CONFIDENTIAL and SOCIAL SECURITY APPEALS TRIBUNAL

[2009] AATA 1004

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 1004

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0468

GENERAL ADMINISTRATIVE DIVISION		)
Re		CONFIDENTIAL

Applicant

And SOCIAL SECURITY APPEALS TRIBUNAL

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date13 March 2009

PlaceBrisbane  

Decision Being satisfied that the Tribunal has no jurisdiction to review the decision the subject of this application, the Tribunal directs that the application be dismissed.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – application for review of Social Security Appeals Tribunal decision – application lodged out of time – whether Tribunal has jurisdiction to review decision concerning rate of child support – Tribunal lacks jurisdiction

Administrative Appeals Tribunal Act 1975 (Cth), s 25

Re Parke and Repatriation Commission (1985) 2 RPD 404

Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167

REASONS FOR DECISION

13 March 2009 M J Carstairs, Senior Member

1.       On 2 February 2009, the applicant lodged an application for review of a decision made by the Social Security Appeals Tribunal, handed down on 6 March 2008.  The applicant’s application, at that time, was about 10 months outside the usual time limit that applies in this Tribunal, which is 28 days.  After the expiration of a time limit, in order to be a valid application, an applicant needs to obtain a favourable exercise of the Tribunal’s discretion to extend time, a discretion provided for in the Administrative Appeals Tribunal Act 1975 (“the Act”).

2.      However, the Tribunal’s Deputy Registrar perceived there to be an even more fundamental problem with the application: it looked like the Tribunal did not have the power to review the subject matter of the Social Security Appeals Tribunal decision for which review was being sought. 

3.      Accordingly, the Deputy Registrar wrote to the applicant (and his representative) in the following terms, inviting a reply within 14 days:

This Tribunal has the power to review a range of decisions made by Ministers, officers, authorities and other tribunals. However it can only review a decision if an Act, regulation or other enactment states that it can review the decision. Based on my perusal of the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 I am not aware of any provision that bestows jurisdiction on the Tribunal to consider the matter you wish to have reviewed.

4.      Mr Kennedy, the applicant’s representative, apparently was unable to identify a clear basis for Tribunal jurisdiction, and replied that they would “let the application with the Administrative Appeals Tribunal lapse”[1].  Some days later, however, having been provided with certain materials about “appeals”, provided to him by the Child Support Agency in Darwin, he elected to continue the application.  The information  that was now proposed to be relied upon appeared in part of a document, headed “Further Appeal Rights”:

…if the SSAT refuses to grant an extension of time to appeal to the SSAT, the applicant can lodge an appeal directly with the Administrative Appeals Tribunal.

[1]  Letter dated 11 February 2009.

5.      I was constituted to hear this matter by telephone hearing dealing with the question of jurisdiction, on 13 March 2009.  I gave brief oral reasons for declining jurisdiction.  I have now been asked to provide written reasons for doing so and these reasons follow. 

WAS THERE A DECISION REVIEWABLE BY THIS TRIBUNAL?

6.       I would firstly observe that the document containing the extract quoted above at paragraph 4, must be understood as expressing one exception to the general rule that parties dissatisfied with a Social Security Appeals Tribunal decision have a right of appeal to a Court but only on a question of law.  The Administrative Appeals Tribunal reviews only a limited range of child support decisions, far fewer than are within the jurisdictions of the Social Security Appeals Tribunal and the Courts.  The document appears to have made that general point.  The document then proceeded to state that where there was an “appeal” to the Administrative Appeals Tribunal, the appeal must be made within 28 days of receiving notice of the Social Security Appeals Tribunal “decision”. 

7.      That decision, I would reiterate, had to be a decision the content of which was a refusal to grant of extension of time, and it must be a decision made by the Social Security Appeals Tribunal.

8.      The Social Security Appeals Tribunal had not made any such decision.  However, Mr Kennedy suggested in his covering letter, dated 17 February 2009, that it would be appropriate now to allow a direct appeal to the Administrative Appeals Tribunal, “without the benefit of the “formal” refusal”.  That is, Mr Kennedy suggested that the requirement underpinning possible jurisdiction could be dispensed with.

9. It needs here to be understood that the function of the Administrative Appeals Tribunal is to review particular decisions, which are identified in enactments as being reviewable. There is no general right of review from all government decisions. In other words, the Tribunal’s powers are not at large, and must be interpreted in accordance with s 25 of the Act.

10. Subsection 25(1)(a) of the Act provides that an application may be made to the Tribunal for review of decisions made in the exercise of powers conferred by an enactment. Subsection 25(4) gives the Tribunal power to review any decision in respect of which application is made to it under any enactment.  Subsection 25(3) is of particular importance.  It provides that where:

…. an enactment makes provision in accordance with subsection (1), 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.

11.     Parliament has made clear in these provisions that the Tribunal’s powers of review are defined (and circumscribed) by the enactment making provision for review.  As stated by the Tribunal in Re Parke and Repatriation Commission (1985) 2 RPD 404:

The Tribunal derives its jurisdiction from Commonwealth legislation and its powers are conferred in specific terms. Unless it has power so conferred on it, it can do nothing.  It has no roving commission to investigate governmental decisions generally…

12.     The Tribunal has no general review power, nor does it have a general decision-making power, as it is not the original repository of powers under any enactment: Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167.

13.     It was quite apparent that in pursuing the review in the applicant’s case Mr Kennedy was now conflating two separate issues, the issue that the applicant faced by having delayed some 10 months in making an application to the Tribunal, and the issue – far more problematic – that there was no evident provision in any enactment that directed review to this Tribunal, with respect to the kind of decision that in fact had been made by the Social Security Appeals Tribunal.  We know which decision the applicant wished to have reviewed because he identified it by its date and relevant file number in his Application in Form 1, lodged on 2 February 2009.

14.     No properly directed Court or Tribunal would extend time to an applicant where the Court or Tribunal lacked jurisdiction.  This would be pointless and time-wasting, for the Court or Tribunal as well as for the parties.   Jurisdictional questions are not usually discretionary.

15.     It is understandable that some confusion arose once two kinds of extension of time had come under discussion, one kind relating to extensions of time under the Tribunal’s own legislation, and the other relating to extensions of time under child support legislation.  But here there had been no refusal of an extension of time under the child support legislation.  If there had been, there would have been no jurisdictional problem. 

16.     In fact, as far as could be seen from papers the applicant filed with the Tribunal, the applicant had already exhausted his avenues of review well before he attempted to seek a review with this Tribunal in February 2009. 

17.     The following sequence of decisions was relevant in that respect, noting what he had identified, in  Form 1, as being his concerns:

§the Child Support Agency had made a decision on 17 May 2007, affirming an increase in the applicant’s child support liability.  That decision referred to rights of review that were available to the Social Security Appeals Tribunal.  The applicant exercised those rights;

§the Social Security Appeals Tribunal, after a hearing produced written reasons (some 27 pages) affirming the previous decision.  No doubt that was accompanied by notice of further avenues of appeal; and

§next there was a Federal Magistrates Court judgment, dated 11 December 2008, that dealt with an enforcement summons, as issued by the Child Support Agency, to recover the applicant’s child support debt (which followed from the Child Support Agency and Social Security Appeals Tribunal decisions).

18.     The Federal Magistrate ordered that the applicant be given three months to pay his child support debt, failing which, his property at Howard Springs in the Northern Territory would be sold.  The learned Federal Magistrate made the observation, in written reasons, that the applicant had taken the matter to the Social Security Appeals Tribunal, unsuccessfully, and had “exhausted the appeal process unsuccessfully” (at paragraph 7 of the Reasons).

19.     It was only after the Federal Magistrates Court had handed down judgment that the applicant sought review with the Tribunal. 

SUMMARY

20.     So, in summary, when Mr Kennedy, posed the following question in correspondence with the Tribunal[2], several months after I had handed down my decision denying jurisdiction:

[2]        Letter dated 14 July 2009.

Can AAT receive and hear… [the applicant’s] appeal of this Social Security Appeals Tribunal determination if he is granted an extension of time to do so?

the answer to that question was “No”.  The Social Security Appeals Tribunal decision dealt with the applicant’s rate of child support, which is not a matter this Tribunal can review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the order herein of M J Carstairs, Senior Member.

Signed: ……………[sgd]………….…………………          
  Emily Clarke, Associate

Date of Jurisdiction Hearing           13 March 2009
Date of Decision  13 March 2009
Date of Written Reasons                29 January 2010
Advocate for the Applicant             Mr R Kennedy

The Respondent did not appear