitzgerald J.: By s.7 of the Social Services Act, 1947 ("the Act"), the Director-General of Social Services has the general administration of the Act, subject to any direction of the Minister, and by s.12 he has a wide power of delegation of his powers and functions. Section 13 requires the Director-General, subject to the Act, to determine claims. Child endowment is dealt with in Part VI of the Act. It is sufficient for present purposes to note certain provisions which touch upon the payment (as distinct from the grant) of endowments. Section 104A states, so far as now material: "Where a child who is in the custody, care and control of an endowee - (a) ceases to be in the custody, care and control of the endowee; ' (b) ceases to be in Australia; ta be 2. the endowee shall, within fourteen days after the occurrence of that event, notify a Director accordingly. Penalty: Forty dollars." Sections 103 and 104 relevantly provide: "103. (1) Subject to section 104, an endowment payable to an endowee in respect of a child ceases to be payable if - (a) the endowee ceases to have the custody, care and control of the child; (d) the endowee ceases to have his usual place of residence in Australia, unless his absence from Australia is temporary only; [or] (e) the child ceases to be in Australia, unless his absence from Australia is temporary only; 104.(1) Where - {e) aman or woman whose usual place of residence is in Australia is temporarily absent from Australia, and that man or woman has the custody, care and control of one or more children, this Part shall have effect as if that man or woman and each of those children were in Australia. (2) An endowment shall not be ... paid by virtue of the last preceding sub-section unless the person to whom the endowment is granted or paid or, if that person is a woman, that woman or her husband - {a) is a resident of Australia as defined by the Income Tax Assessment Act 1936-1973; and (b) is not a resident of a place outside Australia specified 1n section 7A of that Act. 3. (5) Payment of an endowment shall not be made to a man or woman specified in paragraph (e) of sub-section (1) while that man or woman is temporarily absent from Australia, unless the Director-General is satisfied that the period of temporary absence is likely to exceed twelve months." The recovery of overpayments is dealt with by s.140 of the Act which states: we "140.(1) Where, in consequence of a false statement or representation, or in consequence of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension, allowance, endowment or benefit which would not have been paid but for the false statement or representation, failure or omission, the amount so paid shall be recoverable in a court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the Commonwealth. (2) Notwithstanding anything contained in this Act (other than sub-section (3) of this section), where, for any reason, an amount has been paid by way of pension, allowance, endowment or benefit which should not have been paid, and the person to whom that amount was paid 1s receiving, or entitled to receive, a pension, allowance or benefit under this Act (other than a funeral benefit under Part IVA), that amount may, if the Director-General in his discretion so determines, be deducted from that pension, allowance or benefit. (3) An amount referred to in sub- section (2) that has been paid otherwise than by way of child endowment under Part VI shall not be deducted from child endowment payable under Part VI." 4. At all material times, the respondent, Mrs Hangan, was a mother of four children under the age of 16 years in respect of whom claims for child endowment had been accepted under the Act prior to 1972. The family has a home in Toowoomba. However, from July 1972 to May 1981, Mr Hangan's employment caused the family to live overseas in Indonesia, Singapore, and the Phillipines. There is not a great deal of information available with respect to Mr Hangan's work beyond the fact that the period during which he was employed overseas was greater than initially anticipated. The eldest child, Lisa, lived with her grandparents and Went to school in Victoria from May 1974 to December 1976, apart from holiday periods during which she joined her family. The whole family was in Australia from time to time when Mr Hangan had leave. The Department of social Security paid child endowment to Mrs Hangan up to and including 8 August 1978, by payments to a Toowoomba bank account. The total paid from July 1972 to August 1978 was $3373.00. The only information which the Department seems to have had concerning the family's absence from Australia was provided by Mrs Hangan in August 1973, during a period of leave in Australia. She stated then to the Department that the family had been absent 5. from Australia for the "past 12 months", and were again leaving for a period expected to be "approx. 12 months", "from 23 August, 1973 to approx. 23 August, 1974". It is not suggested that Mrs Hangan's statements were not accurate, when made. When it received that information from Mrs Hangan in August 1973, the Department did not suggest that the child endowment which had been paid during the previous year ought not have been paid, and the payments continued. After receiving the information, the Department wrote to Mrs Hangan a letter, dated al5 August 1973, part of which was as follows: "Your child endowment payments will continue while you are overseas as long as you continue to satisfy the following conditions:- 1. that your usual place of residence 3 will continue to be in Australia and that your absence is only temporary; 2. that you continue to have the custody, care and control of your child(ren); Should you cease to satisfy any of these conditions you must notify this office immediately. As soon as possible after your return to Australia please supply the following information:- 1. the date of your return; 2. your address; * 3. the name of the ship or airline on which you returned; 4. the port at which you disembarked." 6. In July 1978, the Department received a claim from Mrs Hangan for Student Family Allowance in respect of her daughter, Lisa. Mrs Hangan gave an address in the Phillipines. The Department was thereby prompted to review the payment of child endowment to Mrs Hangan. Presumably, it acted under s.14 of the Act which provides: "14. Whenever it appears to the Director- General that sufficient reason exists for reviewing a determination, direction, decision or approval of an officer under this Act {including a determination, direction, decision or approval of the Director-General), the Director-General may review the determination, direction, decision or approval and may affirm, vary or annul it." On 1 November 1978, the Department wrote to Mrs Hangan, asserting that she had been overpaid the full amount of $3373.00, and requesting her to complete and return a questionnaire. Early in 1979, her authority was sought for the Department to recover that amount from the bank account into which the payments had been made. Section 15 of the Act provides: "15. A person affected by a determination, direction, decision or approval of an officer under this Act (except a determination, direction, decision or approval of the Director-General) may, within such time (if any) as is prescribed, appeal to the Director-General and the Director-General may affirm, vary or annul the determination, direction, decision or approval." On 12 June 1979, Mrs Hangan appealed "against an overpayment of $3373 that has been raised against me", using phraseology which echoed the langauge of the Department's records. It is appropriate, in my + 7. opinion, to approach this matter on the basis that Mrs Hangan's appeal related to a demand by an officer of the Department that she repay $3373.00 paid to her in respect of child endowment between July 1972 and August 1978. Mrs Hangan's appeal was referred to a Social Security Appeals Tribunal, an advisory body within the Department which is constituted without express statutory basis. That Tribunal's presently relevant function is to make recommendations on appeals to the Director-General of the Department. In November 1979, it recommended "that no action be taken to recover any amount ... paid to Mrs Hangan". The Department did not accept that recommendation. Many intra-departmental memoranda were written between that time and 3 June 1980, on which date the Director-General approved certain recommendations. What had occurred was recorded with sufficient accuracy ina letter to Mrs Hangan dated 23 June 1980 from the First Assistant Director-General (Legislation and Review), which provided in part: "Dear Mrs Hangan, I am writing to you about your appeal to the Queensland Social Security Appeals Tribunal against a decision of an officer of the Department of Social Security to recover an overpayment of child endowment of $3,373.00 in respect of child endowment paydays from * 18 July 1972 until 8 August 1978 inclusive. eo ue 8. The amount of the overpayment was later assessed by the Director of Social Services, Brisbane, to be $2,968.20 when eligibility for payment of child endowment was accepted for the periods you were in Australia on leave. The Social Security Appeals Tribunal has reviewed the latter decision. ... The Tribunal recommended that no action be taken to recover any amount of the child endowment paid to you. When a Social Security Appeals Tribunal's recommendation is different from a departmental decision, the matter is referred to the Director-General of the Department or his delegate for resolution. Your appeal and the Tribunal's recommendation were forwarded to Mr M. Wryell, a delegate of the Director-General, to decide the matter. The delegate has asked me to advise you of his decision. The delegate considered your entitlement to child endowment in terms of section 104 of the Social Services Act 1947. --. The delegate concluded that sub-section (2), as well as sub-section (1), precluded payment of endowment to you while you were overseas. The delegate, however, considered that child endowment payments, made while you were physically present in Australia, were correctly made. These amounted to $404.80 and reduced the overpayment to $2,968.20 as advised by the Director of Social Services, Brisbane, to the Tribunal. The delegate then considered whether the whole of the overpayment of $2,968.20 was legally recoverable. Section 104A(b) of the Social Services Act 1947 requires an endowee, who has the custody, care and control of a child, to notify a Director within fourteen days after the child ceases to be in Australia. Where in consequence of a failure to comply with such a provision, any overpayment of endowment, which would not have been paid but for that failure, is recoverable in a court of competent jurisdiction as a debt due to the Commonwealth. ue 9. The delegate noted that there is no record of your notifying within fourteen days of your children ceasing to be in Australia on 8 July 1972, and, therefore, payments made from that time until you and your children returned in June/July 1973 were the result of your not complying with section 104A(b). Similarly, you did not notify the Department of the family's departure on 6 September 1974 (and Lisa's subsequent departure on 24 December 1974) or of any subsequent departures. Consequently, ail payments made after the family's unnotified departures (excluding periods during which the family was physically present in Australia) are recoverable. On the other hand, you notified the Department on 8 August 1973 of the family's intended departure on 22 August 1973. Payments made from 22 August 1973 until your return on 8 August 1974 resulted from an error by the Department and not from a breach by you of section 104A(b). The delegate therefore agreed that payments made to you in respect of the pay periods from 11 September 1973 to 12 August 1974 should not be recovered. These payments amounted to $276.00. The delegate thus concluded that, because of your failures to notify the Department within the allowable fourteen days, you received child endowment for periods during which you had no entitltment. He decided that the recoverable overpayment pursuant to section 140 of the Social Services Act 1947 is all child endowment paid from 18 July 1972 to 8 August 1978, less payments made: (a) during the periods you were physically present in Australia including the period from 6 June 1979 to 24 July 1979; and (b) from 22 August 1973 to 8 August 1974, during which period there was no breach of section 104A(b). The recoverable overpayment is therefore $2,692.00. 10. If you are dissatisfied with the delegate's decision, you may apply in writing, within twenty-eight days of receiving this letter, to the Administrative Appeals Tribunal for a review of the decision. The address of the Tribunal is: Deputy Registrar, Administrative Appeals Tribunal, G.P.O. Box 9955, BRISBANE QLD 4000 On 15 June 1981, Mrs Hangan took up the challenge. She lodged an application to have the Administrative Appeals Tribunal review the "decision to recover an overpayment of child endowment of $3373.00 in respect of child endowment paydays from 18 July 1972 to 8 August 1978 inclusive". At the time at which the letter dated 23 June 1980 was forwarded to Mrs Hangan, the 3Schedule to the Administrative Appeals Tribunal Act, 1975 contained the following provision, which the Director-General accepts continues to operate for present purposes: "PART XXIV A - SOCIAL SERVICES ACT 24A. (1) The Director-General of Social Services - {a) has, in pursuance of section 14 or 15 of the Social Services Act 1947, affirmed, varied or annulled a determination, direction, decision or approval of an officer under that Act, being a determination, direction, decision or approval that has been reviewed by a Social Security Appeals % Tribunal; and a a ll. (b}) has so affirmed, varied or annulled that determination, direction, decision or approval otherwise than in accordance with the decision of the Social Security Appeals Tribunal in relation to that determination, direction, decision or approval, an application may be made to the Administrative Appeals Tribunal for a review of the decision of the Director-General so to affirm, vary or annul that determination, direction, decision or approval. (2) A person is not entitled to appeal to the Director-General of Social Services under section 15 of the Social Services Act 1947 against a decision in respect of which an application may be made to the Administrative Appeals Tribunal for review by virtue of sub-clause (1)." Sub-section 3(3) of the Administrative Appeals Tribunal Act provides: "A reference in this Act to a decision includes a reference to - (a) (b) (c)} (d) (e) (£) (g) making, suspending, revoking or refusing to make an order or determination; giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; imposing a condition or restriction; making a declaration, demand or requirement ; retaining, or refusing to deliver up, an article; or doing or refusing to do any other act or thing." + 12. The Administrative Appeals Tribunal entered on the merits of the dispute between Mrs Hangan and the Department. Briefly, the Tribunal agreed that the overpayment had occurred, but held that, before an overpayment is recoverable under sub-s. 140(1) of the Act as being "a consequence of a failure or omission to comply with any provision of this Act", the failure or omission must be shown to have been "the effective and not merely a contributory cause of the overpayment". Ona review of the evidence, the Tribunal concluded that the effective cause of the overpayment after , une period during which Mrs Hangan was in Australia whilst her husband was on leave in August 1974 was a failure by the Department. The letter written by the Department dated 15 August 1973, with its acceptance of Mrs Hangan's entitlement at that point 7 and its references to a continuation of the situation q in which, as the Department knew, Mrs Hangan had been absent from Australia for nearly 12 months, was described as inaccurate and misleading. Having expressed the view that there was no proper basis for recovery of overpayments after August 1974, the Tribunal continued: "33. ... It may be that endowment paid during the period of the applicant's original departure and her return on leave in 1974 during which time the Department had no knowledge pt her absence should not have been paid and it might be said that the s effective cause of any overpayment 13. which occurred during this period was the default or omission of the applicant. However, we do not think that 1t would be in the proper exercise of the respondent's discretion to seek to recover this portion of the overpayment when regard is had to the department's letter of 15 August 1973 from which it was clearly implicit that the amount had been correctly paid." The Tribunal's formal decision was expressed in the following terms: "The Tribunal decides to set aside the decision of the respondent under review and to substitute therefor the decisions that - fe (a) the applicant was paid an amount of child endowment which by reason of Sections 103 and 104 of the Act was not payable, and (b) the amount so paid (except as to the period referred to in para 33 of the attached reasons) is not recoverable as a debt due to the Commonwealth pursuant to Section 140(1) of the Act." Notwithstanding his invitation to Mrs Hangan to apply to the Administrative Appeals Tribunal, the Director-General's principal submission on his appeal to this Court was that that Tribunal had no jurisdiction to entertain her Application. It cannot be disputed that its jurisdiction was relevantly limited to reviewing a decision of the Director-General (or his delegate) which 14. affirmed, varied, or annulled a determination, direction, decision, or approval of an officer of the Department, which had been reviewed by a Social Security Appeals Tribunal, otherwise than in accordance with the decision of a Social Security Appeals Tribunal. The only step in this matter which possibly meets that description was the demand made early in 1979 that Mrs Hangan repay $3373 paid to her in respect of child endowment between July 1972 and August 1978. It was that which was reviewed by the Social Security Appeals Tribunal and which was affirmed but varied by a delegate of the Director- Gtneral otherwise than in accordance with the decision of the Social Security Appeals Tribunal and it was that which Mrs Hangan applied to the Administrative Appeals Tribunal to review. we The submission for the Director-General was that there was no reviewable decision. Briefly stated, the argument was that overpaid endowment is recoverable under sub-s. 140(1) if the specified circumstances exist, that the sub-section is self- operating and does not depend on any Departmental decision, and that the Director-General has no power to waive the debt for which the section provides, but has the duty to recover it. It may ° 15. be that the Commonwealth would have had a right to recover overpaid endowment irrespective of sub-s. 140(1): cf. Commonwealth of Australia v. Burns [1971] V.R. 825, cited 1n Commonwealth of Australia v. Crothall Hospital Services (Aust) Ltd (1981) 36 A.L.R. 567, affirming (1980) 32 A.C.T.R. 3. It may be that such a right continues to exist notwithstanding sub-s. 140(1). It is presently unnecessary to pursue those questions. This appeal concerns only the Director-General's contention that endowment was overpaid and that the amount 1s recoverable under sub-s. 140({1). That sub-section not only provides a method of recovery, viz., action in a court of competent jurisdiction; it also prescribes which overpayments are so recoverable. I agree with the first limb of the Director-General's submission that recoverability is not dependent on his decision or opinion that an amount 1s recoverable but on whether or not the statutory criteria are, in point of objective fact, satisfied. However, that 1s only the starting-point of his argument. The question of a possible waiver of any debt which Mrs Hangan may owe the Commonwealth intruded into and complicated the Department's approach, both internally and in 1ts submissions to this Court. The Department's deliberations since the recommendation of 16. the Social Security Appeals Tribunal "that no action be taken to recover any amount" paid to Mrs Hangan have extended to the possibility that any claim against Mrs Hangan might be waived. Before this Court, it was an important aspect of the submission for the Director-General that neither he nor any officer of the Department has the power to waive payment of any amount which Mrs Hangan may owe to the Commonwealth. Although it might have appeared more clearly, it does seem that the Director- General cannot release Mrs Hangan from payment of any amount which she may owe, but that it remains oben for an application to be made to the appropriate Minister pursuant to s. 70C of the Audit Act 1901. Both fair play and good sense seem to me to require the Director-General to assist Mrs Hangan in that respect, if necessary. Irrespective of the rights and wrongs of the matter up to August 1978, she has, since that time, been a hapless victim entrapped by a malfunctioning bureaucratic machine. Such questions, however, formed no part of the proceedings in the Administrative Appeals Tribunal and must be put to one side on this appeal, which falls to be decided on the basis that the Director-General has no power to absolve Mrs Hangan of any debt which she may owe to the Commonwealth. Assuming that to be so, I am ° 17. nonetheless far from convinced that, as was argued for the Director-General, he has a duty to recover the amount overpaid. Litigation pursuant to sub-s. 140(1) is not always the Director-General's only possible method of recovery; for example, an alternative method is provided for in appropriate cases by sub-s. 140(2), which may not be limited to overpayments which fall within sub-s. 140(1). He may, I think, not only have a discretion as to the method of enforcement which he will adopt. He may also have a discretion not to enforce, although the debt remains owing. Common sense suggests the exercise of such a discretion, in practice. However that may be, any duty which the Director-General may have to recover a debt which is recoverable under sub-s. 140(1) cannot sensibly be jade dependent on the objective existence of the statutory elements of liability, but must be related to a determination by the Director- General, or some person or Tribunal whose views are binding on him, that the conditions of recoverability exist. Such an administrative determination is clearly to be distinguished from decisions which are determinative of rights and obligations and are final and binding, most obviously, judgments of courts. There is a modexn tendency towards a proliferation of the tribunals, bodies, and persons empowered by statute to make such operative decisions; on 18. occasion, the power is even committed to a department or other authority which is itself a party to a dispute. This tendency has given rise to many problems as the traditional courts have sought, somewhat conservatively, to adopt and extend their supervisory role; for example, problems concerning the nature of a decision in the relevant sense, distinctions between void and voidable decisions, and the interest which a citizen must show in order to challenge a decision: see, for example, The Queen v. Collins ex parte A.C.T.U.- Solo Enterprises Pty Ltd (1976) 50 A.L.J.R. 471; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487; and Calvin v. Carr [1980] A.c. 574. The terminology, by which distinctions have been drawn between judicial, quasi-judicial and administrative decisions, has often proved inexact and inadequate. However, to describe as administrative the Director-General's determination that the amount of the endowment paid to Mrs Hangan over the relevant period is recoverable pursuant to sub-s. 140(1) is probably sufficient in the present context. Irrespective of whether or not the elements of liability do exist and without any affect upon the rights or liabilities of Mrs Hangan, or the Commonwealth, or any other person, the Director-General's determination that the conditions Of recoverability exist founded his demand for recovery whether or not it made such a demand obligatory. ° 19. In many cases, no doubt, there will be a decision that there is no recoverable overpayment when sub-s. 140(1) falls for consideration. Right or wrong, such a decision will be the end of the matter. Only lawyers would be interested to know that, where such decisions be wrong, the debts still exist. Not even lawyers would suggest that, notwithstanding such a decision, the Director-General had a duty to recover such debts. Indeed, it is difficult to accept that it could really be the contention of the Director-General that the existence or absence of a duty to recover anamount overpaid can be separated from his determination of whether or not there is a recoverable amount, so that he breaches his duty whenever he acts in accordance with a determination which 1s incorrect. The present case well illustrates the fallacy, in practice, of the Director-General's argument. Irrespective of whether he is right or wrong, he in fact accepted that certain payments of endowment made during the period July 1972 to August 1978 were correctly made, and that certain overpayments were not recoverable because in respect of them the conditions of sub-s. 140(1) were not met. If he was incorrect in those views, the amount in question is a debt due from Mrs Hangan to the Commonwealth. It 20. is not, I think, suggested that the Director-General, despite his views, is or would be under a duty to recover the amount which he considers is not recoverable. He plainly has no intention of doing so. The demand for repayment of the full amount of endowment paid over the period has been varied to reduce the amount to that which the Director-General considers is recoverable. In my opinion, although the recoverability of overpaid endowment under sub-s. 140(1) depends on whether or not the specified circumstances in fact exist, the Director-General's determination that they do exist and that an amount is recoverable is an administrative pre-requisite to any duty to recover that amount. Given such a duty, the Director's determination that an amount is recoverable will inexorably lead to a decision to recover as part of the administrative process leading to recovery; a decision is no less necessary if, in the circumstances, it is the only lawful decision available. Absent such a duty, a choice of decisions will be available, but a decision will still be necessary, i.e., whether or not to recover. Whether or not the duty exists, a decision to recover will in turn lead to the need for a further decision concerning the method to be adopted for that purpose. s 21. In Riordan v. Parole Board of the Australian Capital Territory (1981) 34 A.L.R. 322, Lockhart J. at p.327 referred to the triad of Commonwealth legislation, of which the Administrative Appeals Tribunal Act is one part, which provides machinery for review of administrative decisions and actions of Commonwealth Ministers, officials and statutory bodies. On the same page, his Honour described "decision" as a word of aoristic meaning. Similarly, it was described as a word of indeterminate meaning in Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571 at p.590 by Deane J., with whom Fisher J. ayreed. Not surprisingly, the executive government has not universally and whole-heartedly welcomed outside interference, and an ample opportunity to raise obstacles has been provided by the uncertain content of the word "decision", to "those who fund their enthusiasm for the fray, not from their own purses but from the long purse of Government", per Deane J. in Director-General of Social Services v. Chaney (supra) at p.593. There is a growing body of case law on the subject, including Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty Ltd (1979) 41 P.L.R. 338; Deputy Commissioner of Patents v. Board of Control of Michigan Technological University (1979) 28 A.L.R. 551; Roberts v, Garrett (1982) 40 A.L.R. 311; Burns v. Australian National University (1982) 40 A.L.R. 707, revd. unreported 8 October 1982 (noted at [1982] Fed Ct Rep. 214); Goodfellow v. The Commonwealth of Australia, unreported, 10 June 1982 (noted [1982] Fed Ct Rep 178); and Barbaro v. McPhee, (1982) 42 A.L.R. 147. Predictably the Courts have tended to 22. construe "decision" widely, although for the most part unwilling to characterize as reviewable decisions the intermediate conclusions of departmental officers with respect to matters of fact and questions of law upon which are founded ultimate determinations. It may well be that the attempts at judicial exegesis will finally succeed only when a sufficient pattern emerges to overcome the inherent semantic difficulties. In the present case, there seems to me no need to consider whether any intermediate conclusions upon which the ultimate determination that there was recoverable overpayment of a particular amount was founded were decisions, or otherwise to comment generally upon what is a decision. The ultimate determination that there were recoverable overpayments led to a demand for repayment. There is no doubt, in my view, that that demand for repayment was a "decision" which may be reviewed: see sub-s. 3(3){e) of the Administrative Appeals Tribunal Act, and compare, generally, Duncan v. Defence Force Retirement and Death Benefits Authority (1980) 47 F.L.R. 256, especially at pp. 260 and 261. The language of ss. 14 and 15 of the Act, which were respectively called into play by the Director-General and Mrs Hangan, generally support the conclusion at which I have arrived. An earlier decision was reviewed under s.14 and a new decision arrived at, which in turn became the subject of appeal under s.15. Had the Director- General gone beyond demanding repayment of the amount 2 23. allegedly overpaid, and exercised a discretion as to the manner in which that was to be recovered from Mrs Hangan, it can scarcely be doubted that the exercise of that discretion would have constituted a reviewable decision, or that, in the review of that decision, it would have been open to the Administrative Appeals Tribunal to reconsider the whole matter, including the determination that there was a recoverable overpayment, and the matters of fact and questions of law upon which that ultimate conclusion depended. Accordingly, I am of opinion that the Director- a General's principal submission fails and that the Administrative Appeals Tribunal did have jurisdiction to review the decision constituted by a demand for repayment. That review called for the Administrative Appeals Tribunal to reconsider the conclusion that there was a recoverable overpayment, for the purpose of which it had, of course, to form its own conclusion with respect to the matters of fact and questions of law on which that ultimate determination depended. It was not suggested that its exercise of that jurisdiction miscarried in its "recommendation" concerning the initial period to August 1974. However, the Director-General submitted, as an alternative to his attack on the Tribunal's jurisdiction, that the 24, Tribunal was wrong in law in holding that a failure or omission to comply with a provision of the Act must be shown to be the dominant or effective cause of an overpayment before the overpayment is recoverable under sub-s. 140(1) of the Act. In my opinion, that submission is correct. The phrase introduced by the words "in consequence of" in sub-s. 140(1) will usually add little, if anything, to the question whether or not the relevant payment would have been made "but for" a failure or omission to comply with a provision of the Act. If that question be answered negatively, the amount paid is flot recoverable. If that question be answered affirmatively, it seems to me that it would seldom, if ever, be possible to dispute that the payment was a "consequence of" the failure or omission to comply with a provision of the Act. However, that question is by no means the same as the question whether or not the omission or failure was the cause, or the dominant or effective cause, of an over-payment. It is not surprising that the Tribunal should have approached the matter in the way in which it did. Notwithstanding the submissions which the Director- General put to this Court, his Department's officers throughout concentrated their endeavours on attempting to assess whether it was Mrs Hangan's non-compliance with s.104A, or the Department's failure to review the 11 @ = 60 sts niche en | ° 25. payments of endowment to her, which was the real cause of the overpayments which it was considered had occurred. The Department's letter of 23 June 1980 "subsumed the Departmental activities after the recommendation of the Social Services Appeals Tribunal into the single act consisting of a decision of the Director~General's delegate. In fact, the file passed through a number of hands within the Department over a period of some months. When it first reached Mr Wryell, the Director- General's delegate, he disagreed with his subordinates, each of whom felt himself, on reconsideration, able to reform his views. Mr Wryell's decision, which gave rise to the letter of 23 June 1980, arose out of his approval of a recommendation which stemmed from those altered views. It was simply assumed throughout all those Weliberations that the payments would not have been made "but for" Mrs Hangan's non-compliance with s.104A, i.e., would not have been made if she had complied with s.104A. Thus, for example, the Department's final letter to Mrs Hangan dated 23 June 1980, after explaining how the Director-— General's delegate had arrived at his view that all the payments made over the relevant period except those made whilst Mrs Hangan was physically present in Australia were incorrectly made, continued: s ° 26. The delegate then considered whether the whole of the overpayment of $2968.20 was legally recoverable. ... The delegate noted that there was no record of your notifying within fourteen days of your children ceasing to be in Australia on 8 July 1972, and, therefore, payments made from that time until you and your children returned in June/July 1973 were the result of your not complying with s.104A(b). Samilarly, you did not notify the department of the family's departure on 6 September 1974 (and Lisa's subsequent departure on 24 December 1974) or any subsequent departures. Consequently, all payments made after the family's unnotified departures (excluding periods during which the family was physically present in Australia) are recoverable. ry On the other hand, you notified the Department on 8 August 1973 of the family's intended departure on 22 August 1973. Payments made from 22 August 1973 until your return on 8 August 1974 resulted from an error by the Department and not from a breach by you of s.104A(b). The delegate therefore agreed that payments made to you in respect of the pay periods from 11 September 1973 to 12 August 1974 should not be recovered. These payments amounted to $276. aa The delegate thus concluded that, because of your failures to notify the department within the allowable fourteen days, you received child endowment for periods during which you had no entitlement....". [The - underlining has been added.] The*Department's attitude seems to me most material to the proper disposition of this appeal. eo 27. Sub-s. 44(4) of the Administrative Appeals Tribunal Act allows this Court when hearing and determining an appeal from the Tribunal to make such order as the Court thinks appropriate by reason of its decision. I am disinclined to read down this wide power beyond whatever is implicit in the limitation of appeals to this Court to questions of law: see sub-s. 44(1) of the Administrative Appeals Tribunal Act and compare sub-s. 45(1) of that Act. Indeed, I think it is inappropriate to express any general views as to the ambit of this Court's power on an appeal from the Tribunal when that question was not argued and it is unnecessary to do so. I entertain no doubt but that the power extends to upholding a decision appealed from, for different reasons from those relied on by the Tribunal. Neither the Administrative Appeals Tribunal nor the Department seems to me to have attended to the correct questions. Before endowment ceases to be payable, much more needs to be shown than one or other of the notifiable circumstances under s.104A, which relevantly requires no more than notice to the Department when a child in respect of whom endowment is payable ceases to be in Australia, or in the care custody and control of the endowee. Much more complex questions, including the residence at relevant times of each of Mr and Mrs Hangan and whether or not absences were temporary in the statutory sense, fell for 28. consideration in the determination of whether or not the endowment paid during the relevant period was_ properly payable. A number of the questions are of some difficulty, for example, what is a temporary absence. It may be that sub-s. 104(5) is concerned with the physical act of payment rather than entitlement. Whether that is so or not is of no present consequence. More important for the purpose of the present dispute is that that sub-section recognizes that an absence from Australia may be temporary, although exceeding 12 months. If it were necessary that it be determined whether there was an overpayment of endowment to Mrs4Hangan, it would not be appropriate for this Court finally to dispose of the matter which would have to go back to the Administrative Appeals Tribunal. In my opinion, however, that wholly undesirable step can and should be avoided. That Tribunal agreed with the Director-General that there had been overpayment and it also found that Mrs Hangan failed to notify the Department as required by s.104A of the Act. Even if those findings in favour of the Director-General are accepted, it seems to me that the Director-General failed to show that any amount was recoverable from Mrs Hangan pursuant to sub-s. 140(1). Whilst factual matters concerning which more than one view is possible give rise to no question of law, the position is otherwise when there is simply no evidence s a ae > 29. whatever to support a particular factual conclusion, especially perhaps where, as here, the primary facts are. undisputed. Counsel for the Director-General acknowledged that, irrespective of whether sub-s. 140(1) of the Act may be capable of a wider operation in an appropriate case, there is no suggestion in the present matter of a failure or omission to comply with a provision of the Act by any person other than Mrs Hangan. There were two matters which, according to the Department, were not notified by Mrs Hangan as required by s.104A. One, that Lis& spent a period with her grandparents and at school in Victoria, and thus, in the present submission for the Department, ceased to be in the custody care and control of Mrs Hangan, was of relatively minor significance and arose only very late in the proceedings. The evidence clearly established that it played no part in the Department's continuation of the endowment payments. Although it had knowledge of the position with respect to Lisa during most if not all of its deliberations, the Department at no stage suggested, even in its letter to Mrs Hangan inviting her to apply to the Administrative Appeals Tribunal, that she had failed to notify it that she had ceased to have care custody and control of Lisa, or that, had it known of the facts concerning Lisa's period in Victoria, it would have stopped the payments of endowment in respect of Lisa on that basis. On the contrary, as late as the memorandum which led to 30. that letter, the Department's position was that Mrs Hangan had legal custody of Lisa, not that she had- ceased to have Lisa's care, custody and control. The Department's case otherwise centred upon those provisions in the Act which depend upon absence from Australia of the child or the endowee. What is required to be notified under s.104A is, in effect, the departure of the child from Australia, but not the departure of the endowee. No greater detail is demanded in what must be notified than that the child has ceased to be in Australia. further, the mere absence from Australia of child and/or endowee does not of itself attract disqualification from further payment of endowment. The highest the Department can properly put its case is that Mrs Hangan's failure or omission to ¢gomply with s.104A deprived it of information which might have caused it to review the position, and which might have caused it, had such a review occurred, to stop payment. In the circumstances, that is mere speculation. The first breach of s.104A (on the assumption that notice was required every time the children left the country) occurred in July 1972. That breach was revealed in 1973. It elicited no suggestion that payment should not or would not have been made up to that time. The letter of 15 August 1973 clearly indicated to the contrary. There was no breach in 1973. Again, the letter of 15 August 1973 confirmed the Department's view that endowment was and would continue to be payable, at least until the family returned about August 1974. Any attempt by the Department to suggest that any payment of endowment up to August 1974 would not have been made but for Mrs Hangan's failure or omission to comply with s.104A of the Act would be patently inaccurate. Its position in respect of the later period is a little stronger. Had the Hangan family not returned to Australia between August 1973 and 1978 wheh Mrs Hangan revealed her presence in the Phillipines to the Department, there would have been no breach of s.104A to which the Department could point. Its failure to review the position after August 1974 would have been related solely to its own ineptitude. It now seeks to say that, had it been told on each occasion on which Mrs Hangan departed with the children after Mr Hangan's leave, that would have not only prompted it to review the file, but, that on review, it would have stopped payment. Thus, it is argued, the payment would not have been made "but for" her breaches in 1975, and/or 1976, and/or 1977. The first proposition seems dubious enough in view of the letter of 15 August 1973 and the Department's inaction thereafter. The second equally critical proposition, that payment would 32. have been stopped had a review taken place, is wholly unsupported by evidence. The Department's deliberations when a review did take place in 1978 concentrated solely on apportioning blame for the Department's failure to review the position earlier. There was no attempt to ascertain what the Department would have done if it had been told, for example, the period for which the family was departing on each occasion. The only analysis of what occurred was a theoretical re-creation of events by higher officers who assumed that, had there been notification, payment would have been stopped. No basis was shown for that assumption whith is not supported by the events in 1973 and is weakened by the obviously unsustainable attempts to rely upon Lisa's period in Victoria and to recover now the payments in 1972-1973. It must be remembered that a proper decision to stop payment required the Department to arrive at answers adverse to Mrs Hangan on a number of difficult questions, and that, when the review did take place, there was considerable disagreement within the Department, and that the Social Security Appeals Tribunal took a different view from that ultimately adopted by the Director-General's delegate. No reference was made to any standard procedures which would have led to the payments being stopped. Personnel involved were not consulted. There was, in my view, no investigation by the Department as to whether or not payments would have been made "but for" Mrs Hangan's breach, and there is 33. no evidence that the payments would not have been made. There is no evidence that, if the Director-General had not been deprived by breaches of s.104A of an opportunity to reconsider the position, such an opportunity would have been availed of, or that, if it had, the payments would have been stopped. In all the circumstances, I do not think that we should assume that, given another chance, the Director-General might be able to point to some such evidence. It may seem curious that issues which, if the Dinector-General's decision stood, would fall for determination by a court, should be able to be pre- litigated in a tribunal such as the Administrative Appeals Tribunal. However, that is the evident legislative policy. Decisions to litigate are not the subject of a general exception from the process of review for which the Administrative Appeals Tribunal Act provides. Further, the review of a decision is not necessarily co-extensive with issues which would fall for determination in the event of an action; e.g., it often will not take into account possible defences. Finally, there is, technically at least, a distinction already referred to. Review leaves rights and obligations unaffected, which is a very different result from the judgment of a court. 34. No less curious is the possibility that it remain open for the Director-General by the exercise of his power under ss. 14 or 15 of the Act to reconsider at a later stage a decision of the Administrative Appeals Tribunal, perhaps even after a decision of this Court on appeal. A decision of the Administrative Appeals Tribunal is equated to a decision of the relevant departmental officer: see sub-s. 43(6) of the Administrative Appeals Tribunal Act. Of course, whatever may be the Director- General's theoretical power to re-embark upon a matter which has been the subject of a decision by the Administrative Appeals Tribunal, one might reasonably expect that any such power would only be exercised in the most exceptional case, and certainly not in a case like the present. Mrs Hangan, whose good faith has not*been questioned, has had some four years of dealing with the Department, the Administrative Appeals Tribunal, and now this Court. The amount in contest may be substantial from the point of view of a private citizen but it is totally insignificant to the Department which has without a doubt spent it many times over already in this matter. It would be intolerable if Mrs Hangan were not -now left in peace. In my opinion, the appeal should be dismissed. Mrs Hangan was unrepresented and accordingly there should be ho order as to costs. a we Zz | certify that #hs-~aad the Si preceding pages ara 2 bus tty cf ots oer judgment bers ct Hi, Honour tgs pier s r ee ". row) \ mvessciate Dated 16 Bs - £25 ya Mr Justice Titeecrala