Elliott and Secretary, Department of Social Services (Social services second review)
[2021] AATA 20
•6 January 2021
Elliott and Secretary, Department of Social Services (Social services second review) [2021] AATA 20 (6 January 2021)
Division:GENERAL DIVISION
File Numbers: 2020/1069
Re:Patrick Elliott
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 6 January 2021
Place:Melbourne
The Tribunal decides:
under s 43AA(1) of the Administrative Appeals Tribunal Act 1975 to further amend its decision dated 20 October 2020 and amended on 29 October 2020 by directing the Registrar to alter the text of its reasons for decision at paragraph 79 by deleting the reference to “s 142(1)(b)” and inserting “s 142(1)(a)”.
[sgd]
Deputy President S A Forgie
PRACTICE AND PROCEDURE – corrigenda – whether decision made in response to a request for corrigenda a decision to which section 13(1) of the Administrative Decisions (Judicial Review) Act 1977 applies – power to correct obvious errors may be exercised more than once – meaning of “obvious error” – further corrigendum made.
Legislation
Administrative Appeals Tribunal Act 1975 ss 3(1), 25(1), 25(4), 34D, 35, 41, 42A(4), 42C, 43, 43AA and 44
Administrative Decisions (Judicial Review) Act 1977 ss 3(1), 5, 6, 7 and13(1)
Motor Accidents Compensation Act 1999 (NSW) s 94(6)
Probation and Parole Act 1983 (NSW) s 23
Social Security (Administration) Act 1999 ss 126, 135, 142(1)(a), 142(1)(b) and 179
Tribunals Amalgamation Act 2015s 3 and Schedule 1, Item 40
Cases
Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090; (2006) 68 NSWLR 266
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15
Re Elliott and Secretary, Department of Social Services [2020] AATA 2176Re Elliott and Secretary, Department of Social Services [2020] AATA 5060
Hanna v Mynhardt 1935 TPD 63
Larkin v Parole Board (1987) 10 NSWLR 57
Ma v Commissioner of Taxation [1992] FCA 359; (1992) 37 FCR 225; 92 ATC 4373; 23 ATR 485; 27 ALD 601
Riley v Parole Board of New South Wales (1985) 3 NSWLR 606
X v Minister for Immigration and Multicultural Affairs [2002] FCA 56; (2002) 116 FCR 319
REASONS FOR DECISION
Deputy President S A Forgie
On 20 October 2020,[1] I refused to reinstate Mr Elliott’s application for review of a decision made on 26 February 2019 by a delegate of the Secretary of the Department of Social Services that he had been overpaid youth allowance during the period from 3 January 2013 to 24 June 2016. His application had been dismissed by a differently constituted Tribunal under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act).[2] On 20 and 22 October 2020, Mr Elliott asked me to correct five errors in my reasons and I agreed to correct four of them. I did not agree to make the fifth correction, which he framed in terms of an inconsistency between my conclusion in [81] of my reasons refusing reinstatement and the preceding [79] and [80]. On 30 October 2020, Mr Elliott wrote to the Registry asking that his request for a correction to be made to those paragraphs be directed to the President for his attention. It was so directed to the President. On 9 December 2020, Mr Elliott asked me for my reasons for my decision regarding his request for corrections and did so under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).
[1] Re Elliott and Secretary, Department of Social Services [2020] AATA 5060
[2] Re Elliott and Secretary, Department of Social Services [2020] AATA 2176; Member K Parker
I have considered whether s 13 of the ADJR Act requires me to give reasons for the decision I made regarding Mr Elliott’s request that I amend my reasons for decision refusing to reinstate his application under s 42A(10) of the Administrative Appeals Tribunal Act 1975 (AAT Act). In doing so, I have considered whether the power given by s 43AA of the AAT Act relates only to the Tribunal’s decisions and statements of reasons (that I refer to as reasons for decision) made for the purpose of reviewing a decision under s 43. I have decided that s 43AA gives the Tribunal power to correct decisions and reasons for decision given in relation to any decisions it gives in the course of any proceeding relating to an application for review of a decision under the AAT Act. Its power is limited to “obvious errors”.
I have decided that I am not required to give reasons under s 13 of the ADJR Act for a decision under s 43AA of the AAT Act as it is not a decision to which s 13 applies. Even though I have reached that decision, I have considered Mr Elliott’s request for a corrigendum again and have decided that I did make an obvious error in [79] when I referred to “s 142(1)(b)” when the reference should have been to “s 142(1)” in line 4 of that paragraph and that a paragraph has been omitted. I have decided to make a further corrigendum accordingly.
OBLIGATION TO GIVE REASONS UNDER THE ADJR ACT
Section 13(1) of the ADJR Act provides:
“Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.”
Section 5 sets out those who are entitled to make an application to the Federal Court or the Federal Circuit Court. It provides:
“A person who is aggrieved by a decision to which this Act applies that is made a after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(a)-(j)…”
The expression “decision to which this Act applies” is defined in s 3(1) to mean:
“… a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before of after the commencement of this definition):
(a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or
(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;
other than:
(c)a decision by the Governor-General; or
(d)a decision included in any of the classes of decisions set out in Schedule 1.
Note:Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act.”
The Administrative Appeals Tribunal Act 1975 (AAT Act) is an “enactment” as defined in s 3(1) of the ADJR Act.
There is no doubt that a decision made under s 43AA of the AAT Act is a decision of an administrative character made under an enactment. That, however, does not mean that it is a decision to which the ADJR Act applies. The expression “decision to which this Act applies”, as it appears in s 5 of the ADJR Act, was considered by the High Court in Australian Broadcasting Tribunal v Bond[3] (Bond). Before I go to that case, it is necessary to be aware of two other types of applications for review provided for by the ADJR Act. They are found in ss 6 and 7 of that legislation.
[3] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11; Mason CJ, Brennan, Deane, Toohey and Gaudron JJ
Section 6 provides for review of conduct related to making of decisions. Section 6(1) provides:
“Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds:
(a)-(j)…”
Section 7 provides for applications to be made in respect of failures to make decisions with s 7(1) is concerned with the situation in which the law does not prescribe a period within which the person is required to make a decision:
“Where:
(a)a person has a duty to make a decision to which this Act applies;
(b)there is no law that prescribes a period within which the person is required to make that decision; and
(c)the person has failed to make that decision;
a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.”
Section 7(2) is concerned with the situation in which the law does require a person to make a decision within a prescribed period:
“Where:
(a)a person has a duty to make a decision to which this Act applies;
(b)a law prescribes a period within which the person is required to make that decision; and
(c)the person failed to make that decision before the expiration of that period;
a person who is aggrieved by the failure of the first-mentioned person to make the decision within that period may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the failure to make the decision within that period on the ground that the first-mentioned person has a duty to make the decision notwithstanding the expiration of that period.”
Going back to the case of Bond, Mason CJ, with whom Brennan and Deane JJ concurred, considered the meaning of the word “decision” in s 5. First, he found that it had a variety of potential meanings. Looking to the fact that the ADJR Act is a remedial statute, Mason CJ said that its remedial nature indicates that no narrow view should be taken of the word “decision”. An examination of the provisions of the ADJR Act, though, suggested that the word should have a relatively limited field of operation. The relevant policy considerations are competing, his Honour observed. He then went on to identify and weigh them:
“… On the one hand, the purposes of the A.D.(J.R.) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of ‘decision’ is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v Burns …, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret a ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.
The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable ‘decision’ is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s. 3(2)(g), the instances of decision mentioned in s. 3(2) are all substantive in character. Moreover, the provisions of sub-ss. (1), (2), (3) and (5) of s. 3 point to a substantive determination. In this context the reference in s. 3(2)(g) to ‘doing or refusing to do any other act or thing’ (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. …
If ‘decision’ were to embrace procedural determinations, then there would be little scope for review of ‘conduct’, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the ‘conduct’ of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of an adjournment in this way is more consistent with the concept of ‘conduct’ than with the notion of ‘decision under an enactment.’.”[4]
[4] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11 at [31]-[34]; 336-338; 10-11; 23-24
Mason CJ made it clear that a reviewable decision need not be one which ultimately determines all of the issues when he referred to Lamb v Moss.[5] His Honour said:
“ Lest it should be thought otherwise, I should say that, to the extent in Lamb v Moss that the magistrate decided that a prima facie case had been established and that he would proceed with the committal proceedings, a reviewable decision had been made. That decision was one for which s 41(2) of the Justices Act 1902 (NSW) specifically provided. The decision resolved an important substantive issue to be determined before the ultimate decision could be made under s 41(6) of that Act whether to commit the defendant for trial or discharge him from custody.”[6]
[5] [1983] FCA 254; (1983) 76 FLR 296; 49 ALR 533; 5 ALD 446
[6] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11 at [36]; 338; 12; 24
Some hearings in the Tribunal do not lead to review of a decision and a final decision under s 43 of the AAT Act but, despite that, they can arguably be said to resolve a substantive issue and would form the basis of an entitlement to reasons. A decision on an application for a stay under s 41 of the AAT Act would be an example. It resolves the issue of whether the decision under review continues to operate and be in effect during the proceedings for its review. By way of contrast, decisions regarding procedural matters do not resolve any substantive issues.
Mason CJ also considered the meaning of “conduct” as it is used in s 6 of the ADJR Act. The word “decision: connotes a determination for which provision is made under an enactment and that is generally substantive, final and operative. The word “conduct” points to action rather than a decision made for the purpose of making a reviewable decision. His Honour continued:
“… In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. Accordingly, s.3(5) refers to two examples of conduct which are clearly of that class, namely, ‘the taking of evidence or the holding of an inquiry or investigation’. It would be strange indeed if ‘conduct’ were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.”[7]
[7] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11 at [46]; 341-342; 14; 27
WHEN MAY ERRORS BE CORRECTED UNDER SECTION 43AA OF THE AAT ACT?
The answer to the question that I have posed in the heading depends on the proper characterisation of the “decision”, to which reference is made in s 43AA of the AAT Act. Is it a reference limited to the Tribunal’s decision made on the review of a decision? Is it a reference to a decision made on any issue that may arise e.g. whether or not the time for lodging an application for review of a decision should be extended under s 29(7) of the AAT Act, whether the operation or implementation of a decision should be stayed under s 41 or, as in this case, whether a person is entitled to make an application to the Tribunal? I will look first at the power given by s 43AA and then at the wider context of the AAT Act.
Section 43AA of the AAT Act: power to correct obvious errors
Section 43AA(1) of the Administrative Appeals Tribunal Act 1975 provides that:
“If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal.”
Examples of obvious errors are given in s 43AA(3):
“Examples of obvious errors in the text of a decision or statement of reasons are where:
(a)there is an obvious clerical or typographical error in the text of the decision or statement of reasons; or
(b)there is an inconsistency between the decision and the statement of reasons.”
The powers under s 43AA “… may be exercised by the President or by the member who presided at the proceeding to which the decision relates.”[8]
[8] AAT Act; s 43AA(4)
The effect of those alterations is the subject of s 43AA(2):
“If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be.”
Reviews by the Tribunal of decisions
It is clear from the statement of the Tribunal’s objectives set out in s 2A that its focus is upon review of decisions. As that section states, it “… must pursue the objective of providing a mechanism of review that …” meets the outcomes it then sets out. It is clear from Part IV of the AAT Act that the focus of that mechanism of review are decisions made in the exercise of powers conferred by an enactment.
An enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment.[9] The Social Security (Administration) Act 1999 (SSA Act) is such an enactment when it provides that applications may be made to the Tribunal for review of, for example, a decision of the Secretary, the Chief Executive Officer (CEO) or an authorised review officer (ARO) made under ss 126 or 135 of that enactment (AAT first review).[10] An application for AAT first review is heard by a presidential member or a member assigned to the Tribunal’s Social Security and Child Support Division (SSCSD). Section 179(1) provides a second example when it states that an application may be made to the Tribunal for review of a decision of the Tribunal on AAT first review made under s 43(1) of the AAT Act (AAT second review).
[9] Administrative Appeals Tribunal Act 1975 (AAT Act); s 25(1)(a)
[10] SSA Act; s 142(1)(a)
When the Tribunal receives an application for AAT first review or for AAT second review, it necessarily has the complementary power to review either a decision of the Secretary, CEO or an ARO or a decision made by the Tribunal in its SSCSD, as the case may be. I say “necessarily” because the power must follow from the fact that Parliament has provided that an application may be made to the Tribunal.[11]
[11] Before its repeal by the Tribunals Amalgamation Act 2015: s 3 and Schedule 1, Item 40, s 25(4) expressly provided that “The Tribunal has power to review any decisionin respect of which application is made to it under any enactment.”
Division 4 of Part IV of the AAT Act provides for hearings and evidence in the Tribunal. Section 35, for example, provides that, subject to that section, the hearing of a proceeding before the Tribunal must be in public. The word “proceeding” does not refer solely to an application for review of a decision. Section 3(1) defines the word “proceeding” in inclusive terms. In doing so, it refers specifically to:
“(a) an application to the Tribunal for review of a decision; and
(b)an application to the Tribunal under subsection 28(1AC); and
(c)an application to the Tribunal for review of a taxing of costs; and
(d)application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981;
(e)an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and
(f)any other application to the Tribunal under this Act or any other Act; and
(g)any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(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.”
The Tribunal’s decision on review is the subject of Division 6 of Part IV of the AAT Act. For the purpose of reviewing a decision, s 43(1) provides that “… the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ...”. Having completed the review, the Tribunal:
“… shall make a decision in writing:
(a)affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
The decision that the Tribunal makes is one thing but its reasons for doing so are another. As I have said, its decision is the subject of s 43(1). That decision will always be in writing because s 43(3) requires the Tribunal to cause a copy of its decision to be given to each party to the proceeding. The Tribunal’s reasons are the subject of ss 43(2) to (2B) of the AAT Act. Section 43(2) provides:
“Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.”
Where the Tribunal does not give reasons in writing for its decision:
“… a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to the party such a statement.”[12]
When giving its reasons in writing, s 43(2B) requires the Tribunal to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. The Tribunal must cause a copy of its decision to be given to each party to the proceeding.
[12] AAT Act; s 43(2A)
Section 43(5AA) of the AAT Act requires the Tribunal to notify parties of further review rights when it provides:
“When the Tribunal gives a party to a proceeding a copy of its decision, the Tribunal must also give the party a written notice that includes a statement setting out the following, as applicable:
(a)the party’s right to apply for a second review of the decision;
(b)the party’s right to appeal to a court on a question of law.”[13]
[13] Section 43(5AA) qualifies the operation of s 43(5AA) in relation to the agency party in a proceeding in the Tribunal’s Social Services and Child Support Division.
Appeals and references of questions of law to the Federal Court
Appeals and references of questions of law to the Federal Court are the subject of Part IVA of the AAT Act. Section 44 in that Part provides for appeals in two situations. Section 44(1) provides:
“A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
Note 1:This Part does not apply to certain migration proceedings (see section 43C).
Note 2:A party to a child support first review may in some instances appeal instead to the Federal Circuit Court (see section 44AAA).”[14]
[14] Section 44(1A) of the AAT Act qualifies the operation of s 44(1) in relation to a child support first review or for review of an AAT reviewable employer decision within the meaning of the Paid Parental Leave Act 2010.
Section 44(2) provides for an appeal about standing:
“Where a person has applied to the Tribunal for review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may appeal to the Federal Court of Australia from the decision of the Tribunal.
Note:This Part does not apply to applications in relation to certain migration decisions (see section 43C).”
What is the “decision” referred to in section 43AA?
Given that it is separated from s 43 only by s 43AAA, which is concerned with the Tribunal’s findings in its Security Division for review of security assessments, it might be thought that the “decision”, to which s 43AA refers, is a decision made under s 43. That is to say, it is a reference to the final decision after the Tribunal has reviewed a decision. When regard is had to the structure of the AAT Act, the powers that are conferred on the Tribunal in the course of dealing with an application for review and for making the final decision as well as the right of appeal to the Federal Court, it seems to me that the word “decision” in s 43AA is a reference to any of the Tribunal’s decisions made in the course of taking an application through to its final resolution. That final resolution may be a final decision made by the Tribunal under s 43 after hearing the application or it may be a final decision made by the Tribunal under ss 34D or 42C with the consent of the parties. Both are final resolutions and both involve the Tribunal in making a decision.
Another final resolution would come about if the Tribunal were to dismiss the application under s 42A(1) with the consent of the parties to that application. The Tribunal’s power under s 42A(1) is not expressed in terms of a “decision” but the Tribunal is no less making a decision when it decides whether to dismiss an application under s 42A(1) than it is when making a decision under s 43 for the purpose of reviewing a decision. The same is true when the Tribunal exercises any of its procedural powers under Part IV of the AAT Act. It must, for example, decide whether to make an order under s 41(2) staying or otherwise affecting the operation or implementation of the decision under review. The power given by s 41(2) is framed in terms of the Tribunal’s making an order – rather than in terms of its making a decision or deciding to make an order - but that does not detract from the fact that the Tribunal must make a decision whether to make that order.
Another example arises in the context of ss 27(1) and 30(1A). Section 27(1) provides that an application may be made to the Tribunal for review of a decision by a person whose interests are affected by a decision. Section 30(1A) provides that a person whose interests are affected by a decision may apply in writing to the Tribunal to be made a party to the proceeding. In neither section has Parliament expressly stated that the Tribunal must decide whether the person is indeed a person whose interests are affected by the decision. For all that, it is implicit in each section that the Tribunal must have that power so that it may determine whether an application has been properly made and so whether it has jurisdiction to consider the application. What is implicit in those sections is expressly stated in s 31. Section 31 does not apply to a proceeding in the Security Division but, in all other Divisions in the Tribunal, “… if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.”[15] (emphasis added). It is also expressly stated in s 44(2) which gives a person a right to appeal to the Federal Court from a decision of the Tribunal not to be made a party to a proceeding before the Tribunal.
[15] AAT Act; s 31(1)
Where the difference lies between a decision made by the Tribunal under s 43 and the other decisions that must be made by the Tribunal in the course of considering an application for review is that the Tribunal is obliged by the AAT Act to give a written decision and to give either oral or written reasons. The AAT Act imposes no such obligation to make a written decision or to give reasons, whether oral or written, in relation to other decisions that it will make.
Section 43AA sits in Division 7 of Part IV. It sits separately from Division 6 where s 43 is found and separately from the other Divisions of Part IV which confer powers on the Tribunal that necessarily require it to come to a decision, from time to time, whether it will exercise those powers. Given its location in the AAT Act, it seems to me that the power to correct errors given by s 43AA is a power that may be used to correct errors whenever the Tribunal is either required, or chooses, to make a decision and any reasons it is required, or chooses, to give for that decision. It is a power that extends to a decision either reinstating, or refusing to reinstate, an application under s 42A(10).
IS A DECISION MADE UNDER SECTION 43AA A DECISION TO WHICH SECTION 13 OF THE ADJR ACT APPLIES?
I have considered whether a decision responding to a party’s request to correct errors using the power given by s 43AA of the AAT Act is a decision, to which s 13 of the ADJR Act applies. Whether it does depends in part on the nature of the power given to the Tribunal under s 43AA.
The Tribunal must advise the parties of its decision in writing and of its reasons for decision either in writing or orally. Once it has given its decision after, for example, reviewing a decision or, as in this case, refusing to reinstate an application under s 42A(10), the Tribunal has used its powers and it has no more powers to use in that particular matter. That is to say, it is functus officio.[16] It is required by s 43(3) to reduce its decision to writing if it is a decision made after reviewing a decision. That is not so in the case of other decisions but always advisable. A copy of any decision or order of the Tribunal that is certified by the Registrar to be a true copy of the decision or order is, in any proceeding, prima facie evidence of the decision or order.
[16] X v Minister for Immigration and Multicultural Affairs [2002] FCA 56; (2002) 116 FCR 319; Gray and Moore JJ; O’Loughlin J dissenting at [23]; 326-327 per Gray J
It is against that background that the power conferred by s 43AA must be considered. The Tribunal’s substantive powers have been exercised on the issue but s 43AA allows the Tribunal to direct the alteration of the text of a decision or of written reasons if satisfied that there is an “obvious error” in that text. That is not a power:
“… to reverse or vary the decision. It could not be said that the Tribunal, having formally said it set aside the decision under review could then revisit the decision. Matters of expression, or inconsistency or error in calculation, could be corrected under s 43AA, but not the decision itself. …”[17]
[17] Comcare v Moon [2003] FCA 569 at [65]; Mansfield J
What is an “obvious error”? The expression was considered by Johnson J in Allianz Australia Insurance Ltd v Crazzi[18] when considering s 94(6) of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). Section 94(6) provided:
“If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error.”
[18] [2006] NSWSC 1090; (2006) 68 NSWLR 266
Johnson J considered various formulations of what might generally be called a “slip rule” or a power to correct errors. They included a “patent error”, a “demonstratable error”, “an error on the face of the award” and “manifest error”. In relation to the term “obvious error” as it is used in the MAC Act, his Honour concluded:
“ The proper construction of the term ‘obvious error’ in s 94(6) of the Motor Accidents Compensation Act requires identification of the meaning of the term in its statutory context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], 384 [78]. In my view, errors caught by this provision are errors which must be readily apparent to the principal claims assessor on the face of the certificate and/or statement of reasons. The error must be clear and not merely arguable. The words of s 94(6) confine the attention of the principal claims assessor to the certificate and/or statement of reasons to determine whether she is satisfied that an ‘obvious error’ is contained therein. Unlike the provision considered in Larkin v Parole Board, it is not open to the principal claims assessor to inquire beyond those documents to determine whether an ‘obvious error’ exists.”[19]
[19] [2006] NSWSC 1090; (2006) 68 NSWLR 266 at [144]; 288
The expression considered by the court in Larkin v Parole Board[20] was “patent error”. If the Parole Board were satisfied that a court had made a “patent error” in specifying a non-parole period, s 23 of the Probation and Parole Act 1983 (NSW) provided that it might correct that error. McHugh JA, with whom Samuels JA agreed, noted that Tindall and Barry JJ sitting in the Transvaal Provincial Division of the Supreme Court of South Africa in Hanna v Mynhardt[21] had held that a power to “correct patent errors in any judgment” meant a power to correct an error that was patent on the face of the record. In Riley v Parole Board of New South Wales,[22] Kirby P had thought that it was permissible, to some extent, to go behind the face of the judgment imposing the sentence.[23]
[20] (1987) 10 NSWLR 57; Kirby P, Samuels and McHugh JJA
[21] 1935 TPD 63
[22] (1985) 3 NSWLR 606; Kirby P, Priestley and McHugh JJ
[23] (1985) 3 NSWLR 606 at 616-617
In Larkin v Parole Board, McHugh J said:
“ I agree that s 23 requires that the error must be clear. But I do not see anything in s 23 or its context which precludes the Board from going, wholly or partly, beyond the terms of the judgment of the court imposing the sentence. I think that, in its context in s 23, patent simply means manifest or evident. The distinction which s 23 makes is not between the record or judgment of the Court and external material, but between obvious and arguable errors. If the Board is satisfied that the Court has made a manifest error, it may exercise its powers under s 23 even though it could reach its conclusion only by considering material outside the judgment or record of the Court.”[24]
[24] (1987) 10 NSWLR 57 at 70-71
It seems to me that the distinction drawn by McHugh JA between obvious and arguable errors and the ability to go beyond the face of the decision or of the reasons for decision to characterise an error is applicable to s 43AA of the AAT Act. Beginning with the distinction between obvious and arguable, Parliament’s choice to use the word “obvious” means that the Tribunal does not have power to correct an error if it is simply arguable that an error has been made.
Situations in which the Tribunal might have made an error but the error is not apparent on the face of the decision, or on the face of the reasons for decision, come readily to mind. An error may not be apparent when a decision is made by the Tribunal under ss 34D or 42C of the AAT Act but may be obvious when regard is had to the agreement signed by the parties. The same may be true when a decision is compared with the reasons. This, indeed, is an example of an obvious error given by s 43AA(3)(b) and supports the broader interpretation that I have adopted.
What the Tribunal cannot do under s 43AA is to change the substance of the decision or to change the substance of the reasons for decision. It had exhausted its power to do that when it made its decision and cannot change the substance of its decision or of its reasons. The reason for this is apparent from the judgment of Burchett J in Ma v Commissioner of Taxation[25] (Ma) when he followed his analysis of s 43 of the AAT Act with the following reasoning relevant to decision-making under that section:
“… Sub-section 1 elaborates the nature of the decision the Tribunal may make, requiring it to be ‘a decision in writing’. Sub-section 2 then provides: ‘the Tribunal shall give reasons either orally or in writing for its decision.’ That lays down a clear alternative - although the decision is in writing, the reasons may be given either orally or in writing. Once one of those alternatives has been adopted, the decision in writing has been clothed with reasons and is complete. If the matter be sufficiently urgent, an appeal may proceed immediately. There is no suggestion in this that the Tribunal can later strip the decision of its original reasons to replace them with new ones. It may, of course, reduce its oral reasons to writing (Federal Commissioner of Taxation v. Osborne (1990) 90 ATC 4889, a decision, as counsel on both sides agreed, which does not solve the present problem), but that is another matter. Upon the respondent’s argument, it would presumably follow that the Tribunal could discard written reasons, upon an appeal, in favour of alternative written reasons. One may ask, for how long could this process continue?”[26]
[25] [1992] FCA 359; (1992) 37 FCR 225; 92 ATC 4373; 23 ATR 485; 27 ALD 601
[26] [1992] FCA 359; (1992) 37 FCR 225; 92 ATC 4373; 23 ATR 485; 27 ALD 601 at [11]; 230-231; 4,377-4,378; 490; 606
Given that the power given to the Tribunal by s 43AA cannot be used to change the substance of the decision and is limited to obvious errors in the sense explained above, I do not think that a decision whether to exercise the power is a decision to which s 13 of the ADJR Act applies. It is not a final or operative decision but merely a decision made in the exercise of a power to ensure that the Tribunal’s decision or reasons for decision reflect what it said. In the case of a decision made under s 43, the final or operative decision from which any appeal could be lodged to the Federal Court would be the final decision made under s 43 that may have been corrected under s 43AA. The same would be true of the decision I made under s 42A(10). Any appeal or right of review that would lie from that decision would relate to the substantive decision as corrected. It would not lie from the corrections.
REASONS FOR DECISION UNDER SECTION 43AA
Although my conclusion in the previous paragraph means that I am not obliged to give reasons for my making the decision I did regarding Mr Elliott’s request for reasons, I have used his request as an opportunity to consider his request once more. I will set out my reconsideration and give him my reasons for making a further corrigendum.
Mr Elliott asked me to alter [79]-[81] of my reasons for decision. He said of them:
“… In particular, no correction or clarification was made to paragraphs 79-81 of the decision, which appear to contain inconsistent and contradictory conclusions and reasoning. I was not provided with reasons for the corrigendum or reasons for declining to make the alterations to paragraphs 79-81 and I am still unable to decipher the apparent inconsistencies between paragraphs 79-81.”
Mr Elliott had developed his argument in his earlier request for a corrigendum made in his email sent on 20 October 2020:
“Although in the Deputy President’s view there had not been a decision under section 181 made by the Secretary personally, it would follow from the reasoning in paragraphs 79 and 80 that a decision under section 181 made by a delegate would be reviewable under section 142(1)(b) of the SSA Act and that therefore there had been a decision made under section 181 in respect I was entitled to make an application to the Tribunal for review. However, paragraphs [sic] 81 does not state this, nor does it state that a decision under section 181 made by a delegate would not be reviewable under section 142(1)(b) of the SSA Act. As such it is unclear what the Tribunal has actually decided.
Being able to discern what the Tribunal’s decision actually is, is crucially important to my rights of appeal. Whether the Tribunal’s ultimate finding that there is no reviewable decision rests on the basis that there was no decision within the meaning of subs 142(1)(b), or on the basis that such a decision was excluded by subs 144(s), determines whether the latter is Obiter and thereby likely affects questions of law I may wish to pose to the Federal Court if I choose to appeal.
Please alter the text of the decision to clarify this discrepancy or ambiguity and remedy whatever error caused it. It may be that the text concerning the situation of whether a decision made by a delegate under s 181 would be reviewable by virtue of section 25(3A) of the AAT Act was incidentally omitted. If, on contrary, the text in paragraphs 81 and 80 is as it is intended to be, please inform me.”
I think that there is an “obvious error” in [79]-[81] as that term is used in s 43AA of the AAT Act. It is apparent on the face of the text in that there is plainly a missing paragraph to explain why a decision made personally by the Secretary is not a decision in respect of which an application may be made under s 142(1)(b) of the SSA Act. The whole of the passage from [57] to [81] appeared under the heading of “Tribunal’s jurisdiction to hear Mr Elliott’s application for review”. The particular paragraphs in issue, [79] to [81], appear under the heading “Was the decision made by the Secretary personally?”. It is clear from my reasons that I had concluded that Mr Elliott could not make an application to the Tribunal under s 142(1)(a) as no decision had been made under either ss 126 or 135 by the Secretary, the Chief Executive Officer of Centrelink or an authorised review officer. He could only make an application under s 142(1)(b) if the decision had been made by the Secretary personally and, if she had, the Tribunal was not permitted to review the decision by virtue of s 144(s) of the SSA Act. Mr Elliott had relied, in part, on s 35(3A) of the AAT Act. At [79] of my reasons, I referred to “s 142(1)(b)” of the SSA Act when the reference should have been to “s 142(1)”. That was the context in which the general discussion of s 25(3A) of the AAT Act proceeded.
There is an obvious error in moving from the general conclusion that s 25(3A) is a machinery provision to the conclusion that the decision made by a delegate is not a decision made personally by the Secretary. The missing paragraph is:
80A.It is clear from s 25(6) of the AAT Act that an enactment providing for applications to the Tribunal may include provisions adding to, excluding or modifying the operation of provisions in the AAT Act. Specific provisions are named but it is clear from the Full Court’s judgment in Beni v Minister for Immigration and Border Protection[27] that Parliament may add to, alter or modify the operation of the provisions of the AAT Act.[28] Parliament has chosen to do that when it provided in s 142(1)(a) for an application to be made for review of a decision of the Secretary (as well as of the Chief Executive Officer of Centrelink or an authorised review officer) and in s 142(1)(b) for an application to be made for review of a decision made personally by the Secretary. By distinguishing between decisions made by the “Secretary” and those made “personally by the Secretary”, Parliament has clearly envisaged that there is room for the operation of s 25(3A) of the AAT Act in s 142(1)(a), which does not apply in this case, but none when Parliament has expressly specified in s 142(1)(b) that a decision under the SSA has been made “personally by the Secretary”.
[27] [2018] FCAFC 228; (2018) 267 FCR 15; McKerracher, Reeves and Thawley JJ
[28] [2018] FCAFC 228; (2018) 267 FCR 15 at [62], 35
CORRIGENDUM
It does not matter that I have previously considered Mr Elliott’s request and made corrigenda in response to it. When read with s 2(2) of the AI Act, s 33(1) of that legislation provides that, unless the SSA Act provides to the contrary, I may exercise a power from time to time as the occasion requires. The SSA Act does not make any provision to the contrary. Therefore, I may exercise the power under s 43AA(1) once more to direct the Registrar to alter the text of my reasons for decision at paragraph 79 by deleting the reference to “s 142(1)(b)” and inserting “s 142(1)” and by adding the following paragraph after [80] and before [81] of my reasons:
80A.It is clear from s 25(6) of the AAT Act that an enactment providing for applications to the Tribunal may include provisions adding to, excluding or modifying the operation of provisions in the AAT Act. Specific provisions are named but it is clear from the Full Court’s judgment in Beni v Minister for Immigration and Border Protection[29] that Parliament may add to, alter or modify the operation of the provisions of the AAT Act.[30] Parliament has chosen to do that when it provided in s 142(1)(a) for an application to be made for review of a decision of the Secretary (as well as of the Chief Executive Officer of Centrelink or an authorised review officer) and in s 142(1)(b) for an application to be made for review of a decision made personally by the Secretary. By distinguishing between decisions made by the “Secretary” and those made “personally by the Secretary”, Parliament has clearly envisaged that there is room for the operation of s 25(3A) of the AAT Act in s 142(1)(a), which does not apply in this case, but none when Parliament has expressly specified in s 142(1)(b) that a decision under the SSA has been made “personally by the Secretary”.
[29] [2018] FCAFC 228; (2018) 267 FCR 15; McKerracher, Reeves and Thawley JJ
[30] [2018] FCAFC 228; (2018) 267 FCR 15 at [62], 35
| I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
...............[sgd]........................................................
Personal Assistant
Dated: 6 January 2021
| Heard: Decision on application under Solicitor for the Applicant: Solicitor for the Respondent: | 12 August 2020 20 October 2020 Self-Represented Ms Grace Ng and Ms Charlotte Lewis |
0
17
0