Elliott and Secretary, Department of Social Services (Social services second review)

[2020] AATA 5060

Elliott and Secretary, Department of Social Services (Social services second review) [2020] AATA 5060 (20 October 2020)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2020/1069
GENERAL DIVISION  )

Re: Patrick Elliott
Applicant

And: Secretary, Department of Social Services
Respondent

CORRIGENDUM TO DECISION OF 20 October 2020

TRIBUNAL:  Deputy President S A Forgie

CORRIGENDUM DATE:      29 October 2020

PLACE:           Melbourne

The Tribunal amends its decision of 20 October 2020 by:

1.at paragraph 66 line 1 removing ‘Mr Elliott did not refer to s 234 of the SSA Act but I think that is the starting point:’ and inserting ‘Section 234 of the SSA Act is the starting point:’.

2.at paragraph 44 line 4 removing ‘Public Governance, Performance and Accountability Act 2014.  The bases are, in fact,’ and inserting ‘Public Governance, Performance and Accountability Rules 2014.  The bases are’.

3.at paragraph 49 line 3 removing ‘s 42A(1)’ and inserting ‘s 42A(10)’.

4.at paragraph 52 line 2 removing ‘s 42A(1)’ and inserting ‘s 42A(10)’.

[sgd]

S A FORGIE

Deputy President

Division:                  GENERAL DIVISION

File Number:          2020/1069

Re:Patrick Elliott

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date of decision:               20 October 2020

Place:Melbourne

The Tribunal decides:

to refuse the applicant’s application under s 42A(10) of the Administrative Appeals Tribunal Act 1975 to reinstate his application lodged on 17 February 2020 for review of a decision of the respondent to enter an agreement with him under s 181 of the Social Security (Administration) Act 1999.

………[sgd]…………………

Deputy President S A Forgie

Catchwords
PRACTICE AND PROCEDURE – social security – application for reinstatement – whether tribunal made an error in finding that it did not have jurisdiction to review application – meaning of section 144(s) of the Social Security (Administration) Act 1999 – section 144(s) to be read as referring to section 181 of the Social Security (Administration) Act 1999 – no reviewable decision – application not reinstated

Legislation
Acts Interpretation Act 1901; s 2; s 34AB
Administrative Decisions (Judicial Review) Act 1977
Administrative Appeals Tribunal Act 1975; s 25; s 42A
Administrative Appeals Tribunal Amendment Act 1993
Farm Household Support Act 2014
Fisheries Ordinance 1965 (NT)
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability Rule 2014
Social Security (Administration) Act 1999; s 126; s 127; s 129; s 135; s 142; s 144; s 179; s 181; s 182; s 234
Social Security Act 1991; s 1237A

Cases
Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
Australian Crime Commission v Stoddart [2011] HCA 47
Australian National University v Burns [1982] FCA 191; (1982) 64 FLR 166; 43 ALR 25; 5 ALD 67
Burns v Australian National University [1982] FCA 59; (1982) 61 FLR 76; 40 ALR 707
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151; 11 ATR 949; 55 ALJR 434
Davies v Pagett (1986) 10 FCR 226
Director of Public Prosecutors (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627; (1984) 55 ALR 175; 58 ALJR 469
Field v Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285
Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724; 82 ALD 289; 79 ALJR 627
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; 359 ALR 1; 75 AAR 551; (2018) 92 ALJR 780
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; 58 ALR 305
Jackamarra v Krakouer (1998) 195 CLR 516; 153 ALR 276
Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275; 137 ALR 506; 20 ACSR 525
Kong v Kang & Ors [2014] VSC 28
Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) 27 FCR 388
Lindner v Wright (1976) 14 ALR 105
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Minister for Immigration and Multicultural Affairs v Bhardwaj 2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; (2002) 76 ALJR 598
Northern Land Council v Quall [2020] HCA 33
Pihiga Pty Ltd v Roche [2011] FCA 240
Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241
R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Re White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712; (2007) 97 ALD 204; (2007) 46 AAR 208
Scharer v New South Wales [2001] NSWCA 360; (2001) 53 NSWLR 299; 116 LGERA 217
Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602; [1962] ALR 195; (1961) 35 ALJR 109
Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551
Unilever Plc v The Procter & Gamble Co [2000] 1 WLR 2436

Secondary Materials

Chambers 21^st Century Dictionary, Revised Edition, Chambers Harrap Publishers 1999
The Macquarie Dictionary, 5^th edition, 2009 Macquarie Dictionary Publishers Pty Ltd

REASONS FOR DECISION

Deputy President S A Forgie

1. Mr Elliott applied for reinstatement of an application he had made to review a decision made by the Secretary to enter an agreement under s 181 of the Social Security (Administration) Act 1999 (SSA Act).  I have decided to refuse his application and set out my reasons below.

BACKGROUND

1. I have taken the facts set out in this section of my reasons from the documents on the Tribunal’s file.  Mr Elliott has provided further evidentiary material in his contentions and submissions and I have set that out under a separate heading below.

1. On 26 February 2019, a delegate of the Secretary of the Department of Social Services (Secretary) decided that Mr Elliott had been overpaid youth allowance during the period 3 January 2013 to 24 June 2016.  The overpayment had been made because his income from his part-time work at Woolworths had been under reported to Centrelink.  As a consequence, Mr Elliott owed a debt in the amount of $3,965.94.  He asked for the delegate’s decision to be reviewed but it was affirmed by an Authorised Review Officer (ARO) on 30 April 2019. 

1. He then applied to the Tribunal for review in its Child Support and Social Services Division (AAT first review). On 31 July 2019, AAT first review decided to set aside the delegate’s decision and decided to substitute a decision to waive that portion of the debt incurred while Mr Elliott was overseas from 29 December 2013 to 4 February 2014 but not otherwise. It waived the debt for that period under s 1237A of the Social Security Act 1991 (SS Act) on the basis it was attributable solely to Centrelink’s error. The error arose by reason of Centrelink’s having suspended Mr Elliott’s ability to report his income using its online services while he was overseas. AAT first review considered waiver under s 1237AAD in relation to the debt incurred by failure to report his income while in Australia but did not find any special circumstances that made it more desirable to waive the debt. AAT first review did, however, decide that Mr Elliott had been underpaid for the period from 28 February 2013 to 13 March 2013 and reduced the outstanding debt by the amount of the underpayment.

1. On 14 August 2019, Mr Elliott applied to the Tribunal for review of AAT first review’s decision.  On 28 August 2019, Ms Voigt, an officer from the Department of Human Services acting for the Secretary, wrote to Mr Elliott on a without prejudice basis. 

1. On 29 and 30 August 2019 respectively, Mr Elliott and a delegate of the Secretary, Ms Voigt, signed a Notice of Agreement to Settle Proceedings (Notice).   The Notice began with a statement that they had reached an agreement otherwise than in the course of an alternative dispute resolution (ADR) process and then set out the decision made by AAT first review.  It then continued:

   “On 22 August 2019, the Department implemented the AAT1 [AAT first review] decision and determined that the Applicant had a youth allowance debt of $3,439.53 (the debt).

   The debt is the subject of proceedings.

   The parties have agreed to settle the matter on the basis that the Respondent reduces the debt under section 1237AAB of the Social Security Act 1991 by $2,939.53.

   The application for review of the decision that is the subject of these proceedings is taken to have been dismissed pursuant to section 181 of the Social Security (Administration) Act 1999.”

1. An officer in the Tribunal’s Registry wrote to Mr Elliott and the Secretary advising that the terms of settlement signed by them under the SSA Act had been received.  That meant, the letter advised, that the application for review had been dismissed by the Tribunal.

1. On 4 September 2019, Ms Voigt wrote to Mr Elliott attaching screen shots showing that, in accordance with the settlement agreement, his youth allowance debt of $3,439.53 for the period 28 February 2013 to 24 June 2016 had been reduced by $2,939.53. 

1. Mr Elliott emailed Ms Voigt on 13 January 2020.  Although I have only Ms Voigt’s response dated 14 January 2020, I understand that his email raised the possibility of his challenging the agreement he had signed under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).  Ms Voigt’s letter was sent in error although Mr Elliott was not advised of that until 13 February 2020.

1. On 7 February 2020, Mr Elliott lodged an application for review of a decision he described as having been made personally by the Secretary under s 181(1) of the SSA Act. He explained that:

   “Section 144(s) of the Social Security Administration Act states that a decision relating to the Secretary’s power under section 182 of that Act to settle proceedings before the AAT is not reviewable by the AAT. However, under existing legislation, there is no power of the Secretary under section 182 of that Act to settle proceedings before the AAT. Existing section 181 was formerly section 182, but when the Act was amended and section 182 became section 181, Parliament failed to change section 144(s), which still refers to section 182. Thus the current legislation does not exclude the decision which was made by the Secretary under section 181(1) of the Admin Act from review by the AAT.

   The decision which was made under section 181(1) is incorrect because the Secretary should have agreed to waive a greater sum. Although the power in section 181(1) is broad, it is not unbounded. It is limited by both the common law grounds of judicial review, and the considerations in section 5 of the Administrative Decision (Judicial Review) Act. There were procedures that were required by law to be observed in connection with the making of the decision which were not observed, and the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, among other defects.”

1. The matter was listed before Member Parker to consider whether the Tribunal has jurisdiction to consider Mr Elliott’s application. She decided on 10 July 2020 that it did not and dismissed the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act) on that basis.  The bases of Member Parker’s reasons were:

   (1)Mr Elliott had not identified decisions that the Tribunal has power to review whether as an AAT first review or an AAT second review level.

1. On 10 July 2020, Mr Elliott applied for his application to be reinstated under s 42A(10) of the AAT Act. He explained:

   “This is an application made under subsection 42A(10) of the Administrative Appeal Tribunal Act 1975 (Cth) seeking reinstatement of my application (AAT Ref 2020/1069) on the grounds that the application was dismissed in error.  A copy of the dismissal is attached for reference.

   In paragraphs 59 - 69 of the Tribunal’s decision to dismiss my application, the effect of section 34AB of the Acts Interpretation Act was noted by the Tribunal, but was seemingly ignored and not applied. The effect of section 34AB, if applied, would have negated the basis on which the Tribunal dismissed my application as set out in paragraphs 59 - 69. Although from paragraph 70 onwards the Tribunal made observations on other issues involved in the matter, having already determined a threshold question set out in paragraphs 59 - 69, the Tribunal did not dismiss the application on the basis of those observations from paragraph 70 onwards and they remain obiter.

   Having noted the effect of section 34AB of the Acts Interpretation Act, but seemingly ignoring it and failing to apply it where its application would have negated the basis of the dismissal, the application was plainly dismissed in error and the application should be reinstated. A valid dismissal would require at least a consideration of the effect and application of section 34AB of the Interpretation Act.”

THE EVIDENCE

1. Mr Elliott accepted that he had agreed with the Secretary to settle the proceedings on the terms set out above.  He added the further by way of background in his written contentions:

   “5.       I entered the agreement to settle the proceedings reluctantly.  I had recently completed practical legal training and had intended to be admitted to the legal profession in Victoria in August 2019.  However, the Legal Services Board treats social security debts as a serious consideration in weighing applications for admission and as I could not afford to pay the debt, I decided to postpone my admission until after review by the Tribunal. 

   6.The Tribunal’s decision at first level was partially correct, but also partially defective in that a number of dates and issues were confused and conflated.  I note that the presiding Member at first level review was a Member with no legal qualifications or training.

   7.After I applied for second level review, on 23 August 2019 the Respondent, through its representative April Voigt, a Department lawyer, offered to settle proceedings by waiving the right to recover $2,431.86 of the debt.  I rejected that offer and made a counter offer by which the Respondent would waive the right to recover $3,3377.77 and retain a sum of $101.76 to which it appeared it may have been legally entitled.  The Respondent rejected this and made a further offer to waive the right to recover $2,939.53, being $507.67 more than its original offer.

   8.Not wishing to delay my admission further by waiting until the conclusion of second level proceedings, on or about 30 August 2019 I accepted the Respondent’s offer for the sake of expediency even though it was my belief that in settling the Respondent still retained sums to which it was not entitled.  My admission ultimately took place in November 2019.  I note that if I had pursued proceedings to the end of second level review and delayed my admission further I may have ultimately been negatively affected by the impact of COVID-19 upon admission arrangements.”

   DISMISSAL AND REINSTATEMENT PROVISIONS IN THE AAT ACT

2. Section 42A of the AAT Act provides that the Tribunal has power to dismiss an application in four circumstances and is deemed to have dismissed an application in one other.  Beginning with deemed dismissal, if an applicant notifies the Tribunal in writing that his or her application is discontinued or withdrawn, the Tribunal is taken to have dismissed the application without proceeding to review the decision.[1]  If the application was made in the wTribunal’s Social Services and Child Support Division (SSCSD), the applicant may notify the Tribunal orally of the discontinuance or withdrawal.[2]  The Tribunal’s power to dismiss an application arises if:

   (1)the parties consent to its being dismissed;[3]

   (2)if an applicant fails to appear either in person or by a representative at a directions hearing, ADR process or at the hearing;[4]

   (a)Before exercising its powers, the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, ADR process or hearing;[5]

   (3)if the decision is not reviewable by the Tribunal;[6] and

   (4)if the applicant fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal in relation to the application.[7]

   RELEVANT PROVISIONS OF THE SOCIAL SECURITY LEGISLATION

   [1] AAT Act; ss 42A(1A) and (1B)

   [2] AAT Act; ss 42A(1AA) and (1B)

   [3] AAT Act; s 42A(1)  For the purposes of a matter in the SSCSD, the consent of the agency party is not required: AAT Act; s 42A(1AAA).

   [4] AAT Act; s 42A(2)

   [5] AAT Act; s 42A(7)

   [6] AAT Act; s 42A(4)

   [7] [7] AAT Act; s 42A(5)

   When may an application be made to the Tribunal?

3. Section 25(1)(a) of the AAT Act provides that an enactment may provide that applications be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment.  Where an enactment makes provision of that sort, it must specify the person or persons to whose decisions the provision applies, may be expressed to apply to all decisions of a person, or to a class of such decisions and may specify conditions subject to which applications may be made.[8]  Section 25(3A) provides:

   “Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power:

   (a)by any person to whom that power has been delegated;

   (b)in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment – by any person for the time being acting in or performing any of the duties of, that office or appointment; or

   (c)by any other person lawfully authorized to exercise that power.”

   [8] AAT Act; s 25(3)

4. Section 25(7) provides for the situation in which a decision-maker ceases to hold office.  It provides:

   “Where:

   (a)a person has made a decision in respect of which an application may be made to the Tribunal;

   (b)the person made the decision by reason that he or she held or performed the duties of an office or appointment; and

   (c)the person no longer holds or performs the duties of the office or appointment;

   this Act has effect as if the decision had been made by:

   (d)the person for the time being holding or performing the duties of that office or appointment; or

   (e)if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists – such person as the President or an authorised member specifies.”

   A.       Applications for AAT first review

5. Consistently with s 25(1)(a) of the AAT Act, s 142(1) of the SSA Act provides:

   “Subject to section 144, applications may be made to the AAT for review (AAT first review) of:

   (a)a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or

   (b) a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.”

6. Before I look at the qualification in s 144, I will set out the requirements of s 142(1)(a) requires an understanding of ss 126 and 135.  Under s 126:

   “The Secretary may review, subject to subsection (2), a decision of an officer under the social security law if the Secretary is satisfied that there is sufficient reason to review the decision.”

   Section 127 sets out the decisions that the Secretary may not review but none is relevant in this case.  The Secretary may exercise that power whether or not any person has applied for its review and even if an application has already been made to the Tribunal for its review.[9]  On review, the Secretary may affirm a decision, vary a decision or set aside a decision and substitute a new decision.[10] 

   [9] SSA Act; s 126(2)

   [10] SSA Act; s 126(3)

1. Section 135 comes into play if an application has been made under s 129.  Section 129(1)

provides that:

“Subject to subsections (3) and (4), a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.”

Section 129(3) is not relevant but s 129(4) excludes certain decisions from the scope of s 129(1).  Among the decisions excluded are those made by the Secretary himself or herself[11] as well as those made by the CEC himself or herself in the exercise of a delegated power.[12]

[11] SSA Act; s 129(4)(a)

[12] SSA Act; s 129(4)(f)

1. If a person applies under s 129 for review of a decision, the Secretary, CEC or an ARO must review the decision and affirm it, vary it or set it aside and substitute a new decision.  That is the effect of s 135(1).  Section 135(3) provides:

   “An authorised review officer may not review a decision relating to the exercise of the Secretary’s power under section 181 of this Act.”

2. Written notice of a decision made under s 135(1) must be given to the applicant under s 136.[13]  The notice must give reasons and include a statement that, subject to the social security law, the person may apply to the Tribunal for review of the decision.[14]

   [13] SSA Act; s 136

   [14] SSA Act; s 138(1)

   B.       Applications for AAT second review

3. A person’s right to apply for AAT second review is the subject of Division 3 of Part 4A of the SSA Act.  Section 179 provides that an application may be made to the Tribunal for review, that is known as AAT second review, of a decision made on AAT first review.  Depending on the decision made by AAT first review, the decision is taken to be the decision as affirm ed by AAT first review, the decision as varied by AAT first review, the new decision if AAT first review sets aside the decision under review and substitutes another or, if AAT first review remits the matter to the Secretary for reconsideration, the directions or recommendations it has made.[15]

   [15] SSA Act; s 179(2)

4. Section 144 sets out several decisions that the Tribunal cannot review.  Among the decisions listed is “a decision relating to the Secretary’s power under section 182 of this Act to settle proceedings before the AAT.”[16] 

   [16] SSA Act; s 144(s)

   Settlement of proceedings relating to the recovery of a debt

5. Section 181 of the SSA Act applies to both AAT first review and AAT second review. It provides:

   “(1)     The Secretary may agree, in writing, with other parties to settle the proceedings before the AAT that relate to the recovery of a debt.

   (2)If proceedings are settled and the Secretary gives the AAT a copy of the agreement to settle the proceedings, the application for review of the decision the subject of the proceedings is taken to have been dismissed.”

OUTLINE OF SUBMISSIONS

1. Mr Elliott submitted that his application should be reinstated under s 42A(10) of the AAT Act. In the alternative, he submitted that the Tribunal had fallen into jurisdictional error when it failed to exercise its substantive jurisdiction. Relying on the principles in Minister for Immigration and Multicultural Affairs v Bhardwaj[17] (Bhardwaj) and Hossain v Minister for Immigration and Border Protection[18] (Hossain), Mr Elliott submitted that the dismissal was void in law.  He sought orders that the application be reinstated and remitted to AAT first review.

   [17] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; (2002) 76 ALJR 598

   [18] [2018] HCA 34; (2018) 264 CLR 123; 359 ALR 1; 75 AAR 551; (2018) 92 ALJR 780

1. The errors that Mr Elliott identified as having been made by the Tribunal in dismissing his application were identified at [37] of the Applicant’s Contentions:

   “… [T]he Member dismissed the application on the basis that neither Secretary nor the CEC had ‘personally’ made a decision for the purposes of sub-s 142(1)(b) of the Admin Act, and also found that even if they had, review of the decision was excluded by sub-s 144(s).”

1. In doing so, Mr Elliott identified three errors that he submitted had been made by the Tribunal in dismissing his application.  In outline only and omitting the authorities, to which he referred to support his 45 pages of submissions, they were:

   (1)“The Member ignored submissions concerning sub-s 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act).  The effect of the subsection would have prima facie negated the primary basis of the dismissal that no decision had been made ‘personally’ by the Secretary of CEC within the meaning of sub-s 142(1A)(b) of the Admin Act.  It was not open to the Member to ignore the submission and the Member was required to either apply its effect or explain why it did not apply.

   …

   When the power in sub-s 181(1) of the Admin Act is performed or exercised by a delegate of the Secretary (or by a delegate of the CEC in turn being a delegate of the Secretary), the effect of sub-s 34AB(1)(c) of the Interpretation Act is that the power is deemed to have been performed or exercised by the person holding the office of Secretary for the purposes of the Admin Act, including its purpose of conferring jurisdiction on the Tribunal under s 142(1)(b).

   …

   The provisions of the Interpretation Act are subject to a contrary intention … and it might be argued that such an intention is found in the use of the word ‘personally’ in sub-s 142(1)(b) of the Admin Act.  This would be incorrect.  Subsection 34AB(1)(c) operates directly on sub-s 181(1) of the Admin Act so that the exercise of that power by a delegate is deemed to be an exercise by the Secretary for the purposes of the Act.  Once sub-s 34AB(1)(c) has had this effect, it does not need to perform any further work over sub-s 142(1)(b).  There would need to be an intention manifest to dis-apply or modify sub-s 34AB(1)(c) specifically in relation to sub-s 181(1) and clearly no such intention exists.

   …

   … [T]he Member found that reviewable decisions under subsection 142(1)(b) of the Admin Act are confined to decisions made ‘personally’ by the Secretary of Chief Executive Centrelink , meaning the Secretary or the CEC himself or herself.  The Member found that subsection 25(3A) of the AAT Act ‘did not apply’ to subsection 142B(1)(b) of the Admin Act and as such did not permit applications to be made to the Tribunal for review of decisions made by delegates.

   … [T]he member found that the decision I sought to have reviewed, being the decision made under sub-s 181(1) of the Admin Act,, was made by April Voigt as a government lawyer on behalf of the Secretary as a delegate and that therefore there was no decision taken by the Secretary or CEC ‘personally’ which I could point to in order to enliven the Tribunal’s jurisdiction under s 142(1)(b).”[19]

   [19] Applicant’s Contentions at [57]-[69] (citation omitted)

   (a)“It is not clear why the Member did not apply or did not even consider the effect or application of s 34AB(1)(c) other than to record that a submission had been made about it. While the Tribunal is not obliged to consider every submission made to it, it is obliged to consider relevant material or else fall into jurisdictional error.

   …

   Whatever the reason, it was an error to ignore and not apply the effect of sub-s 34AB(1)(c).  The Member was required to either apply its effect or explain how or why it did not apply.  The failure to do so could even constitute a failure by the Tribunal to afford procedural fairness by evincing apprehended bias, in that a fair-minded lay observer might reasonably apprehend that the Member did not bring an impartial mind to the resolution of the questions that she was required to decide [Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]]”[20]

   [20] Applicant’s Contentions at [71] and [74]

(2)“The Member made an error of law in finding that subsection 25(3A)(a) of the AAT Act does not apply to an enabling provision ‘where the relevant provision is confined to personal decisions of the repository power’.  In order to make this finding the Member completely ignored or abandoned basic rules of statutory construction, something which was not open to the Member to do and the finding has not rational foundation at all.  Aside from its effect on the present matter, the finding so-framed would abrogate the effect of sub-s 25(3A)(a) entirely, which may have serious consequences upon the rights of future applicants if left to stand as an authority.”[21]

[21] Applicant’s Contentions at [38.2]

“The evident effect of the provision is that it modifies enabling provisions in enabling Acts so that decisions of the person on whom a relevant power has been conferred and decisions of delegates exercising that same power are both reviewable.  A provision that might read ‘a person may apply to the Tribunal for review of decision by the Minister’ would be modified in effect to read ‘a person may apply to the Tribunal for review of a decision made by the Minister or a delegate of the Minister.”[22]

[22] Applicant’s Contentions at [78]

“There is no express dis-application of sub-s 25(3A)(a) and if Parliament intended to dis-apply it, it may have been expected to do so under sections 147 or 180 of the Admin Act which expressly modify or dis-apply provisions of the AAT Act.  There is also no ‘necessary’ implication to be found from the use of the of the word ‘personally’ in sub-s 142(1)(b) of the Admin Act which would implicitly repeal, amend or dis-apply sub-s 25(3A)(a) of the AAT Act.  There is no inconsistency, no overlap and no repugnancy.  Section 25(3A)(a) operates to modify s 142(1)(b) causing it to read in effect;

a decision under this Act made by the Secretary or the Chief Executive Centrelink, or a delegate of the Secretary or the Chief Executive Centelink.’

In the same way, without the use of the word ‘personally’ it would instead be modified to read in effect

‘a decision under this Act made by the Secretary or the Chief Executive Centrelink, or a delegate of the Secretary or the Chief Executive Centelink.’

Nothing whatsoever about the word ‘personally’ creates any inconsistency which necessarily implies amendment or dis-application of the modifying effect of sub-s 25(3A)(a).

Indeed, the use of the word ‘personally’ does not add any substance at all to the meaning of the provision.  Whether a decision is ‘made “personally” by the Secretary’ or whether a decision had been made by the person holding the office of Secretary as the idea that that the decision is made personally by the actual person holding the office of Secretary is already encompassed in in the words ‘made by the Secretary’.  The Member did not identify any substantial difference and appeared to simply find that the word ‘personally’ manifested an intention to dis-apply sub-s 25(3A)(a) of the AAT Act.”[23]

(3)Section 144 of the SSA Act prevents the Tribunal from reviewing a decision relating to the Secretary’s power under s 182 to settle proceedings before the Tribunal.

“On the existing text of the Act, the Tribunal is not prevented from reviewing a decision relating to the Secretary’s power under section 181 of the Act to settle proceedings before the AAT, it is only prevented from reviewing a decision relating to the Secretary’s power under section 182 of the Act to settle proceedings before the AAT.

The question for the Tribunal was whether it could omit ‘section 182’ from the provision and read ‘section 181’ in its place.  The Member found that she could.  It is submitted that it was not open to the Member to make that finding.”[24]

[23] Applicant’s Contentions at [98]-[101]

[24] Applicant’s Contentions at [113]-[114]

1. In his submissions, Mr Elliott made it clear that it is the Secretary’s decision to agree to settle the proceedings that he is seeking to have reviewed.  It is not any intermediate step along the way to making that decision.  Relying on the case of Griffith University v Tang,[25] the exercise of the power conferred by s 181(1) of the SSA Act is a decision “under” that legislation for the purposes of s 142(1)(b). It is the exercise of an express power conferred by an enactment and it affects rights and obligations under s 181(2) of the SSA Act and s 1237AAB of the SS Act. The exercise of the power is conditional upon the agreement of the other party to settle the relevant proceedings but, once exercised, its character as a “decision under” the SSA Act is not altered.

   [25] [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724; 82 ALD 289; 79 ALJR 627; Gleeson CJ, Gummow, Callinan and Heydon JJ; Kirby J dissenting

1. Mr Elliott submitted that the manner in which the Secretary had exercised her power under s 181(1) cannot be exercised arbitrarily. He referred to Appendix C to the Legal Services Direction 2017, which provides that money claims by or against the Commonwealth are to be settled in accordance with principle and practice. Section 11 of the Public Governance, Performance and Accountability 2014, Mr Elliott submitted, would have required the Secretary to pursue the debt unless satisfied that the recovery was not economical, that the debt was not legally recoverable, or that the debt had been written off as authorised by an Act.  The debt had not been written off under an Act and there is no reason to think recovery was not economical.  It may be inferred from this, Mr Elliott continued, that the Secretary came to the view that the debt was not legally recoverable.

1. Mr Elliott continued:

   “If the Tribunal has jurisdiction to review the decision, it could and should vary or alter the terms of the settlement agreement so that in settling, the Respondent only retains the amount, if any, to which it believed it was legally entitled.

   Some support for my belief or suspicion may come from the fact that the Respondent originally offered to waive the right to recover $2,431.86 before later increasing that figure to $2,939.53.  If the Respondent believed it was legally entitled to that additional $507.67, it would not have been permitted to waive it.  If it did not believe it was legally entitled to that additional $507.67, it should not have initially attempted to retain it.  If I had accepted the initial offer it seems the Respondent would indeed have retained sums to which it did not think it was entitled.  Even so, it is not necessary for me to prove my belief prior to the Tribunal accepting an application and conducting a hearing on the merits of the decision.”[26]

   [26] Applicant’s Contentions at [15]-[16]

2. If the Tribunal decides that the matter has been dismissed in error, it must either reinstate the application and review the decision on its merits or dismiss the application on another ground open to it.  That follows from the fact that the Tribunal does not have a general discretion to decline to perform its functions.  It has limited powers of dismissal under ss 39A(18), 42A, 42B and 69C of the AAT Act.  If the Tribunal has not exercised its jurisdiction, Mr Elliott submitted, it is not functus officio.  The Tribunal cannot recognise that it has failed to exercise its jurisdiction and then fail to exercise it a second time.  Even if the power is discretionary, the “errors in the present matter are egregious enough to make this one of the rare cases where reinstatement under 42A(10) is entirely appropriate, despite dismissal under s 42A(4) having followed an interlocutory hearing on the question of jurisdiction.”[27]

   [27] Applicant’s Contentions at [36]

1. On behalf of the Minister, Ms Ng submitted that Member had not ignored Mr Elliott’s submissions.  She had been plainly aware of them and had not accepted them.  They had been set out in the Respondent’s Submissions on Jurisdiction.  In summary, they were that:

   “… the application does not identify a reviewable decision which would enliven the jurisdiction of the AAT.  The reasons, in summary, are that:

   16.1No relevant decision has been identified for the purposes of s 142 of the SSA Act; and

   16.2In any event, decisions [in] relation to the Secretary’s power to settle proceedings before the AAT are ‘non-reviewable decisions.’”

1. Of the four types of decision that are reviewable by the Tribunal. The power to settle proceedings does not arise from either ss 126 or 135 and is not a power available to the CEC. Therefore, if it is to be reviewable, any decision made by the Secretary to enter an agreement in the context of s 181(1) must have been made by the Secretary personally. The Secretary had not made the decision personally and s 25(3A)(a) of the AAT Act cannot be relied on where the relevant provision is confined to personal decisions of the repository i.e. the Secretary. To accept a submission that it could be relied on would be to render meaningless the distinction between decisions in s 142(1)(a) and personal decisions in s 142(1)(b).

1. If it should be the case that there is a reviewable decision for the purposes of s 142, Ms Ng submitted that s 144(s) clearly excludes from the class of reviewable decisions those relating to the Secretary’s power to settle proceedings before the AAT. Section 144(s) incorrectly refers to s 182 rather than s 181 but that is a drafting oversight. It is an obvious error and the approach taken by Muirhead J in Lindner v Wright[28] should be followed.

   [28] (1976) 14 ALR 105; Pearce, D, Statutory Interpretation in Australia, 9^th edition at [2.45]

1. Omitting citations, I will summarise the main points made by Ms Ng in her submissions relating to reinstatement:

   (1)“The answer to the applicant’s core contention may be found in the text of s 34AB(1) itself. First, it applies where a function, duty or power may be, and has in fact been, delegated. A power which is exercisable only personally by a repository of power, here the Secretary, by definition cannot be delegated. Second, in s 34AB(1)(d) contemplates the repository of power retaining the ability to act itself. Second, s 34AB(1)(d) contemplates the repository of power retaining the ability to act itself. There is nothing in the text of s 34AB to support the applicant’s contention, which would render illusory the important difference between the exercise of a power by an authority personally and exercise by a delegate.

   The applicant’s contentions include an allegation of apprehended bias: AC[74].  This submission cannot be maintained in the absence of any evidence as to the conduct of the Tribunal.  It is well-established that the reasons delivered by a decision-maker are not relevant to the objective assessment of whether a fair-minded lay observer would [or] might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues …”[29]

   [29] Respondent’s Submissions at [19]-[20] (citations omitted)

   (2)“Section 25(3) [of the AAT Act] … expressly contemplates that an enabling Act may include specifications, limitations and conditions upon what decisions of a decision-maker  are reviewable.  This is what s 142(1)(b) does.  Section 25(3A) does not have the effect contended for by the applicant.  Section 25(3A)(a) has no application where is a power has not been delegated (as would be the case in the context of a power which is to be exercised personally).”[30]

   [30] Respondent’s Submissions at [23]

   (3)“The applicant characterises the Tribunal’s conclusions on s 144(s) as ‘obiter’, and that it was not necessary for him to establish error in these conclusions for the reinstatement application to succeed.

   On the contrary, the respondent submits that if the Tribunal is not persuaded that the findings on s 144(s) are attended by any error, then either:

   25.1It should not find the application was ‘dismissed in error’ for the purposes of s 42A(1)) or

   25.2Alternatively, that should be a very persuasive factor against the exercise of discretion to reinstate the application.

   The respondent does not repeat her written submissions previously made on the drafting amendments to s 144(s), but makes the following 2 additional observations:

   26.1It is incorrect to suggest that the Tribunal ‘chose’ to follow Lindner v Wright (1976) 14 ALR 105, and that it was bound to, and did not, follow Poroa.  What the Tribunal did was to apply a general principle of statutory interpretation.  The cases cited by the parties were examples of its application; none of the cases cited were binding in the sense that none of them dealt with the same statutory provisions or scheme.  A further direct response to the applicant’s criticisms of the decision in Lindner v Wright may be found in footnote 36 of the Tribunal’s reasons, which refers to a High Court authority adopting the same principle.

   26.2The applicant’s new argument that the reference to s 182 in s 144(s) may have been intended is contrary to language of both ss 144(s) and 181 (both of which use the word ‘settle’, whereas s 182 does not) and to the policy intent as explained in the revised explanatory memorandum to the Tribunals Amalgamation Bill 2014.  It should be rejected.”[31]

   [31] Respondent’s Submissions at [24]-[26.2]

CONSIDERATION

Communications made without prejudice

1. Mr Elliott attached letters written to him by Ms Voigt and dated 23 and 28 August 2019.  The Secretary submitted that the letters should not have been provided to the Tribunal for two reasons.  One reason was that they were not relevant and the other was that they had been written on a “without prejudice” basis.  Mr Elliott submitted that “… This would be incorrect; without prejudice privilege does not protect from disclosure documents used in negotiating a settlement after a settlement agreement has been concluded.  In any case, the Tribunal is not bound by formal rules of evidence and the documents are relevant to the application.”[32] 

   [32] Applicant’s Contentions at [17]

1. While it is true that s 33(1)(c) of the AAT Act provides that “the Tribunal is not bound by the rules of evidence …”, the without prejudice privilege is not a rule of evidence.  It is, like the privilege against self-incrimination and legal professional privilege, a rule of common law and is, in the absence of any legislative alteration to its application, a rule that binds the Tribunal just as it binds a court:

   “A person who validly claims privilege is seeking vindication of a right, not supplicating for the favourable exercise of a discretion …”.  The right on which the claimant is relying may be waived, but if it is asserted by a properly formulated objection assigning valid grounds for refusing to answer, the right – ie the privilege claimed – must be upheld by the court.”[33]

   [33] Australian Crime Commission v Stoddart [2011] HCA 47; (2011) 244 CLR 554; 282 ALR 620; 86 ALJR 66 at [61]; 633; 78 per Heydon J (citation omitted)

1. The without prejudice privilege:

   “… protects not only admissions in the form of an offer to settle, but also communications between the parties generally in respect to issues in the dispute including assertions made of the strength and weaknesses of a party’s case or an opponent’s case …”[34]

   [34] Pihiga Pty Ltd v Roche [2011] FCA 240 at [81] per Lander J (citations omitted)

2. In Pihiga Pty Ltd v Roche, Lander J traced the history of the privilege:

   “The law has developed so that there are now two bases underpinning the without prejudice rule, namely the public interest in promoting the settlement of disputes without calling in aide the Courts; and an express or implied agreement between the parties that their communications will be kept confidential.

   Moreover, the rule is not restricted simply to an offer made and not accepted but includes communications of all kinds which are genuinely entered into for the purpose of trying to reach a compromise. The second aspect of the rule is to encourage the free and frank exchange of views between the parties.”[35]

   [35] [2011] FCA 240 at [86]-[87]

1. The second basis explored by his Honour had been expanded upon by the majority in Field v Commissioner for Railways (NSW):[36]

   “… As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them.  The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered. This form of privilege, however, is directed against the admission in evidence of express or implied admissions.  It covers admissions by words or conduct.  For example, neither party can use the readiness of the other to negotiate as an implied admission.  It is not concerned with objective facts which may be ascertained during the course of negotiations.  These may be proved by direct evidence.  But it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission. For some centuries almost it has been recognised that parties may properly give definition to the occasions when they are communicating in this manner by the use of the words ‘without prejudice’ and to some extent the area of protection may be enlarged by the tacit acceptance by one side of the use by the other side of these words … Needless to say, the privilege is a matter to be raised by objection to the admissibility of the evidence. …”[37]

   [36] [1957] HCA 92; (1957) 99 CLR 285; Dixon CJ, Webb, Kitto and Taylor JJ; McTiernan J dissenting

   [37] 1957] HCA 92; (1957) 99 CLR 285 at 291-292

1. At common law, the without prejudice privilege is a joint privilege.  Generally, it cannot be waived by one party to the negotiations alone but there are exceptions.[38]  They were summarised by Robert Walker LJ, with whom Simon Brown LJ and Wilson J agreed, in Unilever Plc v The Procter & Gamble Co:[39]

   [38] Kong v Kang & Ors [2014] VSC 28 at [64] per Derham AsJ

   [39] [2000] 1 WLR 2436; Simon Brown and Robert Walker LJJ and Wilson J

   “Nevertheless, there are numerous occasions on which, despite the existence of without prejudice negotiations, the without prejudice rule does not prevent the admission into evidence of what one or both of the parties said or wrote.  The following are among the most important instances.

   (1)       As Hoffmann LJ noted in Muller’s case [Muller v. Linsley & Mortimer [1996] P.N.L.R. 74, C.A.], when the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible ...

   (2)       Evidence of the negotiations is also admissible to show that an agreement apparently concluded between the parties during the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence.  Underwood v Cox (1912) 4 DLR 66, a decision from Ontario, is a striking illustration of this.

   (3)       Even if there is no concluded compromise, a clear statement which is made by one party to negotiations, and on which the other party is intended to act and does in fact act, may be admissible as giving rise to an estoppel. That was the view of Neuberger J in Hodgkinson & Corby Ltd v Wards Mobility Services Ltd [1997] FSR 178 at 191, and his view on that point was not disapproved by this court on appeal ([1998] FSR 530).

   (4)       Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’ ... But this court has, in Forster v Friedland [1992] CA Transcript 1052 and Fazil-Alizadeh v Nikbin (1993) Times, 19 March, warned that the exception should be applied only in the clearest cases of abuse of a privileged occasion.

   (5)       Evidence of negotiations may be given (for instance, on an application to strike out proceedings for want of prosecution) in order to explain delay or apparent acquiescence.  Lindley LJ in Walker v Wilsher (1889) 23 QBD 335, 338, noted this exception but regarded it as limited to ‘the fact that such letters have been written and the dates at which they were written’. But occasionally fuller evidence is needed in order to give the court a fair picture of the rights and wrongs of the delay.

   (6)       In Muller’s case (which was a decision on discovery, not admissibility) one of the issues between the claimant and the defendants, his former solicitors, was whether the claimant had acted reasonably to mitigate his loss in his conduct and conclusion of negotiations for the compromise of proceedings brought by him against a software company and its other shareholders.  Hoffmann LJ treated that issue as one unconnected with the truth or falsity of anything stated in the negotiations, and as therefore falling outside the principle of public policy protecting without prejudice communications.  The other members of the court agreed but would also have based their decision on waiver.

   (7)       The exception (or apparent exception) for an offer expressly made ‘without prejudice except as to costs’ was clearly recognised by this court in Cutts v Head [[1984] Ch 290], and by the House of Lords in the Rush & Tompkins Ltd v Greater London Council [1989] AC 1280, as based on an express or implied agreement between the parties. It stands apart from the principle of public policy (a point emphasised by the importance which the new Civil Procedure Rules, Pt 44.3(4), attach to the conduct of the parties in deciding questions of costs). There seems to be no reason in principle why parties to without prejudice negotiations should not expressly or impliedly agree to vary the application of the public policy rule in other respects, either by extending or by limiting its reach. In Cutts v Head [1984] Ch 290, 316 Fox LJ said:

   ‘... what meaning is given to the words “without prejudice” is a matter of interpretation which is capable of variation according to usage in the profession.  It seems to me that, no issue of public policy being involved, it would be wrong to say that the words were given a meaning in 1889 which is immutable ever after ...’ (See [1984] 1 All ER 597 at 613, [1984] Ch 290 at 316.]

   (8)       In matrimonial cases there has developed what is now a distinct privilege extending to communications received in confidence with a view to matrimonial conciliation ...”[40]

   [40] [2000] 1 WLR 2436 at [2444]-[2445] and adopted by Lander J in Pihiga Pty Ltd v Roche [2011] FCA 240 at [88]

1. Reference in this passage is made to waiver of the without prejudice privilege.  Like waiver of legal professional privilege, waiver may be express or implied.  As Mortimer J said in Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2):[41]

   “… the fundamental explanation for an implied waiver is that it is the inconsistency between an act by the holder of the privilege and the confidentiality of the communication between lawyer and client which destroys the privilege: see DSE [DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499; Allsop J] at [95], and Mann v Carnell at [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). His Honour pointed out, at [98], by indicating his agreement with observations of Heerey J in Equuscorp Pty Ltd v Kamisha Corp Ltd [1999] FCA 681; ATPR 41–697, that broader notions of unfairness are not the touchstone: there is no ‘balancing exercise’.  Privilege ‘trumps’ relevance, unless it is inconsistent (and for that reason unfair) for the holder of the privilege to continue to maintain it, because of the conduct of the holder of the privilege.  See also Von Stieglitz v Comcare [2014] FCAFC 97; 64 AAR 356 at [42] and Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 at [24]- [29].”[42]

   [41] [2019] FCA 1551

   [42] [2019] FCA 1551 at [165]

1. In this case, the two letters written by Ms Voigt on 23 and 28 August 2019 were written for the purpose of negotiating a settlement of Mr Elliott’s application.  The disclose the basis on which the Secretary was prepared to settle the matter.  The offer is clearly made on the basis that it was “without prejudice” and each letter carries those words in the subject line.  Neither the Secretary nor those acting on her behalf have acted in a way that is inconsistent with the claim that is made in the letter.

1. In his submissions, Mr Elliott made it clear that it is the Secretary’s decision to agree to settle the proceedings that he is seeking to have reviewed. He submitted that the only bases on which the Secretary could decline to recover a debt were those set out in s 11 of the Public Governance, Performance and Accountability Act 2014.  The bases are, in fact, to be found in in r 11 of the Public Governance, Performance and Accountability Rule 2014 made under s 103(c) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).  Rule 11 provides:

   “The accountable authority of a non-corporate Commonwealth entity must pursue recovery of each debt for which the accountable authority is responsible unless:

   (a)the accountable authority considers that it is not economical to pursue recovery of the debt; or

   (b)the accountable authority is satisfied that the debt is not legally recoverable; or

   (c)the debt has been written off as authorised by an Act.”

1. A Department is a non-corporate Commonwealth entity, and so a Commonwealth entity, under s 11 of the PGPA Act. Each Commonwealth entity has an accountable authority.[43]  In the case of a Department, the accountable authority is its Secretary.[44] 

   [43] PGPA Act; s 12(1)

   [44] PGPA Act; s 12(2); Item 1

1. Any litigation, whether in a court or in an administrative tribunal is always accompanied by uncertainties of outcome for all parties involved in it.  Whether to proceed with litigation or whether to enter into settlement negotiations with the other party (or parties or even one of them), is a matter of judgment based on a range of considerations.   Relevant considerations for the parties engaged in any settlement discussions will include an assessment of considerations such as whether pursuing the matter is economic, the prospects of success and the chances of recovery of the debt if successful.  The result of the assessment could reasonably be expected to influence any settlement offer made by one party to another.  The fact that a settlement offer is made does not mean that one consideration or another had greater influence on the decision to make it.  There can certainly be no basis for the conclusion that Mr Elliott comes to i.e. that the Secretary must have decided that the debt was not legally recoverable.  Mr Elliott himself said in his submissions, which I have treated as having evidentiary value, the he could not afford to pay the debt.  He did not make any statement to the effect that his financial position had changed.

1. Although he does not suggest it, I also note that there is no basis on the evidence that the agreement was affected by any misrepresentation, fraud or undue influence so that the agreement should be set aside.  There is nothing that the Secretary or her staff have done that is inconsistent with her maintaining the without prejudice privilege over the letters written by Ms Voigt and dated 23 and 28 August 2019.  Whether or not anything that they may contain is relevant to the case is, to use the word of Mortimer J in Terry, trumped by the without prejudice privilege.

1. There is evidence in the form of his submissions that Mr Elliott did not enter the settlement discussions and the subsequent agreement with a view to settling the proceedings once and for all.  As he put it, he accepted the Secretary’s offer “for the sake of expediency” even though he believed that the Secretary continued to retain sums to which she was not entitled.  The reasons for expediency were his need to clear the debt for he understood that the Legal Services Board treats social security debts very seriously when considering an application to be admitted as a legal practitioner.  Whatever Mr Elliott’s reasons for accepting the offer that was made on behalf of the Secretary, they cannot detract from the without prejudice privilege attaching to the offer when it was made.

What is meant by an application’s having been “dismissed in error”?

1. Sections 42A(8) to (9) of the AAT Act relate solely to an application to reinstate an application dismissed under s 42A(2). As I am concerned with dismissal under s 42A(4), I am concerned with the Tribunal’s power of reinstatement under s 42A(1). Its power turns on whether the application had been “dismissed in error”.  The word “error” means:

   “… 1 a mistake, inaccuracy or misapprehension. 2 the state of being mistaken. 3 the possible discrepancy between an estimate and actual value or amount * a margin of error. …”[45]

   [45] Chambers 21^st Century Dictionary, Revised Edition, Chambers Harrap Publishers 1999

2. In Brehoi v Minister for Immigration and Multicultural Affairs[46] (Brehoi), a Full Court constituted by Whitlam, Moore and Katz JJ had referred to the Report of the Review of the Administrative Appeals Tribunal presented in November 1991.  That report had made a recommendation that was later enacted in the form of ss 42A(8) to (9) of the AAT Act.  It had also recommended that there be a power to vacate a dismissal where the application had been dismissed by administrative error of the Tribunal.  The Full Court in Brehoi relied on the Report’s recommendation to read into s 42A(10) the word “administrative” to qualify the word “error” even though that qualification was not made in s 42A(10) as enacted by Parliament.

   [46] [1999] FCA 772; (1999) 58 ALD 385

3. Parliament’s omission of the word “administrative” in s 42A(10) led a differently constituted Full Court to reach a different conclusion In Goldie v Minister for Immigration and Multicultural Affairs,[47] Wilcox and Downes JJ did not accept the qualification and decided that Brehoi had not been correctly decided.[48]  Although dissenting on other issues, Carr J agreed saying:

   “          I would accept that a purpose of s 42A(10) is to provide a power to reinstate an application which has been dismissed through administrative error on the part of the Tribunal. But I would not accept that s 42A(10) must be construed as applying only where there has been administrative error.  I would construe the word ‘error’ as including administrative error but extending beyond mere administrative error.

   I would reject the respondent's submission that when, on 17 December 1999, the Tribunal decided to dismiss the applicant's application, purportedly under s 42A(2), he was confined to the remedy of either an application for a review or an appeal to this Court.”[49]

   [47] [2002] FCAFC 367; Wilcox and Downes JJ; Carr J dissenting

   [48] [2002] FCAFC 367 at [33]-[35]

   [49] [2002] FCAFC 367 at [73]-[74] and [77]-[78]

4. Neither Brehoi nor Goldie considered whether the power given to the Tribunal under s 42A(1) is a discretionary power or whether, having found that an application has been dismissed in error, it must reinstate the application.  The power is expressed on terms that it “may” reinstate the application if it appears that an application has been dismissed in error.  Depending on the legislative context, the word “may” is a word that may mean one or other outcome is correct. Since 18 December 1987, however, the word denotes a discretionary power. That follows from the fact that s 42A(10) was inserted in the AAT Act by the Administrative Appeals Tribunal Amendment Act 1993 (AATA Act)[50] that was assented to on 16 June 1993. Section 33(2A) of the Acts Interpretation Act 1901 (AI Act) provides that, unless there is a contrary intention:[51]

   “Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.”

   [50] AATA Act; s 16(d)

   [51] AI Act; s 2(2)

5. There is no contrary intention in s 42A(10) or in the AAT Act generally. That means that I need to look for the boundaries within which the discretion may be exercised. Parliament may have chosen to specifically state those boundaries but it has not done so in the case of s 42A(10). If it has not done so, the boundaries must be found in the policy or legislative intent underlying the enactment.[52]  Within those boundaries, the person to whom the decision-making power is entrusted may develop a policy setting out guidelines relevant to the way in which the discretionary power will be exercised either by the person or, where delegation is permitted, by that person’s delegates.

   [52] Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309 per Mason J with whom Gibbs CJ and Dawson J agreed

1. The underpinning policy of s 42A(10) was explored by Carr J in Goldie:

   In my view, there is a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word ‘error’.  More importantly, s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage.  The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits.  It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal's default jurisdiction can be rectified.  That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error.

   As a matter of construction, I would confine s 42A(10) in its operation to dismissals under s 42A itself which have been made in error, not dismissals generally.”

2. In Re White and Secretary, Department of Families, Community Services and Indigenous Affairs[53] (White), I explored the majority’s judgment in Goldie and the example they had given of a situation in which the power conferred by s 42A(10) might be enlivened. They had said:

   “          We do not think it is necessary, in order to enliven the Tribunal's power under s.42A(10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor’s mistake induced the dismissal of the action, it could properly be said the application had been ‘dismissed in error’.”[54]

   [53] [2007] AATA 1712; (2007) 97 ALD 204; 46 AAR 208

   [54] [2002] FCAFC 367 at [29]

3. As I have said, the power given to the Tribunal is a discretionary power.  In White, I explored factors or criteria that would be relevant in considering its exercise.  Bearing in mind that the Tribunal is based on the judicial model, I looked to the practice of the courts in considering applications to reinstate proceedings or to set aside default judgments.  I adopt the principles that I set out in that case and which referred to my earlier decision in Re Oates and Secretary, Department of Social Security.[55]  I said:

   [55] (1994) 37 ALD 241

   “23.     Reinstatement applications begin from the premise that:

   ‘… the person whose proceedings have been dismissed should not be prevented from presenting his or her case provided the person’s misconduct has not prejudiced the other party.’[56]

   [56] (1994) 37 ALD 241 at 246

   24.      Notions of fairness between the parties are also relevant.  In civil proceedings in the court, wider notions of fairness are not relevant as the action is viewed simply as a matter between the parties concerned.  In the review of administrative decisions, it is arguable that wider notions of fairness are relevant.  An administrative decision affecting an individual may be only one of many made under a legislative scheme and affecting a number of other individuals.  This fact draws in the need to have regard to notions of what is fair not merely between the parties but also between the applicant and those in a like position.  In Re Oates, I described those who are in a like position:

   ‘(20)     When compared with applications for an extension of time, the group of persons in a position like that of an applicant seeking reinstatement of his application, will be substantially smaller.  The group does not comprise those in respect of whom a particular type of administrative decision has been made but those who have actually sought review but failed to appear at the appropriate time and whose applications have been dismissed.  Arguably, the public interest shifts from ensuring certainty in administrative decision making and consistency of treatment of those affected by decisions to ensuring the efficient operation of a case management scheme and consistency of treatment of those affected by that scheme. Having had regard to the cases of Davies v Pagett^[[57]] and Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,^[[58]] I do not think that the public interest in this sense is directly relevant in its own right. What will be relevant is the regard which the parties have paid to that case management system. It will be relevant in assessing whether the respondent has been prejudiced and whether the respondent is likely to be prejudiced again in the future by the applicant's conduct.’[59]

   [57] (1986) 10 FCR 226

   [58] (1990) 27 FCR 388

   [59] (1994) 37 ALD 241 at 246-247

   25.      I would add to these two principles, a third.  That is whether the application, if reinstated, would have merits.  That does not require an exhaustive consideration of the merits but it does require a consideration of whether the application would have any chance of success if reinstated.  To reinstate an application in circumstances in which there can be no chance at all of its being successful is to give false hope to an applicant as well as to waste the resources of both parties let alone of the Tribunal.

   26.                  Consideration of the merits of an application is common place in considering applications to extend time.[60]  In Jackamarra v Krakouer[61], Brennan CJ and McHugh J adopted a statement by Lord Denning MR in R v Secretary for the Home Department; Ex parte Mehta[62] to the effect that, on an application to extend time, the court would ‘…never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.’[63]  Brennan CJ and McHugh J explained the reason for this approach:

   [60] It is one of the factors to which Wilcox J draws attention in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; 58 ALR 305

   [61] (1998) 195 CLR 516; 153 ALR 276

   [62] [1975] 1 WLR 1087

   [63] [1975] 1 WLR 1087 at 1091. Cited with approval by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516; 153 ALR 276 at 519; 295

   ‘[9]      One reason that an appellate court does not go into ‘much detail on the merits’ in considering whether the time for an appeal should be extended is because ordinarily it only has ‘limited materials and argument’.  Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess ‘the merits’ in a fairly rough and ready way.  In most cases, that assessment will be made from the statement of the applicant’s case rather than from the opposing arguments or any detailed examination of the proofs of the argument.  The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised... The court needs to remind itself also that the parties do not expect to argue the merits issue as elaborately as if they were arguing the appeal itself.

   [10]     It is one thing to conclude that counsel’s statement of the appeal argument contains the ground for its rejection.  It is another matter altogether to hold that, although the logic of the argument is impeccable, the appeal has no merits because the applicant has not taken the Court to the detail of the evidence, the statutes or the case law. Given the practice in hearing applications for extension of time, the rules of procedural fairness require that an appellate court should not determine the application on the details of the evidence (if they have been provided) or the lack thereof unless counsel has been given fair notice that the court intends to take that course.’[64]

   [64] (1998) 195 CLR 516; 153 ALR 276 at 521-522; 279-280 (omitting footnotes)

   27.                  Professor Curtis, President of the Administrative Appeals Tribunal of the Australian Capital Territory adopted a similar approach in Re Emeco Australia (NSW) Pty Ltd and Commissioner for ACT Revenue:[65]

   ‘… I think that the proper test is to be put no higher than that the applicant has or can have an arguable case.’[66]

   In Re Naupoto, Viliami and Commissioner for Housing,[67] he noted that it is not essential that there be some material before the Tribunal with regard to prospects of success.  There may, though, be practical reasons for there being so:

   ‘21.     Because the Tribunal must weigh up all of the relevant factors, it will generally be in an applicant’s interest, if his or her case for an extension of time is otherwise weak, to put material to the Tribunal to show that the substantive application has a good prospect of success.  Where there are otherwise good grounds for granting an extension of time, and there is nothing in the material before the Tribunal to show that the substantive matter has little or no prospect of success, it is not necessary for an applicant to show that the substantive application has reasonable prospects of success in order to obtain an extension of time. …’

   28.                  The principles regarding the prospects of success or merits of the applicant’s case were stated in the context of applications for an extension of time but are equally applicable to an application for reinstatement.  In both instances it is futile to reinstate an application when the Tribunal has no power to review the decision concerned.”[68]

   [65] (1993) 30 ALD 725

   [66] (1993) 30 ALD 725 at 732

   [67] [1996] ACTAAT 145

   [68] [2007] AATA 1712; (2007) 97 ALD 204; 46 AAR 208 at [23]-[28]; 212-213; 216-217

Tribunal’s jurisdiction to hear Mr Elliott’s application for review

1. An error may take many forms.  Mr Elliott contends that the Tribunal was in error in concluding that he could not apply directly to the Tribunal under s 142 of the SSA Act for review of the Secretary’s decision to enter an agreement with him without first seeking internal review.  His submission has two aspects.  One is whether the decision was made under an enactment.  The other is whether the decision was made by the Secretary personally as it had to be if he was entitled to make an application to the Tribunal under s 142(1)(b).  In considering Mr Elliott’s submission, I have assumed for the moment that there is jurisdiction to review such a decision.  Whether there is requires a consideration of s 144(s) of the SSA Act and I will come to that. 

1. There is no question that the Secretary has not, of her own volition, reviewed the decision to enter the agreement and that Mr Elliott has not made an application for internal review of the decision.  Therefore, there was no basis on which he could make an application to the Tribunal for review under s 142(a) for no decision had been made under either s 126 on the basis of review at the Secretary’s instigation or s 135 on the basis of any request for review made by Mr Elliott. 

A.       Was the decision made under an enactment?

1. Mr Elliott contends that the decision made by the Secretary to enter the agreement with him was a decision made “under an enactment”.  I agree with him.  The expression has been considered in a number of cases.  They include Australian National University v Burns,[69] in which Bowen CJ and Lockhart J said:

   “… [W]e turn to the question whether the decision of the Council [of the Australian National University] to dismiss the respondent was made ‘under an enactment’.

   …

   The difficulty in the present case does not lie in the definition of the expression ‘under an enactment’.  We agree with Fox J who said in Evans v Freimann (1981) 35 ALR 428 at 436; 3 ALD 326 at 333, that the word ‘under’, in the context of the Judicial Review Act, connotes ‘in pursuance of’ or ‘under the authority of’: see also R v Clyne [1941] VLR 200. The difficulty lies in the application of the expression to particular circumstances. The present case poses the problem in an acute form.”[70]

   [69] [1982] FCA 191; (1982) 64 FLR 166; 43 ALR 25; 5 ALD 67; Bowen CJ, Lockhart and Sheppard JJ

   [70] [1982] FCA 191; (1982) 64 FLR 166; 43 ALR 25; 5 ALD 67 at 173; 31; 72

1. Bowen CJ and Lockhart J then went on to give some general guidance as to how to apply the general principles:

   “          We agree with the primary judge when he said (40 ALR at 716-7): ^[[71]^] ‘In many cases the power to do a particular thing will be precisely stated in the legislation.  In other cases the power to do a particular thing will be found in a broadly stated power.  The Act should not be confined to cases where the particular power is precisely stated.  In each case, the question to be asked is one of substance, whether, in effect, the decision is made “under an enactment” or otherwise.’”[72]

   [71] Burns v Australian National University [1982] FCA 59; (1982) 61 FLR 76; 40 ALR 707 at 87; 716-717 per Ellicott J

   [72] [1982] FCA 191; (1982) 64 FLR 166; 43 ALR 25; 5 ALD 67 at 173-174; 31; 72-73

1. The High Court has considered the issue in Griffith University v Tang[73] (Tang), to which Mr Elliott referred. It was in the context of the ADJR Act and concerned a decision by the University refusing to allow Ms Tang to participate further in its degree programme. Ms Tang sought review of that decision.

[73] [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724; 82 ALD 289; Gleeson CJ, Gummow, Callinan and Heydon JJ; Kirby J dissenting

1. Gleeson CJ referred with approval to the following passage from the judgment of Davies A-JA in Scharer v New South Wales[74] when considering questions under the ADJR Act as to whether a decision is under an enactment:

   “… The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations.  A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient.”[75]

Applying that approach to the facts in Burns, Gleeson CJ said:

“So, to revert to Australian National University v Burns, a grant of authority to make contracts and employ staff does not mean that when a staff member is dismissed for breach of contract the statute under which the employer is operating has played a relevant part in the legal force or effect of the decision.”[76]

[74] [2001] NSWCA 360; (2001) 53 NSWLR 299; 116 LGERA 217; Stein and Hodges JJA and Davies A-JA

[75] [2001] NSWCA 360; (2001) 53 NSWLR 299; 116 LGERA 217 at [77]; 313; 232 per Davies A-JA cited with approval in Tang [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724; 82 ALD 289 at [18]; 110; 729; 294 per Gleeson CJ

[76] [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724; 82 ALD 289 at [18]; 110; 729; 294

1. A similar approach was taken by Gummow, Callinan and Heydon JJ in their judgment although they emphasised that the fact that the decision must be “of an administrative character” casts some light on the force to be given to the phrase “under an enactment” (emphasis added).  The question becomes:

   “… What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

   The answer in general terms is the affecting of legal rights and obligations.  Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? … To adapt what Lehane J said in Lewins^[[77]^], does the decision in question derive from the enactment the capacity to affect legal rights and obligations?  Are legal rights and obligations affected not under the general law but by virtue of the statute? …

   If the decision derives its capacity to bind from contract or some other private law source, then the decision is not ‘made under’ the enactment in question. …”[78]

   [77] Australian National University v Lewins (1996) 68 FCR 87; 138 ALR 1 at 96-97; 16

   [78] [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724; 82 ALD 289 at [79]-[81]; 128; 743-744; 308-309 (citations omitted)

1. Applying the principles in the case of decisions made under the SS Act and the SSA Act, there is no specific power given to the Secretary to implement decisions that she or her delegates make in the exercise of powers expressly given to her. That power is implicit in the power given to her to make those decisions. In the case of s 181 of the SSA Act, the Secretary is given power to enter an agreement with the other party to settle proceedings before the AAT relating to the recovery of a debt. Necessarily implicit in the conferral of that power is the power to decide whether to enter the agreement at all. The Secretary’s decision to enter the agreement with Mr Elliott was made under an enactment.

B.Was the decision made by the Secretary personally?

1. In Ms Voigt’s affidavit made on 17 March 2020, she stated that, in entering the agreement with Mr Elliott, she had acted within the power delegated to her under the Social Security Act 1991 Delegations Instrument Number D-2019-45 (Instrument of Delegation) and acted in accordance with instructions given by the Practice Director for Debts, Litigation Team, Legal Services Division, Services Australia. Mr Elliott relies on s 34AB(1)(c) of the AI Act to support his contention that the Secretary personally made the decision to enter the agreement. It was not made by Ms Voigt acting has her delegate.

1. Mr Elliott did not refer to s 234 of the SSA Act but I think that is the starting point:

   “Delegation

   (1)Subject to subsection (3), the Secretary may, in writing, delegate to an officer all or any of the powers of the Secretary under the social security law.

   (2)Subject to subsection (3), the Secretary may, in writing delegate to the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) all or any of the powers of the Secretary under the social security law.

   (3)The Secretary cannot delegate to anyone except the Chief Executive Centrelink all or any of the powers of the Secretary under the social security law.

   (4)If the Secretary delegates to the Chief Executive Centrelink the Secretary’s power under section 208(1) to disclose information to a person referred to in subparagraph 208(1)(b)(i), the Chief Executive Centrelink cannot, in spite of any provision to the contrary in the Human Services (Centrelink) Act 1997,

   (5)…

   (6)…

   (7)Without limiting the operation of the definition of officer in subsection 23(1) of the 1991 Act, in this section officer includes a person engaged (whether as an employee or otherwise) by:

   (a)an Agency (within the meaning of the Public Service Act 1999);

   (b)another authority of the Commonwealth;

   (c)an organisation that performs services for the Commonwealth.”

1. The reference to the “social security law” in s 234(1) is a reference to the SS Act, the SSA Act and any other Act that is expressed to form part of the social security law.[79]  Parliament’s decision to give the Secretary power to delegate her powers was a pragmatic decision.  Given the vast numbers of decisions that must be made under social security law, it is not practical for her to make each one of them personally although she may choose to do so from time to time.  If she chooses to do so, the decision will have been taken to have been made by her “personally” i.e. “in person”[80] and not by a person to whom she has delegated her authority. 

[79] SSA Act; ss 23(1) and (17)

[80] Chambers

1. Enactments that form part of the social security law also draw that distinction.  I take for example the Farm Household Support Act 2014 (FHS Act).  Section 101 provides for the Secretary and the Agriculture Secretary to delegate their powers under the FHS Act and under the SS Act and the SSA Act as they apply because of Part 5 of that legislation.  Section 126 of the SSA Act provides that the Secretary may review a decision of an officer under the social security law if the Secretary is satisfied that there is sufficient reason to do so.  The Secretary may do so whether or not the person has applied for review and even if the person has made an application to the Tribunal.[81]  The Secretary’s power to review decisions is qualified by s 127.  Sections 127(1) and (3) are of particular relevance:

   “(1)     The Secretary may not, on an application under section 129, review a decision made by the Secretary himself of herself.

   (2)…

   (3)The Secretary may not review a decision made personally by the Agriculture Minister or the Secretary of the Agriculture Department under or in relation to the Farm Household Support Act 2014.”

   [81] SSA Act; ss 126(1) and (2)

1. That brings me to s 34AB of the AI Act. Mr Elliott relies on s 34AB(1)(c) but I think that it is important to set out the whole of s 34AB(1). It provides:

   “General

   (1)Where an Act confers power on a person or body (in this section called the authority) to delegate a function, duty or power:

   (a)the delegation may be made either generally or as otherwise provided by the instrument of delegation;

   (b)the powers that may be delegated do not include that power to delegate;

   (c)a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority;

   (d)a delegation by the authority does not prevent the performance or exercise of a function, duty or power by the authority; and

   (e)if the authority is not a person, section 34A applies as if it were.”

1. The reference in s 34AB(1)(e) to s 34A of the AI Act requires consideration of that provision. Section 34A reads:

   “If:

   (a)under an Act, a person’s exercise of a power, or a person’s performance of a function or duty, is dependent upon the person’s opinion, belief or state of mind in relation to a matter; and

   (b)that power, function or duty has been delegated under that or any other Act;

   the delegate may exercise that power, or may perform that function or duty, upon the delegate’s opinion, belief or state of mind in relation to that matter.”

1. At common law, an officer acting under delegated authority from the Secretary would have been regarded as the Secretary’s agent and the Secretary as the principal.  The boundaries of a principal’s responsibility for the acts of her delegate would not always have been easy to delineate.  They might be affected, for example, by questions whether the agent had acted within the terms of his or her delegated authority.  Where an enactment requires the principal to be satisfied that certain criteria have been met, it may not be sufficient that the agent is satisfied that they have been met.  It may be that the principal must be satisfied and cannot delegate the power. 

1. What ss 34AB and s 34A do is to define those boundaries in the particular context of a delegation under a legislative instrument and unless that legislative instrument expresses a contrary intention.[82] Section 34A makes it clear that a person to whom power has been delegated may exercise that power on the basis of his or her own opinion, belief or state of mind. Section 34AB clarifies the terms on which a delegation may be made. In addition, it makes clear that, when a delegate exercises a power, duty or function delegated to him or her, that power, duty or function is taken to have been exercised by the person or body empowered to delegate it.

[82] AI Act; s 2(2)

1. After the hearing, Mr Elliott drew my attention to the High Court’s judgment in Northern Land Council v Quall[83] (Quall). The question it had to consider was whether the Northern Land Council (NLC) had power to delegate on its Chief Executive Officer (CEO) the function conferred on it by s 203BE(1)(b) of the Native Title Act 1993 (NT Act). As a representative body under the NT Act, it was responsible for certifying an application for registration of an indigenous land use agreement (ILUA) relating to an area of land or water within an area for which it is the representative body. Before it could certify an application, the NLC had to be satisfied under s 203BE(1)(b) that it was of the opinion that all reasonable efforts had been made to ensure that all persons who hold, or may hold, native title in relation to land or waters in the area covered by the ILUA have been identified and that they have authorised the making of the ILUA.

   [83] [2020] HCA 33; Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ

1. Kiefel CJ, Gageler and Keane JJ answered the question in the following way:

   “          The answer is that the NLC has that power under delegation under s 27(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the ALR Act’). If the NLC exercises that power to delegate the certification function to the CEO, the CEO is empowered by s 34A of the Acts Interpretation Act 1901 (Cth) (‘the AI Act’) to perform the certification function on the basis of the CEO’s own opinion in relation to the matters in s 203BE(5) of the NT Act, and certification by the CEO in performance of the delegated function is attributed to the NLC by force of s 34AB(1)(c) of the AI Act.”[84]

Mr Elliott referred also to [70] and [72] of their Honours’ judgment but they are encapsulated in the summary of their answer they gave at the beginning of their judgment. 

[84] [2020] HCA 33 at [2]

1. He referred also to the judgment of Nettle and Edelman JJ, who considered the differences between acting as an agent and as a delegate at common law.  They noted that:

   “          Some of the most significant potential differences between an agent and a delegate at common law have been removed by the Acts Interpretation Act 1901 (Cth). For instance, it had been held at common law that a delegation of substantial power by an authority prevents the exercise of that power by the authority while the delegation subsists … The consequences of that conclusion are ameliorated by s 34AB(1)(d) of the Acts Interpretation Act, which provides that ‘a delegation by the authority does not prevent the performance or exercise of a function, duty or power by the authority’. Further, since a power exercised by a delegate is exercised personally, the usual common law rule was that it be exercised in the name of the delegate, and not on behalf of the delegating authority as principal … But the consequences of this conclusion are ameliorated by s 34AB(1)(c) of the Acts Interpretation Act, which provides that the statutory power, ‘when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority’.”[85]

   [85] [2020] HCA 33 at [85]

1. What the High Court has done is to express more eloquently the principles I have already set out at [71]-[72] in relation to principal and agent and to s 34AB of the AI Act. Whether they apply without qualification, depends on the terms of the particular legislation passed by Parliament.

1. In this case, the particular legislation under consideration is the SSA Act.  Subject to s 234(3), s 234 of that legislation provides that the Secretary my, in writing, delegate to an officer all or any of her powers under social security law.[86] Having regard to s 34AB(1)(c), this means that, when an officer exercises a function, duty or power delegated to him or her by the Secretary, the Secretary is deemed to have exercised that function, power or duty. In other words, she is regarded as having exercised that function, power or duty. Being deemed, and so regarded,[87] as having exercised a function, power or duty is not the same as exercising it personally. Section 34AB(1)(d) makes that quite apparent when it provides that a delegation by the authority does not prevent its performance or exercise by the authority itself. In this case, that authority is the Secretary.

   [86] SSA Act; s 234(1)

   [87] The Macquarie Dictionary, 5^th edition, 2009 Macquarie Dictionary Publishers Pty Ltd

1. Section 34AB of the AI Act does not set out any principles guiding when a decision had been made by the Secretary personally and when it has been made by her delegate. That is necessarily a determination to be made in the circumstances of each case. In this case, Ms Voigt has given evidence of the Instrument of Delegation under which she acted in offering to settle the proceedings before the Tribunal. She has also given evidence that she acted under instructions given by the Practice Director for Debts, Litigation Team, Legal Services Division, Services Australia. I accept her evidence. It is supported by her correspondence to Mr Elliott when she told him that she had instructions to make a without prejudice offer to him. It was clear that she was acting within her instructions as a delegate of the Secretary.

1. I have set out the terms of s 25(3A) of the AAT Act at [15] above. When an enactment provides that an application for review may be made to the Tribunal for review, s 25(3)(a) requires that it must specify the person or persons whose decisions may be the subject of an application for review. In the case of s 142(1)(b), that person is described as the “Secretary”.  No reference is made to a person’s being entitled to make an application for review of decisions made by a person to whom the Secretary has delegated powers.  As a matter of statutory interpretation, that was arguably the case.  Section 25(3A)(a) of the AAT Act, however, makes it plain that an application may be made not only for review of decisions made in the exercise of power conferred on a specified person by the relevant provision – in this case the Secretary – but to decisions made by any person to whom that power has been delegated.  Section 25(3A)(b) ensures that an application may be made for review of decisions made by a person acting in the position described in the enactment providing that an application may be made.  Section 25(3A)(c) extends the right to the decisions of any other person authorised to exercise the power under which the decision was made. 

1. Section 25(3A) may be regarded as a machinery provision to ensure that the rights of a person whose interests are affected by a decision are not curtailed by whether that decision has been made by the person named as the repository of that power – in this case the Secretary – or by his or her delegate, a person acting for the time being in his or her office or by another person authorised to exercise the power.  It does no more than that.

1. Therefore, I have concluded that the decision whether to enter the agreement under s 181 of the SSA Act was made by Ms Voigt acting as a delegate of the Secretary. It was not a decision made by the Secretary personally and so is not a decision in respect of which Mr Elliott was entitled to make an application to the Tribunal for review under s 142(1)(b) of the SSA Act.

Is the decision to agree to settle the proceedings a non-reviewable decision?

A.“Relating to”

1. Section 144(s) provides that the Tribunal cannot review “a decision relating to the Secretary’s power under section 182 of this Act to settle proceedings before the AAT.”[88] I will come back to the description of the decision by reference to the power under s 182 and focus for the moment on the meaning of the expression “relating to”.  It is an expression that was considered by Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW).[89] 

   “… the expression ‘relating to’ is extremely wide but it is also vague and indefinite.  Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified.  That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used … .”[90]

   [88] SSA Act; s 144(s)

   [89] [1961] HCA 35; (1961) 105 CLR 602; [1962] ALR 195; (1961) 35 ALJR 109; Dixon CJ, Taylor and Windeyer JJ; Kitto and Menzies JJ dissenting

   [90] [1961] HCA 35; (1961) 105 CLR 602 at 620; 213; 115

2. In Joye v Beach Petroleum NL,[91] Beaumont and Lehane JJ said:

   “… Taylor J went on to say (at 620) that ‘relating to’ in the context there considered was not the ‘equivalent of “referring to;” the “relationship” must be based upon some more substantial ground’.

   Other decisions of the High Court have acknowledged that, ordinarily, ‘relates to’ is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connexion will suffice (see Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 338 (Brennan J), 347 (Dawson J), 354 (Toohey J) and 370 (McHugh J); P.M.T. Partners Pty. Ltd. (In Liq.) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 131 ALR 377 at 385 (Brennan CJ, Gaudron and McHugh JJ) and 398-9 (Toohey and Gummow JJ); Re Jarman; Ex parte Cook, High Court, 15 May 1996, unreported, at 5 (Brennan CJ, Gaudron J) and 12 (Kirby J). Tooheys' Case has been followed in this Court (see, e.g., Secretary, Department of Foreign Affairs and Trade v Boswell [1992] FCA 321; (1992) 36 FCR 367 at 374 (Hill J and 383 (Cooper J)).”[92]

   [91] [1996] FCA 1552; (1996) 67 FCR 275; 137 ALR 506; 20 ACSR 525; Beaumont, Spender and Lehane JJ

   [92] [1996] FCA 1552; (1996) 67 FCR 275; 137 ALR 506; 20 ACSR 525 at 285; 514; 534

3. The context in which the expression is used is relevant in determining its meaning. That context is the Secretary’s power to settle proceedings before the Tribunal. The agreement that the Secretary reaches with other parties under s 181 of the SSA Act must relate to the recovery of a debt. The agreement itself is not a decision of the Secretary made under social security law but under an agreement. An agreement is not reviewable by the Tribunal. There is, however, a direct relationship between the agreement and any decision by the Secretary, or her delegate, to exercise the Secretary’s power to enter that agreement. Without the decision to enter the agreement, there would be no exercise of the Secretary’s power to settle the proceedings. That decision can be said to relate to the Secretary’s power to settle the proceedings.

B.Does the decision relate to the Secretary’s power under section 182 to settle the proceedings before the Tribunal?

1. Section 144(s) specifically excludes a decision relating to the Secretary’s power “under section 182” to settle the proceedings before the Tribunal. There is no reference to s 181, which provides for an agreement to settle the proceedings. Mr Elliott submits that I cannot read the reference to s 182 as a reference to s 181. On behalf of the Secretary, Ms Ng submits that I should.

1. A statement of the fundamental principles guiding my decision in this is set out in the judgment of Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:[93]

   “          It is an elementary and fundamental principle that the object of the court, in interpreting a statute, ‘is to see what is the intention expressed by the words used’: River Wear Commissioners v. Adamson …  It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v. J. H. Nelson Pty. Ltd. …  Of course, no part of a statute can be considered in isolation from its context - the whole must be considered.  If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking ‘nothing remains but to give effect to the unqualified, words’: Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union … There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd. v. Cramas Properties Ltd. …  Examples of that sort of case may be found in Maxwell on the Interpretation of Statutes,… and Craies on Statute Law ...  However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.  To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the Legislature’, as Lord Moulton said in Vacher & Sons Ltd. v. London Society of Compositors …; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.   On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice.  Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.”[94]

   [93] [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151; 11 ATR 949; 55 ALJR 434; Gibbs CJ, Stephen, Mason and Wilson JJ; Aickin J dissenting

   [94] [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151; 11 ATR 949; 55 ALJR 434 at 304-305; 156-157; 954-955

1. These principles led the High Court to read a provision of the Nauru (High Court Appeals) Act 1976 (Appeals Act) as if the grammatical error it contained had not been made.  Section 14(3) of the Appeals Act provided:

   “Subject to the special provisions of this Act, the Supreme Court shall, if it allows an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered or, if the interests of justice so require, order a new trial.”

1. In Director of Public Prosecutors (Nauru) v Fowler,[95] the issue was whether the Chief Justice of the Supreme Court of Nauru should have ordered a new trial when it found that the magistrate had relied on inadmissible evidence in convicting Mr Fowler.  After setting out s 14(3), the High Court said:

   “This provision gave power to Daly C.l. to order a new trial.  It is true that if s. 14(3) is construed in its strict grammatical sense, it creates a difficulty, for it appears to suggest that the alternatives open to the Supreme Court when it allows an appeal are (1) to quash the conviction and direct a judgment and verdict of acquittal to be entered, and (2) if the interests of justice so require, to order a new trial; or in other words that a new trial cannot be ordered if a conviction is quashed.  It is, however, apparent that a simple grammatical mistake was made in the drafting of the sub-section, and that if the strict grammatical sense of the words is adhered to it would lead to an absurdity.  In these circumstances the court is entitled to attribute to the provision the meaning which it was obviously intended to have. Section 14(3) must therefore be read as though the word ‘either’ appeared not before the words ‘quash the conviction’ but before the words ‘direct a judgment’.”[96]

   [95] [1984] HCA 48; (1984) 154 CLR 627; 55 ALR 175; 58 ALJR 469; Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ

   [96] [1984] HCA 48; (1984) 154 CLR 627; 55 ALR 175; 58 ALJR 469 at 630; 177; 471

1. Although decided a few years earlier, the case of Linder v Wright[97] decided by Muirhead J is another application of the same principles.  Section 8A(1) of the Fisheries Ordinance 1965 (NT) (Ordinance) provided that an inspector might, without warrant, exercise powers, including entry, search, seizure and detention if there were reasonable ground for suspecting that an offence had been, was being or was about to be committed.  Section 8A(4) then provide that if an inspector exercised such a power, he or she had to send a written report to the Administrator as soon as possible.  Section 8A(6) provided that evidence obtained by an inspector under s 8A(1) was not admissible in a prosecution under the Ordinance unless the report referred to in s 8A(3) had been duly forwarded.  Section 8A(3) made no provision for a report. 

   [97] (1976) 14 ALR 105

1. Muirhead J decided that the reference in s 8A(6) to s 8A(3) and not to s 8A(4) was clearly a mistake but he had to decide how he should proceed.  In reaching his decision, Muirhead J relied on the following principles:

   “‘The fundamental rule of interpretation to which all others are subordinate is that a statute is to be expounded according to the intent of the Parliament that made it, and that intention has to be found by an examination of the language used in the statute as a whole’: Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161 (see also Nolan v Clifford (1904) 1 CLR 429 ).

   But here we have not ambiguity nor any doubt, nor indeed argument as to the intention of the legislature — an intention apparently defeated by a draftsman's slip — or indeed perhaps by a printer's slip.  True it is that there is a line of cases such as Richards v McBride (1881) 8 QBD 119, which serves as a caveat of those tempted to assume mistake on the part of the legislature. Grove J there said: ‘No one construing a statute or any other literary production could put such a construction on the words unless by supposing they were a mistake. But we cannot assume a mistake in an Act of Parliament. If we did so, we should render many Acts uncertain by putting different constructions on them according to our individual conjecture. The draftsman of this Act may have made a mistake. If so, the remedy is for the legislature to amend it.’ But in that case there was ‘no manifest repugnancy or absurdity nor anything so contrary to the intention of the Act as to force us from the grammatical construction of it’. In the case before me there is no compromise interpretation available, there is no ambiguity, there is a sub-section which is (1976) 14 ALR 105 at 111 senseless and meaningless unless this court assumes a mistake and corrects it so as to accord with the obvious intention of the legislature.”

   I must of course regard it as settled law that ‘it is no power of the judicial function to fill gaps disclosed in legislation’: Marshall v Watson (1972) 124 CLR 640 at 649 ; [1972] ALR 641 at 646 , per Stephen J. Denning LJ in Magor and St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226 stated at 1236: ‘We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.’ The latter part of these observations was firmly criticized on appeal in the speeches of Lord Simonds and Lord Morton, the former suggesting that the proposition appeared to be ‘a naked usurpation of the legislative function under the thin disguise of interpretation: Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189 at 191 ; [1951] 2 All ER 839 at 841. But whilst I can find no authority directly in point, it seems to me that I am faced not with a gap to be filled, but with a clear mistake and I consider when intention is so clear that to correct that mistake and give force to the sub-section involves not ‘legislation’ but interpretation. I take the view and so hold that s 8A(6) should be read as though ‘sub-section (4)’ was inserted instead of ‘sub-section (3)’ and this means, in my view, that evidence obtained by an inspector under the Ordinance ‘in the exercise by him of a power’ under s 8A(1) is not admissible upon a prosecution under the Ordinance unless the report referred to in sub-s (4) has been ‘duly forwarded’.”

1. Applying the principles enunciated in these cases, I have decided that the reference to s 182 in s 144(s) is a drafting error and that I may read it as a reference to s 181. There can be no doubt that the Secretary’s power to settle those proceedings is exercised under s 181 and not, as s 144(s) states, s 182. Section 182 has nothing to do with an agreement to settle proceedings. It is concerned with a different topic i.e. the power to vary or substitute a decision after an application has been made to the Tribunal for either AAT first review or AAT second review. It follows that the to read the reference in s 144(s) as s 182 renders s 144(s) meaningless. It is a clear error and I have decided that the reference to s 182 must be read as a reference to s 181.

1. It follows that the decision made by Ms Voigt when acting under a delegation from the Secretary is not a decision that is reviewable by the Tribunal because it is excluded by s 144(s) of the SSA Act. 

DECISION

1. For the reasons I have given, I have decided that Mr Elliott’s application for review lodged on 7 February 2020 was not dismissed in error. Therefore, I have decided not to reinstate the application under s 42A(10) of the AAT Act.

I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

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

Associate

Dated:  20 October 2020

Heard:

Solicitor for the Applicant:

Solicitor for the Respondent:

12 August 2020

Self Represented

Ms Grace Ng and Ms Charlotte Lewis
Australian Government Solicitor