Carlo Meschino v Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION AATA 942

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/484

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CARLO MESCHINO
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member W.H. Eyre

Date27 October 2000
PlaceAdelaide

Decision      The Tribunal determines that there is no reviewable decision and, finding it has no jurisdiction, directs that the application is dismissed.
  (Signed)
  W.H. EYRE
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY - jurisdiction - decision to review - whether "decision" that is reviewable - no jurisdiction
Social Security Act 1991 ss. 23, 1239, 1240, 1283
Administrative Appeals Tribunal Act1975 s.3
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Redland Shire Council v Bushcliff Pty Ltd [1996] QSC 218

REASONS FOR DECISION

27 October 2000 Senior Member W.H. Eyre

On 3 December 1999 Mr Meschino applied to this Tribunal for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 19 November 1999. That decision affirmed the reference of a decision of a Centrelink officer of 26 July 1999 to an authorised review officer (ARO) for review. The substantive decision referred to the ARO was reviewed (and affirmed) on 16 August 1999. The reference to the ARO occurred on 13 August 1999. On 19 October 1999, an ARO determined he had no jurisdiction to review the decision to refer.
Mr Meschino represented himself at the Tribunal hearing on 18 September 2000. The respondent was represented by Mr Sallis, of Counsel.
It is appropriate for the Tribunal to determine whether there is a "decision" that it can review before proceeding to determine whether, if there is such a "decision", it should be affirmed, varied or set aside. The issue the subject of these reasons is thus confined to that question.
However, it is appropriate to indicate that Mr Meschino's complaint is that the primary decision should not have been referred to an ARO as he had not requested that to occur. (By way of background, the decision that was referred relates back to a dispute as to the percentage of Family Payment payable to Mr Meschino. That question was resolved by a consent decision of this Tribunal made on 30 June 1999 that, in brief, decided that Mr Meschino be paid Family Payment at 50% "for the relevant period of 5 February 1998 to 2 May 1998". Implementing that consent decision involved a decision by Centrelink that the applicable first and last paydays in that period were 12 February 1998 and 23 April 1998).
The Tribunal has before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the T documents. It also has before it Mr Meschino's "Statement of Issues and Facts" received by the Tribunal on 3 May 2000 (Exhibit A1) and the respondent's submissions dated 16 March 2000 (Exhibit R2) and 19 May 2000 (Exhibit R3). A document comprising a covering letter from the respondent dated 15 September 2000, a list of documents filed by the respondent subsequent to the filing of the T documents and copies of Tribunal decisions was also admitted (Exhibit R1).
The respondent submits that the decision by a Centrelink delegate to refer the substantive matter to an ARO is not a "reviewable decision" under section 1240 of the Social Security Act 1991 (the SS Act) as it is not a decision within the meaning of that Act. That involves the decision not being a decision under the Administrative Appeals Tribunal Act 1975 (the AAT Act). The respondent refers to the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 in support. It argues that the decision to refer the substantive matter to the ARO "was a preparatory act to the making of a decision, [that] it did not resolve an actual substantive issue and … was a step along the way to making a reviewable decision" (Exhibit R3, paragraph 6).
Mr Meschino argues that the decision in question is a decision under the SS Act and the AAT Act and is reviewable. Mr Meschino told the Tribunal that protocols and processes should be adhered to and that he had tried to do that. He submitted that the decision to refer was something that affected him at the end of the day. He told the Tribunal that although he was advised by the primary decision-maker that he would be able to speak to the ARO before the ARO made a decision, this did not occur. The Tribunal notes that by letter dated 13 August 1999 the primary decision-maker advised Mr Meschino "Your file has been forwarded to the Authorised Review Officer … Any further queries in relation to your request for review should be directed to the Authorised Review Officer. This person will contact you sometime in the near future." (T9/22). The Tribunal further notes that the ARO's decision is dated 16 August 1999 and is noted as varying the decision with "Action required/comments" stating "You owe Mr Meschino 10c in FTP. $7.70 x 6 = $46.20, not $46.10 as per your calcn" (T10/24). Mr Meschino told the Tribunal that the decision to refer did "make something final as, on 5 November 1999, another ARO determined he had no jurisdiction, stating: "This decision had already been reviewed and you were notified of the Authorised Review Officer's decision in a letter, dated 16 August 1999, signed by Wayne Cursaro. Therefore I determined that I have no jurisdiction in this matter." (T16/32).
the law
Statutory tribunals necessarily have the power to determine whether they have jurisdiction. In the context of the SS Act there are at least two steps involved both by the SSAT and this Tribunal. In each case there must be (1) a "decision" and (2) the decision must have first been reviewed (and affirmed, varied or set aside). In the case of the SSAT the second step involves that the decision has been reviewed by the Secretary, the CEO or an ARO (and affirmed, varied or set aside). In the case of this Tribunal the second step involves that the decision has been reviewed by the SSAT (and affirmed, varied or set aside).
Both the SSAT and this Tribunal must determine whether the second step has been taken in the matter before it. Unless the relevant Tribunal is satisfied that the second step has been taken it will lack jurisdiction. The Tribunal notes that the SSAT stated in its decision (T2/6):
"Review of a decision by an authorised review officer is a prerequisite to the Tribunal's own jurisdiction. Under these circumstances the Tribunal's view is that its jurisdiction to review this particular matter is established by the authorised review officer's rejection of the review in his letter to Mr Meschino dated 19 October 1999. In that letter he states he has no jurisdiction as this is related to an administrative issue rather than a decision made under the Act."
The decision referred to by the SSAT (T14/30) states:
"I am writing about your request for a review of the Port Adelaide Centrelink Customer Service Centre action to refer your file to an Authorised Review Officer on 26 July 1999.
As a Review Officer … I have reconsidered this matter. I have determined that I have no jurisdiction as it [sic] an administrative issue and not a decision made under the Act."
Although neither the SSAT nor AAT would have jurisdiction in the absence of review/s having been undertaken, that is only one of the bases on which either Tribunal may lack jurisdiction. The other basis for lack of jurisdiction is the lack of a "decision" legally susceptible to review. The fact of review and the affirmation, varying or setting aside of a decision cannot provide jurisdiction where the decision is one that is not legally reviewable by the SSAT or this Tribunal.
The SSAT decided that "the referral of the decision of 26 July 1999 to an authorised review officer was an administrative decision which did relate to a function under the Act" (T2/6). The SSAT went on to discuss section 1239 of the SS Act and, on the basis of that power, affirmed the decision of the reference of the decision of 26 July 1999 to an ARO for review.
Section 1283 of the SS Act provides:
" 1283(1)         If a decision has been reviewed by the Social Security Appeals Tribunal (SSAT) and has been affirmed, varied or set aside, application may be made to the Administrative Appeals Tribunal for a review of the decision of the SSAT.
1283(2) For the purposes of subsection (1), the decision made by the SSAT is to be taken to be:
(a)          where the SSAT affirms a decision – the decision as affirmed; and
(b)          where the SSAT varies a decision – the decision as varied; and
(c)where the SSAT sets a decision aside and substitutes a new decision – the new decision; and
(d)where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT – the directions or recommendations of the SSAT."
As stated above it is not any question of lack of review that the respondent submits results in lack of jurisdiction in this case, but rather the lack of a "decision" which is reviewable.
It is appropriate to set out sub-sections 1239(1) and 1240(1) of the SS Act. They provide:
"1239(1)        The Secretary may review:
(a)       a decision of an officer under this Act; or
(b)a decision under section 5A, 5B, 5C, 5D, 5E, 5EA or 5EB of the Health Insurance Act 1973; or
(c) a decision of an officer under the Farm Household Support Act 1992; or
(d)a decision of an officer under subsection 91A(3) or 151A(2) of the Child Support (Assessment) Act 1989; or
(e)a decision under section 44-24 of the Aged Care Act 1997 by the Secretary, or by a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act;
if satisfied that there is sufficient reason to review the decision.
…
1240(1)          Subject to subsection (1AA), (1B) and (2), a person affected by:
(a)       a decision of an officer under this Act; or
(b)a decision under section 5A, 5B, 5C, 5D, 5E, 5EA or 5EB of the Health Insurance Act 1973; or
(c) a decision of an officer under the Farm Household Support Act 1992; or
(d)a decision of an officer under subsection 91A(3) of the Child Support (Assessment) Act 1989; or
(e)a decision under section 44-24 of the Aged Care Act 1997 by the Secretary, or by a person to whom the secretary has sub-delegated power under subsection 96-2(7) of that Act;
may apply to the Secretary for review of the decision."
In each case the question to be decided is the meaning of "a decision" in paragraph (a). There is no issue in the present matter with respect to whether the decision was "of an officer", nor whether the decision was "under this Act".
The SS Act defines decision in section 23(1): "Decision has the same meaning as in the Administrative Appeals Tribunal Act 1975".
Sub-section 3(3) of the AAT Act provides:
"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."
Mr Sallis, for the respondent, drew the Tribunal's attention to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 as support for the respondent's argument that "decision" is not broad enough to cover the decision to refer. That case involved consideration of sub-section 3(2) of the AD(JR) Act, rather than the Administrative Appeals Tribunal Act 1975.
However, Toohey and Gaudron JJ at p374 observed:
"In Director-General of Social Services v. Chaney (1980) 47 FLR 80, at p 100; 31 ALR 571, at p 590, Deane J. noted that "[t]he word 'decision' is a word of indeterminate meaning" which might refer to "the mental process of making up one's mind", or "the determination of any question of substance or procedure" or "a determination … resolving an actual substantive issue". His Honour further noted that the third meaning might refer to "any such determination whether final or intermediate" or might be limited to "a determination which effectively disposes of the matter in hand". His Honour then observed (at p 101; p 591 of ALR) that the activities defined as constituting "a decision" is s.3(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (which provision corresponds to, and is virtually identical with, s.3(2) of the AD(JR) Act) "provide some indication that a reference to "decision' in the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination". His Honour added that that indication was, however, slight." (Tribunal's emphasis)
Mason CJ at p335 pointed out that :
"The fact that the AD(JR) Act is a remedial statue providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicated that no narrow view should be taken of the word "decision". …
Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s.3(1) to "a decision of an administrative character made … under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s.3(2) are also indicative of a decision having the character or qualify of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J., "a determination effectively resolving an actual substantive issue". Thirdly, s.3(3), in extending the concept of "decision" to include "the making of a report or recommendation before a decision is made in the exercise of a power", to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that "decision" comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s.3(5) suggests that acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision".
The relevant policy considerations are competing. On the one hand, the purposes of the AD(JR) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of "decision" is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v. Burns (1982) 64 FLR 166, at p 172; 43 ALR 25, at p 30, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret "decision" in a way that would involve a departure from the qualify of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.
The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination. …"
In Redland Shire Council v Bushcliff Pty Ltd [1996] QSC 218 Thomas J observed that there is some "difficulty of a direct application of the above statements to activity not related to an adjudicating function. The Judicial Review Act [Qd.] of course poses a single test irrespective of the nature of the administrative decision. The Australian Broadcasting Tribunal case certainly makes it harder to regard "preliminary" determinations, or steps along the way to a major decision which is plainly reviewable, as being themselves "decisions" of an administrative character made under an enactment."
The definition of "decision" under consideration in the present case is an "includes" rather than a "means" definition, that is it extends the meaning of decision. The Tribunal considers that the only available paragraph of the definition ("(g) doing or refusing to do any other act or thing") is coloured by the preceding paragraphs and that they indicate (albeit "slightly" as per paragraph 20 above) an element of finality or of a substantive decision affecting another party's interests.
A decision to refer a decision to an ARO has no colour of finality. Nor does it have determinative or substantive (as opposed to procedural) effect.
The Tribunal appreciates that Mr Meschino sees the decision to refer as having had final effect in his case (see paragraph 7) but, in the Tribunal's view, that is because of the decision made by the ARO, not because of the decision to refer to the ARO.
The Tribunal considers too that policy considerations weigh in the respondent's favour. It needs to be remembered that the decision involved in this matter is a decision in the review process that is provided by the SS Act. It is hard to see that individual or social benefit would flow from the expenditure of large amounts of time and money on arguing in separate proceedings about a matter which is a preliminary to decisions of substantive effect. In this regard it is relevant to observe that the SS Act provides for review by an ARO under two provisions, sub-sections 1239(1) and 1240(1) and that there would appear to the Tribunal to be no justification for treating decisions to refer under those two provisions differently. Treating a decision to review as a decision the subject of the review process provided by the SS Act would have an adverse effect on resources and would cause delay. The Tribunal thinks it most unlikely that such adverse effects could be seen as outweighed or balanced by a competing benefit.
For the reasons given above, the Tribunal determines that there is no reviewable decision and, finding it has no jurisdiction, directs that the application is dismissed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member W.H. Eyre
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  6 October 2000
Date of Decision  27 October 2000
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr R. Sallis
Solicitor for the Respondent    AGS

[2000] AATA 942

27 October 2000

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Standing