Aziz and Australian Postal Corporation
[2003] AATA 354
•17 April 2003
CATCHWORDS – COMPENSATION
– suspension of compensation under s. 37(7) Safety, Rehabilitation and Compensation Act 1988 on basis of failure to undertake rehabilitation program – whether Administrative Appeals Tribunal has jurisdiction to consider whether or not its jurisdiction has been ousted by s. 37(7) Safety, Rehabilitation and Compensation Act 1988 – Tribunal has jurisdiction.
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 16, 19, 20, 21, 21A, 22, 23, 29, 30, 31, 33, 34-34S, 36, 37, 38, 54, 55, 56, 57, 60, 61, 62, 63, 64, 98A and 100
Social Security Act 1991
Administrative Appeals Tribunal Act 1975 ss. 3 and 44
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 s. 3
Administrative Decisions (Judicial Review) Act 1977
Federal Court of Australia Act 1976
Mutual Recognition Act 1992 s. 34
Medical Act 1939 (Qld)
Long and Australian Postal Commission [2002] AATA 1333
Kilty and Australian Postal Corporation [2003] AATA 164
Buck v Comcare (1996) 137 ALR 335
Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248
Chowdhary v Bayne (1999) 29 AAR 100
QX99A and Medical Board of Queensland [1999] AATA 591
Re Tasmanian Ferry Services and Secretary, Department of Transport and Communications (1992) 29 ALD 395
Comcare v Pamela Burton, in her capacity as a Senior Member of the Administrative Appeals Tribunal and Wendy Lees (1998) 157 ALR 522
Morton and Australian Securities Commission 45 ALD 447
DECISION AND REASONS FOR DECISION [2003] AATA 354
ADMINISTRATIVE APPEALS TRIBUNAL )
)V2002/1322 &
GENERAL ADMINISTRATIVE DIVISION ) V2002/1323
Re NASSER AZIZ
Applicant
AndAUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 17 April, 2003
Place: Melbourne
Decision: The Tribunal has decided that:
1.the Tribunal has jurisdiction to consider whether or not its jurisdiction has been ousted by the self-executing provisions of s. 37(7) of the Safety, Rehabilitation and Compensation Act 1988; and
2.that requires a consideration of:
(a)whether or not a rehabilitation program was provided to the applicant;
(b)if so, whether the applicant refused or failed to undertake that rehabilitation program; and
(c)if so, whether the applicant’s refusal or failure was without reasonable excuse.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 6 December, 2002, the applicant, Mr Nasser Aziz, lodged two applications with regard to what I will for the moment describe as “positions” adopted by the respondent, the Australian Postal Corporation (“Australia Post”) in letters dated 22 November, 2002. A hearing was held to consider whether the Tribunal has jurisdiction to consider the applications. At that hearing, Mr Aziz was represented by Mr Ferwerda of counsel and Australia Post by Mr Moulds of counsel. Reference was made to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) in proceedings numbered V2002/1323.
THE ISSUE
In essence, the issue that must be considered in this case is whether there is a reviewable decision that the Tribunal may review under the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”).
BACKGROUND
There was no disagreement between the parties as to certain facts forming the background to this matter. In view of that and on the basis of the material in the T documents, I find that Mr Aziz was born in Egypt on 24 April, 1953. He came to Australia in 1975. Since October, 1999, he has been employed by Australia Post as a Mail Officer.
On 10 August, 2000, Mr Aziz was injured in circumstances in which Australia Post was liable to pay him compensation under the SRC Act for a fractured right clavicle and fractured right patella. He received compensation under ss. 14, 16 and 19 of the legislation.
On 9 August, 2002, Australia Post made a determination under s. 37(1) of the SRC Act that Mr Aziz should commence a rehabilitation program. It notified him of its determination in a letter dated the same day. Australia Post wrote to Mr Aziz again on 14 August, 2002. It did so to note that he had not undertaken the requirements of his rehabilitation program, which it described as having been outlined in its determination dated 12 August, 2002. The letter went on to ask Mr Aziz to advise in writing by 22 August, 2002 why he had not done so. If he failed to provide a satisfactory explanation by that time, he was advised that his “… rights to compensation are suspended”.
On 2 October, 2002, Australia Post wrote to Mr Aziz in the following terms:
“… As you have refused or failed, without reasonable excuse, to undertake the rehabilitation program provided under Section 37(1) of the Safety, Rehabilitation and Compensation Act 1988 and as advised in the letter to you of 14 August 2002, your rights to compensation under the Act, and to institute or continue any proceeding under that Act in relation to Compensation, are suspended persuant (sic) to section 37(7) of the Act. This suspension commences on and from 3 October 2002 and will continue until such time as you begin to undertake the rehabilitation program which was the subject of the determination dated 14 August 2002.
Reasons for Decision
I am satisfied that you have failed to undertake the Rehabilitation Program subject to the determination dated 14 August 2002 without reasonable excuse.
The reasons for your suspension of entitlement to compensation are as follows:
1.The return to work plan was based on the opinion provided by your treating specialist Mr Stephen Doig, 2 July 2002. Australia Post accepts your specialist’s view that you can return to modified duties, 4 hours a day, 5 days per week and build up by 1 hour per day over the subsequent 2 weeks.
2.Further medical evidence provided to Australia Post indicates that you were and are capable of following the rehabilitation program as outlined in the determination dated 26 June 2002. Mr Ian Jones independent specialist supported the opinion of your treating specialist Mr Stephen Doig.
3.Suitable duties were and continue to be made available to you.”
(T documents, pages 133-134)
The letter concluded with the statement:
“There is no provision under the SRC Act for an internal review of the suspension nor a provision for appeal to the Administrative Appeals Tribunal. You may have a right of appeal to the Federal Court. …” (T documents, page 134)
In two separate letters dated 20 November, 2002, Mr Aziz’s solicitors sought reconsideration under s. 62(2) of the SRC Act of what it described as Australia Post’s determinations. The first sought reconsideration of its determination notified in Australia Post’s letter of 9 August, 2002 that Mr Aziz commence a rehabilitation program on 12 August, 2002 and continue it until 9 September, 2002. The second sought reconsideration of a decision whose “… effect … is to suspend the claimant’s entitlement to compensation on and from 3 October, 2002 as result of not complying with a rehabilitation programme dated 14 August 2002” (T documents, page 143).
In response to the first letter, Australia Post replied saying that the determination of 9 August, 2002 could not be reconsidered while Mr Aziz’s claim for compensation remained suspended “… for not adhering to a Return to Work program dated 14 August 2002” (T documents, page 145). In response to the second, it replied that there was no provision in the SRC Act for internal review of a suspension under s. 37(7) (T documents, page 146).
CONSIDERATION
I will begin by first setting out a summary of the relevant provisions of the SRC Act.
Outline of provisions relating to compensation
Part II of the SRC Act is concerned with compensation. Pursuant to s. 14(1), Comcare is, subject to qualifications set out in Part II, liable to pay compensation to Mr Aziz “in respect of an injury suffered … if the injury results in death, incapacity for work, or impairment”.. Pursuant to the terms of its licence, that liability is borne by Australia Post (s. 100 and see also the repealed Part VIIIA) but I will refer in this section of my reasons to Comcare as that is the manner in which the SRC Act is drafted. Each of the terms, “injury”, “incapacity for work” and “impairment” is defined in the SRC Act (ss. 4(1) and 4(9)). The expression “compensation” is not defined but the extent to which Comcare is liable to pay compensation is set out in a number of sections:
section 15:Compensation for loss of or damage to property used by employee
section 16: Compensation in respect of medical expenses etc.
section 17:Compensation for injuries resulting in death
section 18: Compensation in respect of funeral expenses
section 19: Compensation for injuries resulting in incapacity
section 20: Compensation for injuries resulting in incapacity where employee is in receipt of a superannuation pension
section 21: Compensation for injuries resulting in incapacity where employee is in receipt of a lump sum benefit
section 21A: Compensation for injuries resulting in incapacity if employee is in receipt of a superannuation pension and a lump sum benefit
section 22: Compensation where employee is maintained in a hospital
section 24: Compensation for injuries resulting in permanent impairment
section 27: Compensation for non-economic loss
section 29: Compensation for household services and attendant care services
Other sections in the SRC Act make provision for the manner in which compensation is paid and these include:
section 25: Interim payment of compensation
section 30: Redemption of compensation
section 31: Recurrent payments after payment of lump sum
As I noted earlier, there are various qualifications to Comcare’s liability. The first is found in s. 14 itself and it is that compensation is not payable in respect of an injury that is intentionally self-inflicted (s. 14(2)). The second is that:
“Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.” (s. 14(3))
Another qualification is found in s. 23(1), which provides that compensation is not payable under ss. 19, 20, 21, 21A or 22 to an employee who has reached 65. Section 23(1A) limits the compensation payable to a person who has reached 63 years of age. If a person has been imprisoned, compensation is not payable under ss. 19, 20, 21 or 21A.. Where Comcare has decided under s. 30 to redeem its liability to pay compensation, then, subject to s. 31, compensation is not payable under ss. 19, 20, 21 or 21A (s. 23(3)). Section 33 provides for the reduction in the amount of compensation payable under ss. 19, 20, 21, 21A, 22 or 31 where an amount is paid to an employee by way of salary, wages or pay.
Part V of the SRC Act regulates the manner in which a claim for compensation may be made. Compensation is not payable unless a claim for compensation has first been made (s. 54(1)). A claim is made by giving to Comcare:
“(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b)except where the claim is for compensation under section 16 or 17 - a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.” (s. 54(2))
The person seeking compensation need not complete the form with precision for s. 54(5) provides that:
“Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.”
There must, however, be strict compliance in relation to the medical certificate referred to in s. 54(2)(b) for s. 54(3) provides:
“Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.”
Sections 55 and 56 relate to the survival of claims where the person who was entitled to claim compensation has died.
Section 61 provides that a determining authority must give a claimant a notice setting out the terms of the determination, the reasons for the determination and a statement to the effect that, if dissatisfied with the determination, the claimant may seek review of the determination under s. 62(2) of the SRC Act (s. 61(1)). The only exception to this requirement arises if a determination has been made:
“… under subsection 16(1) that compensation of an amount equal to the full amount of the cost of medical treatment obtained by an employee is payable if that amount of compensation is payable to a person other than the employee.” (s. 61(2))
Outline of provisions relating to rehabilitation
Part III is concerned with rehabilitation. Provision is made for the approval of rehabilitation program providers (ss. 34 – 34S). Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority (i.e. either Comcare or the principal officer of a licensed authority, corporation or Department or Commonwealth authority other than an exempt authority – ss. 4(1) and 36) may at any time, and must if requested by the employee, arrange for an assessment of his or her capability of undertaking a rehabilitation program (s. 36). A “rehabilitation authority” means, in relation to an employee:
“(a) where the employee is employed by an exempt authority – Comcare; and
(b)where the employee is employed by a licensed authority – the principal officer of that authority; and
(ba)if the employee is employed by a licensed corporation – the principal officer of that corporation; and
(c)if the employee is employed by an Entity or a Commonwealth authority, other than an exempt authority – the principal officer of that Entity or the Commonwealth authority in which the employee is employed; and
(d)if he employee is a member of the Defence Force – the Chief of the Defence Force.” (s. 4(1))
Where a rehabilitation authority determines that an employee should undertake a rehabilitation program, it may make arrangements with an approved rehabilitation program provider to provide such a program (s. 37(1)). In making that determination, it is required to have regard to the matters set out in s. 37(3). The employing authority, which must bear the costs the rehabilitation program (s. 37(4)), must not make arrangements for the provision of a rehabilitation program other than by an approved rehabilitation program provider (s. 37(2)).
Where an employee is undertaking a rehabilitation program under s. 37, compensation is not payable to the employee under either ss. 19 or 31 of the SRC Act. Instead, compensation is payable in the manner set out in s. 37(5) and, while it is payable, the employee may not receive a rehabilitation allowance under the Social Security Act 1991. Sections 37(7) and (8) are concerned with the suspension of compensation and provide:
“(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(8) Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of suspension.”
Reconsideration of determinations
Sections 38 and 60 to 63 provide for the review of determinations. A “determination” is defined in s. 60(1) in the following terms:
“In this Part:
‘determination’ means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X”.
The word “decision” has the same meaning as in the AAT Act (s. 60(1)). Section 3(3) of the AAT Act provides that:
“A reference in this Act to a decision includes a reference to:
(a)making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.”
Section 38 of the SRC Act provides for the review of determinations made under ss. 36 or 37 by a rehabilitation authority other than a relevant authority. A written notice of a determination under ss. 36 or 37 must be given to the employee to whom the determination relates and the notice must satisfy the requirements of s. 38(1). The employee may request Comcare to review the determination and, if he or she does so in accordance with s. 38(3), Comcare must make a decision affirming or revoking the determination or varying the determination (s. 38(4)).
Unlike s. 62, s. 38 does not refer to decisions of a determining authority, which is the person who made the determination (s. 60(1)). Instead, it is more narrowly drafted and refers only to determinations made by a rehabilitation authority other than a relevant authority. There is no question that the principal officer of Australia Post is a rehabilitation authority as that term is defined in s. 4(1) of the SRC Act.
A “relevant authority” is also defined in s. 4(1) and it is defined to mean:
“(a) in relation to an employee who is employed by a licensee – the licensee; and
(b)in relation to any other employee – Comcare.”
A “licensee” is “… a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII” of the SRC Act and a “licence” is a licence under Part VIII (s. 4(1)).
Part VIII of the SRC Act was added with effect from 1 April, 2002 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (s. 3, Schedule 2, Part 8, item 49) (“Amendment Act”). Its provisions enable the Safety, Rehabilitation and Compensation Commission to grant licences to Commonwealth authorities or eligible corporations. If a licence is granted to a Commonwealth authority or eligible corporation, the SRC Act continues to apply in relation to its employees but the application of the Act is subject to one or both of two qualifications. One qualification is that the Commonwealth authority or eligible corporation accepts the whole or part of the liability under the Act for payments in respect of injury, loss or damage suffered by, or the death of, some or all of its employees. The other qualification is that it accepts responsibility for managing certain claims under the Act in respect of such injury, loss or damage. This is the effect of s. 98A of the SRC Act.
Prior to Part VIII’s inclusion in the SRC Act, Australia Post had been licensed under Part VIIIA with effect from 31 March, 2002 and it continues to be licensed under that Part. Subject to sub-items 50(2) and (3), which are not relevant, sub-item 50(1) of Schedule 2 of the Amendment Act provides that:
“… if immediately before the day this Part commences, a Commonwealth authority or corporation held a licence under Part VIIIA or VIIIB of the Safety, Rehabilitation and Compensation Act 1988, the provisions of that Act as in force immediately before that day continue to apply in relation to the authority or corporation in its capacity as licence holder under Part VIIIA or VIIIB, as the case requires, as if the items of this Part had not been enacted.”
I note that in my previous decision in the matter of Long and Australian Postal Commission [2002] AATA 1333, I decided that the effect of these provisions was that Australia Post was entitled to apply to be licensed under Part VIII but was not so licensed at the time of the decision on 15 July, 2002. Therefore, it was not a licensee and so was not a relevant authority. Consequently, a request could be made to Comcare to review the determination made by a delegate of the principal officer of Australia Post.
Since then, I have had the benefit of reading Senior Member Dwyer’s decision in Kilty and Australian Postal Corporation [2003] AATA 164, hearing the submissions of counsel and re-visiting the issue. This has led me to change my mind on the issue. As Australia Post, which is a Commonwealth authority for the purposes of the Act (s. 4(1)), and as it held a licence under Part VIIIA immediately before Part VIII of Schedule 2 of the Amendment Act commenced on 2 April, 2002, the provisions of the SRC Act continued to apply in relation to it as a licence holder under Part VIIIA as if Part VIII had not been enacted. It must be taken to be licensed, under Part VIII of the SRC Act and so is a “licensee”. As a licensee, Australia Post must be regarded as a “relevant authority” under the SRC Act.
Returning to s. 38 of the SRC Act, it is clear in its terms that a person may request Comcare to review the determination made by a rehabilitation authority other than a rehabilitation authority which is also a relevant authority. As no reference is made in s. 38 to the review of determinations made by a relevant authority, it cannot be relied on to find jurisdiction for such a review in either Comcare or in this Tribunal.
Section 62 provides for reconsideration of a determination by a determining authority i.e. the person who made the determination (s. 60(1)). It may do so of its own volition (s. 62(1)). If a claimant, among other interested parties, makes a request in accordance with s. 62(3) that it be reconsidered, the determining authority is obliged to arrange for another delegate to reconsider the determination (ss. 62(2) and 62(4)). The person reconsidering the determination may make a decision affirming or revoking the determination or varying it in the manner he or she thinks fit (s. 62(5)).
A “reviewable decision” means a decision made under ss. 38(4) or 62 (s. 60(1)). Section 64 provides that, among others, a claimant may apply to the Tribunal for review of a reviewable decision.
The Federal Court authorities
The earliest of the three authorities in the Federal Court was Buck v Comcare (1996) 137 ALR 335. It was a judgement of Finn J and concerned s. 57(2) of the SRC Act. On the advice of her doctors, Ms Buck had refused to attend a medical examination that she had been required by Comcare to attend pursuant to s. 57(1). When she did not do so, Comcare suspended her payments of compensation pursuant to s. 57(2). Ms Buck brought an application under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) and, at the suggestion of Finn J, a claim for a declaration of right under the Federal Court of Australia Act 1976 should her application under the ADJR Act be unsuccessful.
His Honour concluded that:
“… s 57(2) does not, relevantly, authorise or require a decision of an administrative character to be taken by Comcare. To use the language of Lockhart J in Minister for Immigration and Ethnic Affairs v Naumovska [(1983) 88 ALR 589] … at 601, ‘[t]he sub-paragraph means what it says’. It stipulates the circumstances in which an employee’s rights will be suspended – and suspended by force of the subsection. As and when those circumstances occur, so also does the suspension of rights. Again to use the language of Lockhart J (at 601): ‘No decision by anybody is required to bring about this change.’” (page 339)
The consequence of his decision, Finn J continued, was that he did not have jurisdiction under the ADJR Act to consider the lawfulness or otherwise of the suspension of Ms Buck’s entitlement to compensation.
Finn J briefly outlined aspects that he would have explored if s. 57(2) did require a decision to be made:
“If, contrary to what is the case, the SRC Act provisions were such that (i) distinct subsequent decisions involving an employee could be taken by Comcare once the requirements of s 57(2) had been satisfied and Comcare had indicated that in its view it was so satisfied and hence could take a consequential decision (cf Minister for Immigration and Ethnic Affairs v Naumovska ; Director-General of Social Services v Hales (1983) 47 ALR 281; Nolan v Minister for Immigration and Ethnic Affairs (1992) 27 ALD 755); or (ii) the suspension of rights was not automatic but depended on a decision by Comcare consequent on a finding of a refusal without reasonable excuse (cf SRC s 58(3)) I would be constrained to hold that the subjective opinion of Comcare in either case would be sufficiently a ‘decision’ (or, in the case of (i), at least ‘conduct’) for ADJR Act purposes. The statutory scheme here does not raise either of these contingencies. But even if it did, it would remain the case that the question whether an employee had a reasonable excuse would, in relation to (i) above, be one still for the court to determine because that question would be as to the existence of an objective fact (see Minister for Immigration and Ethnic Affairs v Naumovska at 601-2); and, in relation to (ii) above, be examinable by the court on the basis that it involved a ‘jurisdictional fact’ : cf Queensland v Wyvill (1989) 25 FCR 512; 90 ALR 611. There is no need here to further consider these two possibilities, the former of which in particular is not without its difficulties.” (pages 339-340)
The second case, which considered s. 37(2) of the SRC Act, was a judgement of Tamberlin J; Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248. His Honour was concerned with an appeal under s. 44 of the AAT Act from a decision of the Tribunal that it had no jurisdiction to hear an application for review of a decision made on reconsideration by a delegate of Telstra. Sometime earlier, a delegate of Telstra had written to Mr Trajkovski asking him why he had failed to participate in a rehabilitation program as he had been required by Telstra to do. That letter had told him that “Failure to provide a reasonable excuse for your non participation will result in suspension of rights under the SRC Act 1988 from Friday 9 May 1997 until such time as an approved rehabilitation program is recommenced.” (page 250). When asked to review that decision, another delegate wrote to Mr Trajkovski’s solicitors advising them “… that as your client’s rights have been suspended by way of a determination issued on 19 May 1997 for failure to comply with a rehabilitation program, no delegation under the Act will be exercised to reconsider the determination of same.” (page 250). The Tribunal accepted the assertion that Mr Trajkovski’s rights had been suspended by virtue of the operation of s. 37(7) of the SRC Act and declined to determine questions of fact and law relevant to its determining whether it had jurisdiction.
Tamberlin J said that the issue was whether the Tribunal could hear and determine the question as to whether s. 37(7) applies. He said that:
“It is common ground that the language of s 37(7) makes it clear that the suspension of rights under s 37(7) operates directly and without the need for any antecedent decision.. Nevertheless, as a practical matter, some person or body must make a decision as to its application in any specific case. To this extent the reasoning in Buck is accepted by both parties.” (page 253)
Tamberlin J then reviewed a number of authorities and concluded:
“In the present case, in my view, the AAT had the competence to consider the limits of its authority and the existence of its jurisdiction. In order to perform its statutory duty to review the decision pursuant to the SRC Act, it was essential that the AAT come to a conclusion on the existence and limits of its jurisdiction. This necessarily involves a consideration of the applicability of s 37(7) and its effect. Thus it requires an examination of pertinent questions of fact and law which arise in making this determination. This is not a question of ‘reviewing’ any decision as to jurisdiction but of properly considering the threshold question of whether it has jurisdiction. The AAT has declined, in this case, to examine and determine the factual and legal questions necessary to decide whether it had jurisdiction. The effect of the AAT’s failure to look at the jurisdictional issue was to preclude itself from considering the substantial question because it was not considered to be one which involved a review of a decision made by Telstra. Such an approach is erroneous and unduly restrictive.
…
One consequence of the AAT determination that it had no jurisdiction to consider the question whether s 37(7) applied was that the applicant, who disputed the application of this provision, lost the benefit of a hearing on the jurisdictional issue. The result was that the mere assertion by Telstra that s 37(7) applied was, in effect, adopted without any factual determination or consideration of legal argument and was taken as being conclusive on the question of whether s 37(7) operated. This is an odd result to say the least. Such an approach enables an Authority to simply assert that s 37(7) applies. The consequence of such an assertion of the Authority’s view is to suspend all rights and deny any jurisdiction without any evidence or submissions in relation to the s 37 applications.” (page 257)
Tamberlin J went on to consider whether there were other collateral or independent remedies potentially available to Mr Trajkovski. Even if such remedies were available, however, that did not require a conclusion that the Tribunal did not have power to make an administrative determination. His Honour said that there:
“… is much to be said for the practical approach taken by the AAT in Martiniello [Re Martiniello and Comcare Australia (1994) 33 ALD 774] whereby the AAT entertained and resolved questions as to both jurisdiction and the merits. If the AAT finds that it has jurisdiction it can proceed to hear the substantive, compensation question. If either party is then dissatisfied an appeal can be taken to this court.” (page 258)
Tamberlin J did not express a concluded view on that aspect and he reiterated that the Tribunal had made an error of law by refusing to enter into the question whether it had jurisdiction.
The third authority to which the parties referred is Chowdhary v Bayne (1999) 29 AAR 100, which is a judgement of Finn J in an appeal pursuant to s. 44 of the AAT Act and an application under the ADJR Act. Mrs Chowdhary was in receipt of compensation payments from Comcare and later unsuccessfully claimed compensation in respect of physiotherapy treatment under s. 16 and for household services under s. 29 of the SRC Act. Comcare then ceased paying her compensation pursuant to s. 37(7) on the basis that she had failed, without reasonable excuse, to undertake a rehabilitation program. Mrs Chowhdary sought review of the two decisions refusing her claim for physiotherapy treatment and household services and for the suspension of her payments of compensation.
Finn J summarised the Tribunal’s decision as follows:
“It held, as it was obliged to, that, for the purpose of determining whether it had jurisdiction in relation to the physiotherapy and home services appeal, it could consider whether Mrs Chowdhary had a reasonable excuse for her failure and that having concluded on the evidence that she did not, it accepted that by the ‘self-executing’ force of the provisions of s 37(7) Mrs Chowdhary’s application for review was incompetent. It took a like view of the ‘decision’ to suspend compensation payments from 29 May 1996. Accordingly it determined that it had no jurisdiction to review any of the decisions presented to it for review.” (page 101)
He then summarised the manner in which s. 37(7) operates and its application to the case he was considering:
“…
(i) The determination whether there has been a failure to undertake a rehabilitation program without reasonable excuse calls for an objective determination of both the law and facts. It does not depend upon the opinion of any specified person or body notwithstanding that, as a practical matter, some person or body must make a decision as to its application in any specific case: Trajkovski v Telstra Corporation Ltd, at 26; Buck v Comcare (1996) 66 FCR 359.
(ii) A s 37(7) suspension of rights under the SRC Act does not as such depend upon such a ‘decision under an enactment’ as would be amenable to judicial review under the ADJR Act: Buck v Comcare.
(iii) Where, but for the operation of s 37(7), a person would be entitled to appeal to the Tribunal for review of a decision made reviewable under the SRC Act: see SRC Act ss 60, 62 and 64; the Tribunal can consider the applicability of s 37(7) to such an appeal for the purpose of coming to a conclusion as to whether it has jurisdiction in the matter: Trajkovski v Telstra Corporation Ltd at 30; ‘It is not bound to decline jurisdiction simply because the jurisdictional question cannot be described as a ‘reviewable decision’.
(iv) A Tribunal decision that, because of s 37(7), it does or does not have jurisdiction can be the subject of an application to this court under s 44 of the AAT Act and on such an application it is for the court to come to its own conclusion whether the facts are such that the Tribunal had jurisdiction to determine the appeal to it.
11 Applied to the circumstances of the present matter, these propositions ordain that:
(a) s 37(7) apart, the Tribunal had jurisdiction to entertain at least the appeals relating to physiotherapy and home services claims, reviewable decisions having previously been made in relation to each of these;
(b) in these circumstances, once s 37(7) was put in issue the Tribunal was obliged to consider whether it had jurisdiction to entertain those appeals or whether the applicant's rights to appeal had been suspended;
(c) it was open to the applicant to appeal to this Court from the Tribunal's decision that it lacked jurisdiction; and
(d) it was for this court to reach its own view whether on the facts the applicant had the ‘reasonable excuse’ required by s 37(7).” (pages 102‑3)
Finn J then considered the matters that would be raised for the Court’s consideration by virtue of the appeal under s. 44 of the AAT Act:
“12 In consequence the AAT Act s 44 appeal will raise for direct consideration whether there was such an excuse. If there was, then the 29 May 1996 suspension of compensation payments lacked lawful foundation and the Tribunal’s declining of jurisdiction to entertain at least the physiotherapy and home services appeals was an error of law. If there was not, then s 37(7) holds sway. In other words, in that appeal the matter of substance raised in the present application can be resolved and the order-making power of the court under s 44 of the Act is such that appropriate relief can be given.” (page 103)
His Honour then went on to consider alternative remedies sought on behalf of Mrs Chowdhary.
Having regard to the three authorities in the Federal Court, it seems to me that they establish the following five propositions:
a suspension of an employee’s right to compensation and to institute or continue proceedings under the SRC Act, whether occurring by force of s. 37(7) or 57(2) of the SRC Act, is not a “decision” which is reviewable under the ADJR Act; it is not a decision that anybody is required to make (Buck v Comcare at 339, Trajkovski v Telstra Corporation Ltd at page 253 and Chowdhary v Bayne at pages 102-3);
the Tribunal is obliged to consider whether it has jurisdiction to review a decision and to consider the limits of its authority (Trajkovski v Telstra Corporation Ltd at pages 254-7);
in considering whether it has jurisdiction, the Tribunal must consider the law and facts that are relevant to that consideration Trajkovski v Telstra Corporation Ltd at pages 254-5);
the Tribunal may not accept an assertion that it does not have jurisdiction to review a decision that is otherwise a reviewable decision because s. 37(7) applies to suspend an applicant’s rights but must consider whether the elements of the s. 37(7) suspension were present (Trajkovski v Telstra Corporation Ltd at pages 254-5 and Chowdhary v Bayne at pages 102-3); and
the fact that there are other or collateral remedies available to an employee does not lead to the conclusion that the Tribunal does not have jurisdiction (Trajkovski v Telstra Corporation at page 258).
Applying these propositions to the circumstances of this case, I must consider two questions. The first is whether, if it were not for the possible application of s. 37(7), the Tribunal would have jurisdiction to review a decision. If it would have jurisdiction, the second question arises. That is whether Mr Aziz’s right to compensation and to institute or continue proceedings under the SRC Act has been suspended by virtue of s. 37(7). The order in which these questions should be asked and answered is a matter to which I will return later in these reasons.
Finding the answer to the first question requires the application of the principles established by the Federal Court. That is to say, the suspension arises by virtue of the operation of s. 37(7). Its terms are self-executing and do not require a decision to be made by any person. That is not an end of the matter, though. As the Tribunal is obliged to consider whether or not it has jurisdiction before deciding that it does not, it must consider whether or not the pre-requisite circumstances that must be in place before s. 37(7) has its self-executing effect are in fact in place. If they are not in place, it follows that s. 37(7) has not operated to suspend Mr Aziz’s right to continue proceedings under the SRC Act and so to deprive the Tribunal of jurisdiction.
On that view of the operation of s. 37(7), the Tribunal has jurisdiction to consider whether or not Mr Aziz has refused or failed, without reasonable excuse, to undertake a rehabilitation program. That requires a consideration of whether: a rehabilitation program has been provided for Mr Aziz; if so, whether he has refused or failed to undertake it; and, if so, whether his refusal or failure has been unreasonable.
The other question is whether the Tribunal would have the jurisdiction to review the decision of which review is sought if its jurisdiction were not ousted. There are two decisions identified by Mr Ferwerda on behalf of Mr Aziz. The first is Australia Post’s declining to reconsider the determination notified in its letter of 9 August, 2002. The second is what Mr Ferwerda described as a decision whose “… effect … is to suspend the claimant’s entitlement to compensation on and from 3 October, 2002 as result of not complying with a rehabilitation program dated 14 August 2002”.
Taking first Australia Post’s declining to reconsider the determination notified in its letter of 9 August, 2002, there is no question that the determination itself is a decision within the meaning of s. 60(1). It is a “determination, decision or requirement made under section … 37 …”. The Tribunal cannot review that decision for it may only review a reviewable decision (s. 64). A reviewable decision is “a decision made under …”, for the purposes of this case, s. 62.. Australia Post has declined to make a decision under s. 62. Is its declining to do so a decision made under s. 62 and so a reviewable decision? It had to make a decision to decline and so can be said to have made a decision refusing to make a decision. Is that a decision within the expanded meaning given to the word “decision” in s. 60(1) of the SRC Act and so within the meaning of the word as defined in s. 3(3)(a) of the AAT Act?
I have considered such matters in other contexts in earlier cases. One was QX99A and Medical Board of Queensland [1999] AATA 591 which considered an application by a medical practitioner for review of a decision of the Medical Board of Queensland (“the Board”) to grant him or her registration with the same conditions as were imposed on him or her by the medical board of another Australian State or Territory. The effect of section 34 of the Mutual Recognition Act 1992 was that, if the Tribunal had jurisdiction to review the decision of the Board, that decision had to be not only “a decision of a local registration authority” but a “decision of a local registration authority in relation to its functions under … [the MR] Act.” (emphasis added) The decision had also to be a decision within the meaning of the definition of that word in sub-section 3(3) of the AAT Act. There was no question that the Board was a “local registration authority” within the meaning of the MR Act.
The second issue was whether the Board’s decision was made in relation to its functions under the MR Act. On analysing the Board’s decision, I concluded that it had made a decision under the Medical Act 1939 (Qld) and not under the MR Act. Indeed, it had not considered its powers under the MR Act at all. I continued:
“It is not a case in which it has declined or refused to exercise its powers. Had it declined or refused to do so, it could be said that it had made a decision “in relation to its functions under …” the MR Act and the Tribunal would have had jurisdiction to review it pursuant to section 34 of the MR Act. A refusal to make a decision is clearly a decision as that word is defined in sub-section 3(3) of the AAT Act.” (paragraph 35)
I later went on to say:
44. The applicant’s registration was effected apart from the MR Act. It follows that the Board had powers under section 33 when it considered his or her application under the Medical Act. As I have already found, it did not consider whether or not to exercise its power. Does the Tribunal have power to review a failure to exercise that power? I think not. The definition of a “decision” in the AAT Act as incorporated in section 33 of the MR Act extends to a refusal to make an order or determination and so to a refusal to exercise a power but does not extend to a mere failure or omission to make an order or determination and so to exercise a power. Failures are the specific subject of section 25(5) but jurisdiction is given to the Tribunal only in instances when time limits have been imposed for the making of a decision. …”
I went on to refer to a decision of Deputy President Thomson in Re Tasmanian Ferry Services and Secretary, Department of Transport and Communications (1992) 29 ALD 395 where he said:
“In my view there is only one decision which the tribunal can review in these proceedings, that is to say the decision refusing approval to operate the vessel with a crew some or all of whom were not Australian residents. Although s. 3(3) of the Administrative Appeals Tribunal Act 1975 extends the meaning of ‘decision’ considerably, it does not extend it to include a failure to make a decision as distinct from a refusal to make an order or determination. ...” (page 398)
A distinction between a failure to make a decision and a refusal to make a decision was made by Finn J in Comcare v Pamela Burton, in her capacity as a Senior Member of the Administrative Appeals Tribunal and Wendy Lees (1998) 157 ALR 522 (“Lees’ case”). He noted that the tribunal’s jurisdiction is limited to “reviewing what under the SRC Act is a “reviewable decision’” and what can amount to a reviewable decision is limited by what can be a determination capable of re-consideration by Comcare. He continued:
“Both forms of limitation, but particularly the latter, necessitate that it be ascertained what is the particular ‘reviewable decision’ that the Tribunal is to review: Secretary, Department of Social Security v Riley, above, at 105. The process of reviewing that decision is to occur in the setting of the question(s) that gave rise to the decision. And while in that process the Tribunal can exercise its s 43(1) powers, it nonetheless is obliged to answer the same question(s) as was (were) before the reconsideration decision-maker, Hospital Benefit Fund of Western Australia v Minister for Health, Housing and Community Services, above, at 234.”
Ms Lees had claimed payment of taxi fares and a determination and a reviewable decision had been made in relation to both of them. She sought to raise permanent impairment before the hearing. Finn J said:
“... in the present case the identification of that question presents no particular difficulty. It may well be the case that Ms Lees is able to claim some number of the types of compensation specified in the SRC Act given the nature and consequences of her injury and her actual circumstances. But whatever the claims she may be able to make, what she has done was to seek the determination of a quite particular question - that of payment of taxi fares under s 16 of the Act. The determination and reconsideration of that question has created the conditions which gave the Tribunal jurisdiction to address that particular question. At the time of the primary decision no express request of hers had raised, as a practical matter, the consideration as well of her actual entitlement (if any) to compensation for permanent impairment.
Even if it is the case that Comcare of its own motion was obliged to determine on the facts from time to time her entitlements to particular benefits from time to time (irrespective of whether Ms Lees has actually adverted to them): cf Commonwealth of Australia v Ford, above, at 327; Comcare has not as yet done so in relation to compensation for permanent impairment. At best - and I make no finding on this - that failure might be shown to be such in the circumstances as to amount to a refusal to make a determination under s 24 of the SRC Act and hence constitute a ‘decision’ for the purposes of the AAT Act and thus the SRC Act: see AAT Act s 3(3)(a); SRC Act, s 60 ‘decision’.. But all that could possibly flow for present purposes from a decision being so found would be that a s 62 SRC Act reconsideration could be had. Only if that had occurred - which it has not - would there be a reviewable decision such as would give the Tribunal jurisdiction to entertain consideration of compensation for permanent impairment. I would note in passing that it is the need for this additional step in the SRC Act review process - a step not contained in the Compensation (Commonwealth Government Employees) Act 1971 (Cth) - that precludes the Tribunal from acting as Commonwealth of Australia v Ford, above, would otherwise allow.” (page 528-529)
Applying the same principles as followed in these cases, it follows that a refusal by Australia Post to make a decision regarding Mr Aziz’s request to review its determination of 9 August, 2002 may be regarded as a decision. In some cases, there may be questions of fact as to whether there has been a refusal but I am satisfied that the delegate’s statement in her letter of 22 November, 2002 that she is “unable to reconsider the determination” amounts to a refusal to do so rather than simply a failure to do so.
Before the delegate’s refusal can be a reviewable decision it must not only be a decision but a decision made under s. 62. In Morton and Australian Securities Commission 45 ALD 447, I considered what was meant by “under an enactment”:
24. What is meant by “under an enactment” was dealt with in the earlier case of Australian National University v Burns (1982) 43 ALR 25, Bowen CJ and Lockhart J said:
“The difficulty in the present case does not lie in the definition of the expression ‘under an enactment’. We agree with Fox J who said in Evans v Freimann (1981) 35 ALR 428 at 436; 3 ALD 326 at 333, that the word ‘under’, in the context of the Judicial Review Act, connotes ‘in pursuance of’ or ‘under the authority of’: see also R v Clyne [1941] VLR 200. The difficulty lies in the application of the expression to particular circumstances. The present case poses the problem in an acute form.” (page 31)
This passage has since been adopted in other cases such as Chittick v Ackland (1984) 53 ALR 143 at 153 (per Lockhart and Morling JJ) and referred to in cases such as Lewins v Australian National University (1995) 133 ALR 452 at 461.
25. Bowen CJ and Lockhart J also adopted the words of Ellicott J, from whose judgement the appeal had been taken, when he had said:
“The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others. In many cases the power to do a particular thing will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where the particular power is precisely stated. In each case, the question to be asked is one of substance, whether, in effect, the decision is ‘made under an enactment’ or otherwise.” (page 31, (1982) 40 ALR 707 at 716-717)
26. Applying the principles to the facts of the case before them, Bowen CJ and Lockhart J said:
“In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the University Act. Section 23 [of the Australian National University Act 1946] empowered the council to enter into the contract on behalf of the appellant. Even if the council, in considering the position of the appellant under the contract, might be said to be acting under section 23, the effective decision for dismissal taken and notified to the respondent was directly under the contract.” (page 636)
27. In Australian National Airlines Commission v Newman (1987) 70 ALR 275, the High Court found that the Australian National Airline Commission’s conduct of a kitchen was not something “done or purporting to be done” under the Australian National Airlines Act 1945. As Brennan J said,
“In the present case, the Commission required no statutory authority to conduct a kitchen. That is an activity which, so far as appears, might lawfully be engaged in without statutory authority. The Commission was at liberty to perform the functions prescribed by s19(1) or by other provisions of the Act by whatever lawful means it chose, and no further grant of power or prescription of functions was needed to authorise the conduct of the kitchen. True it is that the Act expressly confers powers on the Commission to operate services and facilities for the purposes of and incidental to the carrying on of its business (s19D) and to do ‘all things necessary or convenient to be done for or in connection with, or as incidental to, the performance of its functions’ (s19H(1)) but the Act is not to be regarded, for the purpose of s63(1), as the source of power which the commission otherwise possesses. Freedom under the common law to engage in conduct requires no grant of statutory power to confirm it, and a limitation provision which affects liability for things done or purportedly done ‘under’’ the statute does not affect liability for things which are and can be done without reliance on a statutory power to do them. The conduct of the kitchen was something which the Commission had capacity to undertake without the grant of statutory power to undertake it. It follows that an act committed in the course of conducting the kitchen is not an act arising out of something done or purportedly done under the Act for the purpose of s.63(1).” (pages 282-283)
28. The General Newspapers case was concerned, in part, with whether Telstra’s actions in negotiating the printing of its telephone directories or its decision to enter a contract with printers without calling for tenders was reviewable under the ADJR Act. In their joint judgement, Davies and Einfeld JJ reviewed a number of the authorities and continued:
“In the present case, the decisions relied upon involved the entry of contracts and the conduct challenged was conduct leading to the making of the contracts. No statute made specific provisions for such contracts, merely conferring upon Telecom all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus, the ADJR Act had no application to the conduct or to the alleged decision.” (page 637)
29. Nicholson J’s judgement in Schokker & Anor v Federal Commissioner of Taxation was referred to by Mr Morton. The applicants sought review of a decision not to prosecute staff of the Australian Taxation Office for alleged breaches of the secrecy provisions in section 16 of the Income Tax Assessment Act 1936 (“the ITA Act). Nicholson J reviewed the ITA Act and found that prosecutions for a taxation offence are either instituted by or on behalf of the Commissioner of Taxation. It follows that he must make a decision under that legislation as to whether or not a prosecution should be brought.
30. A similar approach can be said to have been taken by Jenkinson J in Terrule Pty Ltd v Deputy Commissioner of Taxation (1985) 5 FCR 153, Jenkinson J decided that a decision by a Deputy Commissioner of Taxation to institute proceedings for the recovery of income tax was a decision of an administrative character made under an enactment. He found that section 209 of the ITA Act conferred upon the Commissioner of Taxation the power to take those proceedings and also the power to decline to take them.
31. Some years later, Jenkinson J considered whether a decision by a Deputy Commissioner of Taxation to vote against a motion at a creditors’ meeting held under the Bankruptcy Act 1966 was a decision under the ITA Act and, in particular, under section 8 or section 209. He did so in Hutchins v Deputy Commissioner of Taxation (1994) 123 ALR 133.
32. Section 8 of the ITA Act provided that the Commissioner of Taxation had the general administration of the legislation. Jenkinson J decided that a general power cannot be understood to make provision for any of the many decisions which the Commissioner must make in exercising his authority. The function of the section, he said, is merely to nominate the person by whom decisions relating to general administration may be made. Section 209 provided that the Commissioner or a Deputy Commissioner could sue for and recover unpaid tax. Section 208 provided that, when income tax becomes due and payable, it is a debt due to the Commonwealth.
33. His Honour referred to his earlier judgement in Terrule and doubted its correctness. He said:
”I see more force now than when I rejected it in the submission of counsel for the Deputy Commissioner in Terrule’s case that s209 did not make provision for decisions of that character but merely authorised suit by the Commonwealth for recovery of income tax by the Commissioner or a deputy commissioner suing in his official name, and that no other section of the Income Tax Assessment Act 1936 made provision for such a decision. I have already given my reasons for thinking that s8 does not make that provision. On the view for which counsel for the Deputy Commissioner contended in Terrule’s case the decision whether or not to institute the suit for recovery of the tax is an exercise of the executive power of the Commonwealth conferred by s61 of the Constitution.” (page 139)
34. An appeal from Jenkinson J’s judgement was dismissed by the Full Court of the Federal Court in Hutchins v Deputy Federal Commissioner of Taxation (1996) 96 ATC 4,372. The majority, Black CJ and Spender J, concluded that section 8 was expressed too generally and that sections 208 and 209 were too remote and non specific to support a conclusion that the decision had been made under an enactment. Lockhart J disagreed on this aspect.
Australia Post has not made its decision to refuse to review its determination under s. 62. It has specifically refused to do that. Instead, it has made its decision “in pursuance of” or “under the authority of” s. 37(7) of the SRC Act. Australia Post’s decision to refuse to review its determination of 9 August, 2002 is, therefore, not a reviewable decision. I have reached the same conclusion in relation to Australia Post’s response to Mr Aziz that there was no provision in the SRC Act for internal review of a suspension under s. 37(7). It effectively refused to review the decision and, in doing so, effectively made a decision relying on the authority of s. 37(7).
This brings me back to the order in which the two questions should be asked. If I were to ask the second question first, I would have to conclude that there were no reviewable decision and so that the Tribunal has no jurisdiction. That, however, would be an odd result for it would lead to the result that the Tribunal is denied the very jurisdiction that the Federal Court has said that it does have i.e. the jurisdiction to consider whether its jurisdiction has been ousted because the pre-requisite circumstances referred to in s. 37(7) have been satisfied. The Tribunal’s jurisdiction would, for all practical purposes, be determined by the manner in which Australia Post decides to treat a request to review a determination that a person undertake a rehabilitation program. If it were to review a determination as it did in the case of Long and Australian Postal Commission, the Tribunal would have jurisdiction but if it decided to refuse to review a determination on the basis of s. 37(7), the Tribunal would not have jurisdiction. That cannot be the intention of Parliament, which gave the Tribunal the task of determining its own jurisdiction. It follows that the logical order of the questions should be to consider whether its jurisdiction has been ousted before asking whether it has jurisdiction in relation to a particular decision.
For these reasons, I have decided that:
1.the Tribunal has jurisdiction to consider whether or not its jurisdiction has been ousted by the self-executing provisions of s. 37(7) of the Safety, Rehabilitation and Compensation Act 1988; and
2.that requires a consideration of:
(a)whether or not a rehabilitation program was provided to the applicant;
(b)if so, whether the applicant refused or failed to undertake that rehabilitation program; and
(c)if so, whether the applicant’s refusal or failure was without reasonable excuse.
I certify that the fifty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed: ................................................................
P. Paczkowski Associate
Date/s of Hearing 21 February, 2003
Date of Decision 17 April, 2003
Counsel for the Applicant Mr J. Ferwerda
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr A. Moulds
Solicitor for the Respondent Sparke Helmore
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