Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923

FEDERAL COURT OF AUSTRALIA

Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923

ADMINISTRATIVE LAW – review of decision of Administrative Appeals Tribunal on appeal from Social Security Appeals Tribunal – whether Tribunal failed to take into account a relevant consideration – whether the Tribunal's reasons satisfied the requirements of section 43 of the Administrative Appeals Tribunal Act – held that the Tribunal misdirected itself, by finding that s 1237AAD precluded consideration of a "notional entitlement" – held that the Tribunal's reasons did not disclose findings of fact, the evidence on which the findings were based and the logical process by which the Tribunal moved from the findings to the result – held that the Tribunal's reasons were not sufficient to discharge the requirements of the Act – appeal allowed SOCIAL SECURITY – appeal from decision of Administrative Appeals Tribunal entitling Commonwealth to recover parenting payment debt and family tax benefit debt – appellant failed to inform Centrelink of change in circumstances and was overpaid benefits – Commonwealth attempted to recover debts – appellant argued that the debts should be waived because of "special circumstances" pursuant to s 1237AAD of the Social Security Act and s 101 of the A New Tax System (Family Assistance) (Administration) Act – whethera "notionalentitlement" of the appellant's to a disability support pension should be taken into account in determining whether there were "special circumstances" – whether "notional entitlement" can be considered as a relevant circumstance within "special circumstances" under s 1237AAD – held that a "notional entitlement" is not excluded as a relevant circumstance – Tribunal erred by not considering it – appeal allowed A New Tax System (Family Assistance) Act 1999 (Cth) A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 71, 101 A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No.2) 1999 (Cth) Sch 2 Administrative Appeals Tribunal Act 1975 (Cth) s 43 Social Security Act 1991 (Cth) ss 18, 23(1), 1223, 1235, 1237AAC, 1237AAD Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 cited Australian Postal Commission v Wallace (1996) 41 ALD 455 applied Beadle v Director-General of Social Security (1985) 60 ALR 225 cited Re Dobbie and Secretary, Department of Social Security AATA, No 8661 (23 April 1993) unreported cited Re DSGR and Secretary, Department of Education, Science and Technology [2007] AATA 1981 considered Re Huynh and Secretary, Department of Social Security (1994) 34 ALD 694 approved Re Sara and Secretary, Department of Families, Community Services and Indigenous Affairs (2006) 91 ALD 759 approved Re Schulze and Secretary, Department of Family and Community Services (2004) 81 ALD 636 overruled Re Secretary, Department of Employment and Workplace Relations and QX2006/1 (2006) 90 ALD 320 considered Re Secretary, Department of Employment and Workplace Relations and Tracey Oberhardt [2008] AATA 85 reversed Re Secretary, Department of Family and Community Services and Lyster (2000) 59 ALD 587 approved Re Secretary, Department of Family and Community Services and Varhegyi (2005) 87 ALD 717 overruled Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 considered Roncevich v Repatriation Commission (2005) 222 CLR 115 considered Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103 applied Secretary, Department of Social Security v Hales (1998) 82 FCR 154 followed The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 applied Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64 cited Vock v Repatriation Commission [2005] FCA 967 considered TRACEY OBERHARDT v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS