Brian O'Riley and Australian Postal Corporation
[2014] AATA 175
[2014] AATA 175
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0335
Re
Brian O'Riley
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 20 February 2014 Date of written reasons 31 March 2014 Place Adelaide The Tribunal does not have jurisdiction with respect to the application for review. Accordingly, the application for review is dismissed.
........................................................................
Deputy President K Bean
CATCHWORDS
PRACTICE AND PROCEDURE - Jurisdiction – Apparent refusal by respondent to conduct independent review of circumstances leading to applicant's voluntary redundancy - No provision which confers jurisdiction on Tribunal to review respondent's decision - Tribunal does not have jurisdiction.
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 25, 43(2A)
SECONDARY MATERIALS
Pearce DC, Administrative Appeals Tribunal (3rd ed, LexisNexis Butterworths, 2013)
REASONS FOR DECISION
Deputy President K Bean
31 March 2014
On 22 January 2014, the applicant, Mr O’Riley, filed an application for review in this Tribunal ‘against the decision by Australia Post for declining (sic) to conduct an independent review into circumstances which led to my “voluntary” retirement from my position of Divisional Manager, Class (9 – 10), Southern Division Murray Bridge on 11th November, 1988’.[1]
[1] Application for review lodged on 22 January 2014, p. 1.
Mr O’Riley described his application to the Tribunal as an ‘appeal against Australia Post decision (sic) not to convene an independent review into the failure of South Australian Postal Administration to properly observe established policies and procedure leading to my enforced voluntary retirement’.[2]
[2] Application for review lodged on 22 January 2014, p. 2.
Mr O’Riley has also provided a copy of a letter from Australia Post dated 24 May 2013, which states that ‘Australia Post is under no obligation to undertake an independent review’ and ‘will not be undertaking any further investigations on this matter and consider (sic) it to be closed.’
On 22 January 2014, the same day Mr O’Riley’s application was received, the Tribunal wrote to Mr O’Riley advising that the decision the subject of his application did not appear to be reviewable by the Tribunal and requesting that he show, within 14 days, that the decision was reviewable. Mr O’Riley’s response to the Tribunal’s letter, dated 31 January 2014, was received by the Tribunal on 4 February 2014. He wrote:
‘Firstly I have always thought that public servants in their day to day work need to be conscious of, and be prepared to operate in our case, under the provisions of the Commonwealth Public Service Act and Regulations. There does need to be a governing authority, in our case the AAT, who can intervene when formally approached, if normal regulating barriers of day to day operating procedures are exceeded, by careless or inattentive staff.
…
In this case I am claiming that proper policies and procedures were not applied by senior management in South Australian Postal Administration, and their actions should be subjected to independent review under supervision of your Tribunal.
…
This is (sic) my opinion is the supervisory and oversighting role of an independent Tribunal such as your own enterprise, to ensure established policies and procedures in service management generally are properly observed and applied when discovered or otherwise bought (sic) to notice.’
The matter was subsequently listed for an ex parte jurisdiction hearing at Mr O’Riley’s request,[3] and following that hearing on 20 February 2014, I made an oral decision that the Tribunal does not have jurisdiction to hear the application for review, and I accordingly dismissed the application.
[3] Tribunal’s letter dated 4 February 2014 and response from Mr O’Riley received on 7 February 2014.
About two weeks later, on 7 March 2014, Mr O’Riley made a request for written reasons for my decision, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 (the Act).
As I explained to Mr O’Riley at the hearing on 20 February 2014, the Tribunal’s jurisdiction is limited to reviewing certain decisions and is conferred by s 25 of the Act, which relevantly provides as follows:
Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…
(3) Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
(a) shall specify the person or persons to whose decisions the provision applies;
(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c) may specify conditions subject to which applications may be made.
…
Tribunal's power to review decisions
(4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
It follows that the Tribunal may only review a decision where a Commonwealth Act gives it power to review decisions of that kind. Typically, this is done by means of a particular Act specifying that certain decisions made pursuant to that Act, or another Act, may be reviewed by the Tribunal. Unlike a court, the Tribunal does not have any general powers of review.
Therefore, before any application to the Tribunal for review of a decision can proceed further, the Tribunal must be satisfied that an Act gives it power to review the decision the subject of the application. In other words, not only must the decision in question have been made under a provision of a Commonwealth Act, there must also be a provision of an Act which says that decisions made pursuant to the relevant provision may be reviewed by this Tribunal.[4]
[4] See also Pearce DC, Administrative Appeals Tribunal (3rd ed, LexisNexis Butterworths, 2013) [2.5].
In the present case, Mr O’Riley has not identified any relevant decision made by Australia Post pursuant to any Act. Further, I have not been able to identify any provision of any Act which gives the Tribunal power to review decisions of the kind the subject of Mr O’Riley’s application, and nor has Mr O’Riley directed me to any such provision.
It follows that, in the absence of any statutory provision which gives it power to do so, the Tribunal has no power to review the apparent refusal by Australia Post to carry out an independent review of the circumstances which led to Mr O’Riley’s voluntary retirement from Australia Post, or to supervise or oversee any such review.
Accordingly, on 20 February 2014 I decided that the Tribunal does not have jurisdiction with respect to Mr O’Riley’s application for review, and I dismissed the application for that reason.
I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ........................................................................
Associate
Dated 31 March 2014
Date of hearing 20 February 2014 Applicant In person
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