Case: Piotto v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1115
Outcome: referred to
proceeding was heard concurrently with proceeding VID 337 of 2008; see Piotto v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1115. Each proceeding arises out of "Newstart participation failures" imposed on Mr Piotto by the respondent and subsequent decisions of the Administrative Appeals Tribunal ("the Tribunal") to affirm those decisions. The applicant, Mr Piotto, is a long term recipient of a Newstart allowance. In 2008, Mr Piotto received job search and other assistance from MatchWorks, on behalf of Centrelink. Centrelink administers the Social Security Act 1991 (Cth) ("the Act") on behalf of the respondent and other Commonwealth Government departments. Centrelink imposed a Newstart participation failure on Mr Piotto in 2008. The Newstart participation failure arose from Mr Piotto's failure to enter into a Newstart Activity Agreement on 30 September 2008 ("the Participation Failure"). As a result of the Participation Failure, Mr Piotto's Newstart allowance was cancelled with effect from 26 September 2008. These reasons should be read in conjunction with the reasons in Piotto and especially in respect of the relevant legislative background which is set out in Piotto at [10] [15]. Mr Piotto seeks an order from this Court overturning the Participation Failure and reinstating his Newstart allowance. Mr Piotto also seeks other orders which are not necessary to traverse. On 26 May 2009, Mr Piotto filed a notice of motion seeking an order that "The respondent resume Newstart appeal payments for the applicant, from the date they were terminated 26 September 2008 and order that no reporting is required". In submissions before the Tribunal, the respondent argues that a valid delegation existed by virtue of an instrument executed by the respondent on 27 June 2008, Instrument DEEWR SSL 3 of 2008. That instrument, with effect from 27 June 2008, delegates the respondent's power: to each person engaged by an Employment Services Provider to perform functions or to perform services under a relevant arrangement, each of my powers under or referred to in a provision of the Social Security Act 1991 or the Social Security (Administration) Act 1999 contained in Schedule 1 of this instrument, subject to the limitations in Schedule 1. The powers listed in Sch 1 to the delegation include the powers conferred on the respondent by ss 605 and 606 of the Act. Employment Services Providers include an "organisation that performs functions or provides services for the purposes of the social security law" pursuant to the Employment Services Contract 2006 2009 ; see cl 3(b). The instrument of delegation is in the same terms as that discussed in Piotto at [23] [24]. The respondent in its submissions to the Tribunal identified MatchWorks as falling within cl 3(b) of the instrument of delegation, namely that MatchWorks was an organisation which provides services to the respondent pursuant to the Employment Services Contract 2006 2009 . The ability of Mr Piotto to engage in negotiation of a Newstart Activity Agreement is discussed in Piotto at [32] [33]. Additionally, as noted in Piotto at [37] [39], a failure to negotiate a Newstart Activity Agreement is not a reasonable excuse for refusing to enter into an agreement for the purposes of s 624(2) (2B) of the Act. Additionally, Mr Piotto has not demonstrated he had a reasonable excuse for refusing to enter into the Newstart Activity Agreement. As noted in Piotto at [38], the matters which will constitute a reasonable excuse for the purposes of s 624 of the Act are serious matters which have a significant impact on that person's ability to comply with the requirement to enter into a Newstart Activity Agreement; see also cl 4(2) of the Social Security (Reasonable Excuse) (DEWR) Determination 2006 (Cth). I do not consider that Mr Piotto's disagreement over which terms were suitable for inclusion in the Newstart Activity Agreement constitutes a reasonable excuse for the purposes of the Act. In this respect, the Tribunal's decision to uphold the Participation Failure imposed on Mr Piotto was correct. The fourth ground of appeal fails. The notice of motion filed on 26 May 2009 was not agitated by Mr Piotto at the hearing of this proceeding. The relief sought by Mr Piotto in that notice of motion is not relief which it is within this Court's powers to grant. In any event, in light of the issues discussed above, I see no basis for dealing with Mr Piotto's notice of motion further.