Conaghan and Secretary, Department of Family and Community Services

[2005] AATA 548

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 548

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/899

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARK CONAGHAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member P McDermott
Ms MJ Carstairs, Member

Date9 June 2005

PlaceBrisbane

Decision The Tribunal decides that it has no jurisdiction in this matter.

............[Sgd].........

P McDermott

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – jurisdiction – Social Security – no identifiable decision – Social Security Appeals Tribunal decision did not affirm, vary or set aside an earlier decision – no decision made that is capable of review by the Tribunal – Tribunal has no jurisdiction.

Social Security Act (1991) s 179
Social Security Administration Act (1999) s 144
Freedom of Information Act (1982) s 3

Administrative Appeals Tribunal Act (1975) s 25

Crompton v Repatriation Commission (1993) 30 ALD 45
Director General of Social Services v Chaney (1980) 3 ALD 161

Ward v Nicholls(1988) 20 FCR 18; (1988) 16 ALD 353

REASONS FOR DECISION

9 June 2005  

Senior Member P McDermott

Ms MJ Carstairs, Member

1.      On 19 November 2004 the applicant sought review of a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 9 November 2004. The SSAT held it had “no jurisdiction to make a decision” in this matter.

2.      The SSAT decided that it had no jurisdiction on the basis that there were no identifiable decision/s that would enliven review powers under the Social Security Act (1991) (the Act) and Social Security Administration Act (1999) (the Administration Act).

3.      In his application to this Tribunal the applicant stated that he sought review of all administrative decisions that adversely affected his interests, and that his appeal was part of a wider complaint of victim of crime and human rights abuses extending over a period of five years during which Centrelink and other service providers have carried out oppression and illegal surveillance against him.  He stated that he sought to protect his rights to privacy and freedom from surveillance.

4.      At the hearing the applicant represented himself.  The respondent was represented by its advocate Mr J Howard.   

5. The Tribunal had before it the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A to E.

6.      The applicant is aged fifty six.  He is a recipient of newstart allowance, a payment made to those seeking employment. 

7.      The applicant has raised a number of matters arising during the time that he has received newstart allowance.   It seems that he sought review of matters with the SSAT in May 2004, and at that time the SSAT referred the matter to an authorised review officer as no review had been conducted at that level, a necessary precursor to SSAT review. 

8.      On 11 June 2004 the authorised review officer, a delegate of the respondent, decided there was no jurisdiction to conduct an internal review because no reviewable decision had been made under the Act. The authorised review officer concluded that the applicant’s request for review involved complaints about service rather than about decisions under the legislation, and stated that he had no authority to make any form of recommendation or decision in these matters.

9.      Mr Howard submitted that the Tribunal had no jurisdiction in this matter. At the hearing, Mr Howard pointed out that the Commonwealth Ombudsman’s office could properly address the complaints of the applicant concerning Centrelink service.

10.     It was apparent that the applicant has concerns about the accuracy of information on Centrelink records. The Tribunal also observes that there are avenues available if the applicant seeks to bring about the amendment of records that are incomplete or incorrect: see Freedom of Information Act 1982, section 3(1) (c).

11.     The Tribunal has reached its decision taking into account the written material and submissions.  Both levels of review below this Tribunal have treated the question as one of jurisdiction, and declined jurisdiction.  In Crompton v Repatriation Commission (1993) 30 ALD 45 the Full Court of the Federal Court (applying Director-General of Social Services v Chaney (1980) 3 ALD 161) held that a jurisdictional finding made by the Veterans’ Review Board was a procedural matter. In Ward v Nicholls (1988) 20 FCR 18 at 27 the Court held that the Tribunal had power to review a decision where a tribunal below it declined jurisdiction, saying:

“It would be a very odd situation if … the Administrative Appeals Tribunal … was then precluded from considering for itself whether that Board in fact had jurisdiction and, if so, what decision it should have made.”

12.     The applicant considers that he had no avenue open to him other than seeking a review by the Tribunal.  However, he faces two problems, namely that there must be a decision identifiable and the remedy sought must be within the powers of the Tribunal.

13.     One of the concerns of the applicant centered on a computer record which concerned a breach date of 7 April 2003 (attachment to exhibit B) . However that document is not a decision that entailed a penalty imposed on the applicant as it discloses a 0% reduction in benefits. The computer record from 7 April 2003 is not relevant to a concern by the applicant in not receiving his newstart allowance promptly in December 2003. The applicant was not paid his newstart allowance on 17 December 2003 rather it was paid a week later on 24 December 2003, it seems because the receipt of his job seeker diary was not recorded by Centrelink.  

14.     The Tribunal accepted the evidence in Exhibit E that there was no break in the continuity of Centrelink payments made to the applicant in December 2003, even though there is an acknowledged delay during which the matters about delivery of the job seeker diary were cleared up.   Mr Howard apologised on behalf of the respondent for the delay in payment being made.  The Tribunal was satisfied that there was no decision made in December 2003 or at any other time to cancel or suspend the applicant’s payment of newstart allowance.

15. The first issue is that of jurisdiction to consider the application. Section 25(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) states:

25(1)    An enactment may provide that applications may be made to the Tribunal:

for review of decisions made in the exercise of powers conferred by that enactment; or

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.

16.     In respect of Social Security matters, section 179 of the Act provides:

179(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.

179(2)  For the purposes of subsection (1), the decision made by the SSAT is to be taken to be:

where the SSAT affirms a decision - the decision as affirmed; and

where the SSAT varies a decision - the decision as varied; and

where the SSAT sets a decision aside and substitutes a new decision - the new decision; and

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.

17.     The SSAT set out their understanding of the matters on which the applicant sought review, in their reasons (T2).  The SSAT decided that there were no decisions that were reviewable by them and concluded that the SSAT lacked jurisdiction to conduct a review.   At para 19 of their reasons the SSAT addressed section 144 of the Administration Act and concluded that this section precluded any consideration of the matters of which the applicant raises that relate to the requirement to answer questions in and to lodge newstart continuation forms.   The Tribunal agrees with this conclusion.  Section 144 is headed “Non-reviewable decisions”.  Thus even if there were a decision identifiable on this aspect of the matters raised by the applicant, which is far from clear on the documentary material, it would not be a decision reviewable by the SSAT, nor by this Tribunal.

18.     The SSAT decision was not one that affirmed, varied or set aside and earlier decision, normally a necessary requirement before this Tribunal has jurisdiction to conduct a review: section 179 of the Administration Act.   Nevertheless the Tribunal accepts Mr Howard’s submission that Crompton V Repatriation Commission (1993) 30 ALD 45 is authority for the proposition that Tribunal has power to review all aspects of a decision including matters of jurisdiction. The Tribunal took into account all the additional materials supplied by the applicant (exhibits A, B and C), and was satisfied that he had not supplied any materials that identify that a decision has been made under the relevant legislation that this Tribunal can review.

Decision

19.     The Tribunal decides that it has no jurisdiction in this matter.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Ms MJ Carstairs, Member

Signed:         Camille Banks
  Associate

Date/s of Hearing  6 June 2005
Date of Decision  9 June 2005
The Applicant was unrepresented and appeared in person
For the Respondent                  Mr J Howard, Advocate