FEDERAL COURT OF AUSTRALIA Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 971 CLAYTON ROBERT CROKER v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS NSD 2548 of 2007 STONE J 27 JUNE 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2548 of 2007 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER R HUNT BETWEEN: CLAYTON ROBERT CROKER Applicant AND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent JUDGE: STONE J DATE OF ORDER: 27 JUNE 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed as incompetent. 2. The applicant pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2548 of 2007 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER R HUNT BETWEEN: CLAYTON ROBERT CROKER Applicant AND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent JUDGE: STONE J DATE: 27 JUNE 2008 PLACE: SYDNEY REASONS FOR JUDGMENT 1 From 1994 to 2006 the applicant, Mr Croker, received a disability support pension. In July 2006 this pension was terminated by Centrelink and he began receiving the Newstart allowance which is an unemployment benefit. As a condition of this allowance Mr Croker entered into successive activity agreements, the second of which was signed on 8 December 2006 in the Centrelink office at Darlinghurst. Apparently this agreement obliged Mr Croker to do certain things directed to preparing him to enter the workforce, including stating that he would commence his "Education and Training placement by 8/2/2007". 2 Mr Croker enrolled in a full-time diploma course in website development at the Sydney Institute of Technology, as well as a correspondence course in legal studies through Curtin University in Western Australia. On the basis of this enrolment he applied, under s 665U of the Social Security Act 1991 (Cth), for the Education Entry Payment. This is a single payment directed towards assisting with the costs associated with taking on full-time study. The respondent advised that the amount of the payment is presently $208. 3 On 8 August 2007 the Social Security Appeals Tribunal held that Mr Croker was not entitled to the Education Entry Payment. On 18 December 2007 at the completion of the hearing before it, the Administrative Appeals Tribunal (AAT) constituted by Senior Member Hunt affirmed the decision but did not give written reasons. 4 In accordance with s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Croker requested a statement in writing of the AAT's reasons for its decision. Under cover of a letter dated 29 January 2008 the AAT sent Mr Croker a written copy of the decision and gave the following three paragraphs as its reasons for decision: 1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the Senior Member's reasons were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant … requested the tribunal to furnish to him a statement in writing of the reasons of the tribunal for its decision. 2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore [sic] decision, they are in fact the reasons for the decision. 3. The transcript is annexed and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision. 5 At the outset I must say that, although Mr Croker did not raise any objection to the form in which the AAT provided its reasons, in my view this approach to the obligations imposed under s 43(2A) is highly undesirable. Unless the tribunal has given very clearly structured reasons, merely providing the transcript leaves to the party requesting the reasons, the task of discerning the tribunal's findings of fact and conclusion from the facts which have been put in evidence, the cross-examination of witnesses and the submissions made. In this case the transcript extends to 22 pages in which the findings and reason for the tribunal's decision are not to be found until the last two pages. Even there, as explained below, the findings on which the conclusion is based are difficult, albeit not impossible, to discern. 6 In Martin v Australian Postal Corp (1999) 29 AAR 420 Burchett J at 428 discussed the purpose behind the requirement that the tribunal give reasons: The essence of the requirement that the Tribunal give reasons is that its decision must be understandable. Two purposes are thereby served. The first is that a party concerned may be able to see the basis of the decision and whether it is legally sound, or affected by some error. The second is that the discipline of the necessity to render reasons helps to keep any tribunal on the path of sound reasoning to sound conclusions. 7 These purposes are recognised in s 43(2B) of the Act which provides that where the tribunal is requested under s 43(2A) to give written reasons, "those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". In Jordan v Australian Postal Corporation (2007) 99 ALD 303 Buchanan J held at 314 that the tribunal's reasons did not include any finding of fact on a material fact and that the appropriate course was to set aside the decision and remit the matter to the tribunal for further consideration. 8 It is, of course, necessary to bear in mind the many admonitions that the Court should not be over zealous in its scrutiny of a tribunal's reasons. However, it is also undesirable to have to find the tribunal's reasons by first identifying its conclusion and then trawling through the transcript to determine if the tribunal has reasoned from findings it has made to the conclusion it has reached. It may be that in the course of the hearing the tribunal makes findings of fact that ultimately are not relevant to the conclusion, as well as those that are relevant. Section 43(2A) requires the tribunal to set out the evidence and findings on which it actually based its conclusion, not those on which it might have based its conclusion. It is only where that distinction is clear that the process of reasoning can properly be assessed. 9 In this case almost 21 of the 22 pages of the transcript of the hearing before the AAT consist of submissions as to fact and law, cross-examination of Mr Croker by Mr Bullock who appeared for the respondent, and discussions between the AAT Senior Member, Mr Croker and Mr Bullock. Much of the discussion concerned the grounds on which Mr Croker was receiving the Newstart allowance, the activity agreement that he had entered into, whether he was a full-time student in form or substance and whether his Newstart allowance had ever been terminated. As is common with transcript of conversations, it is not always entirely clear what issues were being addressed at particular times. This makes the task of extracting the information required to be provided under s 43(2A) very difficult, especially for a litigant who is not legally qualified. On balance, however, I accept that the findings and reasoning that led to the AAT's conclusion in this case can be discerned and therefore, unlike the reasons Buchanan J considered in Jordan v Australian Postal Corporation,the statement of reasons is not so inadequate as to warrant remitting the matter to the AAT. 10 There is no dispute between the parties that Mr Croker's entitlement to the Education Entry Payment is governed by the requirements in s 665U(1) of the Social Security Act. Relevantly the section provides: A person is qualified for an education entry payment under this section if: (a) either: (i) the Secretary is satisfied that the person intends to enrol in a full-time course of education that is an approved course under the ABSTUDY scheme or an approved course of education or study for the purposes of paragraph 541B(1)(c) or 569A(b); or (ii) the person is enrolled in such a course; and (b) immediately before starting the course of education: (i) the person is receiving a newstart allowance; and (ii) the person has been receiving income support payments in respect of a continuous period of at least 12 months (whether or not the kind of payment received has changed over the period and whether the period or any part of it occurred before or after the commencement of this section); and (c) the person: (i) ceases to be qualified for newstart allowance because the person takes part in the course of education; or (ii) is not qualified for youth allowance as a full-time student, austudy payment or payments under the ABSTUDY scheme because the person takes part in the course to satisfy the activity test under section 601 or to comply with a Newstart Activity Agreement; and (d) the person has not, within the last 12 months, received a payment under this Part. 11 When questioned by the Senior Member, Mr Croker admitted that he has continued to receive the Newstart allowance despite his claim to be eligible for the Education Entry Payment. Although not entirely clear from the transcript, it appears that he argued that his studies were carried out in compliance with the activity agreement that he had entered into. Mr Bullock admitted that a person may be required under an activity agreement to undertake some study and gave, as an example, that people who do not have an English speaking background may be required to study English. 12 The Senior Member asked if the respondent's position was that Mr Croker did not qualify for the Education Entry Payment because although he enrolled in a full-time course, he never intended to make it a full-time course and/or it did not satisfy the activity agreement. She asked "Are they the two things you are saying?" Mr Bullock replied: Yes, and he was always studying part time. We've seen the number of hours that he has crossed on the form to be only about 10 hours which is a very minor part of his week. He wasn't required to satisfy the activity test by undergoing that course. It was something that he asked to be put in and as part of the negotiation and as I said the activity agreement is, concentrates on job seeking activities. So that the Secretary's argument was he didn't cease to be qualified for Newstart and as far as (c)(ii) goes the education part of it wasn't put there in order for him to comply with the New Start activity agreement. 13 Mr Bullock submitted that Mr Croker's activity agreement was designed for him to find work and that it obliged him to accept all referrals to suitable positions. Mr Bullock admitted that Mr Croker was "exempted from his activities until June 2007" because of his disability. Mr Croker said that he had never received any referral from any job work provider. Although, as mentioned above, Mr Croker admitted that he had continued to receive the Newstart allowance, he also submitted that he had ceased to qualify for it and therefore he met the requirement in s 665U(1)(c)(i). Mr Croker based this submission on a telephone conversation with a Centrelink employee who, in the light of his having enrolled in a full-time course, raised the question of his continuing entitlement to Newstart. According to Mr Croker, he was advised that his Newstart allowance had been terminated and thus it was terminated. The AAT did not accept this submission. 14 On page 21 of the transcript the Senior Member expressed a tentative conclusion which, following further discussion with Mr Croker, she confirmed on page 22. In understanding the findings and conclusions of the AAT it is helpful to consider exactly what the Senior Member said in announcing her decision: MS HUNT: All right. Well, for me to sum up and make a decision, which I would like to be able to do today - I'm just trying to work my way through it - it does seem to me, Mr Croker, that you can't qualify for the payment because although you enrolled in a full-time course which was part of the requirements, you only ever intended to do it part-time. That's no criticism; you had a difficulty which is understandable. I think the Centrelink person who dealt with your claim tried to take a sympathetic attitude towards your situation and that's why they continued to pay you Newstart after the phone conversation, but the fact is that you didn't cease to be qualified for Newstart because you weren't actually doing it full-time and you also didn't qualify for other allowances. Now, I'm not going to go onto those allowances in detail but it's apparent that you wouldn't get a Youth Allowance and you haven't shown that you do in fact qualify for any of those other payments. I don't accept that you satisfy the activity test under section 601 or comply with the Newstart Activity Agreement because the agreement before me here shows emphasis on a whole load of other matters that you were expected to follow through on and not this particular course. I can see you've complied with some of these requirements but they're not the requirement that you're trying to introduce in your claim, which is this particular course that you're doing, this computer course, that wasn't a requirement of your activity agreement. Even if the agreement was suspended, which you suggested at one stage, there's no other activity agreement that you can point to, to show that it satisfied that agreement, so it seems to me that you can't meet the requirements of paragraph (c) of section 665U(1). You fail to meet that requirement. And the requirements of subsections (a), (b) and (c) are all cumulative, you have to satisfy all of them, so I'm afraid you don't qualify for this education entry payment and are not entitled to it. If you've got something further you want to say to dispel my impression, I said I would give you another opportunity. Is there something further you want to say? MR CROKER: Yes. I'm still of mind the activity agreement at the time was in force and that the education clauses or terms of the agreement or do meet the standard or the requirements in (c)(ii), and in the alternative, in (c)(i) I would state that the "cease to be qualified for Newstart Allowance because the person undertakes part in the course of education" was communicated to me very clearly by phone call from an officer of Centrelink shortly after the lodgement of the enrolment form with Centrelink. In regards to the intention to study full-time or enrol full-time in a course, I would say that has been satisfied in that the only way or the only mode which I intended to role [sic] in was the mode of full-time and that would satisfy (a)(i) and (b)(i) or (b)(ii) have been satisfied. I'm still of the mind that they are clauses that if attendance wasn't or participation wasn't done, that the activity agreement would have to be redrafted by both parties. That would be my submissions. MS HUNT: These provisions are a little complex; however, I am still of the opinion that you don't satisfy subsection (c), in that I am not satisfied that you ceased to be qualified for Newstart Allowance, and I am also not satisfied of the alternative. You were not qualified for any of the allowances set out there, and I am not satisfied that you were taking part in the course to satisfy the activity agreement. So the end result of that is that I am not satisfied that you have met the requirements to satisfy section 665U for receipt of an Education Entry Payment. So I am making that decision today. Thank you for attending. I think that is the end of the matter today. 15 It would seem from the above that the AAT was prepared to accept that Mr Croker complied with s 665U(1)(a) because he was enrolled in an approved full-time course of education; and that he complied with s 665U(1)(b) because immediately before starting the course he was receiving a Newstart allowance and had been receiving income support payments for at least 12 months. The AAT held, however, that Mr Croker did not comply with s 665U(1)(c)(i). He did not cease to be qualified for Newstart allowance because of the course of education in which he took part. Similarly, the Senior Member was not satisfied that he complied with subsection (c)(ii) because he had neither satisfied her that he qualified for any of the payments mentioned in the subsection, nor was he required to take part in the course of study to satisfy the activity test under section 601 or to comply with the Newstart activity agreement. 16 Mr Croker has appealed to this Court under s 44 of the AAT Act which entitles him to appeal from the decision of the AAT "on a question of law". This means that the question of law is the subject of the appeal; TNT Skypack International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 82 ALR 175 at 178-179 per Gummow J. The respondent has submitted that neither the initial nor the amended notice of appeal in this case discloses any proper question of law and that therefore the appeal is incompetent. 17 By a "proper question of law" the respondent means not only a question of law strictly so called but also one on which an appeal from the AAT may be founded. The question must be one to which a favourable answer would reveal an error affecting the AAT's decision concerning Mr Croker; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 327. As Branson J and I remarked in Birdseye at 325: It is in the specification of the grounds relied upon in support of the orders sought that, … one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. 18 According to Mr Croker's amended notice of appeal, the question of law raised on his appeal is whether the words in s 665U(1) of the Social Security Act "a person is qualified for an education entry payment under this section" include a number of factual circumstances listed in (a) to (f) of the notice of appeal as follows (without corrections): (a) A student not attending all classes but enrolled in a course that its mode of delivery from the education supplier is full time mode. (b) A person that 'intends to enrol in a full-time course of education that is an approved course of study for the purposes of paragraph 541B(1)(c) or 569A(b) of the act, or a person that is enrolled in such a course; (c) A person immediately before starting the course of education had been receiving income support payments in respect of a continuous period of at least 12 months from the Respondent; (d) A person that has been notified by the Respondent that they ceases to be qualified for unemployment allowance because the person takes part in a full time course of education; (e) A person that has signed an Activity Agreement with the Respondent and the person takes part in the course to satisfy the activity test under section 601 of the act or to comply with a Newstart Activity Agreement; and (f) A person that has not, within the last 12 months, received a payment under the Social Security Act 1991 (Cth) -s 665U. 19 I accept that a question of law may contain reference to factual matters as, for instance, where "primary facts constitute evidence of compliance with a statutory test"; Colby Corporation Pty Ltd v Commissioner of Taxation [2008] FCAFC 10 at [16]. This is not, however, such a case. In this case the facts referred to in the alleged question of law are, with one exception, not relevant to the AAT's decision because they are not facts on which the decision was based. The exception is paragraph (d). The AAT found, however, that when the issue of his continuing eligibility for Newstart was raised by a Centrelink employee, Mr Croker explained that he would only be taking the course part-time and consequently he continued to receive payments without interruption and was qualified to receive them. Although Mr Croker attempted to make a case that, before he explained his position, he was temporarily not qualified for the Newstart allowance, he did not seriously take issue with this finding. I accept the respondent's submission that no relevant question of law arises on this issue. 20 In relation to the other issues the best that can be said is that they involve a broad enquiry as to the meaning of the provision. As Branson J observed in Comcare v Etheridge (2006) 149 FCR 522 at 528: A broad enquiry as to the construction and operation of statutory provisions is not a question of law within the meaning of s 44(1) of the AAT Act. Moreover, by inviting the Court to engage in such a broad and hypothetical inquiry the purported question of law extends beyond any controversy between the parties. It is for this reason incapable of constituting a "matter" and thus beyond the competence of the Court … 21 The amended notice of appeal lists six grounds of appeal which consist merely of assertions that the AAT came to the wrong conclusion or an unjust conclusion or made other unspecified errors. Even if the AAT had erred in its findings of fact, this would not, per se, entitle Mr Croker to the relief he seeks. In general an appeal under s 44(1) must proceed on the basis of the factual findings made by the AAT unless the answer to the question of law raised on the appeal reveals a factual error that may be remitted to the AAT; Colby at [16]. Mr Croker invited me to exercise the limited power to make findings of fact provided in s 44(7), however this power is only "available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal"; Comcare v Etheridge per Branson J at 527. 22 In my view there is nothing in the amended notice of appeal that enlivens the jurisdiction of the Court under s 44(1) and therefore the appeal from the AAT must be dismissed as incompetent. The applicant must pay the costs of the respondent. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 27 June 2008 The Applicant appeared in person. Counsel for the Respondent: D Watson of Australian Government Solicitor Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 June 2008 Date of Judgment: 27 June 2008