Confidential and Child Support Registrar
[2010] AATA 577
•5 August 2010
CATCHWORDS – CHILD SUPPORT – extension of child support assessment beyond eligible child’s 18th birthday – no jurisdiction to review refusal by Registrar – application for extension refused
PRACTICE AND PROCEDURE – application for extension of time to apply for review – no appearance by applicant – no power to dismiss under s 42A(4) of Administrative Appeals Tribunal Act
Administrative Appeals Tribunal Act 1975, ss 3(1), 25(1), 25(3), 25(4), 42A(2), 42A(2)(a), 42A(4), 43
Child Support (Assessment) Act 1989, ss 5(1), 12, 12(1)(c), 18, 23, 24, 24(1)(a)(ii), 25, 26, 27, 30, 31(1), 31(2), 98E, 98R, 151B(2)(a), 151C(1), 151C(2), s 151C(2)(e)
Child Support (Registration and Collection) Act 1989, ss 80(1), 81, 82, 83(1), 87(1), 87(3), 87(2), 89(1), 90, 91, 92(1), 92(7), 103 VA, 103VA(1A), 103VA(1B), 103V(4), s 110XB
Brown v Federal Commissioner of Taxation [1999] FCA 563; (1999) 99 ATC 4516; 42 ATR 118 at [33]-[37]; 4523-4524; 127
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Comcare v A’Hearn (1993) 45 FCR 441; 119 ALR 85; 18 AAR 366
Federal Commissioner of Taxation v Scully [2000] HCA 6; (2000) 201 CLR 148; 74 ALJR 504; 169 ALR 459; 2000 ATC 4111; 43 ATR 718
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Re Staats and National Archives of Australia [2010] AATA 531
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
Workers’ Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642; 81 ALR 260
DECISION AND REASONS FOR DECISION [2010] AATA 577
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/1390
GENERAL ADMINISTRATIVE DIVISION )
Re:CONFIDENTIAL
Applicant
And:CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 5 August 2010
Decision:The Tribunal decides that:
1.it does not have jurisdiction to review the decision of the Registrar. As such there is no basis upon which the Tribunal can extend the time within which the applicant may lodge an application for review of that decision; and
2.the application for extension of time is refused.
S A FORGIE
Deputy President
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR DECISION
XX[1] has asked the Tribunal to extend the time within which he may apply for the review of a decision made by the Social Security Appeals Tribunal (SSAT) affirming a decision made on an objection by the Child Support Registrar (Registrar). The Registrar had decided to set aside an earlier decision and to refuse to extend the time within which XX could apply to extend the child support assessment under which payments were made to him. I have decided not to grant his application because the Tribunal would not have power to review the decision even if I were to grant it.
[1] I have removed any identifying material from these reasons in accordance with s 110X of the Child Support (Registration and Collection) Act 1988.
BACKGROUND
XX is a non-parent carer of his former wife’s daughter, YY. YY’s father, ZZ, has been paying child support payments to XX under the scheme established under the Child Support (Assessment) Act 1989 (CSA Act) and the Child Support (Registration and Collection) Act 1989 (CSRC Act). XX could have applied to extend the child support assessment under which the payments were made until the last day of the secondary school year in which YY turned 18 years of age. He did not but subsequently applied for an extension of time within which to do so. A delegate of the Child Support Registrar (Registrar) granted his application but ZZ objected to that decision. An objections officer reviewed the delegate’s decision and set it aside as he was not satisfied that exceptional circumstances, within the meaning of
s 151C(2)(e)(ii) of the CSA Act, had prevented XX from making the application before YY’s 18th birthday. XX then applied to the SSAT for review of the decision made on the objection but that tribunal affirmed it in a decision dated 15 January 2010.
The SSAT’s decision was not “despatched” to XX until 28 January 2010 but, even so, XX was well out of time when he lodged an application in the Tribunal for review of the SSAT’s decision on 8 April 2010 he was already out of time. On 27 April 2010, XX lodged an application for extension of the time within which to lodge his application for review. When advised of the application for extension, the SSAT wrote to the Tribunal advising that ss 92(7) and 103 VA of the CSRC Act are not applicable and the Administrative Appeals Tribunal Act 1975 (AAT Act) has no jurisdiction to review the objection decision. A Case Service Officer sent a copy of the SSAT’s letter to XX in its own letter dated 7 May 2010 and asked him to:
“… contact the AAT within 14 days after you receive this letter and tell us why you think the AAT can review this decision. If you cannot show that the decision is reviewable, the AAT can dismiss your application. This means that the AAT will not review the decision.
The AAT usually holds a hearing before it makes a decision of this kind. We will notify you of the date and time. You can attend the hearing in person or you can be represented by another person. A representative of the Respondent will also attend the hearing.[[2]]
If you need any further information or assistance, please contact the AAT on the telephone number below. …”
The Case Service Officer’s letter is a standard letter chosen from those provided in the Tribunal’s case management system, TRACS, under “Standard Letters – Application”. The letter is described as “Jurisdiction Issue Raised by the Respondent”.
[2] Since amendments effected by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2009 Measures) Act 2010, the respondent is now the Child Support Registrar.
In a notice dated 28 May 2010, the Tribunal advised XX that a hearing would be held on 12 July 2010 to consider whether the Tribunal had jurisdiction to review the SSAT’s decision. He did not appear at the hearing and he could not be contacted on the telephone numbers he had given to the Tribunal. I considered whether I could dismiss his application for an extension of time under s 42A(2) of the AAT Act for his failure to appear at the hearing, whether I should consider the Tribunal’s jurisdiction under s 42A(4) of the same legislation or whether I should consider jurisdiction apart from that section. I have decided that I do not have power to dismiss XX’s application for an extension of time under ss 42A(2) or 42A(4).
I have then considered whether I should consider XX’s application for an extension of time in his absence and have decided that I should. As part of my consideration of his application, I have considered whether the Tribunal has jurisdiction to review the SSAT’s decision and have decided that I do not. I have refused his application for an extension of time.
NO POWER TO DISMISS FOR NON-APPEARANCE UNDER S 42A(2)
Section 42A(2) provides:
“(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a) if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision; or
(b) in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding.
(3) For the purposes of subsection (2), a person is taken to appear in person or by a representative at a directions hearing or hearing of a proceeding if the person or the person’s representative, as the case may be, participates in it by a means allowed under section 35A.”
XX was a party to an application for an extension of the time within which to lodge an application for review of the SSAT’s decision in the sense that he was the person who made the application. That application is a “proceeding” within the definition of that term in s 3(1) of the AAT Act as it is “an incidental application to the Tribunal made … in connection with …[a] proposed application.”[3] Therefore, it is “… a proceeding before the Tribunal …” within the opening words of s 42A(2) but is it a proceeding before the Tribunal “… in respect of an application for the review of a decision …”?
[3] AAT Act, (c) of definition of “proceeding” in s 3(1)
The words “in respect of” have been considered in Federal Commissioner of Taxation v Scully,[4] Gaudron ACJ, McHugh, Gummow and Callinan JJ, who said:
“… It is well accepted that such words take their meaning from their context. Thus, in Workers’ Compensation Board (Qld) v Technical Products Pty Ltd,[[5]] Deane, Dawson and Toohey JJ said:[6]
Undoubtedly the words ‘in respect of’ have a wide meaning, although it is going somewhat too far to say, as did Mann CJ in Trustees Executors & Agency Co Ltd v Reilly,[7] that ‘they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer’. The phrase gathers meaning from the context in which it appears and it is the context which will determine the matters to which it extends.”[8]
[4] [2000] HCA 6; (2000) 201 CLR 148; 74 ALJR 504; 169 ALR 459; 2000 ATC 4111; 43 ATR 718
[5] (1988) 165 CLR 642
[6] (1988) 165 CLR 642 at 653-4; 81 ALR 260 at 267
[7] [1941] VLR 110 at 111
[8] (2000) 201 CLR 148; 74 ALJR 504; 169 ALR 459; 2000 ATC 4111; 43 ATR 718 at 171; 513; 471-472; 4121; 720-730
There is a connection between an application for an extension of time and a proposed application for review so that an application for an extension of time can be seen to be in respect of a proposed application for review. Section 42A(2), however, requires the connection to be found between the proceeding – in this case the application for an extension of time – and an application for review of a decision so that the former is in respect of the latter. The connection is not drawn between the proceeding and a proposed application for review. In view of that, it seems to me that a connection between an application for an extension of time to lodge an application and the proposed application is too remote to say that the application for extension is in respect of an application for review.
That this is the correct interpretation is confirmed by the way in which Parliament has chosen to draw a distinction between an application for review and a proposed application. It has done so in the definition of a “proceeding” when it provides in paragraph (h):
“proceeding, in relation to the Tribunal, includes:
(a)-(g)…
(h)an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.”
An “… application to the Tribunal for review of a decision” is referred to in (a) of the definition of “proceeding” and so is “an application referred to in a preceding paragraph” as provided for in paragraph (h).
My interpretation is also confirmed by the nature of the power that the Tribunal is given in s 42A(2) if the conditions are satisfied. In the case of a person who is an applicant, the Tribunal’s power is given by s 42A(2)(a) and is to “dismiss the application without proceeding to review the decision”.[9] An application for an extension of the time within which to lodge an application can never, of itself, entail the review of a decision. Only if the extension of time is granted and an application is lodged in accordance with it, will there be an application for review of a decision. Therefore, conceptually, an application for an extension of time is not an application of the sort that is contemplated by the grant of power in s 42A(2)(a).
[9] AAT Act, s 42A(2)(a)
For these reasons, I have concluded that I do not have power to dismiss XX’s application for an extension of time under s 42A(2).
NO POWER UNDER S 42A(4) TO DISMISS FOR INABILITY TO SHOW DECISION APPEARS REVIEWABLE
Section 42A(4) provides:
“If:
(a)a person makes an application to the Tribunal for a review of a decision; and
(b)the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable;
the Tribunal may dismiss the application without proceeding to review the decision.”
The Case Service Officer’s letter to XX on 7 May 2010 by the Tribunal’s Registry seems to be written on the assumption that s 42A(4) would give the Tribunal power to dismiss the application if XX were unable to show that the SSAT’s decision is reviewable.[10] I do not think that the assumption is correct. Before the Tribunal can exercise the power under s 42A(4), two criteria must be satisfied.
[10] Its wording follows precisely the wording of a standard letter provided for Registry use in the Tribunal’s computerised case management system (TRACS) in relation to applications for review. It was not adapted to recognise that the application under consideration is an application for extension of time within which to lodge an application for review.
They are that:
(1)a person has made an application to the Tribunal for review of a decision; and
(2)the Registrar or a Deputy Registrar has given the person a written notice:
(a)advising the decision does not appear reviewable; and
(b)specifying the time within which the person must try to show that the decision is reviewable.
For the reasons I have already given, an application for an extension of time cannot be regarded as an application for review of a decision. As the first criterion cannot be met, the Tribunal’s power is not enlivened. I cannot dismiss XX’s application for an extension of time under s 42A(4).
SHOULD I HEAR XX’S APPLICATION IN HIS ABSENCE?
I have addressed a very similar question in my decision in Re Staats and National Archives of Australia.[11] Again, I am reluctant to proceed in the absence of a party but, as in that case, I decided to proceed with the hearing. In doing so, I do not believe that I am acting unfairly towards XX by proceeding. He has put his position clearly in the papers. At the time XX lodged his application, the SSAT was a party to this proceeding. It advised in a letter dated 31 May 2010 that it did not seek to make any submissions. Since the amendments effected by the Child Support (Registration and Collection) Act 1988, the Registrar is a party to the proceeding rather than the SSAT[12] but I do not think that the Registrar is disadvantaged by not being given an opportunity to make a submission.
SHOULD I GRANT XX’S APPLICATION?
[11] [2010] AATA 531
[12] CSRC Act, s 110XB
The general principles regarding consideration of extension of time applications
In considering the manner in which the discretion to grant an extension should be exercised, I would normally have regard to principles set out in cases such as Hunter Valley Developments Pty Ltd v Cohen[13] (Hunter Valley) as modified and explained by cases such as Comcare v A’Hearn,[14] Brown v Federal Commissioner of Taxation,[15] Budd v Secretary, Department of Education, Employment and Workplace Relations[16] and summarised by Federal Magistrate McInnis, as he then was, in Phillips v Australian Girls’ Choir Pty Ltd & Anor[17] when he said:
[13] (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
[14] (1993) 45 FCR 441; 119 ALR 85; 18 AAR 366
[15][1999] FCA 563; (1999) 99 ATC 4516; 42 ATR 118 at [33]-[37]; 4523-4524; 127
[16] [2008] FCA 1540
[17] [2001] FMCA 109
“ In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The ‘prescribed period’ of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982)
45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287).
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”[18]
[18] [2001] FMCA 109 at [10]
These principles assume that the court or tribunal to which the application for an extension of time is made, has the jurisdiction or power to hear and determine the application if time for its lodgement were extended and the application were lodged. Where there is doubt that it has jurisdiction, resolution of that question must precede any consideration of the application for an extension of time according to the principles established by the authorities to which I have referred in the preceding paragraph.
Does the Tribunal have jurisdiction to review the Registrar’s decision?
I have begun the task of considering the question I have posed by considering the Registrar’s power to make the decision that was made. That was the decision refusing to extend the time within which XX could apply to extend the child support assessment under which the payments were made. XX wanted to extend them until the last day of the secondary school year in which YY turned 18 years of age.
I will then look to the provisions that provide for review of the Registrar’s decisions both internally and by external review tribunals before looking to see whether power has been given to review the particular decision made in this case.
A.The Registrar’s power to make the decision of which XX seeks review
The CSA Act only applies in relation to what it describes as “eligible children”.[19] Such children are those described in Part 3 of the legislation.[20] YY is an eligible child. An application for an administrative assessment of child support may only be made if it complies with ss 24-27 of the CSA Act.[21] Section 24(1)(a)(ii) provides that an application may only be made when the eligible child is under 18 years of age.
[19] CSA Act, s 18
[20] CSA Act, s 5(1)
[21] CSA Act, s 23
If the Registrar is satisfied that the application has been properly made, he or she must accept the application.[22] Once accepted, the Registrar must make assessments in respect of the costs of the child under Part 5 of the CSA Act and make an assessment under that Part of the annual rate of child support payable by a parent for the child for the days in the child support period.[23] Section 31(2) provides for the termination of child support:
“Child support is payable until the day immediately before the day on which a child support terminating event happens in relation to the child, the carer entitled to child support, the liable parent or all 3 of them.”[24]
[22] CSA Act, s 30
[23] CSA Act, s 31(1)
[24] CSA Act, s 31(2)
A “child support terminating event” has the meaning given by s 12.[25] Section 12(1)(c) provides that “A child support terminating event happens in relation to a child if …(c) the child turns 18 …”. The effect of that provision is ameliorated or modified by, among others, s 151B(1). It was the section applicable in XX’s circumstances as he was a “carer entitled to child support” i.e. he was a non-parent carer who, under an administrative assessment, was entitled to be paid child support.[26] Section 151B(1) provides:
“If a child turns 18 during a year in which the child is in full-time secondary education, a carer entitled to child support for the child may apply for an administrative assessment, or a child support agreement, in relation to the child to continue in force until the last day of the secondary school year in which the child turns 18.”
[25] CSA Act, s 5(1)
[26] CSA Act, s 5(1)
Section 151B(2)(a) provides that the application must be made in the manner specified by the Registrar. The Registrar must decide whether to accept or refuse to accept the application[27] but s 151C(2) provides, in so far as it is relevant:
“The Registrar must accept the application if, and only if, the Registrar is satisfied that:
(a)-(d)…
(e)either:
(i)the application is made before the child’s 18th birthday; or
(ii)there are, in the Registrar’s opinion, exceptional circumstances justifying the making of the application after the child’s 18th birthday.”
The Registrar’s decision was made under s 151C(2)(e) on the basis that XX had not made the application before YY’s 18th birthday and there were no exceptional circumstances justifying an application after that date..
[27] CSA Act, s 151C(1)
B. The Tribunal’s power to review a decision: general principles
Unlike a court of general jurisdiction which may consider all matters that come before it for trial, the Tribunal’s jurisdiction is limited. As it has been created by statute, the extent and limits of its powers must be found in statute whether expressly or implicitly. The obvious statute is the AAT Act. That Act does not itself confer power on the Tribunal to review decisions. Instead, it makes provision for other statutes to confer power to do so on the Tribunal. What it does do is to establish the framework within which the Tribunal deals with applications for review of decisions and for their review. In particular, it gives the Tribunal all of the tools that it needs, or may need, in order to review decisions when it is given jurisdiction or power to review decisions and to deal with applications seeking review of those decisions. It also sets out the circumstances in which the Tribunal may use those tools. When it confers power on the Tribunal to review a decision, it may decide to alter the tools it has given the Tribunal or the circumstances for their use but, in most cases, it does not.
The AAT Act makes provision for other statutes to confer power on the Tribunal to review decisions by providing in s 25(1) that:
“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;
(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.”
The enactment referred to in s 25(1) must specify the person or persons whose decisions may be reviewed and must specify whether all of the person’s decisions may be reviewed and, if not, the classes of decisions that may be reviewed. The enactment may specify conditions on which a person may apply for review of those decisions. That is the effect of s 25(3). Section 25(4) provides the necessary corollary to ss 25(1) and (3) by providing that the “… Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
C.Review of the Registrar’s decisions
The CSA Act does not provide for review of the Registrar’s decisions by the Tribunal although Part 7 provides for review by the courts of certain decisions. Review by tribunals such as the Social Security Appeals Tribunal and this Tribunal is found in the CSRC Act. Part 7 provides for decisions against which certain persons may object and, in particular, s 80(1) sets out a table of decisions that may be made under the CSA Act and under the CSRC Act. Against each decision, identified by reference to the provision under which it may be made or by reference to a description of its effect, is set out the person or persons who may object to it.
Where a person is entitled to make an objection, s 81 requires that person to lodge it within certain time limits that are determined by the nature of the decision and the place of residence of the person. Where the time has expired, s 82 provides that the person may apply to the Registrar to consider the objection despite that. Section 83(1) requires the Registrar to consider the application under s 82 and to decide either to grant or refuse the application and, if granted, deal with the objection under s 87(1).
Section 87(3) of the CSRC Act provides that the Registrar must give
a notice to the person objecting and on those identified in s 87(2). The Registrar must include in the notice a statement to the effect that, if the person is aggrieved by the decision on the objection, he or she may apply to a court if the decision was made under ss 98E or 98R of the CSA Act or may apply to the Social Security Appeals Tribunal (SSAT) if the decision was made under a section other than ss 98E or 98R.
Part VIIA of the CSRC Act provides for review of two types of decision by the SSAT. The first type includes those made under s 83(1) on an application for an extension of time and the second those under s 87(1) on an objection to a decision of the Registrar.[28]
[28] CSRC Act, s 89(1)
Section 90 of the CSRC Act sets the time within which an application for review must be made but, if that period has ended, a person may apply to the SSAT Principal Member to consider the application for review despite that.[29] The SSAT Principal Member must consider the application and either grant or refuse it but, if granting it, must go on to deal with the application under Part VIIA.[30] If the decision is to refuse the application, s 92(7) provides that the person who made the application may apply to the Tribunal for review of the decision.
[29] CSRC Act, s 91
[30] CSRC Act, s 92(1)
The remaining provisions of Part VIIA set out various matters relating to the conduct of proceedings in the SSAT. Among them, is s 103VA(1) which provides:
“A party to a review aggrieved by a decision of the SSAT under this Part relating to a party’s percentage of care for a child may apply to the AAT for review of the decision.”
The effect of s 103VA(1A) is that the Tribunal is limited to that issue and may not use its powers under s 43 of the AAT Act to vary a more broadly based decision of which a care percentage decision is only part.
D.The Tribunal does not have power to review a decision under s 151C(2)(e)
I have set out the provisions relating to review of decisions made under the CSA Act. It is clear that Parliament has established a system that does not permit review of every decision made by the Registrar. When it does allow review, it requires certain steps to be followed. In so far as the Tribunal is concerned, it has given it power to review only three categories of decisions:
(1)decisions made by the Principal Member of the SSAT refusing to extend the time within which an application may be made to the SSAT (s 92(4));
(2)decisions relating to a party’s percentage of care for a child
(s 103VA(1)); and
(3)decisions of the SSAT made under s 103V(4) varying the date of effect of a care percentage decision varied or substituted that would otherwise apply under s 103V(3) (s 103VA(1B)).
The decision made by the Registrar under s 151C(2)(e) does not fit into either of these categories and so the Tribunal does not have jurisdiction to review it.[31] As it does not have jurisdiction to review it, there is no basis on which I can extend the time within which XX may lodge an application for review of that decision to the Tribunal and I refuse his application.
[31] I query whether the SSAT had power to review the decision made on XX’s objection to the Registrar’s decision made under s 151C(2)(e)(ii) of the CSA Act. The SSAT’s jurisdiction is confined by s 89 of the CSRC Act to decisions made under ss 83(1), 87(1), 87AA(2), 110Y(3) and 110Z(3): CSRC Act, s 89(1). All but s 87(1) have no application in this case. Section 87(1) provides that the Registrar must make a decision about an objection lodged under Part VII of the CSRC Act. An objection may only be lodged under that Part if provision is made for its lodgement by a specified person in s 80. A decision under s 151C(2)(e)(ii) is not a decision for which provision is made in s 80. Therefore, an objection may not be made to it, the Registrar is not required to make an objection decision and the SSAT does not have power to review any such decision. Whether the Registrar had power to review the decision when ZZ had no right to object to it, may depend on an analysis of s 33(1) of the Acts Interpretation Act 1901 (AI Act), which provides that “Where an Act confers a power …, then, unless the contrary intention appears, the power may be exercised … from time to time as the occasion requires.” In considering whether there is a contrary intention, regard needs to be had to the passage from the judgment of Gleeson J in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 603-604; [8] where he says:
I certify that the preceding thirty three paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Kate Conners Associate
Date of Hearing 12 July 2010
Date of Decision 5 August 2010
Applicant Unrepresented
Respondent Unrepresented
“ The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires the examination of two questions. Has the Tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or … reconsider the whole matter afresh?” Principles such as these are equally applicable to decision-makers who are not tribunals e.g. Ministers (Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542 (Dowsett, Hely and Lander JJ) and a Ministerial Corporation (Water Administration Ministerial Corporation v Jones (2005) 139 LGERA 198 (NWSCA)(Giles & Hodgson JJA and McClellan AJA)). They would need to be considered in light of the provision made for review in the CSRC Act for review of decisions made under both it and the CSA Act.
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