DARREN BURGESS and SECRETARY DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 817

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 817

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4218

GENERAL ADMINISTRATIVE DIVISION		)
Re		DARREN BURGESS

Applicant

And SECRETARY DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date23 October 2009

PlaceBrisbane

Decision The Tribunal does not have jurisdiction to review the decision that the applicant requested be reviewed in an application dated 3 September 2009.

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

Senior Member

SOCIAL SECURITY – whether prior review by Social Security Appeals Tribunal required before an application can be made to Tribunal – Tribunal lacks jurisdiction.

Administrative Appeals Tribunal Act (1975) (Cth), s 25

Social Security (Administration) Act (1999) (Cth), s179

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

23 October 2009 M J Carstairs, Senior Member

1.      This matter, which the parties agree should be decided on the papers, raises the short point of whether this Tribunal has the power to review a decision relating to the applicant’s social security matter, where that matter has not yet been reviewed by the Social Security Appeals Tribunal.

2.      The answer to that question is “No”. 

3. The reasons for this decision can be briefly stated. They reflect the combined effect of s 25 of the Administrative Appeals Tribunal Act (1975) (“the AAT Act”) and the s 179 of Social Security (Administration) Act (1999) (“the Administration Act”).  

THE LEGISLATION

4. Section 179(1) of the Administration Act provides that:

If:

(a)       a decision has been reviewed by the SSAT; and

(b)       the decision has been affirmed, varied or set aside by the SSAT;

application may be made to the AAT for review of the decision of the SSAT.

…

5.      This section contemplates that the Social Security Appeals Tribunal as the prior level of review, which must take place before a matter comes to this Tribunal. 

6.      The documents establish that Mr Burgess has not had his matter reviewed by the Social Security Appeals Tribunal.  A letter dated 25 August 2009, addressed to Centrelink from Mr R Harvey, Business Manager at the Social Security Appeals Tribunal, indicates that the decision Mr Burgess wished to have reviewed by the Social Security Appeals Tribunal had not – at that time – been reviewed by an authorised review officer within Centrelink.  (That step was necessary before the Social Security Appeals Tribunal could review the decision).  Accordingly, Mr Harvey asked that Centrelink treat the appeal received from Mr Burgess as a request for internal review.  

7. I would make the general observation that the requirement of prior internal or external review has been strictly enforced in Tribunal decisions. The Tribunal’s powers are not at large, and must be interpreted in accordance with s 25 of the AAT Act.

8.      Subsection 25(1)(a) of the AAT Act provides that 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.

9.      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…

10.     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.

11.     There are obvious benefits for applicants in having a review system that requires an applicant take a matter first to the original repository of the power.  A meritorious case can be more quickly dealt with by original decision-makers than is ever possible once a matter is in the arena of external review, however expeditious the procedures. 

12.     In concluding, I would observe that Mr Burgess provided me detailed submissions concerning the substance of the matters that he wishes to have reviewed.  As Mr Burgess’s application here is premature, the merits or otherwise of the application are irrelevant at this stage.  Prior review is simply a necessary precursor for review by this Tribunal.

DECISION

13.     The Tribunal does not have jurisdiction to review the decision that the applicant requested be reviewed in an application dated 3 September 2009.   

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.

Signed:......................[Sgd]........................................................
  Emily Clarke, Associate

Hearing on the Papers

Date of Decision  23 October 2009
The Applicant   Self-represented  
Advocate for the Respondent        Mr R Hamilton