Meschino v Secretary, Department of Family and Community Services [2001] FCA 39

FEDERAL COURT OF AUSTRALIA Meschino v Secretary, Department of Family and Community Services [2001] FCA 39 Administrative Law – Appeal from Administrative Appeals Tribunal – Social Security Act 1991 (Cth) – meaning of "decision" – whether action by Centrelink officer referring a matter to an authorised review officer for internal review constituted a decision amenable to internal review – whether decision reviewable by Social Security Appeals Tribunal and Administrative Appeals Tribunal.

Administrative Appeals Tribunal Act 1975 (Cth), ss 3, 28, 44 Administrative Decisions (Judicial Review) Act 1997 (Cth), s 3 Social Security Act 1991 (Cth), ss 23, 1239, 1240, 1243, 1244, 1245, 1247, 1282, 1283, 1301 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied Matter No. S 123 of 2000 CARLO MESCHINO v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES von DOUSSA J ADELAIDE 6 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 123 OF 2000

BETWEEN: CARLO MESCHINO

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: von DOUSSA J

DATE OF ORDER: 6 FEBRUARY 2001

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The appeal from the determination of the Administrative Appeals Tribunal made on 27 October 2000 be dismissed. 2. The applicant pay the respondent's taxed costs of this application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 123 OF 2000

BETWEEN: CARLO MESCHINO

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: von DOUSSA J

DATE: 6 FEBRUARY 2001

PLACE: ADELAIDE

REASONS FOR DECISION 1 This is an appeal brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). An appeal under that section is confined to a question of law. The question of law on which the outcome of the appeal turns concerns the meaning of the word "decision" in the Social Security Act 1991 (Cth) (the Act). 2 The appeal arises from the disposition of an application lodged with the Administrative Appeals Tribunal (AAT) by the applicant on 3 December 1999 seeking to review a decision of the Social Security Appeals Tribunal (SSAT) given on 19 November 1999. By its decision, the SSAT had said it affirmed the decision it had under review. 3 On 27 October 2000 the AAT, constituted by a Senior Member W H Eyre, determined that the matter of complaint by the applicant, namely the action of a Centrelink officer in referring the calculation of the applicant's entitlement to family payment to an authorised review officer (ARO) for review, did not constitute a "decision" that was reviewable under the Act. Accordingly the AAT determined that it had no jurisdiction and directed that the application to review the decision of the SSAT be dismissed. It is against that decision which the applicant appeals. 4 The background to the application to this Court is as follows. On 30 June 1999 a determination by consent was made in the AAT resolving a dispute between the present applicant and the present respondent over the applicant's entitlement to payments of family payment under the Act. Under the consent determination the applicant was to be paid 50 per cent of the rate of family payment for the period from 5 February 1988 to 2 May 1988. Centrelink sought to implement this decision and made a payment to the applicant which he contended was incorrectly calculated. On 26 July 1999 a Centrelink officer, acting as a delegate of the respondent, wrote to the applicant affirming the calculation of family payment. After endeavouring to explain the calculation the letter continued: "If you have any queries please do not hesitate to contact this office. This decision has been made under the Social Security Act 1991. If you think our decision is wrong, you can ring me on [phone number]. I will check the facts and explain the decision. If you still do not agree, I will forward the matter to an Authorised Review Officer (ARO). The ARO is a Centrelink officer who has had no previous involvement in your case, and, if the decision is wrong, the ARO can correct it. The ARO can also tell you how you can appeal to the Social Security Appeals Tribunal (SSAT) if you still do not agree." 5 On 13 August 1999 the applicant telephoned Centrelink. Centrelink's file note reads "Client rang back in reference to his phone call from last Friday. He said he requested review by PAD csc in regards to a letter he was issued on 26.7.99. Client is determined that a review be conducted and does not accept referral to Ombudsman…" 6 On 13 August 1999 the Centrelink officer who had written to the applicant on 26 July 1999 again checked her calculations, apparently affirming them, and then forwarded the file of papers to an ARO. To that end the Centrelink officer completed a referral form and forwarded the papers to ARO Wayne Cursaro. The Centrelink officer wrote to the applicant on 13 August 1999 confirming the action which had been taken. The letter confirmed the correctness of the calculation of family payment that had been made, and continued: "Your file has been forwarded to the Authorised Review Officer who is an officer independent of the Centrelink Port Adelaide Office. Any further queries in relation to your request for review should be directed to the Authorised Review Officer. This person will contact you sometime in the near future." 7 On 16 August 1999 ARO Cursaro, without any communication with the applicant in the meantime, conducted a review. He concluded that family payment had been calculated on the correct basis but detected an arithmetical error which resulted in the applicant being underpaid by 10˘. On 16 August 1999 ARO Cursaro advised the applicant of the outcome of the review. 8 The applicant complained that the referral of the matter for review by the Centrelink officer to an ARO should only have occurred at his request and with his consent. Notwithstanding the Centrelink's file note of 13 August 1999 the applicant said that his file should not have been referred as he had not formally requested in writing that this step be taken. He complained that he had no opportunity for input into the ARO's decision which he said was inadequate and inappropriate as it failed to address many issues which he considered to be of significance. 9 Centrelink understood the complaints made by the applicant after 16 August 1999 to include, or at least to constitute, an application by him to have an ARO review the action of the Centrelink officer which referred his file to ARO Cursaro on 13 August 1999. Such a referral occurred and was considered by ARO Boyle on 19 October 1999. On that day ARO Boyle wrote to the applicant saying that he had determined that he had no jurisdiction to undertake a review as the action by the Centrelink officer in referring the file to ARO Cursaro was not a decision under the Act, but an administrative issue only. 10 The applicant then made application to the SSAT to review the "decision" which ARO Boyle had been requested to consider. In doing so he described the decision to be reviewed as that of the Centrelink officer "to forward my file to an ARO for a review without my authority, permission or knowledge on the 13th August 1999 for a decision she internally reviewed for a decision made on the 26th July 1999." 11 The SSAT described the decision under review by it as: "A decision made by a Centrelink officer on 26 July 1999 to refer a matter to an authorised review officer for review. The substantive decision referred to the authorised review officer was reviewed (and affirmed) on 16 August 1999." [The referral by the Centrelink officer actually occurred on 13 August 1999.] 12 Chapter 6 of the Act makes provision for the review of decisions. Part 6.1 deals with internal review. At the hearing of the present appeal before this Court there was considerable argument over whether the review by ARO Cursaro on 16 August 1999 occurred under s 1239(1) or s 1240(1) of the Act. The application made by the applicant for the review which came before ARO Boyle clearly enough was made under s 1240(1) of the Act. Those subsections read: "1239(1) The Secretary may review: (a) a decision of an officer under this Act; or (b) a decision under section 5A, 5B, 5C, 5D, 5E, 5EA or 5EB of the Health Insurance Act 1973; or (c) a decision of an officer under the Farm Household Support Act 1992; or (d) a decision of an officer under subsection 91A(3) of the Child Support (Assessment) Act 1989; or (e) a decision under section 44-24 of the Aged Care Act 1997 by the Secretary, or by a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act; if satisfied that there is sufficient reason to review the decision. … 1240(1) Subject to subsections (1AA), (1B) and (2), a person affected by: (a) a decision of an officer under this Act; or (b) a decision under section 5A, 5B, 5C, 5D, 5E, 5EA or 5EB of the Health Insurance Act 1973; or (c) a decision of an officer under the Farm Household Support Act 1992; or (d) a decision of an officer under subsection 91A(3) of the Child Support (Assessment) Act 1989; or (e) a decision under section 44-24 of the Aged Care Act 1997 by the Secretary, or by a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act; may apply to the Secretary for review of the decision." 13 Section 1239(4) requires the Secretary (which expression includes an ARO: see s 1301(1)) to affirm, or vary, or set aside the decision and substitute a new one on a review under s 1239(1), but the Act is otherwise silent as to the giving of reasons by the ARO for the decision made on review, and as to further avenues of review by a person affected by the decision. In contrast the Act provides that where an application for review of a decision is made under s 1240(1) the Secretary, the CEO, or an ARO must either affirm the decision, vary the decision or set the decision aside and substitute a new decision: see s 1243(1). The Act further provides that notice of the decision must be given to the applicant: s 1243(2). The notice must include a statement to the effect that the person receiving the notice may apply to the SSAT for a review of the decision: s 1244(1)(a), and the notice must set out the reasons for the decision, findings on material questions of fact, and reference to the evidence or other material on which those findings were based: s 1244(1)(b). The notice must also contain a further statement that if the person is dissatisfied with the SSAT's decision that decision may be reviewed by the AAT, subject to the AAT Act. 14 This contrast suggests that the reviews which are contemplated by ss 1239 and 1240 are not mutually exclusive alternatives. Rather it suggests that in the course of administering the Act, there may be internal reviews conducted under s 1239 independently of any initiating action taken by a potential recipient of a benefit allowance or payment under the Act; and even where such a review occurs a person affected by the decision made on the review under s 1239 may then exercise the right given by s 1240 to have the decision internally reviewed under s 1240(1). If this happens, the application and decision under s 1240(1) and s 1243(1) respectively trigger the right of that person to receive a statement of reasons for the decision, and the right to pursue further reviews by the SSAT, and, if appropriate, the AAT. 15 Where a review has been conducted under s 1240(1) a person whose interests are affected by the decision is given a right to apply to the SSAT for review of that decision: s 1247(1) of the Act. That section makes no reference to decisions made under s 1239. 16 The SSAT appears to have treated the decision made by ARO Cursaro on 16 August 1999 as one made under s 1239(1), and to have treated the action of the Centrelink officer on 13 August 1999 as a reference to an ARO for review under that section. The AAT in its reasons for decision avoided consideration of the scope and operation of ss 1239 and 1240 saying that the process of referral under each section gave rise to the same issue, namely whether the decision to refer a matter for review constituted a reviewable "decision". 17 I think the better view is that the referral made by the Centrelink officer on 13 August 1999 was for the purpose of a review under s 1240. This accords with Centrelink's file note of 13 August 1999 which indicates that the Centrelink officer understood the applicant to be requesting a review by an ARO, and with the procedure followed by ARO Cursaro whose letter of 19 October 1999 was in fact a notice to the applicant containing a statement of the reasons for decision on the review, reference to material findings of fact, and statements as to further avenues for review before the SSAT and AAT. 18 The application to the SSAT sought review of ARO Boyle's decision that he did not have jurisdiction to review the action of the Centrelink officer in referring the file to ARO Cursaro. As ARO Boyle did not conduct a review leading to one of the outcomes specified in s 1243(1) it is questionable whether the SSAT had jurisdiction to embark on a review of that decision. The SSAT held however that it had jurisdiction in the matter. It held that the referral of the decision of 26 July 1999 to an ARO was an administrative decision which related to a function under the Act. The Tribunal referred to s 1239(1) and found that the Secretary (in reality the ARO) had reason to be satisfied that there was a sufficient reason to review the decision, that reason being found in the applicant's insistence on 13 August 1999 that the decision be reviewed. The formal decision of the SSAT was that "the Tribunal decided to affirm the decision". 19 The applicant then exercised his right under s 1283(1) of the Act to apply to the AAT for a review of the decision of the SSAT. Under s 1283(2) where the SSAT has affirmed a decision the decision made by the SSAT for the purposes of a review by the AAT is taken to be the decision as affirmed. 20 Plainly the issue which the applicant wished to ventilate before the SSAT was confined strictly to the action of the Centrelink officer in referring the matter to ARO Cursaro. This can be gleaned from the terms of ARO Boyle's letter to the applicant dated 19 October 1999, and from the description in the applicant's application for review by the SSAT of the decision in question, namely the decision "to forward my file to an ARO for review". The confined nature of the issue to be determined by the SSAT was also made plain at the SSAT hearing by the applicant. The reasons for decision of the SSAT record that the applicant "sought review by the Social Security Appeals Tribunal of the decision of the delegate of the Secretary to refer his matter to the authorised review officer for review". 21 The terms in which the reasons for decision of the SSAT are expressed are open to the interpretation that the SSAT went beyond reviewing merely the action of the Centrelink officer in referring the applicant's matter to ARO Cursaro on 13 August 1999. The SSAT in its reasons considered whether there were circumstances which justified the exercise of power under s 1239(1) by ARO Cursaro, but that was not an issue raised in the application to the SSAT. Moreover, for the reasons given above I do not think the reference under consideration was for review under s 1239(1). Be that as it may, the formal decision of the SSAT was "to affirm the decision" under review. In my opinion the subject matter of that decision was confined to the actions of the Centrelink officer on 13 August 1999 which referred the matter to an ARO for review. Whether the reference by the Centrelink officer was in truth a reference under s 1239 or one under s 1240, the reference was a step in the review process which the SSAT by implication held was a "decision" within the meaning of the Act. 22 Before the AAT the respondent argued that the actions of the Centrelink officer on 13 August 1999 in referring the matter to an ARO did not constitute a "decision" within the meaning of the Act, and therefore was not amenable to review under Chapter 6 of the Act. The AAT accepted that argument. The same argument has been addressed to this Court. The respondent contends that the AAT was correct to hold that it did not have jurisdiction to entertain the application before it. 23 Under s 23 of the general definitions in the Act, "decision" is defined to have the same meaning as in the AAT Act. Section 3(3) of the AAT Act provides: "A reference in this Act to a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing."