Cyril (Ken) Webster and Australian Reward Investment Alliance Senior Member Bernard J McCabe

[2011] AATA 651

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 651

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2381

GENERAL ADMINISTRATIVE DIVISION		)
Re		Cyril (Ken) Webster

Applicant

And Australian Reward Investment Alliance

Respondent

DECISION ON JURISDICTION

Tribunal  Senior Member Bernard J McCabe

Date 10 August 2011

Place Brisbane

Decision  The Tribunal does not have jurisdiction to hear the application.

..............................................

Senior Member

CATCHWORDS

SUPERANNUATION — jurisdiction — election to change superannuation funds —  negligent misstatement  — no jurisdiction

Administrative Appeals Tribunal Act

Superannuation Act 1976

Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011

REASONS FOR DECISION

19 September 2011	Senior Member Bernard J McCabe
Background

1.      

The Tribunal conducted a hearing of jurisdiction in this matter on

10 August 2011.  I concluded at the end of the hearing that the Tribunal did not have jurisdiction. The applicant subsequently asked for written reasons to that decision.

2.      

Mr Cyril Webster is engaged in a dispute with the Australian Reward Investment Alliance (“ARIA”). The dispute arises out of the election he made on

26 May 1991 to transfer his superannuation from the Commonwealth Superannuation Scheme (“CSS”) to Public Sector Superannuation (“PSS”). This election was made under s 244 of the Superannuation Act 1976 (“the Act”).

Mr Webster says the Retirement and Benefits Office (“RBO”, later known as “ARIA”) gave him ‘incorrect and incomplete’ information when he was making the election. Mr Webster feels that he has been financially disadvantaged as a result.

3.      Mr Webster sought to have his election transfer reversed. On 10 September 1993, the Commissioner for Superannuation informed Mr Webster that it was not possible under the legislation for him to return to the CSS. He decided to revisit the matter with ARIA in 2011 when he retired. ARIA rejected his claim for common law damages in a letter dated 11 May 2011. On 6 June 2011, the applicant applied to the Tribunal for review of the decision of 11 May 2011.

Does the tribunal have jurisdiction to consider the decision dated 11 May 2011?

4.      The Tribunal can only review decisions where a decision was made under an enactment and that enactment has conferred jurisdiction on the Tribunal. The decision of 11 May 2011 was not made under legislation. There is no legislation that confers jurisdiction on the Tribunal to review such a decision. It follows that I cannot proceed to hear the applicant’s arguments in relation to that matter.

5.      

I note the applicant provided the Tribunal and the respondent with written submissions dated 7 August 2011 for the purposes of the hearing of jurisdiction. In those submissions, Mr Webster referred to two other decisions he wanted the Tribunal to review. The first was described as “the election by Cyril Kim Webster to transfer to the PSS – Superannuation Act 1976”. The second was a decision of the Commissioner of Superannuation communicated to the applicant in a letter dated

21 January 1993.  In this letter the RBO stated ‘This office is unable to consider your decision to transfer to the PSS.’ These decisions were not referred to in the application to the Tribunal on 6 June 2011. I do not think they form part of the application before me. For completeness sake, I will explain why I do not think the Tribunal has jurisdiction to deal with them in any event.

Decisions raised on 7 August 2011

6. Prior to 1 July 2011, section 154 of the Act conferred jurisdiction on the Tribunal to review decisions. This section was recently repealed by the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011. Unfortunately for Mr Webster, his request for a review of the decisions in question was made after 1 July 2011. The Tribunal no longer has jurisdiction to review those decisions.

7. Even if Mr Webster had raised these decisions prior to 1 July 2011, section 154(4) created a further hurdle for Mr Webster. Section 154(4) required that the Commissioner reconsider the decision. If the Commissioner confirmed, revoked or varied the decision, a decision could then be appealed to the Tribunal. There is no evidence before the Tribunal that these decisions were reviewed by the Commissioner. The Tribunal would only have jurisdiction to review these decisions if the Commissioner had first confirmed or varied the decisions.

8. Mr Webster’s election to transfer from CSS to PSS was not a decision of the Commissioner: it was a decision made by Mr Webster. Mr Webster ceased to be a member of CSS by operation of law under s 245 of the Act which states that a person ceases to be in the scheme the day the election is made.

9. The letter of 21 January 1993 may have constituted a reviewable decision if it had also been reconsidered and confirmed or varied by the Commissioner. There is no decision of that kind before the Tribunal. Even if section 154 was still in effect, the Tribunal does not have jurisdiction to review that decision as it had not been reconsidered by the Commissioner.

Conclusion

10.     The Tribunal does not have jurisdiction to deal with the application.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: .....................................................................................
  Associate

Date of Hearing  10 August 2011
Date of Decision  19 September 2011
Applicant  Self Represented
Solicitor for the Respondent      Andrew Dillon, Australian Government Solicitor