FEDERAL COURT OF AUSTRALIA Trotter v Department of Family and Community Services [2005] FCA 929 A R TROTTER v DEPARTMENT OF FAMILY AND COMMUNITY SERVICES SAD 159 OF 2004 MANSFIELD J 30 JUNE 2005 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 159 OF 2004 BETWEEN: A R TROTTER APPLICANT AND: DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 30 JUNE 2005 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay to the respondent costs of the 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 SAD 159 OF 2004 BETWEEN: A R TROTTER APPLICANT AND: DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT JUDGE: MANSFIELD J DATE: 30 JUNE 2005 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application by way of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) made on 28 May 2004. The Tribunal affirmed a decision of Centrelink first made on 20 January 2003, affirmed internally on 12 February 2003 and affirmed again by the Social Security Appeals Tribunal (the SSAT) on 4 June 2003. 2 The decision was that the applicant was not qualified for rent assistance under the Social Security Act 1991 (Cth) (the Act). 3 At the time of both the Tribunal and the SSAT decisions, qualification for rent assistance for persons such as the applicant who is receiving disability support pension was set out in subs 1064-D1 of the Act. It provided: 'An additional amount to help cover the cost of rent is to be added to a person's maximum basic rate if: (a) the person is not an ineligible homeowner; and (b) the person is not receiving incentive allowance; and (c) the person pays, or is liable to pay, rent (other than Government rent); and (d) the rent is payable at a rate of more than the rent threshold; and (e) the person is in Australia. …' Subclause (c) of that provided is critical to the determination of this appeal. 4 The term 'government rent' is defined in s 13(1) of the Act. It means rent payable to any of a number of state or territory housing authorities, including relevantly the South Australian Housing Trust (the SAHT). 5 The applicant is 60 years old. He is in receipt of a disability support pension under the Act. He lives by himself in rental accommodation in Millicent. The Tribunal found that the rental accommodation in which the applicant resides is owned by the SAHT and that he pays rent to the SAHT. Consequently, the Tribunal decided that the applicant is paying government rent, and so did not satisfy the qualification criterion in subcl (c) of subs 1064-D(1) of the Act to receive rent assistance. 6 The appeal to this Court from that decision is confined to appeal on a question of law: see s 44 of the AAT Act. The notice of appeal identifies the question of law raised on the appeal as in the following terms: 'Interpretation of what constitutes discrimination regarding term "government rent" and the policy thereof.' 7 As the applicant indicated in submissions, he considers the way in which the legislation referred to operates is so discriminatory against him and others that the Court should be bold enough to set aside the decision of the Tribunal. As the Tribunal and other decision-makers acknowledged, the policy underlying the exclusion of those paying government rent from those qualified for rent assistance may be that those paying government rent are assumed to be paying less than commercial or market rental rates for their accommodation. The applicant contests as a fact that his rent to the SAHT is less than a commercial or market rate. He also asserts, although there is no evidence upon which the assertion presently is proved, that all persons who are paying rent to the SAHT are paying rent at the equivalent of commercial or market rates. 8 Whether or not that is the case, it is not for the Court to form a view as to the desirability of, or the current validity of, the assumed underlying particular legislation. It may be that the policy underlying the exemption of those paying government rent from being qualified for rent assistance is that government rent payers are already benefiting from a rental charge that is less than the commercial rate. It may be, as the applicant asserts in his case (and in the case of others paying rent to the SAHT that they are not paying rent at less than the commercial rate. However, it is the duty of the Court to apply the law. It is the function of the parliament to make the law. 9 In my view, the applicant's real complaint is that the law is now based upon an incorrect underlying premise, at least as it applies to him. His remedy, if one assumes the facts are as he asserts them, is to seek to have the law changed. I think it is clear that the Tribunal did not commit an error of law in its decision. Upon the findings of fact which it made, the applicant is in receipt of government rent, because he is paying rent to the SAHT. He is therefore not qualified for rent assistance, because subcl (c) of subs 1064-D1 excludes those paying or liable to pay government rent from the qualification there expressed. Each of the qualifications in subs 1064D(1) is cumulative. 10 For those reasons, in my view, the Tribunal did not err in law in its decision, and the application by way of appeal must be dismissed. As was said to the applicant in the reasons for decision of the Tribunal, his complaint should more properly be directed to those who make the law. His complaint of discrimination is that there is no valid foundation in his case, or more generally, to exclude from those eligible for rent assistance those who pay government rent to the SAHT. Whether it is correct that the SAHT now charges market rents, and whether it is correct that the premise underlying the exemption of those paying government rent from those qualified for rent relief, are matters which might be explored with the legislature. If the applicant is paying rent to the SAHT at a rate equivalent to the market rate, the impact may work in a way which is disadvantageous to him compared to those who are not paying government rent but are living in similar accommodation. However, as I have said, that is a matter for the legislature. 11 On this appeal, which is an appeal from the Tribunal, the Court's function is limited to determining whether the Tribunal itself made an error of law in its decision-making process. I have reached the firm view that it did not. Accordingly, the application by way of appeal is dismissed. 12 The normal rule is that, on an unsuccessful application such as this, costs would follow the event. The applicant opposes the making of an order for costs against him in this matter. He refers to his personal circumstances, including the fact that he is in receipt of a disability support pension. He also refers to his health. He has submitted that any costs order might adversely affect his health because of the additional liability which it may impose upon him. I have had regard to his personal circumstances but I do not think in the circumstances that they are sufficient to warrant the Court departing from the normal rule as to costs. I accordingly order that the applicant pay to the respondent costs of the application. As counsel for the respondent acknowledged, the fact that a costs order is made does not mean that it will be or can be enforced. No doubt the respondent will have regard to the applicant's personal circumstances in determining whether the respondent seeks to pursue that order for costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 6 July 2005 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: K Bean Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 June 2005 Date of Judgment: 30 June 2005