Secretary, Department of Employment and Workplace Relations v Kelly [2006] FCA 659

FEDERAL COURT OF AUSTRALIA Secretary, Department of Employment and Workplace Relations v Kelly [2006] FCA 659 SOCIAL SECURITY – eligibility for newstart allowance – respondent a full-time student – respondent enrolled for honours year – newstart allowance not payable to persons enrolled in full-time course of study unless certain statutory conditions met – conditions not met – whether Administrative Appeals Tribunal finding that applicant ought to have formed a particular opinion, or taken certain actions, sufficient to satisfy conditions

Held: finding that particular opinion ought to have been formed, or certain actions ought to have been taken, by Secretary not sufficient to satisfy statutory criteria which require the existence of such opinion, or taking of such actions

Social Security Act 1991 (Cth) ss 593, 601, 604, 606, 613, Administrative Appeals Tribunal Act 1975 (Cth) s 44 Attorney General (NSW) v Quin (1990) 170 CLR 1 referred to Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 referred to SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS v LUKE KELLY VID 2 of 2006 WEINBERG J 29 MAY 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 2 OF 2006

BETWEEN: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS APPLICANT AND: LUKE KELLY RESPONDENT JUDGE: WEINBERG J DATE OF ORDER: 29 MAY 2006 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal, dated 5 December 2005, be set aside. 3. The decision of the Social Security Appeals Tribunal, dated 18 April 2005, be set aside. 4. The applicant's decision to cancel the respondent's newstart allowance, dated 11 February 2005, be affirmed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 2 OF 2006