Edwards and Secretary, Department of Health and Aging

[2005] AATA 959

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 959

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/879

GENERAL ADMINISTRATIVE DIVISION		)
Re		Thomas Edwards

Applicant

AndSecretary, Department of Health and Aging

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date29 September 2005

PlaceSydney

Decision The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear Mr Edwards’s complaints.

[Sgd] Ms N Isenberg, Member

CATCHWORDS

JURISDICTION – rural bonded scholarship scheme – no section under Health Insurance Act 1973 conferring jurisdiction on Tribunal to review decision made under section 19ABA.

Health Insurance Act 1973, section 19ABA

Administrative Appeals Tribunal Act 1975, section 25

Trade Practices Act 1974

Australian Constitution, Section 51 (xxiiiA)

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1

Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72

REASONS FOR DECISION

29 September 2005 Ms N Isenberg, Member

1.      A hearing was held before the Tribunal on 25 August 2005 at which Mr Edwards appeared without representation and Mr C Hutchins of the Australian Government Solicitor appeared for the Respondent.

complaint of mr edwards

2.      At the outset I invited Mr Edwards to identify the decision in relation to which he sought review.

3.      Mr Edwards explained the background of his complaint:

·     In 2001 he entered into a contract with the Commonwealth for a Medical Rural Bonded Scholarship (‘the scholarship’); a copy of which was provided at the hearing.

·     After two years of study at the University of Sydney, he sought to be released from the scholarship scheme. The contract provided, under paragraph 5.1, that he could withdraw from the scholarship scheme without repaying any of the scholarship amount paid to him provided that he withdraw before commencing the third year of the course.

·     Mr Edwards was released from the contract and informed that he would not have to repay any funds provided to him in the previous two years.  However he was informed :

‘’If you wish to continue to study Medicine at the University of Sydney, you will need to raise this directly with the University as a matter of some urgency”.

·Unbeknownst to Mr Edwards, on 3 March 2004, the First Assistant Secretary of the Health Services Improvement Division of the Respondent wrote to the Dean of Medicine at the University of Sydney, stating:

“I ask that you do not provide Mr Edwards with a standard entry place should he request to continue to study medicine at the University of Sydney.  I should make you aware that, if you are not able to follow this course of action, I will find it necessary to permanently remove an MRB Scholarship medical school place from the University of Sydney”.

4.      The decision of the Respondent to send this letter is the decision about which Mr Edwards complains to the Tribunal.

the scholarship scheme

5.      By way of background, I set out an outline of the scholarship scheme which Mr Edwards had entered, extracted from the Second Reading speech:

“The Medical Rural Bonded Scholarship Scheme will provide 100 extra medical students with $20,000 per annum to study medicine, on the condition that they agree to work in a rural community for six years once they have completed their basic medical training and GP or specialist fellowship. These 100 places are over and above the places that already exist in Australian medical schools, so students will be gaining access to a place in a medical school to which they would not otherwise have obtained entry. Applications will be through the normal university admissions process, and selection of bonded scholars will be according to academic merit. … Students will have full information on the conditions and obligations of the Medical Rural Bonded Scholarship Scheme, and they will therefore be able to make informed commitment and to sign contracts with the Commonwealth. These contracts will bond them to work for six years in a rural or remote area in Australia. Requirement for students to work in a rural community for six years is absolutely reasonable, considering the Commonwealth will pay between $80,000 and $120,000 during the course of their degree and will have to meet a similar amount again for the cost of the place in medical school. This assistance is additional to that which is funded to the universities, and of course they are places in medical school to which the student may not have otherwise gained selection. There will be another 100 medical students who will be able to choose a career opportunity they would not have otherwise had, and it will deliver these students, once they are qualified, to the areas most in need of their professional services. The conditions of the contract provide that bonded scholars will work in a rural or remote area, once they have attained GP or specialist fellowship, for six years. Should a bonded scholar breach this contract, they will be required to repay the scholarship with interest, and there will be a 12-year ban on their access to Medicare benefits. Without this legislation, there will not be the incentive for bonded scholars to honour their obligation. This ban will not prevent a medical practitioner from practising in a hospital or other area such as medical research where it is not necessary to attract Medicare benefits. There is a need for more doctors in rural and remote Australia. This is a bill for rural Australian communities that enables the Commonwealth to honour its commitment to provide rural and remote Australia with more doctors. It guarantees to deliver 100 qualified GPs and specialists to rural Australia each year in the long term.”

6. The legislative basis for the scheme was formulated through the focus on the bond arrangements: section 19ABA of the Health Insurance Act 1973.  Contract scholarship recipients, like Mr Edwards, were invited to join the scheme.

submission of mr edwards

7.      Mr Edwards provided a detailed submission in relation to his complaint and made full submissions at the hearing; including as to the merits of his application.

8.      I reminded Mr Edwards that the Administrative Appeals Tribunal Act 1975 does not, itself, set out the decisions that may be reviewed by the Tribunal and reference must be made to the legislation governing the original decision. 

9.      In response, Mr Edwards invited my attention to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 from which he quoted extensively. He also referred to later cases including Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72. His submission, in effect, was that the fact that a decision is made by an administrator which he or she has no power to make in a legally effective way does not exclude that decision from review by the Tribunal. I understood this to be a submission that the Tribunal, which, he reminded me, was not bound by technicality, had a broad jurisdiction to review decisions even if those decisions were ultra vires the decision-maker.

10.     In particular he referred me to the approach of Bowen CJ in Lawlor that the Tribunal has jurisdiction where there is a purported exercise of power conferred by the relevant enactment.  In this regard I especially note the reference to ‘the enactment’.

11. Mr Edwards asserted that the bond arrangements introduced with the scheme were breaches of section 51(xxiiiA) of the Constitution. He also referred me to the Trade Practices Act 1974.

consideration

12.     The matter however, in my view, is more straightforward than Mr Edwards contended.

13. Section 25 of the Administrative Appeals Tribunal Act1975 states that an enactment may provide for review of decisions made in the exercise of powers conferred under that enactment or conferred by an instrument such as rules, regulations or by-laws made under that enactment.  Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision.  As each of approximately 400 pieces of legislation which confer jurisdiction to the Tribunal may not confer it in relation to all decisions made under each piece of legislation, care must be taken to ensure that jurisdiction has indeed been given in relation to the particular decision under consideration.

14.     The Health Insurance Act 1973 does not provide for review by the Tribunal of decisions in relation to section 19ABA.

15.     This matter is different from Lawlor, because in that case a decision was made to revoke a licence.  The power to do so was purported to be ancillary to the power to issue a licence, which was capable of review.  In this case, there is no availability for review at all of decisions about the scheme.

16.     I find that the Tribunal lacks jurisdiction to review decisions made under the scheme.  There is no Act of Parliament or any subordinate legislation conferring such jurisdiction on the Tribunal.  No other Commonwealth legislation was found to be relevant to the Mr Edwards’s complaints.

17.     Mr Edwards may choose to explore other avenues with regard to his complaint, but that is entirely a matter for him.

DECISION

18. There is no enactment conferring jurisdiction to the Tribunal to review a decision made under section 19AB of the Health Insurance Act 1973. The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear Mr Edwards’s complaints.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         A. Krilis  Associate

Date of Hearing: 25 August 2005

Date of Decision: 29 September 2005

Representative for Applicant: Self-Represented

Representative for Respondent: Mr Cameron Hutchins