LAWS12061 Written Assessment
Due: 5pm (AEST) 21 December 2020
Task:
Consider the below hypothetical scenario and construct a memorandum of advice answering
the questions. Use your knowledge of Administrative Law principles, and the Access to
Information and Merits Review content from Weeks 2 and 3 of this Unit to guide your
answer. Remember to use a critical eye in analysing any legal problems that arise – consider
both sides of a dispute but come to a tentative conclusion to best demonstrate your
knowledge and understanding of the content and its application.
Please note that this scenario is based on real legislation and realistic facts in order to
provide an immersive assessment experience. However, some elements of the legislation have
been tweaked in order to better fit the Learning Objectives for this Unit. You do not need to
consider any parts of the Social Security Act 1991 and the Social Security Administration Act
1999 outside of those attached to this task sheet.
You work as a solicitor in a small firm in Gladstone. Yesterday you had a meeting with a client,
Patricia Smith who has recently been informed by Centrelink that her Jobseeker Payment has
been suspended for 26 weeks. From this meeting and after some initial research of your own,
you have learned the following facts which you can assume to be correct and capable of
independent corroboration if necessary.
Relevant facts
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Patricia Smith is 42 years old. For the last 20 years, she has lived and worked in Melbourne
as a nanny and babysitter.
Patricia left school at 15 years of age and has no technical, trade or academic qualifications.
During the past 10 years, she has also been registered with Centrelink and depending on
her hours of work, she has usually been entitled to receive a percentage of the full Jobseeker
(previously Newstart) Payment.
Patricia has a daughter, Emily (12 years old). Neither Patricia nor her daughter have any
contact with Emily’s father. (For the purposes of this question, you do not need to consider
whether Patricia is entitled to any form of child support etc from Emily’s father).
Patricia has told you that the nature of her caring responsibilities for her daughter mean that
she would find it impossible to undertake employment requiring her to travel long distances
or leave home very early. This places some limitations on the hours she can work.
Between June 2016 and September 2020, Patricia worked as a nanny for a company,
‘Nannies R Us’.
From 2016 to March 2020, Patricia worked between 15-20 hours per week. Nannies R Us
entered financial difficulties in March 2020 as a result of the coronavirus pandemic and her
hours were scaled back to 8-10 hours per week from April 2020.
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Patricia ceased work with Nannies R Us in September 2020 when it lost a major contract
with a school to which it provided after-school hours care. In November 2020, the company
was placed in liquidation.
Patricia was unable to gain further employment in Melbourne.
In October 2020, Patricia and her daughter moved from Melbourne to Gladstone where
Patricia’s brother and parents live.
Patricia told you that the move to Gladstone was largely motivated by the desire to receive
assistance from family members in caring for her daughter. She also believes that because
Queensland has not been as harshly affected by the coronavirus pandemic compared to
Victoria, she will have a better chance of obtaining nannying work in Gladstone.
The official Commonwealth Government statistics on regional unemployment from
January 2020 state that the overall unemployment rate in the Gladstone region is 7.8% and
the unemployment rate in the Melbourne region is 4.2%. However, through your contacts
you are aware that the Commonwealth Government has recently received a report on the
economic impacts of the coronavirus pandemic which shows that while the unemployment
rate in Gladstone has remained relatively steady at 8.0%, unemployment in Melbourne has
increased to 8.4%. The report is intended to form part of a broader advisory document to
be presented to Cabinet, but it has not yet been submitted.
In a letter dated 25 November 2020, Mr John Morris, an administrative officer with
Centrelink informed Patricia that her Jobseeker Payment has been suspended for 26 weeks
because of the reduction in her employment prospects caused by her move to Gladstone.
The contents of the letter are reproduced below.
You have also obtained copies of a number of statutory provisions and Centrelink policy
documents. After reading the documents below, your task will be to draft a memorandum of
advice to Patricia Smith, providing her with answers to the following questions:
Question 1 – Access to Information
What further relevant information might the department have to provide to Patricia in
relation to this decision? What documents, if any, would you recommend obtaining via a
Freedom of Information request?
[20 marks]
Question 2 – Merits Review
Is merits review available and what arguments might be made by Patricia on the facts
presented here through the avenue of merits review?
[20 marks]
Centrelink
giving you options …
25 November 2020
Dear Ms Smith
Re:
Suspension of your Jobseeker Payment
REF: SMI-20200923
I refer to your recent notification of your change of address from your previous place of
residence at 55 Liverpool Avenue, Melbourne to 887 Appletree Crescent, Gladstone. This
change of address has been brought to my attention as the delegate of the Secretary for the
purpose of determining your continuing eligibility for Jobseeker Payment. Under section 634
of the Social Security Act 1991 (Cth) I am given the power to suspend your Jobseeker Payment
if you have reduced your employment prospects by moving to a new place of residence without
sufficient reason.
Decision
Section 634 of the Social Security Act 1991 gives Centrelink the authority to suspend your
Jobseeker Payment if you have reduced your employment prospects by moving to a new place
of residence without sufficient reason. After considering all of the evidence and relevant
documentation concerning your circumstances, I have found that you have reduced your
employment prospects by moving to Gladstone without sufficient reason. I also find, based on
statements by your previous employer, that your cessation of your previous position of
employment was motivated by your unhappiness with the nature of the work you were
performing. Accordingly, I have decided that your Jobseeker Payment will be suspended for
26 weeks commencing 30 November 2020.
Review of Decision
If you are unhappy with this decision you may make an application for review. Applications
for review must be in the prescribed form. Details of the review process and relevant
application forms are available at the following web site: https://www.aat.gov.au/
Yours sincerely
John Morris
Administrative Officer
Gladstone Office
Centrelink
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Some relevant legislative provisions
SOCIAL SECURITY ACT 1991 (Cth)
PART 1.1 INTRODUCTORY MATTERS
Section 3: Object
The object of this Act is to provide for the payment of certain pensions, benefits and
allowances, and to regulate these payments in the best interests of the Australian community.
PART 2.12 JOBSEEKER PAYMENT
Section 634: Move to an area of lower employment prospects
(1) If, in the opinion of the Secretary, a person has reduced his or her employment prospects
by moving to a new place of residence without sufficient reason, payment of jobseeker
payment may be suspended for up to 26 weeks.
(3) For the purposes of subsection (1), a person has a sufficient reason for moving to a new
place of residence if and only if the person:
a) moves to live with a family member who has already established his or her residence in
that place of residence; or
b) moves to live near a family member who has already established residence in the same
area; or
c) satisfies the Secretary that the move is necessary for the purposes of treating or
alleviating a physical disease or illness suffered by the person or by a family member;
or
d) satisfies the Secretary that the person has moved from his or her original place of
residence because of an extreme circumstance which made it reasonable for the person
to move to the new place of residence (for example, the person had been subjected to
domestic or family violence in the original place of residence).
(4) The Secretary must determine in writing the day on which the period of non-payment
imposed by subsection (1) commences and that day must not be prior to the day of the
determination.
Note: ‘family member’ is defined in section 23(1)(14) as follows:
For the purposes of this Act other than Part 2.11 and the Youth Allowance Rate Calculator in
section 1067G, each of the following is a family member in relation to a person
(the relevant person ):
(a) the partner or a parent of the relevant person;
(b) a sister, brother or child of the relevant person;
(c) any other person who, in the opinion of the Secretary, should be treated for
the purposes of this definition as one of the relevant person's relations described
in paragraph (a) or (b).
Section 654: Notification of decisions
Where the Secretary or a delegate of the Secretary makes a decision under this Part, any person
whose interests are affected by the decision must be given notice in writing of the decision.
This notice shall include a statement of reasons for the decision and the procedure for seeking
review of the decision under the provisions of the Social Security (Administration) Act 1999.
SOCIAL SECURITY ADMINISTRATION ACT 1999 (Cth)
Section 149: Tribunal review powers
(1) An application may be made to the Administrative Appeals Tribunal for review of a
decision of the Secretary or a delegate of the Secretary under the Social Security Act 1991
by, or on behalf of any person who is affected by the decision.
a) Section 28(1AAA) of the Administrative Appeals Tribunal Act 1975 has no effect
in relation to a review of a decision made under this Act.
(2) Applications for review of a decision under subsection (1) must be made within 28 days
of the date on which notice of the decision is received.
(3) If a person applies to the Administrative Appeals Tribunal for review of a decision under
the Social Security Act 1991, the Tribunal must either:
a) affirm the decision; or
b) set the decision aside and substitute another decision; or
c) set aside the decision and return the matter to the chief executive with directions that
the Tribunal considers appropriate.
(4) In substituting another decision, Administrative Appeals Tribunal has the same powers as
the Secretary or delegate of the Secretary. If the Tribunal substitutes another decision, the
substituted decision is taken, for the purposes of this Act, to be the Secretary’s decision.
(5) In reviewing a decision under the Social Security Act 1991, the Tribunal’s hearing is to be
de novo.
Extracts from some relevant policy documents
These instructions set out policy guidelines approved by the Minister for Human Services
which have been prepared by Centrelink to assist decision-makers in exercising powers under
the Social Security Act 1991.
REDUCED EMPLOYMENT MOVING TEST
1: Introduction
The purpose of section 634 of the 1991 Act is to discourage Jobseeker Payment recipients from
limiting their employment prospects by relocating to an area where the likelihood of finding
work is significantly lower than in their previous location.
3: Calculating relative unemployment rates by locality
i) Agency officers should make use of latest data available in determining relevant local
unemployment rates.
ii) In calculating whether a recipient of a Jobseeker Payment has reduced his or her
employment prospects by moving to a new place of residence, agency officers should
consider the difference between the unemployment rates of the previous location and
the new location.
iii) If there is a difference between the unemployment rates in the two localities which is
greater than 2%, then the officer should invite the Jobseeker Payment recipient complete
a "customer declaration" indicating their reasons for moving to the new place of
residence.
4: Determining whether a sufficient reason exists
In determining whether a sufficient reason exists for moving to the new place of residence, the
agency officer should take into account the following matters:
i) the personal attributes of the Jobseeker Payment recipient,
ii) the individual prospects of employment for the Jobseeker Payment recipient in the two
locations,
iii) the personal circumstances of the Jobseeker Payment recipient.
iv) any relevant evidence from other agencies or healthcare professionals.
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