Despot v Department of Family & Community Services [2004] FCA 140

FEDERAL COURT OF AUSTRALIA

Despot v Department of Family & Community Services [2004] FCA 140

SOCIAL SERVICES – unemployment benefit – Newstart Allowance – Newstart Activity Agreement – failure to comply – penalty reduction of Newstart Allowance – application to Administrative Appeals Tribunal – application dismissed – appeal from AAT – refusal by AAT to receive character evidence – character not in issue – whether Newstart Activity Agreement included Schedule of Agreed Activities negotiated separately and not physically attached – non-negotiation of Schedule of Agreed Activities

Social Security Act 1991 (Cth) s 593, s 601, s 604, s 605, s 606, s 626

Secretary, Department of Employment, Education and Youth Affairs v Ferguson [1997] FCA 663 cited

Waterford v Commonwealth (1987) 163 CLR 54 cited Brown v Repatriation Commission (1985) 60 ALR 289 cited

MATTI DESPOT v DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

W148 OF 2003

FRENCH J

25 FEBRUARY 2004

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 148 OF 2003

BETWEEN: MATTI DESPOT

APPLICANT

AND: DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 25 FEBRUARY 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The applicant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 148 OF 2003

BETWEEN: MATTI DESPOT

APPLICANT

AND: DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: FRENCH J

DATE: 25 FEBRUARY 2004

PLACE: PERTH

REASONS FOR JUDGMENT Introduction 1 On 4 June 2002, an officer of the Department of Family and Community Services decided to impose an 18% reduction on a Newstart Allowance payable to Mr Matti Despot under the provisions of the Social Security Act 1991 (Cth). The reduction was imposed by way of penalty because Mr Despot had failed to comply with the requirements of a Newstart Activity Agreement which he signed on 30 April 2002 and which incorporated, by reference, a Schedule of Agreed Activities, which he signed on 6 May 2002. The non-compliance involved his failure to attend at the offices of Job Australia Midland on 13 and 15 May 2002 for mandatory assistance in his search for employment. 2 Mr Despot challenged the decision. It was reviewed by an internal review officer in the Department and subsequently, on Mr Despot's application, by the Social Security Appeals Tribunal (SSAT). The original decision was affirmed in each case. He sought review of the SSAT decision in the Administrative Appeals Tribunal (AAT) and here again he was unsuccessful. He now appeals to this Court against the decision of the AAT. 3 As appears from the following reasons, his appeal has little merit and is dismissed with costs. Factual History 4 Matti Despot was born on 16 January 1966. He is a qualified chef and has worked on and off for nearly twenty years in the hospitality industry. He is presently unemployed. Since January 1998 he has been in receipt of Newstart allowance under the Social Security Act. He was receiving the allowance initially in Adelaide and more recently in Perth. 5 On 30 April 2002, he attended an intensive assistance seminar at Jobs Australia in Midland and signed a Newstart Activity Agreement entitled 'Preparing for Work Agreement'. The agreement recited that it was negotiated between the job seeker (Mr Despot) and the job network member, namely Jobs Australia, Midland that: 'I agree 1. Where I already have in place a Preparing for Work Agreement to the terms of my existing Preparing for Work Agreement being varied to include only the activities, and only for the period, mentioned immediately below. to commence, fully participate in and complete Intensive Assistance from 30/04/02 to 30/07/03 subject to my eligibility continuing. My participation will be in accordance with the attached schedule of agreed activities. to the terms of my existing agreement being re-activated at the conclusion of my participation in Intensive Assistance and I will comply with them again from 01/08/03. 2. Where I do not have an existing Preparing for Work Agreement, to commence, fully participate in and complete Intensive Assistance from – to – subject to my eligibility continuing. My participation will be in accordance with the attached schedule of agreed activities.' 6 The agreement went on to recite the understanding of the job seeker that he is required to do what he agrees to do in the Preparing for Work Agreement and that if he did not do it his allowance might be stopped and a penalty imposed if he reclaimed allowance. It also recited that he understood that he must tell his Job Network Member when he would not attend a job interview or do an activity included in the 'attached schedule of agreed activities'. The agreement went on: '. I am required to actively seek and accept any suitable job offer. If I do not accept a suitable job offer whilst I am undertaking Intensive Assistance my allowance may be stopped and a penalty period imposed if I reclaim allowance. . This Agreement has been negotiated between me and the Job Network member and will be submitted for approval by a delegate of the Secretary under the Social Security Act 1991.' On the same day he signed an 'Intensive Assistance' agreement which was in the following terms: 'AGREEMENT TO PARTICIPATE IN INTENSIVE ASSISTANCE WITH JOBS AUSTRALIA, MIDLAND/MORLEY I, Matti Despot agree to the following: . to fully participate in Intensive Assistance and to sign an Intensive Assistance Activity Agreement with Jobs Australia Midland/Morley . to attend an interview at [time] 1pm on [date] 6 May 2002 at Jobs Australia Midland/Morley to commence development of appropriate activities to assist me obtain and sustain employment. I certify that: The terms of this agreement have been explained to me and I agree to them.' Below that appeared Mr Despot's signature and that of a Jobs Australia representative. The agreement was dated 30 April 2002.