Banigo and Secretary, Department of Education and Training

[2017] AATA 2195

Banigo and Secretary, Department of Education and Training [2017] AATA 2195 (17 November 2017)

Division:General Division

File Number(s):      2017/6493

Re:Jennifer Banigo

APPLICANT

AndSecretary, Department of Education and Training

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:17 November 2017  

Place:Melbourne

The Tribunal decides that:

no prescribed fee is payable concerning applications for review of decisions made under the family assistance law.

...........[sgd]............................................................

Deputy President S A Forgie

Catchwords

PROCEDURE – FAMILY ASSISTANCE LAW – application – whether prescribed fee payable – no prescribed fee payable

Legislation

A New Tax System (Family Assistance) Act 1999 s 57

A New Tax System (Family Administration) Act 1999 ss 3, 108, 109A, 109DA, 110, 111, 128, 138, 200

Administrative Appeals Tribunal Act 1975 ss 28, 29, 43, 70
Education and Care Services National Law Act 2010 (Vic)
Freedom of Information Act 1982 s 62
Tribunals Amalgamation Act 2015

Administrative Appeals Tribunal Regulations 1976 r 19 and Sch 3
Administrative Appeals Tribunal Regulation 2015 ss 20, 21, 22

Secondary Materials

REASONS FOR DECISION

Deputy President S A Forgie

1. On 1 June 2017 and relying on s 200(1)(e) of the A New Tax System (Family Administration) Act 1999 (FAA Act), a delegate of the Secretary of the Department of Education and Training (Secretary) cancelled the approval of Kidsarena Family Day Care (Kidsarena) as a child care service for the purposes of the family assistance law.[1] The consequence of the cancellation was that those persons whose children were cared for by Kidsarena were no longer eligible for child care benefit (CCB) or child care rebate (CCR) in respect of that care. After Mr and Mrs Banigo asked for review of the decision, an authorised review officer (ARO) affirmed it on 3 October 2017. Mrs Banigo has applied for review of the decision. The Tribunal’s Registry advised her that she must pay an application fee of $884 but Mrs Banigo has pointed to Item 3 of s 22 of the Administrative Appeals Tribunal Regulation 2015 (AAT Regulation) where it is said that no fee is prescribed where the decision under review is a decision under the FAA Act whether the application is for AAT first review or AAT second review.  I have been asked to decide the question of whether she is obliged to pay an application fee as a preliminary issue.  I have decided that no application fee is payable.

   [1] Approval, and the subsequent cancellation of the approval, of Kidsarena is entirely separate from its approval under the Education and Care Services National Law Act 2010, which is administered in Victoria by the Victorian Department of Education and Training.

CONSIDERATION

Application fees

1. When an application is made to the Tribunal, it must be accompanied by the prescribed fee.[2]  Regulations made under the Administrative Appeals Tribunal Act 1975 (AAT Act) may make prescribe the fees payable in respect of applications to the Tribunal.[3]  Regulations have been made and are found in the Administrative Appeals Tribunal Regulation 2015 (AAT Regulation).  Part 6 provides for fees.  Subject to one qualification, a standard fee[4] is prescribed in respect of an application for review of a decision unless the application is referred to in ss 20(2) or 22 of the AAT Regulation, is an application under s 28(1AC) of the AAT Act or s 62(2) of the Freedom of Information Act 1982. The qualification relates to the amount of the fee. An application fee of $100 is prescribed in place of the standard fee if the circumstances set out in s 21 exist.[5] 

   [2] Administrative Appeals Tribunal Act 1975; s 29(1)(b)

   [3] AAT Act; s 70(2)(a)(i)

   [4] The standard fee is presently $884. It is calculated according to ss 20 and 27 of the AAT Regulation.

   [5] AAT Regulation; s 20(3)

1. I am not concerned with whether the standard or concessional fee applies but with whether a fee is payable at all. In the circumstances of this case, that takes me to s 22. In so far as it is relevant to this case, it provides:

   “No fee is prescribed in respect of an application for review of a decision mentioned in the following table.

Decisions for which application fee is not payable
Item	Decision
1-2	…
3	A decision under the family assistance law within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999 (whether the application is for AAT first review or AAT second review of the decision)
4-21	…”

FAA Act 1999

1. The decision made in this case was a decision made under the FAA Act but is it a decision that meets the description in Item 3 of s 22 of the AAT Regulation? Do the words in brackets limit the decisions that would otherwise be described as a “decision under the family assistance law within the meaning of the …” FAA Act?  In order to answer that question, I have looked to the decisions made under the family assistance law generally and to that made in relation to Kidsarena in particular.  In doing so, I note that the FAA Act defines the expression “family assistance law” to include, among others, the FAA Act.[6] 

   [6] FAA Act; s 3(1)

A.        Making the decision to cancel approval of Kidsarena as a child care service

1. Part 8 of the FAA Act is concerned with the approval of child care services and registered carers.  A person other than a registered carer may apply to the Secretary to have certain kinds of child care services approved for the purposes of the family assistance law.[7]  Once approved, s 200(1) of the FAA Act provides, in so far as it applies to the decision that has been made:

   “If the Secretary is satisfied that an approved child care service has not complied, is not complying, with a condition for the continued approval of the service, the Secretary may do one or more of the following:

   (a)-(d)  …

   (e)       cancel the service’s approval;

   (f)-(i)    …”

   [7] FAA Act; s 194(1)

B.       Review of the decision by the Secretary

1. Part 5 of the FAA Act provides for the review of decisions. Division 1 is concerned with internal review.  Subdivision A applies to review by the Secretary on the Secretary’s own initiative.  That is not what happened in this case as Mr and Mrs Banigo applied to the Secretary for internal review.  

1. Subdivision B is relevant because it provides for review initiated by the applicant.  In the case of a decision that is not a care percentage decision,[8] the starting point is s 109A(1):

   “A person affected by a decision (the original decision):

   (a)that is not a care percentage decision; and

   (b)that, under section 108, must be reviewed under this section;

   may apply to the Secretary for review of the original decision.”

   [8]A “care percentage decision” is defined in s 3 of the FAA Act to mean “… a decision to the extent that the decision involves (wholly or partly):

   (a)a determination of an individual’s percentage of care for a child that was made under a provision of Subdivision D of Part 1 of Division 1 of Part 3 of the Family Assistance Act, in relation to a claim for family tax benefit; or

   (b)a determination relating to an individual that has effect, under section 35T of that Act, as if it were a determination made under such a provision.”

   This is not a decision of the sort made by the Secretary in relation to Kidsarena.

1. Section 108(1) provides that, subject to certain exceptions, a decision of any officer under the family assistance law, which includes the FAA Act, must be reviewed on an application under s 109A.  The exceptions are set out in s 108(2).  As the decision in this case has been made by a delegate of the Secretary, and not by the Secretary personally, and as it does not fall within any of the other exceptions, listed in s 108(2), the decision must be reviewed under Subdivision B of Part 5.

1. An application for review must be made within the time limits specified in the FAA Act.  That in s 109DA apply to an application for review of a decision in relation to a child care service and in relation to a registered carers made under s 109A(1).  Mrs Banigo has complied with the time limit.

1. If a person makes an application under, in this case, s 109A(1), s 109A(2) provides that:

   “… the Secretary must either:

   (a)review the original decision and decide (the review decision) to:

   (i)affirm it; or

   (ii)vary it; or

   (iii)set it aside and substitute a new decision; or

   (b)arrange for an authorised review officer (see section 109C) to do so.”[9]

   [9] Within certain boundaries, s 109C provides that “The Secretary must authorise officers to be AROs for the purposes of Division 1 of Part 5 of the FAA Act.”

C.       Review by the Tribunal

1. Subdivision A of Division 2 of Part 5 provides for a simplified outline of Division 2.  Section 110 states:

   “If a person is dissatisfied with a decision of a decision reviewer under Division 1, the person may apply to the AAT for review of the decision (an ‘AAT first review’) (certain decisions are excepted)

   If a person is dissatisfied with a decision of the AAT on AAT first review, the person may apply to the AAT for further review (an ‘AAT second review’).

   Certain decisions may only be reviewed once by the AAT (an ‘an AAT single review’).

   The rules relating to reviews by the AAT are mainly in the AAT Act, but the operation of that Act is modified in some ways by this Division.

   The AAT Act allows a person to appeal to a court on a question of law from a decision of the AAT on second review or AAT single review.”

C.1     AAT first review

1. Subject to qualifications made by s 111(2), s 111(1) provides:

   “If the decision reviewer has affirmed, varied or set aside a decision under Division 1, application may be made to the AAT for review (AAT first review) of the decision as affirmed or varied or, if it has been set aside and another decision substituted, the decision so substituted.

   Note:    …”

Similar provision is made in s 111(1A) for review of decisions made by the Secretary personally and by others.  Again that review is referred to as “AAT first review”.

1. Section 111(2) qualifies the right to apply to the Tribunal for review under ss 111(1) and (1A) by providing that a person cannot apply under those provisions in respect of the decisions it then identifies.  Among them is the decision identified at s 111(2)(f) as:

   “a decision under Part 8 (approval of child care services and approval of registered carers.”

Subdivision C goes on to provide for other matters relevant to review AAT first review.

C.2     AAT second review

1. Subdivision D provides for AAT second review. A person may apply to the Tribunal for review of a decision it has made under s 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) on AAT first review.  This is known as “AAT second review”.  Section 128(2) identifies the decision that is to be reviewed.  Subdivision E deals with other matters relevant to AAT second review.  None of these provisions applies to a decision of the sort made by the delegate of the Secretary in this case for there has been no AAT first review.

C.3     AAT single review

1. Section 138(4) specifies 21 decisions made under specific legislative provisions. Provided the decision has been reviewed under s 109A, an application may be made to the Tribunal for review of the decision as affirmed, varied or set aside and substituted by the Secretary or ARO. All but one of those decisions is made under a provision of Chapter 8 of the FAA Act. The decision that is not made under the FAA Act is made s 57 of the A New Tax System (Family Assistance) Act 1999 (ANTSFA Act). Section 57 provides for the Secretary to make a determination that a child care service is the sole provider in an area of the kind of care that the child care service provides. A determination has certain consequences but it and s 57 have no relevance in this case.

1. A decision made under s 200(1) is a decision made under Chapter 8 and is a decision identified at s 138(4)(c) of the FAA Act.  Therefore, once the decision has been reviewed under s 109A, an application may be made to the Tribunal for review of the decision made by the Secretary or ARO on review.  This review is described as “AAT single review” in s 138.

Understanding Item 3 of s 22 of AAT Regulation

1. On its face, it is arguable that Item 3 of s 22 of the AAT Regulation excludes from the payment of an application fee only those applications that lead to what is described in the FAA Administration Act as “AAT first review” or “AAT second review”.   That argument would depend on the proposition that the words in brackets – “whether an application is for AAT first review or AAT second review of the decision” – qualify the more general words preceding them – “A decision under the family assistance law within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999”. It would also depend on the further proposition that there would be no need to refer to AAT first review or to AAT second review if there were no intention to limit the exemption as to the payment of an application fee to those applications leading to AAT first or AAT second review and not otherwise. As AAT single review is neither AAT first review nor AAT second review, it is not exempt from the payment of an application fee. That argument would be consistent with the fact that the applications in respect of which an application fee would be payable would all be decisions of the one type i.e. those concerned with child care services and registered carers and made either under Part 8 of the FAA Act or under s 57 of the ANTFA Act.

1. There is, however, an alternative argument that could be put.  That is to the effect that the opening words are intended to capture all decisions made under the family assistance law.  The reference to “whether the application is for AAT first review or AAT second review”, which appear in brackets, is simply intended to ensure that it makes no difference whether the application is heard in the Tribunal’s Social Security and Child Support Division (SSCSD), as it would be with AAT first review, or in its General Division, as would be the case with every other application lodged for review of a decision made under the family assistance law.  The bracketed words are not intended to qualify the broad statement that an application fee is not payable where the decision is under the family assistance law within the meaning of the FAA Act.

1. Both arguments have the strengths and weaknesses but I have come to the conclusion that the latter is the better argument when I look to the recent history of the imposition of application fees.  They were first imposed by amendments made to the Administrative Appeals Tribunal Regulations 1976 (AAT Regulations 1976). At the time, r 19 provided that an application fee was payable in respect of certain applications it identified “other than an application for review of a prescribed decision.”[10]  A “prescribed decision” included a decision specified in Schedule 3.[11] Item 1A of Schedule 3 prescribed the following decision:

   “A decision under the family assistance law within the meaning of subsection 3(1) of the A New Tax System (Family Assistance) (Administration) Act 1999”.

   [10] AAT Regulations 1976; r 19(1)

   [11] AAT Regulations 1976; 19(2)(a)

1. That decision was prescribed at a time before the Tribunals Amalgamation Act 2015 (TA Act) came into effect on 1 July 2015. The first level of external merits review of all decisions other than those under Chapter 8 of the FAA Act and s 57 of the ATNFA Act was then conducted by the Social Security Appeals Tribunal (SSAT) where no application fee was payable. The Tribunal’s review of decisions that had first been reviewed by the SSAT was conducted by the Tribunal as it existed before 1 July 2015. As the decision under review was a decision under the family assistance law, it came within Item 1A with the consequence that no application fee was payable.

1. In addition to conducting second tier external review of decisions already reviewed by the SSAT, the Tribunal also conducted first tier external review of decisions that had been made under Chapter 8 and under s 57 of the ANTFA and related to child care services and carers. That is to say, they had not been reviewed by the SSAT. Applications lodged in the Tribunal for review of those decisions that were made under the family assistance law could also be made without the payment of an application fee for they fell squarely within Item 1A of Schedule 3 to the AAT Regulations 1976.

1. In other words, all decisions that could be reviewed by the Tribunal under the family assistance law and were prescribed decisions for the purposes of r 19 of the AAT Regulations 1976. It made no difference whether the decisions were made under Chapter 8 of the FAA Act or s 57 of the ANTFA Act or under any other provision of the family assistance law. No fee was payable on lodgement of an application for their review.

1. Although described differently, the substantive rights to have decisions made under the family assistance law are no different now from those that existed before 1 July 2015. Those that were reviewed by the SSAT are now reviewed in the Tribunal in the SSCSD as “first AAT review”.  A second level of review, described as “second AAT review”, is conducted in the General Division of the Tribunal. Only one level of external merits review is available for decisions made under Chapter 8 and under s 57 of the ANTFA and related to child care services and carers. Therefore, that review has been designated as “single AAT review”.  It is conducted by the General Division of the Tribunal.

1. The Explanatory Statement to the AAT Regulation states:

   “53. Section 22 prescribes decisions for which no fee is payable for an application for review of a decision. The list of decisions was previously set out in Schedule 3 to the 1976 Regulation. In general, there have been no changes to the matters exempted by this paragraph. However, minor updates have been made to reflect changes to the Tribunal’s jurisdiction over time. No fee is payable for any AAT first review. This is consistent with the previous position that there were no fees payable in the Social Security Appeals Tribunal.

   54. Some items in the table in section 22 refer to AAT first review and AAT second review. First and second reviews are relevant where enabling legislation provides for two stages of external merits review within the Tribunal. In these cases, the enabling legislation defines when an application is an AAT first review and when an application is an AAT second review.”

2. This passage draws attention to the fact that the expressions “first AAT review” and/or “second AAT review” are used in s 22 of the AAT Regulation in relation to decisions other than those made under family assistance law. They are found in Items 12, 16 and 18. Items 16 and 18 relate to decisions under the Social Security Act 1991 and under the Student Assistance Act 1973 respectively. Allowing for the different drafting to accommodate the changes made by the TA Act, the decisions specified as not attracting an application fee are precisely as they were under Schedule 3 of the AAT Regulations 1976.[12] Those Acts provide for two levels of review in the Tribunal and s 22 provides that no fee is payable in respect of either.

[12] AAT Regulations 1976; Schedule 3, Items 9A and 11

1. Item 12 provides that no fee is prescribed if the application is made for AAT first review of a decision under the Paid Parental Leave Act 2010 (PPL Act). As the PPL Act provides for both AAT first review and AAT second review, the fee exemption under s 22 applies only to applications for AAT first review. The consequence is that an application fee is payable for second AAT review but that was the situation before the TA Act. What is now AAT first review was conducted in the SSAT where there was no application fee payable. An application could be made to the Tribunal for review of the decision once it had been reviewed by the SSAT and, because a decision under the PPL Act was not specified in Schedule 3 of the AAT Regulations 1976, an application fee was payable. The situation remains the same now that s 22 provides that a fee is not payable for an application for first AAT review but does not mention an application for second AAT review.

1. Item 3 of s 22 of the AAT Regulation makes no mention of “single AAT review” but it is, in practical terms, review in the General Division of the Tribunal and so the same as AAT second review. Given the note in the Explanatory Statement that, in general and apart from minor updates, there have been no changes to matters exempted by s 22 and given that this is borne out by reference to Items 12, 16 and 18, which adopt language similar to that in Item 3, I have decided that Item 3 is intended to provide that no fee is prescribed in relation to an application for review of any decision made under the family assistance law and for which review is provided under that law. That means that no fee is prescribed in respect of an application for review of a decision made under s 200(1)(e) of the FAA Act as in this case.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

.......[sgd].................................................................

Associate

Dated:  17 November 2017

Heard on the papers:

17 November 2017

Applicant:

Self-represented

Respondent represented by:

Legislation and Litigation Team

Department of Education and Training