Re Registrar Social Security Appeals Tribunal [1995] HCA 32; (1995) 130 ALR 163; (1995) 69 ALJR 647 (7 July 1995)

HIGH COURT OF AUSTRALIA

RE REGISTRAR, SOCIAL SECURITY APPEALS TRIBUNAL AND OTHERS

S. 95/001

Number of pages - 5

[1995] HCA 32; (1995) 130 ALR 163

(1995) 69 ALJR 647

HIGH COURT OF AUSTRALIA

TOOHEY J

CATCHWORDS

HEARING

CANBERRA, 7 June 1995

7:7:1995, PERTH

ORDER

Application for an order nisi for a writ of prohibition dismissed.

DECISION

TOOHEY J This is an application for an order nisi for a writ of prohibition.

2. The draft order nisi names as respondents the Registrar of the Social Security Appeals Tribunal ("SSAT"), SSAT itself and the Secretary of the Department of Social Security. However, what is sought is a writ of prohibition directing the Registrar



"to refrain from listing for hearing, conducting a hearing or in any way making or assisting in the making of a determination that the Prosecutor is or has been indebted to the Commonwealth of Australia for a debt arising out of payments made to the Prosecutor under the Austudy scheme".

3. The facts referred to in this judgment are taken from the affidavit in support of the application made by the prosecutor's solicitor. On 25 January 1993 the prosecutor, Mr Townsend, was granted AUSTUDY, that is, financial benefits under Pt 2 of the Student and Youth Assistance Act 1973 (Cth)(1). Payments under the scheme were suspended on 22 April 1993 after Mr Townsend withdrew from the course in which he was enrolled. Later a determination was made by the Department of Employment, Education and Training ("DEET") that Mr Townsend had never met the requirements for payment of AUSTUDY. By notice dated 11 February 1994 a prescribed officer of DEET informed Mr Townsend that there was a debt of $3,012.04 owing by him to the Commonwealth. Mr Townsend applied for a review of that determination. On 16 September 1994 a "senior authorised person" with DEET reviewed and affirmed the earlier determination that there was a debt due to the Commonwealth. While these matters are deposed to in the affidavit sworn by Mr Townsend's solicitor, the only relevant document which is exhibited to the affidavit is the notice of 11 February 1994.

4. Part 9 of the Student Assistance (Youth Training Allowance) Amendment Act 1994 (Cth) ("the Amendment Act") empowered SSAT to review decisions made relating to the AUSTUDY scheme(2). Mr Townsend sought a review by SSAT. Notwithstanding that the Amendment Act does not give SSAT power to hear "appeals" from those decisions, Mr Townsend received notice from SSAT that his "appeal" would be heard on 11 May 1995. At his instance the matter did not proceed because of his proposed action in this Court.

5. The basis of the claim for prohibition, as appears from the supporting affidavit, is that the determination that a debt exists combined with the enforcement of that debt constitutes an exercise of the judicial power of the Commonwealth; that DEET is not a court established under s.71 of the Constitution; that SSAT exercises judicial power though it is not such a court and that ss.40 and 42 of the Student and Youth Assistance Act, read with s.1228 of the Social Security Act 1991 (Cth), constitute enforcement procedures that amount to an exercise of judicial power.

6. The starting point of this inquiry is the Student and Youth Assistance Act, in particular ss.40 and 42. Section 40(1) provides that where a person has been paid an amount that is a student assistance overpayment, the "recoverable amount" is a debt owed by the person to the Commonwealth. The term "student assistance overpayment" is defined by s.3 to mean "an amount paid under the AUSTUDY scheme that should not have been paid" or a debt due to the Commonwealth under certain sections of the Act relating to failure to notify a change in circumstances or by reason of the provision of false or misleading information(3).

7. Section 40(1) does not in terms require a determination that money is owing. It simply provides that, where there has been an overpayment, there is a debt. Nevertheless, as a matter of administration a decision must be made that there has been an overpayment. Such a decision is capable of review(4). Section 40(1A) empowers a prescribed officer to give the person concerned a written notice specifying what is due(5). And s.40(2) provides that if the recoverable amount is still due at the end of three months after notice is given, the person is liable to pay an additional amount of $100 and interest on the recoverable amount(6). The notice referred to earlier in these reasons was, no doubt, given pursuant to s.40(1A). But the debt arises by reason of s.40(1). The notice referred to in s.40(1A) is not a prerequisite for a debt owed to the Commonwealth. Nor is it a condition of recovery of the debt though it is required before there is a liability to pay the additional amount and interest(7).

8. Section 42 provides in effect for the garnishee of money owing to a person by whom a recoverable amount is due. The section contains machinery for the giving of notice to the third person and for payment to the Commonwealth pursuant to the notice of the money owing. For the purposes of the section, the third person by whom money is owing includes the Commonwealth(8). The section therefore seems to envisage the Commonwealth giving notice to itself.

9. One other provision relating to enforcement should be noted. Section 1228 of the Social Security Act provides in effect that if an amount has been paid to a person under the AUSTUDY scheme that should not have been paid and the person is receiving a pension, benefit or allowance under that Act, the overpayment is recoverable by means of deductions from the pension, benefit or allowance in accordance with Pt 5.3 of that Act.

10. There is nothing in s.40 that involves an exercise of judicial power. The section does no more than identify circumstances in which a debt is owed to the Commonwealth. In the ordinary course the Commonwealth could sue for that debt in a court where the rights and obligations of the parties would be determined(9). The judicial power of the Commonwealth to which Ch.III of the Constitution refers is not invoked by the section.

11. Although the Amendment Act is largely concerned with the Youth Training Allowance, it also abolished the existing procedure for internal review by a senior authorised person and the existing Student Assistance Review Tribunal by repealing Pt 5 of the Act. Counsel for Mr Townsend did not rely upon any of the amendments other than those which inserted Pt 9, headed "Review of Decisions", into the former Student Assistance Act. Division 1 of Pt 9 is headed "Internal review" and it applies inter alia to



"(a) all decisions of an officer under this Act relating to the AUSTUDY scheme".

12. Earlier in this judgment reference is made to a review and affirmation by a senior authorised person with DEET. No material was provided to the Court evidencing this review and affirmation. But since the review took place on 16 September 1994, it must have been done under Div.3 of Pt 5 of the Student Assistance Act as it then stood. The Amendment Act had not then come into effect. Section 20(3) of the Act (as it then stood) provides that:



" Where the Secretary receives a request under subsection (1), the Secretary shall, as soon as practicable, arrange for a senior authorized person to consider the decision and the senior authorized person shall ... consider the decision and:



(a) affirm the decision;

(b) vary the decision; or

(c) set the decision aside and make a decision in substitution for the

13. Counsel for Mr Townsend did not identify the "decision" the subject of review. But in any event neither the earlier decision affecting Mr Townsend nor the review and affirmation by the senior authorised person constituted an exercise of judicial power. They were no more than administrative decisions, not involving a binding and authoritative decision in the sense discussed in Brandy v. Human Rights and Equal Opportunity Commission(10).

14. The next step is the application for review by SSAT. As mentioned earlier, Mr Townsend made such an application. The affidavit does not say when he applied for review. If it was before 1 January 1995 the application would have been made under s.21 of the Student Assistance Act for review by the former Student Assistance Review Tribunal. Under ss.39-40 of the Amendment Act the application would then be determined by SSAT. SSAT is empowered, on review, to affirm or vary the decision or to set aside the decision and substitute a new decision or send the matter back to the Secretary for reconsideration(11).

15. Mr Townsend seeks to prohibit SSAT from dealing with his application for review. But why should this Court take that step? If Mr Townsend does not want the review to proceed, he can withdraw his application. The fact that there is no express provision in the Act for withdrawing such an application can hardly mean that such a course is not open to him. If the application does not proceed, whether because it is withdrawn or because prohibition goes to SSAT, how does it assist Mr Townsend? There is still on the face of it a debt due to the Commonwealth for which the Commonwealth may sue.

16. If Mr Townsend's real concern is with s.42 of the Student and Youth Assistance Act or s.1228 of the Social Security Act (and it appears to be the latter), there is no evidence of any step having been taken under either of those sections. To restrain SSAT from proceeding because the earlier decision may be affirmed and steps may be taken under one or other of those provisions would clearly be premature. If the application does proceed, SSAT may affirm the decision, it may vary it, it may substitute a new decision or it may send the decision back for reconsideration. But it will not be exercising judicial power in doing so. If Mr Townsend considers that a review by SSAT is an unwarranted exercise of judicial power, the remedy is in his own hands. He may withdraw the application.

17. If the application does not proceed and, instead of suing for the debt, the Commonwealth exercises its powers under, say, s.1228 of the Social Security Act, that may be the time to determine whether any exercise of judicial power is involved in the procedures that have been adopted. But in my view, action taken by the Commonwealth, in effect to set off money owing to Mr Townsend against money owing by him, does not involve an exercise of judicial power. It is action available to anyone where money is owing to and by that person to another person(12). That, of course, is not to say that Mr Townsend is precluded from challenging in a court any deductions which he claims should not have been made.

18. The application is at least premature. But more than that, it lacks a firm foundation. On either view it must be dismissed.



Footnotes:

1 The original short title of the Act, the Student Assistance Act, was changed pursuant to s.4 of the Student Assistance (Youth Training Allowance) Amendment Act, No.183 of 1994.



2 Division 3 of Pt 9 provides for a review of a SSAT decision by the Administrative Appeals Tribunal.



3 The method for calculating the student assistance overpayment is set out in reg.12E of the AUSTUDY Regulations.



4 D-G Social Services v. Hangan [1982] FCA 262; (1982) 45 ALR 23; D-G Social Services v. Hales [1983] FCA 81; (1983) 47 ALR 281; Church v. Dept Education [1987] FCA 150; (1987) 73 ALR 69.



5 Since 1 January 1995 "the Secretary" has replaced "a prescribed officer" in s.40(1A).



6 The amount of interest is prescribed by reg.111A of the AUSTUDY Regulations and is currently 20%.



7 s.40(2).



8 s.42(2A).



9 Judiciary Act 1903 (Cth), ss.61, 64.



10 [1995] HCA 10; (1995) 69 ALJR 191; 127 ALR 1.



11 s.316 of the Student and Youth Assistance Act.



12 See Walker v. Secretary, Department of Social Security [1993] FCA 643; (1993) 120 ALR 123 at 130-131.