Noll and Secretary, Department of Agriculture, Water and the Environment (Social services second review)

[2020] AATA 4170

Noll and Secretary, Department of Agriculture, Water and the Environment (Social services second review) [2020] AATA 4170 (19 October 2020)

Division:GENERAL DIVISION

File Number(s):     2019/8721          

Re:Damien Noll

APPLICANT

AndSecretary, Department of Agriculture, Water and the Environment

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:19 October 2020

Place:Canberra

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

............................................................

Member W Frost

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – farm household allowance – where the Applicant is engaged in a sharefarming agreement - whether the applicant contributed significant part of his labour and capital to a farm enterprise – decision under review affirmed

Legislation

Farm Household Support Act 2014
Social Security Act 1991
Social Security (Administration) Act 1999

Cases

Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629

Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.

Secondary Materials
Explanatory Memorandum to the Farm Household Support Bill 2014

Farm Household Allowance, Guidelines, July 2019

REASONS FOR DECISION

Member W Frost

19 October 2020

INTRODUCTION

1. In 2018, the Applicant, Mr Damien Noll, made a claim for the payment of Farm Household Allowance (FHA), which is a payment that was established in 2014 for farmers and their families experiencing financial hardship. Mr Noll has been involved in farming operations in and around Western New South Wales (NSW) for over thirty years.[1]

   [1] Exhibit A2.

2. In 2019, Mr Noll’s claim for FHA was rejected by the then Department of Human Services (now Services Australia and referred to in this decision as the Agency), which decision was affirmed by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). On the available evidence, it was determined that Mr Noll was not a ‘farmer’ and had not contributed a significant part of his ‘labour and capital’ to a farm enterprise, as required under the Farm Household Support Act 2014 (Act).

   ISSUE

3. The issue before the General Division of the Administrative Appeals Tribunal (Tribunal) is whether Mr Noll was qualified for FHA when he lodged his claim in November 2019 or within the following thirteen weeks.

   BACKGROUND

4. From 2017, Mr Noll worked for certain periods of time as a sharefarmer on a property owned by Mr Anthony Naughton, called North Whoey Station, in Western NSW.[2]

   [2] Exhibit A1; Exhibit A6.

5. For the financial year ending 30 June 2017, Mr Noll operated a partnership business called ‘Noll DN and AK’ with his now ex-partner.[3] Mr Noll informed the Agency that this partnership ceased on 30 June 2017 and told the AAT1 that it ended in July 2017.[4]

   [3] Exhibit R1, T5, pages 19-29; T6, pages 30-37.

   [4] Exhibit R1, T28, page 190; T2, page 7.

6. In October 2017, Mr Noll commenced operating a business called Rock Farm Industries Pty Ltd (Business), of which he is the sole director and shareholder.[5]  The Business is the trustee of a private trust called Rock Farm Industries Trust (Trust), of which Mr Noll is the sole beneficiary and principal.[6] Neither the Business nor the Trust own any real estate.[7]

   [5] Exhibit R1, T12, pages 79-81.

   [6] Exhibit R1, T8, page 47; T26, pages 151-188.

   [7] Exhibit R1, T8, page 48; T12, page 88; T26, pages 151-188.

   7.On 16 November 2018, Mr Noll lodged a ‘Claim for Farm Household Allowance’ with the Agency.[8] In that claim form, Mr Noll ticked the boxes marked ‘yes’, stating that he: was ‘a farmer or the partner of a farmer’; has ‘a right or interest in land used for the purposes of a farm enterprise’; and is ‘contributing labour and capital to your Australia farm’.[9] Mr Noll stated that his ‘farm address’ was ‘North Whoey’, Evabalong in NSW.[10] Mr Noll further stated that the main types of his primary production were beef and cropping and that he expected his income from these activities for the financial year ending on 30 June 2019 to be different due to ‘drought no cropping production and feeding stock’ and estimated that he would have no ‘net primary production income’.[11]   

   [8] Exhibit R1, T11, pages 68-77.

   [9] ibid., page 68.

   [10] ibid., page 69.

   [11] ibid., pages 74-75.

   8.In December 2018, the Agency made two separate written requests for further information and documentation from Mr Noll to assist in its consideration of his claim for FHA.[12]

   [12] Exhibit R1, T15, pages 98-99; T16, page 100.

   9.In January 2019, the Agency informed Mr Noll that it had decided that FHA was unable to be paid to him ‘because our records show that we did not receive the additional information we requested’.[13]

   [13] Exhibit R1, T19, pages 123-124.

   10.In March 2019, Mr Noll contacted the Agency regarding FHA and the provision of information by his accountant to support his claim from November 2018.[14] The Agency’s file notes state that it had not received any documentation and informed Mr Noll ‘that he may have to start from scratch now that its passed [sic] this time although he [will] follow up with his account [sic] to check where the documents are at and then call back to see whether he can continue with his claim or whether he needs to start over’.

   [14] Exhibit R1, T28, page 197.

   11.In June 2019, Mr Noll contacted the Agency, whose file notes record that ‘Cus contacted accountant has completed financials. Cus rejected on the 07.01.2019 now outside 13 weeks cus will complete new claim’.[15] 

   [15] Exhibit R1, T28, page 198.

   12.On 8 July 2019, and despite seemingly having had his FHA claim rejected in January 2019, the Agency sent a letter to Mr Noll again requesting ‘additional information’ in order to further consider his claim for FHA.[16]

   [16] Exhibit R1, T21, pages 137-139.

   13.On 17 July 2019, Mr Noll’s claim for FHA was again examined by the Agency and the file notes made by a ‘Specialist Officer’ relevantly state that:[17]

   [17] Exhibit R1, T28, pages 200-202. 

   I have reviewed all documents that Damien supplied to support claim for Farm Household allowance. For the purposes of this case, I am using the original date of claim, 16/11/18. After reviewing the doc list on record, it is considered that Damien has demonstrated an ongoing intention to claim FHA, & over the last several months, he has been given incorrect information by service officers, regarding timeliness & dates/deadlines to re-submit claim &/or supply information. This misinformation has directly influenced Damien’s decision when providing information to support claim, therefore it is considered reasonable to assess claim from original date of claim.

   At the time of the claim 16/11/18 & for the period of time, 16/11/18 to 17/07/19, cus has not qualified for Farm Household Allowance.   

   …

   During discussion today, 17/07/19, Damien advised that he does not have a formal share farming agreement in writing. Historically, (& if there was no drought at present) he works on the farm (Whoey Station), planting crops & feeding & taking care of the livestock & generally doing labour on the farm for the farm owner & he gets paid by cheque, through his business, the Rock Farm Trust, as a contractor. (trustee coy is Rock Farm Industries P/L). Damien adv he also has a share-farming agreement in place with the owner of the farm, but there are no documents, it’s a ‘hand-shake’ agreement. Damien does not receive a portion of the profits/income from Whoey Station.

   Historically, Damien grows crops on a portion of Whoey Station for himself, & the farm owner takes 22% of any income.

   Due to the drought, Damien adv he has not been engaged in contract labour on Whoey Station for the past couple of years, nor has he been growing crops or raising livestock for himself. Damien explained that the farm owner has de-stocked & is not hand feeding so Damien has not been working on Whoey Station. Due to the drought, Damien has not been able to grow any crops or raise livestock for himself. The last time he planted grain, he lost it all due to the drought. This information is relevant as Damien was not growing crops or raising livestock for himself or the owner of Whoey Station, at the time of the claim, nor at the present time.

   2017/18 Trust tax return & financial docs show that Damien did not have any primary production income & today, Damien adv that his only income/expenses, if he were to supply a Trust P & L statement for 2018/19 fin yr, were related to vehicle & equipment & maintenance. He has not had any income through the trust related to the growing of crops or livestock, either via contracting or share farming. Damien advised that there was grain in storage & he was using his vehicles to deliver this to other farmers, however I have advised him that this does not meet the definition of ‘farmer’ for the purposes of FHA. Damien confirmed he does not own or lease farmland & while he may have an interest in Whoey Station, as a share-farmer, there is no evidence of this, not that he is using that land to produce an income, presently, nor at the date of claim.

   …

   Damien does not qualify for FHA as he has not & is not, contributing a significant part of his labour to a farm enterprise, currently nor at date of claim. After reviewing the available documents, I do not consider that Damien has contributed significant capital to a farm enterprise. The farming partnership ceased in 2017 as advised by Damien, so the financial docs related to that enterprise are not relevant currently, nor at the time of the claim. The financial docs for Rock Farm Industries Trust 2017/18 do not show that Damien has contributed significant capital to a farm enterprise, particularly as the Trust has not been engaged in farming activities.     

7. On 19 July 2019, the Agency informed Mr Noll that it could not pay him FHA because its records ‘show that you do not have a right or interest in land used for the purpose of a farm enterprise’.[18] That day, Mr Noll contacted the Agency and its file notes record that:[19]

   [18] Exhibit R1, T22, page 140.

   [19] Exhibit R1, T28, page 204.

   Cus states that he is a farmer. The only reason that he was not & is not engaged in farming activities is because there is a drought. He can’t plant crops or raise livestock because it will die & he has no money to do these things because the drought has been going on for so long. Cus can obtain a legally binding document to verify his share-farming arrangement, but he does not have one now. He is willing to have one drawn up. Cus was advised that even though this MAY show that he has a right or interest in land for farming, he still was not engaged in a farming enterprise at the time of claim & since. Please note that cus tends to change is [sic] statements from time to time. Today, Cus adv that he still has been working as a contractor on Whoey Station, a few days here & there & that the farmer has not fully destocked. This is different to his statement 2 days ago. Cus also indicated that he has been working on the land subject to the sharefarming agreement, which is different to what he said 2 days ago.   

8. On 29 July 2019, following Mr Noll’s request for review of the decision to not approve his claim for FHA, an Authorised Review Officer affirmed the Agency’s decision.[20]

   [20] Exhibit R1, T23, page 142; T24, pages 143-147.

9. On 23 September 2019, Mr Noll applied to the AAT1 for review of the decision not to pay him FHA.[21]

   [21] Exhibit R1, T25, pages 148-150.

10. On 17 October 2019, Mr Noll was granted Newstart Allowance and he remains on that social security payment, which is now known as Jobseeker.

11. On 25 November 2019, the AAT1 affirmed the Agency’s decision to reject Mr Noll’s claim for FHA, because it was not satisfied that Mr Noll:[22]

    (a)has ‘a right or interest in land’ used ‘wholly or mainly for the purpose of a farm enterprise’, which is required to meet the definition of ‘farmer’ in section 5 of the Farm Household Support Act 2014 (Act) and to satisfy subsection 8(a) of the Act; or

    (b)contributes a significant part of his ‘labour and capital to a farm enterprise’, pursuant to the FHA qualification criterion under subsection 8(b) of the Act.

    19.On 20 December 2019, Mr Noll applied for review of the AAT1 decision by this Tribunal.[23] Mr Noll claimed the AAT1 decision was wrong because it used ‘the wrong tax return to determine where my income is coming from’.[24]

    LEGISLATION & POLICY

    The Act

    [22] Exhibit R1, T2, pages 5-8.

    [23] Exhibit R1, T1, pages 1-4.

    [24] ibid., page 4.

12. Section 3 of the Act provides that its object is ‘to improve the financial situation of farmers and their partners, who need financial assistance, by providing them with financial assistance’ that consists of: FHA for up to 4 years; funding to engage in certain activities; and funding to obtain a farm financial assessment.

13. Section 4 of the Act notes that the financial assistance ‘is available to farmers, and partners of farmers, who contribute significant labour and capital to a farm enterprise that has a significant commercial purpose or character’ and that the rules dealing with how to make claims, how payments are made and review of decisions relating to payments under the Act are found in the Social Security Act 1991 (Social Security Act) and the Social Security (Administration) Act 1999 (Administration Act).

14. Section 5 of the Act states that ‘farm enterprise’ means an enterprise ‘carried on within any of the agricultural, horticultural, pastoral, apicultural or aquacultural industries’ and that ‘farmer’ means an individual who ‘has a right or interest in land’ and ‘uses the land wholly or mainly for the purposes of a farm enterprise’.  

15. Section 8 of the Act provides that:

    A person is qualified for farm household allowance for a period if throughout the period:

    a)    the person is a farmer; and

    b)    the person contributes a significant part of his or her labour and capital to a farm enterprise; and

    c)     the farm enterprise has a significant commercial purpose or character; and

    d)    the land that is used for the purposes of the farm enterprise is in Australia; and

    e)    the person has turned 16; and

    f)     the person is an Australian resident, and is in Australia; and

    g)    either:

    (i)the person has indicated, in writing, that the person is willing to enter into, and comply with, a financial improvement agreement; or

    (ii)a financial improvement agreement is in force in relation to the person; and

    h)    the person meets the 4 years or less requirement.  

    Explanatory Memorandum

16. The Explanatory Memorandum to the Farm Household Support Bill 2014 relevantly states that:[25]

    Paragraph 8(b) [of the Act] requires an individual to contribute significant labour and capital to a farm enterprise to qualify for FHA. This requirement ensures that FHA is only available to individuals whose principal occupation is farming.

    The significant labour test excludes those individuals who meet the definition of farmer but whose principle occupation is not farming.

    The purpose of the capital test is to exclude those individuals who meet the definition of farmer but who are better defined as an employee as they do not have a significant financial investment in the business. Such people are better positioned to claim social security payments targeted at non-farmers as their assets are unlikely to preclude them from other payments.

    The term significant as it relates to the labour and capital test is intentionally broad and should be interpreted as a relative measure of a person's capacity to contribute labour and capital.

    [25] Explanatory Memorandum to the Farm Household Support Bill 2014, pages 23-24, accessed on 30 September 2020.

    Farm Household Allowance Guidelines

17. The relevant policy regarding FHA is contained in the Farm Household Allowance Guidelines published by the Respondent in July 2019 (Guidelines).[26]

    [26] Farm Household Allowance, Guidelines, July 2019, accessed on 30 September 2020.

18. The Guidelines refer at clause 2.1 to the definition of ‘farmer’ in subsection 8(a) of the Act capturing ‘individuals who have a right or interest in land used for the purposes of a farm enterprise’ and relevantly note that:[27]

    a person does not need to have total financial or legal control of the farm land to meet the definition. A person may meet the definition of a farmer if they have any legal or equitable interest in the land. For example, sharefarmers (individuals who have entered into an agreement to contribute resources to a farm enterprise in return for a share of profits) may meet the definition of farmer. 

    [27] Exhibit R1, T4, page 16.

19. In relation to the requirement in subsection 8(b) of the Act for a person to contribute ‘a significant part of his or her labour and capital to a farm enterprise’, the Guidelines at clause 2.2 state as follows:[28]

    [28] Farm Household Allowance, Guidelines, July 2019, accessed on 30 September 2020.

    The requirement of a significant labour and capital contribution can be assessed on a case-by-case basis according to the current circumstances that the individual is subject to. Depending on the commodity or the climatic conditions, there are likely to be times when a farmer is not required to be physically present on farm and can take advantage of that opportunity to gain off-farm employment for a period. While this person is not physically present, providing that on balance they have met the significant labour and capital contribution, they may continue to qualify as a farmer.

    However, this requirement is designed to prevent either hobby farmers or people who are wholly or substantially absent farmers claiming payment. An absent farmer could be a person who is a resident in a nursing home. A nursing home resident who is taken to the property on occasion and who may, for example, feed animals while visiting the property, does not meet the threshold of ‘significant labour’. In addition, considering the farm enterprise separately from any other employment or business carried on by the farmer addresses the issue that during times of significant business stress it is likely that off-farm income will play a much greater role in supporting the farming enterprise. The income test provisions are the proper mechanism to determine when and how farmers in this position should be paid, rather than relying on a catch-all definition that disadvantages those who have proactively sought to diversify their operations and spread their risk.

    …

    Assessment of significant labour

    The purpose of the significant labour qualification requirement is to exclude individuals who meet the definition of a ‘farmer’ but whose principal occupation is not farming. The requirement excludes absent farmers, such as a farmer who is in a nursing home or a silent investor in a farm enterprise. An assessment should examine the applicant’s time spent working the farm enterprise as compared with his or her other activities (for example, off-farm employment). The assessment of significant labour does not require a defined proportion of labour for the qualification requirement to be satisfied. Rather, it is determined on a case-by-case basis. As the farm enterprise is distinct from the farm land, a person may meet the qualification requirement that they contribute a significant part of their labour to a farm enterprise even if they do not undertake physical labour on the farm, such as milking the cows or driving the tractor. Labour includes non-physical activities, such as financial and administrative management of the farm enterprise. For example, where the farm enterprise is operated as a partnership and one member is largely responsible for the physical labour and another for the book work the person who is responsible for the book work may still qualify because he or she contributes a significant part of his or her labour and capital to a farm enterprise. Domestic duties are not farm labour.

    …

    Significant capital

    The purpose of the capital qualification requirement is to exclude individuals who meet the definition of ‘farmer’ but who do not have a significant financial investment in the farm business. Such people are better positioned to claim social security payments targeted at non-farmers as their assets are unlikely to preclude them from other payments.

    Assessment of significant capital

    The assessment of significant capital does not require a defined proportion of capital for the qualification requirement to be satisfied. Rather, it is determined on a case-by-case basis. Assessment of significant capital contribution is in comparison to other capital and liabilities the farmer holds. The assessment of capital examines only the applicant’s contributions of capital to the farm business, and is not a comparison of the total contribution of capital where other individuals are also involved in the farm business.

1. The Tribunal notes that, to ensure consistency in decision making, the relevant government policy should be followed unless there are cogent reasons for departing from it.[29] To this end, the Tribunal is not aware of any reason the Guidelines should not be followed in this proceeding. 

   [29] Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.

   The Administration Act

2. Part 5 of the Act provides that the Social Security Act and the Administration Act apply, subject to certain specified modifications or exceptions, in relation to the FHA. Section 90 in Part 5 of the Act states that:

   farm household allowance, the activity supplement, the farm financial assessment supplement, the FHA supplement and a relief payment are all treated as if they were social security payments. As a result, the general rules in the Social Security Act and Social Security Administration Act relating to claims, how payments are made and review of decisions apply in relation to payments under this Act.

3. In this regard, clause 4(1) in Schedule 2 of the Administration Act sets out how to determine the ‘start day’ for a social security payment (which includes FHA), as follows:

   If:

   (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b)the person is not, on the day on which the claim is made, qualified for the payment; and

   (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.

4. Pursuant to the above, the Tribunal is required to assess Mr Noll’s claim for FHA from the date his claim was made and within the following 13 weeks. Accordingly, the ‘start day’ for Mr Noll’s claim for FHA is the day he lodged that claim, being 16 November 2018, and the 13 week qualification period runs from that date until 15 February 2019. Therefore, the Tribunal does not have jurisdiction to determine whether Mr Noll met the criteria to qualify for FHA outside of the relevant qualification period from 16 November 2018 to 15 February 2019.

   MR NOLL’S EVIDENCE

   Submissions

5. In advance of the hearing, Mr Noll filed multiple documents regarding his farming activities to support his claim for FHA. At the hearing, these documents were taken into evidence by the Tribunal and Mr Noll made an affirmation regarding the truthfulness of his oral evidence. 

6. In a Statutory Declaration made by Mr Noll on 3 April 2020, he stated that he has been a farmer, sharefarmer and contract farmer for over thirty years in Western NSW and that he had lost all of his income over the last three years.[30]

   [30] Exhibit A2.

7. Mr Noll submitted to the Tribunal a letter dated 23 April 2020 from the Hon. David Littleproud MP, Minister for Agriculture, Drought and Emergency Management to the Hon. Mark Coulton MP, being Mr Noll’s federal representative in Parliament. The letter from Minister Littleproud responded to a representation Minister Coulton had made on behalf of Mr Noll in relation to his unsuccessful application for FHA. In his letter, Minister Littleproud relevantly stated that:[31]

   As you are aware, to be eligible for FHA farmers must meet certain criteria, including that they can verify that they have a legal right or interest in the land used for the purpose of a farm enterprise and are contributing labour to that enterprise. This may include someone who has purchased capital that is used in the business, or a legal or commercial document that lists the person’s interest. A person who is working on a farm but has no investment in capital, cannot be assessed as a farmer for FHA.

   …

   The AAT1 considered whether Mr Noll could demonstrate a right or interest in the land to which he was contributing his labour. As you know, Mr Noll noted that he had an informal agreement via a handshake for the work he has undertaken. The AAT looked further into the case to see if there was any other evidence that Mr Noll was in fact share farming. They found that all the crop inputs were paid by the farmer and that Mr Noll contracted his labour in return for a share of the profits, this being the case, Mr Noll’s circumstances more closely resemble a person working for commission.

   [31] Exhibit A4.

8. A further Statutory Declaration made by Mr Noll on 12 June 2020 provided some background to his farming and financial circumstances, relevantly as follows:[32]

   [32] Exhibit A3.

   I am a fifth generation farmer in Australia and that is through the worst droughts and floods on record.

   Over the last twenty years I have been share farming using my knowledge and expertise as a farmer in the contracting field to help me find new country to share farm. Also it has provided me the finds to procure the input capital to continue to live the working life that is in my blood. What I was born to do, and bred by my late father to do.

   I have only used government grants once in the past during the 2000 floods, when I lost all of my crop to rising floodwaters and was paid $36k for lost crops worth much more than this. At the time it was impossible to get flood insurance.

   Over the last ten years I have suffered under reduced yields due to reduced rainfall and the abrupt upturn in on Farm costs.

   In the years 2017 and 2018 are above all the toughest. After putting together the appropriate funding and implementing a strategy we thought would suite [sic], we were devastated with absolute drought conditions.

   With this extreme dry came a downturn in all other areas including contracting in all areas. I attempted to enter into logistics but with diesel at all time high prices the margins were reduced to a an 80hr week for less than 15k. I was killing myself. It was at this stage that the government brought online the Farm household Allowance.

   I got straight in touch with the RAA and got the paperwork started. It took months to out all of the paperwork together only to be told that I was not what was deemed as a farmer.

   After continued appeals, the selling of most of the machinery that was not incumbent [sic] to finance companies, all of which has almost been repossessed. All of which would have been avoidable if I was made drought declared.

   So here I am like many other share famers, and their families at the end. The end of my dream to do what I love doing. Now I have to start again all because legislation outweighs what is true and just.

   I filled out all the paperwork and provided all of the documents required and I meet the criteria. There should be no room [for] personal or political opinion or perceptions of the law. 

9. An undated statement signed by Mr Noll and filed with the Tribunal in August 2020 described Mr Noll’s contribution to the farming operation at North Whoey Station in the years 2017 to 2019, as follows:[33]

   [33] Exhibit A1.

   Contract rates
   Offset ploughing $15 per acre + GST
   Planting $16 per acre + GST
   Cultivating $14 per acre + GST

   February 2017
   Offset disc ploughing of 6300 acres.
   IE: Equivalent contract rates $94000.000 Worth of work
   Machinery supplied by myself.
   March-April 2017
   Planting of 12700 acres of oats
   Equivalent contract rates $203,000.00
   In this year I was share farming precisely 5500 acres that was to be grazed once and then cut for hay. My share in this was to be the hay and grain that was produced from 5500 acres.
   I was payed contracting fees for 6000 Acres of planting.
   Because of drought this crop suffered 100% losses
   In total 18200 acres of work were completed over 4 months with approximate 1200 machine hours in two tractors all done by myself.
   Equivalent contract rates $297,200 - $96,000
   Personal input $201,200

   January/February 2018
   Precisely 7000 acres was cultivated by myself at my expense including hours and machinery supplied.
   Equivalent contract rates $98,000
   March/April 2018
   All 7000 acres was sowed to oats that was to be grazed once and I was to take the grain and hay produced from no less than 2000 acres.
   Equivalent contract rates $112,000
   Because of drought this crop suffered 100% failure.
   A total of 14000 acres of work were undertaken over 4 months with precisely 1000 machine hours in two tractors completed by myself.
   Personal input $210,000

   March 2019
   Because of continued dry conditions and a lack of any government assistance after two years, the decision was made to direct drill 9000 acres of oats.
   Equivalent contract rates $144,000
   This was undertaken in March and April of 2019. All of the machinery and work was undertaken by myself with 4000 acres to be my share after grazing once to harvest or cut for hay.
   This crop suffered 100% losses.
   This took precisely 1.5 months and around 600 machine hours in one tractor. All done by myself,
   Personal input $144,000

   My personal input into the cropping program as per contracting rates comes to $555,200 over a three year period.

   …

   This also does not take into account the endless hours collecting fertiliser, chemical, pickling hours, grading hours and all other things necessary to plant cereal crops.    

10. A letter dated 24 May 2020 from Ms Gai Berry, a property owner in Condobolin, NSW, stated that:[34]

    This letter is to verify that Damien Noll was a share farmer on my property Shady Camp in 2014 and 2015.

    The share farm agreement was share farmer 80% Land owner 20%

    [34] Exhibit A5.

11. More relevantly, an undated letter from Mr Anthony Naughton, the owner of North Whoey Station, stated that:[35]

    This letter is to verify that Damien Noll was a share farmer/contractor on my property North Whoey Station in 2017 and 2018.

    The share farm agreement and shares were set by the input Mr Noll had in each individual field, all oats.

    Because of severe drought, all crops during these two seasons were lost, with no return to either party.

    [35] Exhibit A6.

12. At the hearing, Mr Noll told the Tribunal that, referring to his abovementioned written statement, the ‘machine hours’ for crop planting he completed over a few months equate to over 30 weeks a year of work based on a standard 38 hour working week. Mr Noll said that given farming is a ‘seasonal process’ he had to get jobs done in a certain ‘planting window’, requiring 18 to 20 hours work per day to complete crop planting. Therefore, Mr Noll completed substantial ‘machine hours’ in a small period of time, but this did not account for additional time he spent outside of the machine preparing and grading the seed, collecting fertiliser and working on the machinery.

13. In this regard, Mr Noll said that because of the nature of crop farming he was required to ‘cram’ approximately 30 weeks of work into a ‘two to three month period’, because of the ‘planting window’, whereby crops are planted in the early to middle part of the year and not in the second half of the year.

14. Mr Noll referred to the ‘input costs’ of his farming work being ‘five to ten times the income’ that he made operating a transport company that delivered agricultural products, such as grain and hay, from farm to farm in the same financial years. Mr Noll told the Tribunal that in 2019 there was no transport company, it was ‘only there for a couple of months in 2018’, and in 2017 ‘the input of time and the cost of that time is much greater than anything made off farm’ in his transport work.

15. Mr Noll further told the Tribunal that because of the ‘drawn out process’ regarding his claim for FHA, he has suffered ‘massive losses’ through the repossession of farm machinery and it had taken two years to prove that he was a farmer under the Act.

16. Additionally, Mr Noll submitted that the Act required a contribution of either ‘labour or capital’, that is, the Act did not require the contribution by a farmer of both ‘labour and capital’ and it ‘isn’t actually clarified that it has to be both, it can be either’. Mr Noll stated that his ‘input’ of time in the share farming enterprise satisfied the test under the Act.

    Cross-examination

17. Mr Noll was cross-examined at the hearing by the Respondent’s representative and confirmed that in 2017 he established the Business, which operated through the Trust. Mr Noll also confirmed that the Trust did not own any land during the qualification period between November 2018 and February 2019.

18. Mr Noll told the Tribunal that the sharefarming agreement during the relevant period comprised the contracting out of his labour, or ‘input’, to North Whoey Station and that he worked at a reduced rate for a share of the profits from the crop he planted at the property.

19. Mr Noll was referred to the undated letter from Mr Naughton, the owner of North Whoey Station, regarding this sharefarming agreement and confirmed that the ‘input’ referred to in that letter was Mr Noll’s labour.

20. In response to a question about whether Mr Noll supplied any ‘capital’ to North Whoey Station during the relevant period, in the form of liquid assets or land, Mr Noll told the Tribunal that he ‘supplied all of the machinery to do the job’ at the property, being tractors, ploughs, spray units and trucks. In this regard, Mr Noll said his ‘capital input’ was ‘the amount of money that I owed on that machinery’; the machinery ‘does the work, with me of course operating that machinery’, such that it would be classed as his ‘capital input’.

21. Mr Noll confirmed that he owned the machinery and it was for his use on the property when cultivating and planting the crop; the owner of the property, Mr Naughton, did not own the machinery when Mr Noll was undertaking the farming work at that property, he contracted Mr Noll to do the work and gain ‘a certain amount of the crop’. Mr Noll said that his sharefarming was ‘completely commission based’; he received 30% of whatever the total output was for each season.   

22. As a result of the severe drought affecting the region in 2017 and 2018, Mr Noll said that he moved into logistics and freight because during that time he received no return from the planting of crops, which had ‘withered up and died’. Mr Noll said he had to offset the income for the Business by transporting agricultural products between farms, not exclusively for North Whoey Station, such as animal feed to farms that had no ground cover as a result of the drought.  

23. Mr Noll was referred to the Trust’s tax return completed for the 2017-18 financial year, which described the ‘main business activity’ as being ‘Road freight transport service’.[36] Mr Noll disagreed that, at this time, being the financial year ending on 30 June 2018 (and less than five months before his FHA claim), his main activity was logistics and transporting grains. Mr Noll referred to his ‘input’ and said the Respondent was:

    not offsetting the input that we put into North Whoey Station, which we have no recourse over because we can’t claim anything on it; we can’t claim it against our tax returns at all because that was work undertaken as to be a share in a crop that never eventuated. What you are seeing there is the only income that the company had. If it had have rained, our income from cropping would have been probably four times what you are seeing in that tax return there from freight.

    [36] Exhibit R1, T18, page 113.

24. Mr Noll was referred to a file note of the Agency from 17 July 2019 (also referred to above in these reasons), in which it was recorded that Mr Noll said that if he was to provide a profit and loss statement for the 2018-19 financial year it would relate to ‘vehicles & equipment & maintenance’ and that he was using the Trust’s vehicles to deliver grain to other farmers.[37] Mr Noll told the Tribunal that this was correct and, by this stage in July 2019, he was not undertaking any cropping work because ‘all of the crops were dead, the place looked like a dustbowl’. Therefore, by mid-2019, Mr Noll was driving his truck trying to make a living, but maintained that the ‘offset of the work in 2018 hasn’t been taken into account’. The Tribunal was further told that ‘by the end of ’18, I was not driving a truck, I wasn’t doing anything, we were just succumbed to completely to probably one of the worst droughts in our generation’. However, Mr Noll disagreed that by July 2018 the majority of his labour was in logistics and stated that, although he was driving his truck at that time, ‘the amount of labour that I had put in before that would far outweigh what I was doing in the truck’.

    [37] Exhibit R1, T28, page 202.

25. At the conclusion of the Respondent’s cross-examination of Mr Noll, the Tribunal referred him to the Respondent’s Statement of Issues, Facts and Contentions dated 25 August 2020, which summarised the labour contributions Mr Noll had provided in his signed statement filed in this proceeding.[38] These contributions were: 1,200 hours between February and April 2017; 1,000 hours between January and April 2018; and 600 hours between March and April 2019. Mr Noll agreed that this was ‘a very fair summary’ of the ‘machine hours’ he worked cropping during these time periods, noting the additional time required for preparation and associated tasks.

    [38] Exhibit A1.

26. The Tribunal asked Mr Noll ‘what was happening’ between May 2018 and February 2019, for which there was no record of any labour contributions at North Whoey Station. Mr Noll replied:

    Very little, Member. At that stage, I wasn’t even driving my truck that much. I was doing the odd job in it here and there just to try and make ends meet…as was stated before, we put a lot of time, and time is money, and that time has been put into preparing and cultivating and planting the crop from January to April [2018]. In the months after that, of course as I said, the diesel prices that were absolutely exorbitant, the money to run trucks up and down the highway just wasn’t there, so we did little jobs that we could make a few bucks out of and that was about it and that was the only way I survived.

27. As a result of the Tribunal’s questions of Mr Noll, the Respondent’s representative asked him about the significant difference in the ‘input’ of labour he made in January to April 2018 (1,000 hours) compared to that in March to April 2019 (600 hours). Mr Noll agreed that he did more work in this earlier period of time, because there was less work to be done as the drought worsened, with some of the usual preparation tasks, such as ploughing and spraying, not required because there was little ground cover to remove before planting crops. Therefore, Mr Noll said there was less work undertaken and in 2019 there was:

    no logistics whatsoever at that stage, I’d already forfeited the truck back to a finance company because I couldn’t afford to pay for it. I think that came in early 2019, so yes things were looking very, very dire and we were just hoping that we’d get a year where we could just farm our way out of it, but those years just didn’t come and because of the lack of, I suppose, assistance that we’ve had, I have not been able to out a crop in this year, which looks like it’s going to be the best year we’ve had in ten years, which would have probably put me back to square one and got my business up and running again, but just because of finances not being there and lack of government assistance then we have not been able to do that, so we sit here this year watching everybody else have a fantastic year while we do nothing.  

28. Finally, Mr Noll was asked whether, at the time of his claim for FHA in November 2018 and due to the drought, it was anticipated that he would be doing far less work on North Whoey Station, supported by Mr Noll recording far less work on the property in March and April 2019 than he did in the earlier year, before his FHA claim. Mr Noll agreed with this proposition and stated that this was ‘the only work undertaken in 2019’, there was ‘no logistics, no nothing’.

    CONSIDERATION

    Was Mr Noll a ‘farmer’?

29. To qualify for FHA, among other criteria, a person must be a ‘farmer’ during the relevant period pursuant to subsection 8(a) of the Act. Under section 5 of the Act, a ‘farmer’ means an individual who ‘has a right or interest in land’ and ‘uses the land wholly or mainly for the purposes of a farm enterprise’.

1. The Guidelines published by the Respondent confirm that ‘sharefarmers (individuals who have entered into an agreement to contribute resources to a farm enterprise in return for a share of profits) may meet the definition of farmer’.[39]  

   [39] Farm Household Allowance, Guidelines, July 2019, accessed on 30 September 2020.

2. On the basis of the evidence before the Agency and the AAT1 in 2019, Mr Noll was not found to be a ‘farmer’ pursuant to the terms of the Act. In this regard, the AAT1 was not satisfied that Mr Noll ‘has a right or interest in the land through a legal sharefarming agreement’ because there was, at that stage, no documentary evidence that verified the nature of the claimed sharefarming arrangement with the owner of North Whoey Station, the resources contributed by each party and their profit sharing arrangement.[40] Mr Noll had told both the Agency and the AAT1 that the sharefarming agreement was based on a handshake between himself and Mr Naughton. As a result, the AAT1 found that Mr Noll did not satisfy subsection 8(a) of the Act requiring a person to be a ‘farmer’ in order to qualify for FHA.    

   [40] Exhibit R1, T2, page 8.

3. However, as previously referred to in these reasons, Mr Noll provided this Tribunal with an undated letter from the owner of North Whoey Station, Mr Anthony Naughton, in which the property owner stated that he had a sharefarming agreement with Mr Noll in 2017 and 2018.[41] The letter did not refer to any sharefarming arrangement between Mr Naughton and Mr Noll for 2019, despite Mr Noll stating that he did 600 machine hours at the property in March and April 2019 which, as he confirmed to the Tribunal in his evidence, was the only work he undertook that year at North Whoey Station. Mr Naughton’s letter said Mr Noll was a ‘share farmer/contractor’ at North Whoey Station and that the agreement and shares ‘were set by the input Mr Noll had in each individual field, all oats’.[42]

   [41] Exhibit A6.

   [42] ibid.

4. This recent documentary evidence of a sharefarming agreement between Mr Noll and the owner of North Whoey Station was accepted by the Respondent in the course of this proceeding as satisfying the criterion that Mr Noll had a ‘right or interest in land’ so as to be considered a ‘farmer’ under subsection 8(a) of the Act. While Mr Naughton was not called as a witness to give evidence confirming the existence and terms of the sharefarming agreement with Mr Noll, the Tribunal accepts the letter from Mr Naughton as evidence that Mr Noll did have a right or interest in the land at North Whoey Station at the time of his claim for FHA in November 2018 due to their sharefarming arrangement whereby Mr Noll contributed his resources to the farm enterprise in return for a share of any profits.

5. For the avoidance of doubt, the Tribunal also accepts that Mr Noll retained that right or interest in the land at North Whoey Station, for the purposes of meeting the definition of ‘farmer’ under the Act, during the qualification period that ran from November 2018 to 15 February 2019, despite Mr Naughton’s letter only referring to the sharefarming agreement existing in the years 2017 and 2018[43] and also the conflicting statements Mr Noll provided to the Agency in July 2019 regarding his work at the property.[44] In this regard, the Tribunal accepts the evidence of Mr Noll that he worked on the property in and around March and April 2019 under the terms of the sharefarming agreement he had with Mr Naughton.   

   [43] ibid.

   [44] Exhibit R1, T28, pages 201-202.

6. Accordingly, the Tribunal finds that Mr Noll met the definition of ‘farmer’ in section 5 of the Act and therefore satisfied the criterion of being ‘a farmer’ under subsection 8(a) of the Act.        

7. For completeness, the Tribunal confirms that it is satisfied Mr Noll met all the criteria under subsections 8(c) to 8(h) in the Act. For example, the land at North Whoey Station ‘that is used for the purposes of the farm enterprise is in Australia’ (subsection 8(d)), Mr Noll has ‘turned 16’ years of age; he is 49 (subsection 8(e)) and he is an ‘Australian resident’ (subsection 8(f)).

   Did Mr Noll contribute ‘a significant part’ of his ‘labour and capital to a farm enterprise’?

8. As a result of the Tribunal’s above findings in relation to subsections 8(a) and 8(c) to 8(h) of the Act, and in light of the Respondent’s acceptance that Mr Noll satisfied those criteria, the issue in dispute before this Tribunal was whether the criterion at subsection 8(b) of the Act was met by Mr Noll during the qualification period running from November 2018 to February 2019.

9. Subsection 8(b) of the Act requires a person to contribute ‘a significant part of his or her labour and capital to a farm enterprise’.

10. As referred to above in these reasons, section 5 of the Act defines a ‘farm enterprise’ as meaning an enterprise ‘carried on within any of the agricultural, horticultural, pastoral, apicultural or aquacultural industries’. The Tribunal is satisfied that the farming activities undertaken by Mr Noll at North Whoey Station were in the agricultural industry and therefore met the definition of a ‘farm enterprise’ under the Act.   

11. The question for the Tribunal to determine is whether Mr Noll contributed a significant part of both his ‘labour’ and ‘capital’ to the farm enterprise at North Whoey Station. The Act expressly requires both elements to be met. That is, a person must have contributed a significant part of their ‘labour and capital’ to the farm enterprise; the Act does not provide for either ‘labour’ or ‘capital’ to have been contributed for a person to satisfy the qualification criteria in subsection 8(b).

    Did Mr Noll contribute a significant part of his labour?

12. The Explanatory Memorandum to the Farm Household Support Bill 2014, that ultimately became the Act the subject of this proceeding, noted that the requirement in paragraph 8(b), now subsection 8(b), for an individual to contribute significant labour (and capital) ‘ensures the FHA is only available to individuals whose principal occupation is farming’.[45] Additionally, the Explanatory Memorandum stated that the term ‘significant’ is ‘intentionally broad and should be interpreted as a relative measure of a person's capacity to contribute labour and capital’. The Guidelines, which constitute government policy regarding the FHA, state that the assessment of ‘significant’ labour ‘should examine the applicant’s time spent working the farm enterprise as compared with his or her other activities (for example, off-farm employment)’, but ‘does not require a defined proportion of labour for the qualification requirement to be satisfied. Rather, it is determined on a case-by-case basis’.[46] As a result, an assessment of significant labour is a relative one.

    [45] Explanatory Memorandum to the Farm Household Support Bill 2014, page 23, accessed 30 September 2020.

    [46] Farm Household Allowance, Guidelines, July 2019, accessed on 30 September 2020.

13. Mr Noll made his claim for FHA on 16 November 2018. The qualification period for the assessment of Mr Noll’s eligibility for FHA commenced on that day in November 2018 and ran for a thirteen week period to 15 February 2019. Mr Noll’s evidence to this Tribunal was that between May 2018 (that is, before he made his claim for FHA) and February 2019 (being around the end of the qualification period) he was doing ‘very little’ in terms of employment. In addition, Mr Noll said under cross-examination that ‘by the end of ’18, I was not driving a truck, I wasn’t doing anything, we were just succumbed to completely to probably one of the worst droughts in our generation’.

14. As previously outlined in these reasons, Mr Noll said that he made significant labour contributions through cropping at North Whoey Station in the years 2017 to 2019. Mr Noll’s account relevantly records him contributing 1,000 ‘machine hours’ from January to April 2018, but then making no such contribution until March 2019, when his labour amounted to 600 hours over a one and a half month period. That is, Mr Noll’s documentary and oral evidence was that he made ‘very little’ or no labour contribution to the farm enterprise at North Whoey Station from May 2018 and February 2019, which includes the whole of the qualification period from 16 November 2018 to 15 February 2019 for the assessment of his eligibility for FHA.  

15. Additionally, the contemporaneous documentary evidence before the Tribunal, in the form of the Trust’s tax return for the financial year ending on 30 June 2018, was that Mr Noll’s main business activity was ‘[r]oad freight transport service’.[47] Despite this statement, Mr Noll told the Tribunal that he disagreed with the assertion that in the financial year ending on 30 June 2018 (and less than five months before his FHA claim), his main activity was logistics and transporting grains. Mr Noll confirmed to the Tribunal that in four of the twelve months in the 2017-18 financial year he had made labour contributions to North Whoey Station. Mr Noll said that his ‘input’ or labour had not been accounted for by the Respondent or in the financial documents, because there had been no return in the form of profit or income due to the effect of the drought.

    [47] Exhibit R1, T18, page 113.

16. The Tribunal also notes that other income tax returns, including for the 2018-19 financial year, which covered the qualification period, were not before the Tribunal. To this end, the Agency’s file notes record Mr Noll informing it in July 2019 that if he were to supply a profit and loss statement for the Trust for 2018-19, his only income and expenses would relate to vehicles, equipment and maintenance.[48]

    [48] Exhibit R1, T28, page 202.

17. While Mr Noll contended that his contribution from January to April 2018 amounted to 1,000 hours, which is undoubtedly significant, the conclusion drawn from all the evidence is that, given the severe drought and the associated uncertainty of the likely crop yield which regretfully resulted in Mr Noll being able to do ‘very little’ work, Mr Noll’s principal occupation during the relevant time from November 2018 to February 2019 was not farming but non-primary production work in the form of freight and logistics. Mr Noll told the Tribunal under cross-examination that due to the drought, by July 2018 he was delivering grain to other farmers to make ends meet, rather than working on the property at North Whoey Station. In this regard, after April 2018, the next labour contribution made by Mr Noll at North Whoey Station was from March to April 2019, which was outside the qualification period for his FHA claim; that ended on 15 February 2019.

18. The Tribunal accepts that Mr Noll’s stated labour contribution to the farm enterprise at North Whoey Station during certain periods of time in 2017 to 2019 was not insignificant, however, based on the evidence, the Tribunal is not satisfied that during the relevant period, being the qualification period from 16 November 2018 to 15 February 2019, Mr Noll contributed a significant part of his labour to a farm enterprise, as required under subsection 8(b) of the Act.

19. Because this criterion is not met, and given the terms of subsection 8(b) of the Act, Mr Noll’s claim for FHA cannot succeed. However, for completeness, the Tribunal turns to consider whether Mr Noll contributed significant ‘capital’ to the farm enterprise, which is also required to be met under subsection 8(b) of the Act to qualify for FHA.

    Did Mr Noll contribute a significant part of his capital?

20. These reasons have previously addressed the meaning of ‘significant’ in the context of a farmer’s contribution to both labour and capital. The term ‘significant’ is ‘intentionally broad’ and an individual’s contribution is relative.

21. The Explanatory Memorandum to the Bill that established the FHA stated that the purpose of the ‘capital’ test is:[49]

    to exclude those individuals who meet the definition of farmer but who are better defined as an employee as they do not have a significant financial investment in the business. Such people are better positioned to claim social security payments targeted at non-farmers as their assets are unlikely to preclude them from other payments.

    [49] Explanatory Memorandum to the Farm Household Support Bill 2014, page 24, accessed 30 September 2020.

22. The Guidelines for the FHA also reiterate this position.[50] However, the Guidelines provide limited guidance on how to make an assessment of a significant capital contribution by a farmer. They state that:

    The assessment of significant capital does not require a defined proportion of capital for the qualification requirement to be satisfied. Rather, it is determined on a case-by-case basis. Assessment of significant capital contribution is in comparison to other capital and liabilities the farmer holds.  

    [50] Farm Household Allowance, Guidelines, July 2019, accessed on 30 September 2020.

23. Additionally, the Act does not define ‘capital’, or indeed ‘labour’. While its use may be contested, its meaning is unambiguous; the Macquarie Dictionary relevantly defines ‘capital’ as ‘the wealth, whether in money or property, owned or employed in business by an individual, firm, etc.’[51] Accordingly, the term ‘capital’ should be given its plain and ordinary meaning.[52] Therefore, for the purposes of subsection 8(b) of the Act, ‘capital’ comprises a person’s ‘money or property’ that is contributed to a farm enterprise. The Explanatory Memorandum contemplated a person having a ‘significant financial investment in the business’.  

    [51] accessed 30 September 2020.

    [52] Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629 at 647 per Dixon J.

24. As previously mentioned in these reasons, Mr Noll submitted to the Tribunal that the Act only required a farmer to establish that he or she had contributed a significant part of either his or her labour or capital. The Act plainly requires both a significant part of a person’s labour and capital to be contributed to a farm enterprise in order to satisfy subsection 8(b). In this regard, Mr Noll’s written statement regarding his contribution to North Whoey Station in 2017 to 2019 referred only to his ‘input’, being labour at contract rates in return for a share of the output of the crop, there was no reference to any capital contribution Mr Noll had made to that farm enterprise.[53]   

    [53] Exhibit A1.

25. Under cross-examination, Mr Noll told the Tribunal that the Trust did not own any land during the qualification period between November 2018 and February 2019, including land at North Whoey Station or any other farm enterprise. This is supported by the documentary evidence. In the 2017-18 financial year, the Trust held assets that totalled $41,238, with $39,737 of that amount being motor vehicles, but no real estate.[54]

    [54] Exhibit R1, T18, page 121.

26. Additionally, in response to a question about whether Mr Noll supplied any ‘capital’ to North Whoey Station during the relevant period, he told the Tribunal that he owned and ‘supplied all of the machinery to do the job’ at the property, being tractors, ploughs, spray units and trucks and that his ‘capital input’ was ‘the amount of money that I owed on that machinery’. Mr Noll confirmed to the Tribunal that the owner of the property, Mr Naughton, did not own the machinery. While Mr Noll contended that the machinery, or more particularly, the amount of money owing on that machinery, was capital for the purposes of subsection 8(b) of the Act, the Tribunal does not accept this contention. The machinery, or the outstanding loan amount for the machinery, is not capital in the form of ‘money or property’ that was invested into the farm enterprise as required by the Act and contemplated by the FHA regime supported by the Explanatory Memorandum and the Guidelines. In this regard, and as confirmed by Mr Noll, neither North Whoey Station nor Mr Naughton had a right or interest in Mr Noll’s machinery.

27. Moreover, in accordance with the Tribunal’s earlier finding that Mr Noll had made no labour contribution during the qualification period, by virtue of the very nature of the sharefarming agreement, the Tribunal cannot find that Mr Noll made a significant capital contribution during this time, including because he was not working on the property between November 2018 and February 2019.    

28. For these reasons, the Tribunal is not satisfied that Mr Noll contributed a significant part of his capital to the farm enterprise at North Whoey Station so as to satisfy this particular element of subsection 8(b) of the Act. Accordingly, and in addition to the Tribunal’s findings in relation to the labour contribution made by Mr Noll during the qualification period, his application is unsuccessful and he was not eligible for FHA from the time of his claim in November 2018 or within the following thirteen weeks.

29. The Tribunal sympathises with Mr Noll’s situation, especially given the effects of the drought, which resulted in much of his effort across three years at North Whoey Station delivering little or no financial return. However, the Tribunal must apply the Act having regard to its findings of fact and the evidence. Unfortunately, Mr Noll was not qualified for FHA during the qualification period, although the Tribunal again notes that he has been receiving the Jobseeker payment since October 2019. 

    DECISION

30. The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeal Tribunal Act 1975.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

........................................................................

Associate

Dated: 19 October 2020

Date of hearing:   28 September 2020

Applicant:   By telephone

Solicitor for Respondent:   Ms Laura Hannigan, Services Australia