Bambrick and Secretary, Department of Employment and Workplace Relations and Anor

[2007] AATA 1739

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1739

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2813

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN BAMBRICK

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

  1st Respondent

SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE & TRAINING

  2nd Respondent

INTERLOCUTORY DECISION AND RULING

Tribunal Ms A F Cunningham (Senior Member)

Date7 September 2007

PlaceHobart

Decision

1.        That the AAT does have jurisdiction to hear an application lodged with the Tribunal on 27 June 2007 to review a decision of the SSAT made on 15 June 2007.

2.        That Ms Sandra Clark be joined as a party to the appeal.

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

Senior Member

CATCHWORDS

Social Security entitlements - Newstart Allowance and Austudy debts raised on basis of marriage-like relationship determination - whether Tribunal has jurisdiction to review a decision of the SSAT that it lacked jurisdiction - the Tribunal determined that it does have jurisdiction to hear the appeal

Ward v Nicholls (1988) 16 ALD 353
Nisha and Secretary, Department of Family and Community Services (2003) 74 ALD 172
Farmer and Secretary, Department of Social Security (1993) 31 ALD 262

REASONS FOR DECISION

7 September 2007   Ms A F Cunningham (Senior Member)   

1. The applicant seeks a review of a decision of the SSAT made on 15 June 2007 which disallowed an appeal on the grounds that the SSAT did not have jurisdiction and adjourned an additional matter pending a decision of the AAT.

2. The application to the SSAT was for the review of decisions made by Centrelink officers with respect to the raising and recovering of debts for Newstart Allowance and Austudy made consequent upon a finding that Mr Bambrick was a member of a couple with Sandra Clark.  A differently constituted Tribunal in South Australia made a decision on 24 January 2006 that Mrs Clark had been living as a member of a couple with Mr Bambrick for the period from 16 September 2000.  Further to that determination debts for New Start Allowance and Austudy have been raised against Mr Bambrick.  Mr Bambrick disputes the finding of the marriage-like relationship but was not a party to the hearing that determined the issue.  In its decision of 15 June 2007 the SSAT decided that it did not have jurisdiction to determine whether there was a marriage-like relationship between John Bambrick and Sandra Clark.  Mr Bambrick has applied to the Administrative Appeals Tribunal for a review of that decision.

3. The issue before this Tribunal is whether the AAT has jurisdiction to review a finding of the SSAT that it did not have jurisdiction.  Submissions have been received from both parties regarding this issue. 

4. Section 31 of the Administrative Appeals Tribunal Act 1975 (Cth) empowers the Tribunal to determine whether persons have interests which are affected by the decision under review. The decision under review is that made by the SSAT on 15 June 2007. The decisions reviewed by the SSAT were those made by an Authorised Review Officer.to raise and recover certain debts. The decisions of the ARO were made on the basis of the acceptance that Mr Bambrick was a member of a couple. This was not the decision that was the subject of review by the SSAT. Mr Sparkes in his written submissions concedes that in its decision determining that it lacked jurisdiction, the SSAT has confused "issues with decisions". The statutory right to appeal is with respect to decisions and not issues.

5. In any event there is clearly a decision of the SSAT which is the subject of this application for review by Mr Bambrick for determination as to whether or not that decision was the correct or preferable decision.  The determination by the SSAT that it did not have jurisdiction must be able to be reviewed by this Tribunal for it may be a decision made in error.  The right of review to the AAT is clearly provided by Statute.  As Wilcox J stated in Ward v Nicholls (1988) 16 ALD 353 at 361:

   "it would be a very odd situation if the position as perceived by Mr Bannon;  that is to say, if the appointed first instance reviewer, the Veterans' Review Board, erroneously found that it had no jurisdiction, and the Administrative Appeals Tribunal - which is set up by statute to review on their merits decisions of that Board - was then precluded from considering for itself whether that Board in fact had jurisdiction and, if so, what decision it should have made

   ...

   I think that the true position is that the Veterans' Review Board is always in the position of having to decide whether to affirm, to vary or to set aside the decision of the Commission;  and that, whatever it decision it makes, that decision is subject to review by the Administrative Appeals Tribunal".

6. There are several decisions of this Tribunal where the Tribunal found that it had jurisdiction to review decisions of the SSAT in circumstances in which the SSAT had held that it did not have jurisdiction.  (see Nisha and Secretary, Department of Family and Community Services (2003) 74 ALD 172 and Farmer and Secretary, Department of Social Security (1993) 31 ALD 262). As Deputy President Johnson (as he then was) concluded in Farmer, decisions of the SSAT do not bind this Tribunal and the Administrative Appeals Tribunal must determine for itself whether it has jurisdiction to review an application before it.

7. Mr Sparkes, on behalf of the Secretary, submitted that as the Secretary is not convinced that the SSAT correctly determined the jurisdictional issue, Mr Bambrick should not be denied the right to have such a decision reviewed by this Tribunal.  Further, that the Secretary would not oppose the Tribunal assuming jurisdiction to review the member of a couple decision concerning Mr Bambrick.  Mr Sparkes noted that Mr Bambrick had made it clear to the SSAT that he was also contesting the decision of the ARO that he was a member of a couple.  There has not been a previous decision that Mr Bambrick was a party with respect to this issue.  Mr Sparkes further submitted that as Ms Clark's interests could be affected by any decision of the Tribunal she should be joined to the proceedings.

8. The Tribunal agrees and accordingly makes the following ruling:

   1.        That the AAT does have jurisdiction to hear an application lodged with       the Tribunal on 27 June 2007 to review a decision of the SSAT made on 15        June 2007.

2.        That Ms Sandra Clark be joined as a party to the appeal.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the interlocutory decision herein of Ms A F Cunningham (Senior Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing   Hearing on the papers
Date of Decision   7 September 2007
Solicitor for the Applicant           Mr Ben Bartl, Hobart Community Legal Centre

Solicitor for the Respondent                Mr Brian Sparkes, Centrelink Legal Services