Elliott and Secretary, Department of Social Services (Social services second review)
[2020] AATA 2176
•10 July 2020
Elliott and Secretary, Department of Social Services (Social services second review) [2020] AATA 2176 (10 July 2020)
Division:GENERAL DIVISION
File Number: 2020/1069
Re:Patrick Elliott
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:10 July 2020
Place:Melbourne
The Tribunal dismisses this application under s 42A(4) of the Administrative Appeals Tribunal 1975 (Cth) on the basis that the execution of an agreement by a Government lawyer and the Applicant on 30 August 2019 to settle proceedings before the Administrative Appeals Tribunal and the consequential decision to waive a portion of the Applicant’s youth allowance overpayment debt as required by s 1237AAB(2) of the Social Security Act 1991 (Cth), are not decisions which are reviewable by the Administrative Appeals Tribunal; either as an “AAT first review” under s 142, or “AAT second review” under s 179 of the Social Security (Administration) Act 1999 (Cth).
.................[sgd]..................................................
Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – JURISDICTION – youth allowance overpayment debt raised against Applicant – Applicant sought review by Centrelink authorised review officer – decision affirmed – Applicant sought review by Social Services and Child Support Division of the AAT (AAT1) – AAT1 waived a portion of the debt and directed that the remaining debt be recovered and recalculated – Applicant sought review of recalculated debt by the General Division of the AAT (AAT2) – Applicant and Government lawyer executed an agreement to settle AAT2 proceedings – reduced portion of debt waived as required by s 1237AAB(2) of the Social Security Act 1991 (Cth) – AAT2 proceedings taken to be dismissed by force of s 181(2) of the Social Security (Administration) Act 1999 (Cth) – Applicant claimed he settled proceedings “under duress” because it was an obstacle to him being admitted as a legal practitioner in Victoria – after Applicant was duly admitted, he lodged a new application to the AAT seeking review of the “decision to agree to the settlement” – whether execution of agreement to settle AAT2 proceedings or consequential waiver decision (Decisions) constituted reviewable decisions – whether Decisions reviewable by the AAT1 under s 142(1) of the Administration Act – whether Decisions were made by the Secretary “personally” – whether Decisions related to the exercise of the Secretary’s power to settle proceedings before the AAT within the meaning of s 135(3) or s 144(s) of the Administration Act – Applicant sought to rely upon the absence of a reference to s 181 in s 144(s) specifying “non-reviewable decisions” – whether reference to s 182 instead of s 181 in s 144(s) was a drafting error – whether s 144(s) should be interpreted in a way that disregards drafting error – whether Decisions were reviewable by the AAT2 under s 179 of the Administration Act – Tribunal concluded that the Decisions were not reviewable by the AAT1 as part of an AAT first review or consequently, by the AAT2 as part of an AAT second review – application dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Human Services (Centrelink) Act 1997 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Tribunals Amalgamation Act 2015 (Cth)
Cases
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Director of Public Prosecutions v Leys (2012) 296 ALR 96
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
Griffith University v Tang (2005) 221 CLR 99
Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586
Lindner v Wright (1976) 14 ALR 105
Magor and St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226
Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189
Marshall v Watson (1972)124 CLR 620
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642
Poroa v Minister for Immigration and Border Protection [2015] FCA 1313
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531
Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188
Wentworth Securities Ltd v Jones [1980] AC 74
Western Bank Ltd v Schindler [1977] Ch 1Secondary Materials
Revised Explanatory Memorandum, Tribunals Amalgamation Bill 2014
REASONS FOR DECISION
Member K. Parker
10 July 2020
INTRODUCTION
The Applicant, Mr Patrick Elliott, was previously a recipient of the youth allowance under the Social Security Act 1991 (Cth) (SS Act). On 26 February 2019, Centrelink raised a debt of $3,965.94 against Mr Elliott due to overpayments made to him of youth allowance during the period 3 January 2013 to 24 June 2016 to which he was not entitled (Original Decision).[1]
[1] Refer paragraphs [3] and [4] of the Secretary’s submissions on jurisdiction lodged on 17 March 2020 (Secretary’s Submissions) and AAT1 Decision for review number 2019/M136174.
Mr Elliott sought review of this decision by a Centrelink authorised review officer (ARO) who affirmed the Original Decision on 30 April 2019 (ARO Decision).
Mr Elliott sought review of the ARO Decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). On 31 July 2019, the AAT1 set aside the Original Decision and in substitution, decided that a portion of debt, caused by under-reporting of Mr Elliot’s income to Centrelink, was recoverable; and that the remaining portion of the debt, caused by a failure by Centrelink to “place Mr Elliott on reporting while he was overseas”, was to be waived.[2] In addition, the AAT1 found that Mr Elliott had been underpaid $42.47 which needed to be factored into the calculation. The AAT1 directed that Centrelink recalculate the debt.[3] The Tribunal will refer to this decision as the AAT1 Decision. Centrelink recalculated Mr Elliott’s debt to be $3,439.53.[4]
[2] Refer paragraph [5] of the Secretary’s Submissions and paragraph [1] of Mr Elliott’s contentions on jurisdiction lodged with the Tribunal on 13 March 2020 (Mr Elliott’s Submissions).
[3] Ibid.
[4] Refer paragraph [7] of the Secretary’s Submissions.
On 14 August 2019, Mr Elliott sought review of the AAT1 Decision by the General Division of the Administrative Appeals Tribunal (AAT2) (application numbered 2019/5001) (AAT2 Application).[5]
[5] Refer paragraph [1] of Mr Elliott’s Submissions and paragraph [6] of the Secretary’s Submissions.
After the AAT2 Application was lodged by Mr Elliott, Ms April Voigt, who is a Government lawyer from the Legal Division of Department of Human Services, communicated an offer of settlement of the AAT2 Application to Mr Elliott, proposing to reduce his recalculated youth allowance debt from $3,439.53 to $500 “under s 1237AAB” of the SS Act.[6]
[6] Refer paragraph [8] of the Secretary’s Submissions and offer sent to Mr Elliott by Ms Voigt dated 28 August 2019 and attached “Notice of Agreement to Settle Proceedings”.
Of relevance, s 1237AAB(2) of the SS Act provides as follows:
Waiver in relation to settlements
…
Settlement of proceedings before the AAT
(2) If the Secretary has agreed to settle proceedings before the AAT relating to recovery of a debt on the basis that the debtor will pay less than the full amount of the debt, the Secretary must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.
On 29 August 2019, Mr Elliott accepted this offer and signed a document to record the settlement agreement reached, as did Ms Voigt on 30 August 2019, entitled “Notice of Agreement to Settle Proceedings” (Settlement Notice).[7] In the covering letter, Ms Voigt stated that once she had received the signed copy of the Settlement Notice from Mr Elliott, she would “sign it on behalf of the Secretary” and lodge it with the Tribunal.
[7] Refer paragraph [9] of the Secretary’s Submissions, paragraph [1] of Mr Elliott’s Submissions and copy of offer sent to Mr Elliott by Ms April Voigt, Department of Human Services, dated 28 August 2019 and attached “Notice of Agreement to Settle Proceedings”.
The Settlement Notice contained the following terms:
AAT No: 2019/5001
Applicant: Mr Patrick Elliott
Respondent: Secretary of the Department of Social Services
Notice of Agreement to Settle Proceedings
1.The parties have reached an agreement (other than in the course of mediation) as to the terms of a decision of the Tribunal that would be acceptable to the parties.
2.On 9 August 2019, the Administrative Appeals Tribunal (Social Services and Child Support Division (AAT1) set aside a decision by an authorised review officer of the Department of Human Services (the Department) that the Applicant had a youth allowance debt of $3,965.94 for the period 3 January 2013 to 24 June 2016 and substituted a decision that:
(a)the portion of the debt that was caused by the failure of the Department to place the Applicant on reporting while he was overseas is to be waived due to administrative error;
(b)an underpayment from 28 February 2013 to 13 March 2013 of $42.47 is to be deducted from the overall debt amount; and
(c)the revised debt amount will need to be calculated by the Department and is recoverable.
3.On 22 August 2019, the Department implemented the AAT1 decision and determined that the Applicant had a youth allowance debt of $3,439.53 (the debt).
4.The debt is the subject of proceedings.
5.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.
6.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.
[Signing clauses for the Respondent and the Applicant].
Upon lodgement by Mr Elliott and Ms Voigt of the Settlement Notice, the First AAT2 Application was taken to be dismissed by force of s 181(2) of the Social Security (Administration) Act 1999 (Cth) (Administration Act).[8]
[8] Section 181 of the Social Security (Administration) Act 1999 is set out in paragraph [30] of these Reasons for Decision.
Once Mr Elliott had enjoyed the personal benefit of removing the obstacle to his admission to the legal profession in Victoria and was duly admitted, he lodged a new application for review on 7 February 2020 (New Application).[9]
[9] Refer page 2 of Mr Elliott’s application for review form in respect of the application before this Tribunal.
There was uncertainty about what Mr Elliott was seeking by making the New Application. It was not evident from the form that he was seeking reinstatement of the previous AAT2 Application deemed to be dismissed under s 181(2) of the Administration Act. Instead, on the application form Mr Elliott described the decision from which he sought review as follows: “decision made under s 181(1) of the Social Security Administration Act”. On the form, Mr Elliott recorded that the date of this decision was 30 August 2019 being the date of execution of the Settlement Notice by himself and the Government lawyer.
The Secretary of the Department of Social Services (Secretary) contends that the decision identified by Mr Elliott was not a decision which is reviewable by the Administrative Appeals Tribunal (AAT). Mr Elliott’s application was referred to the General Division of the AAT. The first step of this Tribunal is to determine whether there is jurisdiction for the decision to be reviewed by any Division of the AAT (that is, as part of an AAT first review before the AAT1 or AAT second review before the AAT2).
Arrangements were made to retrieve the file held in relation to Mr Elliott’s closed AAT2 Application from archives. The Tribunal has considered the documents lodged on the Tribunal files for both the AAT2 Application and the New Application.
The parties lodged detailed written submissions in relation to the present application and the Secretary lodged an affidavit affirmed on 17 March 2020 by Ms Voigt (Voigt Affidavit). A notice of listing for a jurisdictional hearing was sent to the parties to advise that this application would be heard by a Member of the AAT2. No objection was taken to that course and a jurisdictional hearing took place by telephone on 18 March 2020. Both parties appeared and made oral submissions. The Applicant was self-represented. The Respondent was represented by Ms Ng, a lawyer of Australian Government Solicitor.
Subsequently, the Tribunal requested from the Secretary further information and documents relating to the delegation of its decision-making power in relation to the exercise of the Secretary’s power under s 181 of the Administration Act. The parties were given an opportunity to make any submissions in relation to those further materials, before this decision was handed down. Mr Elliott and the Secretary both lodged supplementary submissions on 2 July 2020 and 6 July 2020 respectively.[10]
[10] Mr Elliott lodged a further submission on 2 July 2020 (Mr Elliott’s Supplementary Submission) and the Secretary lodged a further submission attaching delegations and instruments of appointments on 6 July 2020 (Secretary’s Supplementary Submission).
The Secretary has not yet lodged any documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), pending the resolution of this jurisdictional issue.
For the reasons outlined below, the Tribunal concludes that the decision as described by Mr Elliott in his application form does not comprise any decision which is reviewable by the AAT; whether by the AAT1 as part of an AAT first review, or the AAT2 as part of an AAT second review. Accordingly, the Tribunal dismisses this application under s 42A(4) of the AAT Act.
LEGISLATIVE FRAMEWORK
The AAT was established under the AAT Act and its authority to review decisions stems from s 25 of the AAT Act which provides as follows:
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…
(3)Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
(a) shall specify the person or persons to whose decisions the provision applies;
(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c) may specify conditions subject to which applications may be made.
(3A) 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.
An “enactment” is defined in s 3 of the AAT Act to mean (among other things) an Act. The Administration Act is an Act and therefore, an “enactment” for the purpose of s 25(1) of the AAT Act.
Internal review by the Secretary, Chief Executive Centrelink (CEC) or authorised review officer
Part 4 of the Administration Act provides for the internal review of decisions made under the social security law (i.e. internally within the Department of Social Services).
Section 125 provides as follows:
Decisions by officers under instruments
For the purposes of this Part, a decision made by an officer under an instrument (other than an instrument that is a legislative instrument) made or issued under this Act or the 1991 Act is taken to be a decision under the social security law.
Section 126 allows for decisions of an officer to be reviewed by the Secretary as follows:
Review of decisions by Secretary
(1) 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.
(2) The Secretary may review a decision:
(a) whether or not any person has applied for review of the decision; and
(b) even if an application has been made to the AAT for review of the decision.
(3) The Secretary may:
(a) affirm a decision; or
(b) vary a decision; or
(c) set a decision aside and substitute a new decision.
…
Section 127 provides that certain decisions are not reviewable by the Secretary under s 126, which includes decisions that the Secretary has made himself or herself.
Section 129 allows for a person affected by a decision of an officer under the social security law to apply to the Secretary for review of the decision.
Section 135 provides:
(22)Review of decisions following application under section 129
(1) Subject to subsection (3) and subsection 127(1), if a person applies under section 129 for review of a decision, the Secretary, the Chief Executive Centrelink or an authorised review officer must:
(a) review the decision; and
(b) do one of the following:
(i) affirm the decision;
(ii) vary the decision;
(iii) set the decision aside and substitute a new decision.
(2) In the case of an application for review of a decision made by an officer of the Employment Department as a delegate of the Secretary, the reference in subsection (1) to an authorised review officer is to be read as a reference to an authorised review officer who is an officer of that Department.
(3) An authorised review officer may not review a decision relating to the exercise of the Secretary's power under section 181 of this Act.
…
Review by the AAT
Part 4A of the Administration Act deals with review of decisions by the AAT and provides for a two-tier review process; reviewed first by the AAT1 and subsequently, by the AAT2 if the affected person is dissatisfied with the decision of the AAT1.
AAT first review before AAT1
Division 2 of Part 4A deals with AAT first review by the AAT1 and s 142 specifies the types of decisions which are reviewable by the AAT1. Section 142 provides as follows:
Reviewable decisions
(1) Subject to section 144, application 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.
(4) For the purposes of subsection (1), the decision made by the Secretary, the Chief Executive Centrelink or the authorised review officer is taken to be:
(a) if the Secretary, the Chief Executive Centrelink or the authorised review officer affirms a decision--that decision as affirmed; and
(b) if the Secretary, the Chief Executive Centrelink or the authorised review officer varies a decision--that decision as varied; and
(c) if the Secretary, the Chief Executive Centrelink or the authorised review officer sets a decision aside and substitutes a new decision--the new decision.
Section 144 of the Administration Act excludes certain types of decisions from being decisions reviewable by the AAT, including the following:
Non-reviewable decisions
The AAT cannot review any of the following decisions:
…
(s)a decision relating to the Secretary’s power under section 182 of this Act to settle proceedings before the AAT.
AAT second review before AAT2
Section 179 allows for an AAT second review to be made to the AAT2 as follows:
Application for AAT second review
(1) Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
(2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a) if an AAT first review affirms a decision--that decision as affirmed; or
(b) if an AAT first review varies a decision--that decision as varied; or
(c) if an AAT first review sets a decision aside and substitutes a new decision--the new decision; or
(d) if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT--the directions or recommendations of the AAT.
Power to settle proceedings before the AAT
Division 4 of Part 4A of the Administration Act is entitled “Matters relating to AAT first review and AAT second review” and contains s 181 which establishes a special process for the settlement of proceeding before the AAT which relate to the recovery of a debt. If a settlement is reached, the proceedings are deemed to be dismissed and no dismissal decision under s 42C of the AAT Act is required to be made by the Tribunal. Section 181 is reproduced below:
Settlement of proceedings before the AAT
(1) The Secretary may agree, in writing, with other parties to settle 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.
Other provisions of relevance
Section 3 of the Administration Act contains several provisions in respect of its interpretation. Of relevance, s 3 is set out below:
Interpretation
(1) Unless a contrary intention appears, an expression that is defined in Schedule 1 has in this Act the meaning given in that Schedule.
(2) Unless a contrary intention appears, an expression that is used in the 1991 Act has the same meaning, when used in this Act, as in the 1991 Act.
(3) A reference in this Act to the social security law (other than the reference in section 4) is a reference to this Act, the 1991 Act and any other Act that is expressed to form part of the social security law.
(4) A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the 1991 Act or any other Act that is expressed to form part of the social security law.
…
Schedule 1 to the Administration Act is a dictionary and contains the following definitions in clause 1 to the Schedule:
1991 Act means the Social Security Act 1991.
"AAT" means the Administrative Appeals Tribunal.
"AAT Act" means the Administrative Appeals Tribunal Act 1975.
"AAT first review" has the meaning given by section 142.
"AAT second review" has the meaning given by section 179.
…
"authorised review officer" means an officer authorised under section 235 to perform duties as an authorised review officer for the purposes of the social security law.
…
Section 23 of the SS Act includes the following definitions of relevance:
(22)(1) In this Act, unless the contrary intention appears:
1947 Act means the Social Security Act 1947.
AAT means the Administrative Appeals Tribunal.
AAT Act means the Administrative Appeals Tribunal Act 1975.
AAT first review has the same meaning as in the Administration Act.
AAT second review has the same meaning as in the Administration Act.
…
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
Note:Subsection 3(3) of the Administrative Appeals Tribunal Act 1975 defines decision as including:
· making, suspending, revoking or refusing to make an order or determination;
· giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
· issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
· imposing a condition or restriction;
· making a declaration, demand or requirement;
· retaining, or refusing to deliver up, an article;
· doing or refusing to do any other act or thing.
…
officer means a person performing duties, or exercising powers or functions, under or in relation to the social security law.
…
Secretary means:
(a)except in relation to Subdivision D of Division 2 of Part 4A of the Administration Act—the Secretary of the Department; or
(b)in relation to Subdivision D of Division 2 of Part 4A of the Administration Act [dealing with AAT first reviews]:
(i)in the review of a decision made by the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) as a delegate of the Secretary of the Department or of the Secretary of the Employment Department—the Chief Executive Centrelink; or
(iii)in the review of any other decision—the Secretary of the Department.
Section 201A of the Administration Act provides a definition of “officer” as including, as relevant, “a person who is or has been an officer within the meaning of subsection 23(1) of the 1991 Act”.
Delegation of powers
Clause 2 of Schedule 5 to the Administration Act is set out below:
References to the Secretary and the Department--directions by Secretary
(1) Subject to subclause (3), if:
(a) the Secretary delegates to the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) all or any of the Secretary's powers under the social security law; and
(b) the delegation makes a reference to the Secretary, the Department, or an officer of the Department, in another provision of the social security law inappropriate, whether for administrative reasons or any other reason;
the provision has effect as if:
(c) the reference to the Secretary were a reference to the Chief Executive Centrelink; or
(d) the reference to the Department were a reference to the Human Services Department; or
(e) the reference to an officer of the Department were a reference to a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997);
as the case requires.
…
ISSUES
The issues before this Tribunal are:
(a)whether the execution by Ms Voigt (and Mr Elliott) on 30 August 2019 of the Settlement Notice or the consequential waiver decision made by force of s 1237AAB (2) of the SS Act (referred to collectively as the Decisions), are decisions which are reviewable:
(i)by the AAT1 under s 142 of the Administration Act; or
(ii)by the AAT2 under s 179 of the Administration Act; and
(b)when considering the issue identified in subparagraph (a) above, whether either of the Decisions is a decision to which s 144 of the Administration Act applies and therefore, is not reviewable by the AAT; and
(c)when considering the issue identified in subparagraph (b) above, whether to interpret s 144 of the Administration Act as applying to a decision relating to the exercise of the Secretary’s power to settle proceedings before the AAT under s 181 of the Administration Act, even though s 144 refers to such a decision being made under s 182, and not s 181, of the Administration Act.
CONSIDERATION
Mr Elliott contends that to enter into the agreement that was reached between him and a delegate of the Secretary that “the Secretary exercised the power in subsection 181(1) of the Social Security Administration Act 1999 (Cth)” and that it was “a ‘decision’ for the purpose of administrative law”, for which he now seeks review by the AAT.[11]
[11] Refer paragraph [1] of Mr Elliott’s Submissions.
Mr Elliott stated in his submissions as follows:[12]
…My view is that at all stages the debt which was the subject of proceedings was illegal, a view which may gain support from the fact that as soon as the matter crossed the desk of a lawyer the Department agreed to waive over 85% of the significant sum remaining after AAT1 review. Despite such a significant waiver, my view is that the Department still retains sums to which it is not legally entitled. The power in section 181(1) of the Admin Act is broad but it cannot be exercised arbitrarily and the Secretary should have agreed to settle proceedings by waiving a greater sum and recovering only those sums to which it was legally entitled. Review of the exercise of the power would not be futile and the Tribunal can
re-make such a decision by varying or substituting the terms of what was agreed to.
[12] Refer [27] of Mr Elliott’s Submissions.
The Secretary contends that Mr Elliott has not identified a reviewable decision which would enliven the AAT’s jurisdiction because:
(a)no relevant decision has been identified by Mr Elliott for the purpose of s 142 of the Administration Act; and
(b)
in any event, settlement of proceedings before the AAT by the Secretary is a
“non-reviewable decision”.[13]
[13] Refer paragraph [16] of the Secretary’s Submissions.
The Tribunal will start with the consideration of the circumstances within which the Decisions were made.
Ms Voigt states in her affidavit that she is a Government lawyer who, since 19 August 2019, had the day-to-day carriage of the AAT2 Application. Ms Voigt stated that her responsibilities included communicating with Mr Elliott since 23 August 2019 regarding the possible settlement of the AAT2 Application. Ms Voigt also stated as follows in her affidavit:[14]
In doing so, I acted within the power delegated to me under the Social Security Act 1991 Delegations Instrument Number D-2019-45 and acted in accordance with instructions given by the Practice Director for Debts, Litigation Team, Legal Services Division, Services Australia. The Secretary of the Department of Social Services did not personally make any decisions in relation to the settlement of the AAT proceedings.
[14] Refer paragraph [4] of Ms Voigt’s affidavit affirmed 17 March 2020.
Services Australia was established on 26 May 2019 and on 1 February 2020 became an executive agency within the Department of Social Services. Of relevance to this application, Services Australia is responsible for delivering Centrelink payments and services.
The Tribunal requested that Ms Voigt provide a copy of the delegation instrument that she had referred to in her affidavit described as “Delegation Instrument D-2019-45”. Upon production by Ms Voigt, the Tribunal notes that this instrument provides for the delegation of functions and powers under provisions of the SS Act (SS Act Delegation). It was by the Acting CEC at the time on 17 June 2019 and took effect on 1 July 2019. The SS Act Delegation was stated to be made under “section 12 of the Human Services (Centrelink) Act 1977”. Of relevance, s 12 of the Human Services (Centrelink) Act 1997 (Cth) (HS Act) provides as follows:
12 Delegation
(1)The Chief Executive Centrelink may, by writing, delegate to a Departmental employee all or any of the functions of the Chief Executive Centrelink under this Act or any other Act.
Ms Voigt informed the Tribunal that she was an APS (Australian Public Service) Level 5 employee at the time of the events described in her affidavit.
The delegation provided by the Acting CEC in the SS Act Delegation was described in the instrument as follows:
1. DELEGATE to each Departmental employee from time to time holding, occupying or performing the duties at the Australian Public Service (APS) classification level specified in Column 2 of an item in the Schedule[15], my powers or functions under the Social Security Act 1991 specified in Column 3 of that item of the Schedule.
[15] The holders of powers under these delegations are subject to relevant Secretary’s Management Directions about their day-to-day functions and tasks. Such Directions may affect which particular holders of the delegated powers exercise the powers from time to time.
Item No.735 of the Table in the Schedule to the SS Act Delegation instrument is relevant to this application and is reproduced below:
Column 1 Item No.
Column 2 APS Classification Level
Column 3 Specified Powers and Functions Under the Social Security Act 1991
Column 4 Description of Section[16]
735.
APS Level 5 and 6
Section 1237AAB(2)
In respect of Debts not exceeding $15,000
Waiver in relation to settlements
[16] The section description is to assist the identification of relevant powers and is not to limit or expand the scope of a delegation.
Ms Voigt also produced a second delegation instrument, “Delegation Instrument Number D-2019-4”, in respect of the delegation of powers and functions arising under the Administration Act (Administration Act Delegation). The delegation was signed by the CEC on 15 February 2019 in virtually identical terms to the SS Act Delegation (i.e. as set out in paragraphs [43] and [45] above).
Item No.284 of the Table in the Schedule to the Administration Act Delegation instrument is relevant to this application, and is reproduced below:
Column 1 Item No.
Column 2 APS Classification Level
Column 3 Specified Powers and Functions under the Social Security (Administration) Act 1999
Column 4 Description of section[17]
284.
APS Level 4 and all higher levels
Section 181
Settlement of proceeding before the AAT
[17] The section description is to assist the identification of relevant powers and is not to limit or expand the scope of a delegation.
For completeness, the Tribunal requested further information and documents from the Secretary about the delegation of powers from the Secretary to the CEC or Acting CEC.
Firstly in relation to the delegation of powers from the Secretary to the CEC, the Tribunal was provided with Instrument Number 36 of 2017 signed by the Secretary on 30 November 2017 under s 234 of the Administration Act (Secretary’s CEC Delegation). In this instrument the Secretary provided the following delegation to the CEC (with the exceptions referred to in the Schedules not being applicable to the Decisions in this case):
…
4.I delegate to the person appointed as, or for the time being occupying, holding or performing the duties of the office of, Chief Executive Centrelink as follows:
i.all of my powers under the Social Security (Administration) Act 1999, except for those powers specified in Schedule 1 to this instrument; and
ii.all of my powers under the Social Security Act 1991, except for those powers specified in Schedule 2 to this instrument.
Secondly, in relation to the constructive delegation of powers from the Secretary to the Acting CEC, the Tribunal notes that subsection 7A(1) of the HS Act provides that the Secretary may appoint an SES employee in the Department to act as the CEC. The Tribunal was provided with an appointment instrument signed by the Secretary of the Department of Human Services on 30 April 2019 appointing Ms Michelle Lees as the Acting CEC as from 13 May 2019. The Tribunal notes the following provisions of the Acts Interpretation Act 1901 (Cth) (AI Act) in relation to acting appointments:
Section 20
References to holders of appointments, offices and positions in Acts and Commonwealth agreements
In a provision of an Act, or of an agreement entered into by or on behalf of the Commonwealth, a reference in general terms to the holder or occupier of an office, appointment or position includes all persons who for the time being:
(a) hold or occupy the office, appointment or position; or
(b) perform the duties of the office, appointment or position.
…
Section 33A
Acting appointments
Where a provision of an Act (other than subsection 33(4) of this Act) confers on a person or body (in this section called the appointer ) a power to appoint a person (in this section called the appointee ) to act in a particular office, then, except so far as the Act otherwise provides, the following paragraphs apply in relation to an appointment made under the provision:
…
(e) while the appointee is acting in the office:
(i) the appointee has and may exercise all the powers, and shall perform all the functions and duties, of the holder of the office; and
(ii) that or any other Act applies in relation to the appointee as if the appointee were the holder of the office.
The Tribunal finds that on 30 August 2019, as an APS Level 5 officer, Ms Voigt:
(a)executed the Settlement Notice under s 181 of the Administration Act using the powers delegated to her by the CEC under item 284 of the Administration Act Delegation; and
(b)as a consequence, waived the reduced portion of the debt as required by s 1237AAB(2) of the SS Act using the powers delegated to her by the Acting CEC under item 735 of the SS Act Delegation.
The Tribunal notes that the Secretary has the power under s 181 of the Administration Act to settle proceedings before the AAT and to waive debts (or a portion of them) as required by s 1237AAB(2) of the SS Act. However, the Tribunal finds that the Secretary had delegated her power to the CEC under Instrument Number 36 of 2017 at the time he made the second delegation instrument and to the Acting CEC by the operation of s 20 and 33A of the AI Act in conjunction with the appointment of the Acting CEC by the Secretary.
Consequently, the Tribunal is satisfied that Ms Voigt was duly authorised under the SS Act Delegation and Administration Act Delegation, operating in conjunction with the Secretary’s CEC Delegation instrument under s 234 of the Administration Act, to make each of the Decisions.
By Ms Voigt doing each of those things, the Tribunal considers that she made a “decision” as defined in s 23 of the SS Act which defines “decision” as having the same meaning as in ss 3(3) of the AAT Act. Specifically, the Tribunal considers that the execution of the Settlement Notices constituted the giving of “approval, consent or permission” to settle the AAT2 Application, and/or the “doing of any other act” being the act of agreeing to the settlement under s 181(1) of the Administration Act. Further, by waiving the reduced portion of the debt as required by s 1237AAB of the SS Act, Ms Voigt had made a “determination” or had done “any other act or thing”, as referred to in the definition of “decision”.
Pursuant to s 125 of the Administration Act, the Tribunal considers that Ms Voigt’s Decisions were made or issued under the SS Act or the Administration Act respectively and are taken to be decisions under the social security law.
However, subsection 135(3) of the Administration Act expressly excludes “a decision relating to the exercise of the Secretary's power under section 181 of this Act” from being a decision that is reviewable by an ARO. Considering the use of the phrase “relating to” in this provision, the Tribunal considers both Decisions to be decisions relating to the exercise of the Secretary’s power under s 181 of the Administration Act and therefore, this exclusion applies to the Decisions.
Accordingly, the Tribunal concludes that the Decisions were not capable of being subject to internal review by an ARO under s 135 of the Administration Act, by operation of the exclusion under subsection 135(3). Further, as far as the Tribunal is aware no internal review decision has been made under s 126 or otherwise under s 135 of the Administration Act by the Secretary or CEC (or any of their delegates).
Whether either of the Decisions constitute a decision which may be subject to an AAT first review under s 142(1)
The Tribunal considered whether either of the Decisions constitute a reviewable decision as defined in s 142(1)(a) or (b) of the Administration Act, which would make them prima facie subject to an AAT first review provided the exclusion in s 144 of the Administration Act did not apply.
Firstly, the Secretary contends that the power to settle AAT proceedings does not arise either under s 126 or s 135 and therefore, subsection 142(1)(a) does not apply. Mr Elliott did not dispute this and as mentioned above, no evidence was put before the Tribunal to suggest that an internal review decision arising from the review of either of the Decisions had been sought or made. Accordingly, the Tribunal concludes that the Decisions are not reviewable by the AAT1 by reason of them falling within the description set out in subsection 142(1)(a) of the Administration Act.
The Secretary contends that in order for Mr Elliott to establish jurisdiction he must be able to show that there had been a decision made “personally” by the Secretary (see first limb of subsection 142(1)(b) of the Administration Act), and that any decision made to settle the proceedings relating to Mr Elliott was not such a decision, as it had been made by Ms Voigt.
In his written submissions, Mr Elliott contends as follows:
(a)s 181(1) of the Administration Act conferred a power on the Secretary to agree, in writing, with other parties to settle proceedings before the AAT that relate to the recovery of a debt;
(b)the exercise of this “power to agree” is a “decision” “in the administrative law sense”. Mr Ellison relied upon the authority in Griffith University v Tang (2005) 221 CLR 99 in support of this proposition;
(c)s 142(1)(b) of the Administration Act states that an application may be made to the AAT for review of a decision “under that Act made personally by the Secretary or Chief Executive Centrelink”;
(d)a decision is made personally by the Secretary under the Administration Act when the Secretary exercises the power in subsection 181(1) of the Administration Act to agree to settle proceedings;
(e)nothing of consequence attaches to the word “personally” in subsection 142(1)(b) due to subsection 25(3A) of the AAT Act because a decision under subsection 181(1) of the Administration Act would be reviewable, even if exercised by a delegate; and
(f)accordingly, s 142(1)(b) was the basis of the Tribunal having jurisdiction once the Secretary exercises the power to settle proceedings under subsection 181(1) of the Administration Act, “unless that jurisdiction is somehow otherwise ousted”.
Mr Elliott also referred to the following part of s 34AB(1)(c) of the AI Act:[18]
(1) Where an Act confers power on a person or body (in this section called the authority) to delegate a function, duty or power:
…
(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.
[18] Refer Mr Elliott’s Supplementary Submissions.
Mr Elliott contends that:
6. …even if the exercise of the power in s 181(1) of the Admin Act and the making of the decision was made by a delegate and not in fact made ‘personally’ by the person holding the office of Secretary, as per the Interpretation Act it is nevertheless deemed to have been made by the person holding the office of Secretary for the purposes of the Admin Act. As such, it is deemed that the exercise of the power by Ms Voigt was exercised by the person of the Secretary, that is to say, ‘personally’ by the ‘Secretary’.
7. Complementing this is s 25(3A)(a) of the AAT Act which states, in effect, that a provision in an enactment which permits applications to be made to the Tribunal for review of decisions of a person made in the exercise of a power conferred on that person (such as 142(1)(b) of the Admin Act), also permits applications to be made for review of decisions made in the exercise of that power by any person to whom that power has been delegated. Even if the exercise of power by Ms Voigt was not deemed by the Interpretation Act to have been exercised by the person of the Secretary, the exercise of the power and the decision would still be reviewable.
8. It is also worth considering that the inclusion of the word ‘personally’ in s 142(1)(b) is in any case tautological. Any provision in legislation referring to decisions made by the person on whom a power has been conferred already refers to decisions made ‘personally’ by that person. If s 142(1)(b) were to instead read “a decision under this Act made by the Secretary or the Chief Executive Centrelink” it would still refer to a decision made ‘personally’ by either person holding those offices. The word ‘personally’ adds nothing to the provision. Review of decisions of delegates is then provided either by legislation or common law.
In response to Mr Elliott’s contention as referred to in subparagraph [35(e)], the Secretary contends as follows:
The applicant relies on s 25(3A)(a) of the AAT Act as the answer. The respondent submits that this submission is based on a misreading of s 25(3A)(a). Section 25(3A)(a) cannot apply where the relevant ‘provision’ is confined to personal decisions of the repository power (here, the Secretary) (as envisaged by s 25(3A)(b)). By definition, that is not a power which can be delegated to any person. The interpretation contended for by the applicant would (as he appears to accept) be contrary to the express words of s 142(1)(b), and render meaningless the distinction between decisions in s 142(1)(a) and personal decisions in s 142(1)(b).
The Tribunal accepts the contention of the Secretary as set out in the above paragraph. Subsection 142(1)(b) of the Administration Act expressly refers to decisions made by the Secretary “personally”. Section 25(3A)(a) of the AAT Act does not apply where the relevant provision is confined to personal decisions of the repository power. The Tribunal considers that the word “personally” appearing in s 142(1)(b) must have work to do or else this express qualifier would not have been inserted into the provision. The Tribunal interprets s 142(1)(b) to mean that it applies only to decisions made by the Secretary herself and not to decisions made by any other person on behalf of the Secretary under appropriate delegations. This interpretation accords with the natural and ordinary meaning of the word “personally”.
This interpretation is also supported by the fact that Parliament has used this qualifier, “personally”, in respect of the exercise of certain powers of the Secretary or CEC under the Administration Act whereas for other powers, no such qualifier has been used in the provision. As identified by the Secretary, this distinction can be seen in s 142(1) of the Administration Act itself, where s 142(1)(b) contains this qualifier, but s 142(1)(a) does not. The Tribunal does not consider the inclusion of the qualifier “personally” in s 142(1)(b) as being accidental. It was intended to limit the scope of reviewable decisions to only those decisions made personally by the Secretary herself (or the CEC himself) and does not extend to decisions made on their behalf by authorised delegates. By contrast, because s 142(1)(a) does not have the qualifier “personally”, if a decision was made under s 126 or s 135 (which was not the case here) by the Secretary or CEC or by any of their duly authorised delegates, that decision would be a reviewable decision (subject to any other exclusions or limitations that may apply under those provisions).
The Tribunal finds that the Settlement Notice to settle the First AAT2 Application was not executed by the Secretary or the CEC personally. Further, the decision made to waive a portion of Mr Elliott’s debt as required by s 1237AAB(2) of the SS Act was a “decision” as defined by s 23(1) of the SS Act, but the Tribunal finds that it was not made by the Secretary (or the CEC for that matter) “personally”. Both the decision to execute the Settlement Notice and the consequential waiver decision were made by a Government lawyer on behalf of the Secretary, under appropriate delegations provided to her by the CEC or Acting CEC at the relevant time. In turn, the CEC and Acting CEC issued those delegations pursuant to appropriate delegations of power and instruments of appointment issued to them by the Secretary as detailed above. Accordingly, there was no decision taken by the Secretary (or CEC) “personally” that Mr Elliott can point to in order to establish that subsection 142(1)(b) applied to either of the Decisions.
For this reason, the Tribunal concludes that neither of the Decisions are reviewable decisions as defined in subsections 142(1)(a) or (b) of the Administration Act.
Whether either of the Decisions constitute a non-reviewable decision under s 144(s)
In the event the Tribunal is wrong about the first issue, it has also considered whether either of the Decisions are decisions to which s 144(s) of the Administration Act applies, that is, whether either of them constitute “a decision relating to the Secretary’s power under section 182 of this Act to settle proceedings before the AAT”. If so, this would make them non-reviewable by the AAT, even if they were considered to be a decision to which s 142(1) of the Administration Act applied.
This issue requires the Tribunal to consider whether the reference to s 182 in s 144 of the Administration Act is an error in the legislative drafting of this provision, and whether the Tribunal should interpret s 144 to apply to a decision relating to the Secretary’s power to settle proceedings before the AAT (which only arises under s 181 of the Administration Act).
Section 142 of the Administration Act states that it is subject to s 144 of the Administration Act, which specifies that certain types of decisions are non-reviewable (by the AAT). Mr Elliott contends that there were no provisions in s 144 (or elsewhere in the Administration Act) “which expressly makes a decision made under section 181(1) to be unreviewable, thus at face value the Tribunal’s jurisdiction is not ousted and it has jurisdiction to review the decision”.[19] Mr Elliott accepted that “it may be argued” that subsection 144(s) of the Administration Act ousted the Tribunal’s jurisdiction, acknowledging that the existing s 181 of the Administration Act was formerly numbered s 182, following amendments made as a consequence of the enactment of the Tribunals Amalgamation Act 2015 (Cth).[20]
[19] Refer paragraph [8] of Mr Elliott’s Submissions.
[20] Refer paragraph [8], [10] and [11] of Mr Elliott’s Submissions.
Mr Elliott contends that the High Court of Australia in Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 had accepted that a purposive construction might allow a reading of a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation, but only in limited circumstances.[21]
[21] Refer paragraph [17] of Mr Elliott’s Submissions.
The Tribunal notes the observations of the majority joint judgement of Brennan CJ, Crennan and Bell JJ in Taylor (emphasis added):
[37]Consistently with this Court's rejection of the adoption of rigid rules in statutory construction[22], it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia[23], the question of whether a construction "reads up" a provision, giving it an extended operation, or "reads down" a provision, confining its operation, may be moot[24].
[38]The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision[25]. It is answered against a construction that fills "gaps disclosed in legislation"[26] or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature"[27].
…
[40] Lord Diplock's speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation[28]. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be "too far-reaching"[29]. In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution[30].
[22] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 401 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ; [1996] HCA 36.
[23] (2007) 232 CLR 138; [2007] HCA 47.
[24] Director of Public Prosecutions v Leys (2012) 296 ALR 96 at 129-130 [105]-[107].
[25] Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; [1984] HCA 48; Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at 651-652 [9] per French CJ and Bell J; [2009] HCA 40.
[26] Marshall v Watson (1972) 124 CLR 640 at 649 per Stephen J; [1972] HCA 27.
[27] Western Bank Ltd v Schindler [1977] Ch 1 at 18 per Scarman LJ cited by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115.
[28] Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106.
[29] Inco Europe Ltd v First Choice Distribution(a firm) [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115.
[30] Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 512-513 [102] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2; Zheng v Cai (2009) 239 CLR 446 at 455-456 [28] per French CJ, Gummow, Crennan, Kiefel and Bell JJ; [2009] HCA 52.
Mr Elliott contends that when the High Court of Australia in Taylor endorsed the inhibition against an alteration which was “too far-reaching”, it endorsed the idea that this included “any departure from a strict interpretation in circumstances of particular subject matter”.[31] Mr Elliott referred to Lord Nicholls in Inco Europe Ltd v First Choice Distribution(a firm) [2000] 1 WLR 586 citing penal legislation as an example of subject matter calling for a strict interpretation of the statutory language. So too, Mr Elliott contends that another subject matter calling for a strict interpretation of statutory text is that of jurisdiction. Mr Elliott made out his argument as follows:[32]
22.…A court or tribunal must not read in or omit words from legislation where to do so would have the effect of granting or depriving it of jurisdiction. Such an alteration would be “too far reaching”, crosses the line between statutory construction and legislation and risks breaching the constitutional separation of powers. This may be especially so in the case of a Tribunal such as the AAT, which has no original jurisdiction and relies entirely on enabling enactments for its jurisdiction. If the Tribunal were to read-in or omit words from any enabling enactment in such a way that expands or diminishes its own jurisdiction, it may be usurping the role of Parliament.
[31] Refer paragraph [21] of Mr Elliott’s Submissions.
[32] Refer paragraph [22] of Mr Elliott’s Submissions.
In support of this contention, Mr Elliott referred the Tribunal to the decision in Poroa v Minister for Immigration and Border Protection [2015] FCA 1313 (Poroa) involving a decision made under s 501CA(4) of the Migration Act 1958 (Cth) and suggested that the Federal Court of Australia appeared to take the position that “even when considering the principles in Taylor, a reading-in or omission of words that alters a court’s jurisdiction would be too far reaching”.[33]
[33] Refer paragraph [23] of Mr Elliott’s Submissions.
Mr Elliott contends:[34]
23.…In Poroa and also in Tusitala[35] it was accepted that it was only because of a legislative drafting oversight that it was the Federal Circuit Court, and not the Federal Court, which had jurisdiction to hear an initial application for review of a decision made under section 501CA(4).
24.Justice Griffiths noted the ‘quite limited’ principles in Taylor but observed that the central issue in the Poroa proceedings was one which went to the Court’s jurisdiction and that there is a need for particular caution in such a case. In his honour’s view, the case for amending the provision in question affecting the Federal Court’s jurisdiction was a matter for Parliament, even though he was satisfied that the Federal Court’s lack of jurisdiction was a result of a mere legislative drafting oversight and that Parliament had intended the Federal Court of have jurisdiction.
25.For reasons already given, the Admin Act on its face gives the Tribunal jurisdiction to review a decision made under section 181(1) of the Admin Act. If the Tribunal were to read ‘section 181’ into subsection 144(s) or simply omit the reference to section 182, this would have the effect of altering its own jurisdiction and this would be an alteration which is ‘too far reaching’. Jurisdiction is a subject matter which calls for a strict interpretation of statutory language. For these reasons the Tribunal should not read section 181 into subsection 144(s) and it is unlikely that it even had the power to do so.
[34] Refer [23] and [24] of Mr Elliott’s Submissions.
[35] Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188.
The Secretary contends that s 144(s) of the Administration Act excludes from the class of reviewable decisions those decisions relating to the Secretary’s power to settle proceedings for the AAT. The Secretary contends that there was a drafting oversight, whereby the reference to s 182 was not updated to s 181 (within s 144(s)) as part of the amendments introduced by the Amalgamation Act.
In support of the above contention, the Secretary relied upon a decision of the Supreme Court of the Northern Territory in Lindner v Wright (1976) 14 ALR 105.[36] In this case, Justice Muirhead was required to consider s 8A(6) of the Fisheries Ordinance 1965-1974, (which was introduced by amending legislation) and which contained a cross-reference to another subsection, i.e. s 8A(3). The wording of s 8A(6) also contained a description of the subject matter of the cross-reference being made, specifically, s 8A(6) stated that “unless the report referred to in sub-section (3) has been duly forwarded”. Following the introduction of the amendments, s 8A(3) did not provide for the making a report.
Instead, this report was provided for under s 8A(4). In these circumstances, Justice Muirhead found that the reference in s 8A(6) to the report in subsection (3) was “plainly and undoubtedly an error” and that “clearly the draftsman intended to refer to the reporting provisions set out in s 8A(4) as set out above”.[37]
[36] This principle was adopted in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1980-81] 147 CLR 304.
[37] Lindner v Wright (1976) 14 ALR 105, 109.
The Tribunal notes Justice Muirhead observations in this decision as follows (emphasis added):
…In the case before me there is no compromise interpretation available, there is no ambiguity, there is a sub section which is senseless and meaningless unless this court assumes there is 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 by legislation”: Marshall v Watson (1972)124 CLR 620 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 criticised on appeal in the speeches of Lord Simons 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 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”.
The Secretary contends that the same approach should apply in respect of this application, with the error in s 144(s) being “obvious” having regard to:
(a)the wording of s 144(s) itself;
(b)the legislative history. In respect of the legislative history, the Secretary invited the Tribunal to consider that the revised explanatory memorandum to the Tribunals Amalgamation Bill 2014 stated that existing policy on what decisions were reviewable and non-reviewable would be unaffected by the amendments; and
(c)the fact that only s 181 provides for the power to settle proceedings before the AAT.
In respect of Mr Elliott’s reliance on Poroa and Tusitala, the Secretary contends that those authorities were readily distinguishable on account of the following:[38]
29. …Those cases concerned s 476A(1)(c) of the Migration Act 1958, which relevantly provided the Federal Court has original jurisdiction in relation to a migration decision if, and only if ‘the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C’. To remedy the drafting error, the Federal Court would have had to add to that list ‘501CA’. This would have had the effect of adding a class of decisions to the court’s jurisdiction. That was not a situation where the error was obvious on the face of the legislation, as in the present case.
[38] Refer paragraph [29] of the Secretary’s Submissions.
The Tribunal accepts the contentions of the Secretary in relation to this second issue and rejects the contentions of Mr Elliott. Section 182 of the Administration Act does not deal with settlement of proceedings before the AAT. Instead, it provides for the situation where an officer varies or substitutes a decision after an application has been made to the AAT by the person affected by the decision. There is no mention made whatsoever to the “settlement of proceedings before the AAT” in s 182. However, in the preceding s 181 (which was previously numbered 182) this provision specifically addresses the situation where there has been a “settlement of proceedings before the AAT”. It is obvious that there is a typographical error in s 144 where it refers to s 182, when instead it should be a reference to s 181. It seems plainly obvious that this error was made because of the previous renumbering of these sections in the Act (i.e. s 181 was previously renumbered s 182), without appropriate consequential amendments being made to s 144 of the SS Act. The Tribunal agrees with the Secretary that this situation is readily distinguishable from the circumstances that arose in the cases of Poroa and Tusitala.
On this basis, the Tribunal considers that it is not “too far reaching”, nor that the Tribunal would be “filling a gap”, to interpret s 144(s) of the Administration Act as meaning that the AAT cannot review decisions made in relation to the exercise of the Secretary’s power to settle of proceedings before the AAT under s 181. In other words, the Tribunal concludes that the reference to “section 182” of the Administration Act in this provision should be read as though “section 181” was inserted instead of “section 182” and it interprets s 144(s) of the Administration Act accordingly.
The Tribunal considers this interpretation does not expand the scope of the jurisdiction of the Tribunal as it is consistent with the intended meaning of this provision to be a reference to decisions in relation to the exercise of the Secretary’s power to settle proceedings before the AAT under s 181 of the Administration Act. This much is clear from the reference to the words “a decision relating to the Secretary’s power …to settle proceedings before the AAT” as appearing in the wording s 144(s) itself. As identified by the Secretary, the only provision in the Administration Act which provides for AAT proceedings to be settled, arises under s 181 of the Administration Act and this power is given to the Secretary (or her duly authorised delegate).
The Tribunal also accepts the Secretary’s contention that this interpretation is further supported by the expressed intention of the legislators as set out in the revised explanatory memorandum to the Tribunals Amalgamation Bill 2014 which stated that existing policy on what decisions were reviewable and non-reviewable would be unaffected by the amendments.
The Tribunal concludes that both of the Decisions fall within the definition of a
non-reviewable decision specified under s 144(s) of the Administration Act and for this reason, the AAT cannot review them, even if they were found to be reviewable decisions referred to in s 142(1) of the Administration Act (which the Tribunal has concluded they are not).
Whether either of the Decisions constitute a decision which may be subject to an AAT second review under s 179
Section 179 of the Administration Act provides that an application may be made for AAT second review of a decision of the AAT on AAT first review. The Tribunal has concluded that Ms Voigt’s Decisions are not reviewable decisions for the purpose of an AAT first review by the AAT1 under s 142 of the Administration Act. Consequently, it follows that the Decisions are not subject to review by the AAT2 as part of an AAT second review under s 179.
Further, the Tribunal has concluded that the exclusion in s 144(s) of the Administration Act applies in this case in respect of both Decisions and for this reason, even if an AAT first review had erroneously been permitted and decision made (which is not the case here), s 144(s) provides that the Decisions cannot be reviewed by the AAT, which includes the AAT2. This is a further reason why the Decisions may not be subject to an AAT second review under s 179 as they cannot be reviewed by the AAT by operation of the exclusionary provision of s 144(s).
CONCLUSION
For these reasons, the Tribunal concludes that the AAT cannot review the Decisions because they are not reviewable decisions under either s 142(1) or s 179 of the Administration Act and further, they are expressly excluded as non-reviewable decisions under s 144(s) of the Administration Act.
Accordingly, the Tribunal dismisses this application under s 42A(4) of the AAT Act because the Decisions are not reviewable by any Division of this Tribunal.
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
...................[sgd].....................................................
Associate
Dated: 10 July 2020
Date of interlocutory hearing: 18 March 2020 Date final submissions received: 6 July 2020 Applicant: By telephone Solicitors for the Respondent: Ms Grace Ng
Australian Government Solicitor
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