EVNT302 ADMINISTRATIVE LAW: LAWS 317

ADMINISTRATIVE LAW: LAWS 317

ASSIGNMENT 231

DATE ISSUED: Monday, 13 February 2023

DUE DATE: Thursday, 16 March 2023 (4.00 pm)

WORD LIMIT: Maximum six pages of 1.5 line spacing

LEGAL SKILL ASSOCIATED WITH ASSIGNMENT: Legal writing.

ASSIGNMENT INSTRUCTIONS

DUE DATE

The due date is THURSDAY, 16 MARCH 2023, by 4 pm.

Extensions will only be granted in the most exceptional of cases. Applications for extensions should be made to the course coordinator before the due date. A medical certificate must support an application for extension on medical grounds. Applications for extensions for non-medical reasons may also be required to be supported by documentation, depending upon the circumstances.

Where an assignment is not submitted by the due date, a penalty of 10% of marks awarded per day late will apply to a maximum of 60% of the marks awarded. No assignment will be accepted after Thursday, 23 March 2023 (or seven days after any extended due date).

WORTH

This assignment is worth 30% of the total marks for this subject.

PAGE LIMIT

The maximum page limit is six pages, including footnotes.

FORMAT & STYLE

The assignment MUST be written as a memorandum of advice and NOT in an essay or research paper format.

You must comply with the Australian Guide to Legal Citation 4 for referencing and citations.

The assignment should be typed in no less than 1.5 line spacing using no smaller than 12 points in a legible and standard font such as Arial, Calibri, or Times New Roman. Standard margins must be used. (An example of a standard margin is the margin used in this document).

Write in short, concise sentences. Use paragraphs and headings to improve readability and understanding. Revise and proofread carefully for grammar and spelling errors.

You must use the standard cover page available on the iLearn site and complete the information contained in that document.

ASSESSMENT CRITERIA

Your assignment will be assessed against the following criteria - it should:

Present the answer in the format and style of a memorandum of advice and answers the questions asked.

Demonstrate an understanding of the legal issues; articulate and analyse the law pertinent to the issues and do so with clarity and accuracy; and refer to and rely upon relevant decisions and sections of relevant Act/s.

Be written in clear and concise language with a logical structure and correct referencing. Please put your assignments through Grammarly before submitting them, as marks will be deducted for poor spelling, incorrect grammar, and inconsistency in style.

ANONYMITY

The only identification to be shown is your student number. Do not use your name in the heading of your memorandum.

SUBMISSION OF ASSIGNMENT

The assignment must be lodged in electronic form by submitting a copy through turn-it-in or safe-assign (depending on which link is activated) via iLearn by the due date.

You must retain a copy of your submitted assignment. Although the faculty take all care with assignments submitted in the prescribed manner, the onus remains on each student to produce a copy of any submitted assignment if the faculty calls for it.

PLAGIARISM AND CHATGBT

Do not plagiarise or use AI. If you submit work that is not your own, you could be charged with academic misconduct. The sanctions for those found guilty of academic misconduct are severe and may include a mandatory failing grade for the subject and possible suspension or expulsion from the university. Law students may also have difficulty seeking admission to the profession if they have an academic misconduct conviction on their university record.

THE ASSIGNMENT QUESTION

BACKGROUND:

Your boss is a lawyer who volunteers in My Community Legal, a free community legal centre.

Below is the text of a memorandum you received from your boss on Monday, 13 February 2023.

Attached are the relevant sections from the Social Security Act 1991 (Cth)(SSA) referred to in the memorandum. Note: Confine your assignment to these sections. It is, in any event, a modified and, therefore, hypothetical Act.

You are asked to advise your boss by 4 pm Thursday, 16 March 2023.

38100127635

MEMORANDUM OF ADVICE

FROM:The Boss

TO: Students in Administrative Law 231

DATE:Monday, 13 February 2023

RE: ADVICE FOR JACK PUTIN ON CANCELLATION OF HIS YOUTH ALLOWANCE

Last week, Jack Putin came to see me at the free community legal clinic. Jack would like some advice about his access to the youth allowance. (Youth allowance is a benefit administered by Services Australia / Centrelink (Centrelink) under the Social Security Act 1991 (Cth) (SSA)).

Jack is 22 years old and lives in Sydney in a shared house with two friends. He is studying for a three-year dance and theatre diploma at the Sydney Dance Company. He began full-time studies in February 2022. His parents live in Brisbane, where he was born.

At the beginning of 2022, Jack applied for and was granted the youth allowance. He received it throughout 2022. Jack advised Centrelink at the start of each semester which subjects he was enrolled in to confirm that he was a full-time student.

In November last year, he fell while rehearsing and broke his ankle. He had surgery and was off sick for the last two weeks of the semester.

At the start of this year, Jack advised Centrelink that, due to his injury, he could only enrol in two theory subjects instead of the usual four subjects. He submitted a letter to Centrelink from the Sydney Dance Company confirming that they would not allow him to take additional theory subjects as the practical subjects were prerequisites for later subjects.

Two weeks later, Jack received a letter from Centrelink cancelling his youth allowance and advising him that:

He had incorrectly been considered eligible in 2022 for youth allowance, but he was not qualified due to his age and security status. Consequently, he must repay the total amount of the youth allowance he received during 2022 ($19,760) within 30 days of the date of this notice; and

He is not eligible for youth allowance this year (2023) because he is not a full-time student and does not meet the exemption requirements in sections 5 and 6 of Part II of the SSA.

Jack went to the local Centrelink office to find out what was happening. The Centrelink officer was rude and dismissive and told Jack that he would be less likely to be considered a security risk if he stopped wearing subversive t-shirts. Jacks t-shirt had a Climate Change.org logo, which he didnt think made him a security risk. Jack did wonder if having attended Climate Change protests was why he and others he read about on social media were also complaining of losing government benefits.

Jack was concerned since his date of birth is 01/01/01, which may have been an issue. He has always been careful to insert the full year 2001, but that was not possible on the Youth Allowance application form.

I have taken a quick look at the relevant legislation and noted that there is no internal review process or first review process in the AAT for decisions on the youth allowance. Further, the Ministers guidelines referred to in Part 2, section 7 of the SSA have recently changed. In the previous guidelines, satisfactory progress required an average grade of 65%, but this had been lowered to 60% from 1 January 2023. Jacks average grade in the first semester last year was 66%, but due to his injury, his average slipped to 58% in the second semester.

Since our meeting, Jack had obtained additional medical evidence regarding the details of his surgery and confirmed that he would still have been under the anaesthetic effects when he wrote his exams in December 2022. This may have contributed to his fall in grades.

Jack seeks our advice on what steps and avenues he should pursue concerning:

His eligibility for the youth allowance in 2022 and the debt being claimed by Centrelink (he does not have the money to pay it off in 30 days); and

His eligibility for the youth allowance in 2023.

Please write a memorandum of advice to me recommending what steps or avenue(s) of review Jack could take concerning each of these matters. Include reasons for your recommendations, details of the process(es) you recommend and the likely outcome(s). Please use relevant statutory provisions and case law where applicable so that I may check the current law too.

I need your memorandum by no later than 4 pm on Thursday, 16 March, as I am meeting with Mr Jack Putin early on Friday, 17 March, to discuss our preliminary advice on the above matters with him.

SOCIAL SECURITY ACT 1991 (Cth)

PART II: YOUTH ALLOWANCE

Definitions

In this Part, the following words and phrases shall have the meanings assigned below:

full-time study means enrolled in the normal amount of full-time study in respect of the study period (such as a semester) at a registered tertiary educational institution.

youth allowance age means a person who has attained the minimum age of 21 years but not yet attained the maximum age of 24 years;

Qualification for youth allowanceSubject to this Part, a person qualifies for youth allowance in respect of a period if, throughout that period,

the person is:

undertaking full-time study or

exempt from undertaking full-time study but satisfies the Secretary that the requirements of either section 5 or section 6 are met; and

satisfies the Secretary that they are making progress towards completing their course; and

is of youth allowance age; and

is an Australian resident.

Undertaking part-time study.

For subsection 4(a)(ii), a person is exempt from full-time study where a person is enrolled in at least three-quarters of the normal amount of full-time study in respect of the course period because:

of the usual requirements of the institution in question in respect of the course; or

the academic registrar, or an equivalent officer, of the institution in question recommends in writing that the person undertake the amount of study mentioned for academic or vocational reasons.

Special circumstances exemption

For subsection 4(a)(ii), a person is exempt from full-time study in respect of a period if the Secretary is satisfied that:

Special circumstances exist which are beyond the persons control; and

In those circumstances, it would be unreasonable to expect the person to undertake full-time study for that period;

Provided the circumstances are not wholly or predominantly attributable to the persons misuse of alcohol or another drug.

Ministerial Guidelines

For subsection 4(b):

The Minister may, by legislative instrument, set guidelines for the exercise of the Secretarys discretion from time to time.

The Secretary is to have regard to the guidelines published by the Minister when forming an opinion about whether a person is making satisfactory progress towards completing their course.

PART VII: Loss of social security payments for persons on security grounds

If the Minister receives a security notice from the Australian Security Intelligence Organisation in relation to a person, then while that notice is in force:

No social security payment [including youth allowance] is to be paid to the person; and

The person is not qualified for a social security payment; and

A social security payment is not payable to the person.

If a security notice is given to the Minister in relation to a person, then any social security payment of the person is cancelled on the day the notice comes into force and remains cancelled until the notice is withdrawn.

This Part VII has effect despite any other provision of this Act.

Before giving a notice to the Minister referred to in subsection 1 of this Part, the Director of the Australian Security Intelligence Organisation or their delegate must make an assessment that the person is directly or indirectly a risk to security as defined in s4 of Australian Security Intelligence Organisation Act 1979 (Cth).

Part X: Review by the Administrative Appeals Tribunal

Decisions made under this Act may be reviewed by the Administrative Appeals Tribunal except the decision to undertake an assessment referred to in Part VII section 4.