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

The Administrative Appeals Tribunal (AAT) considered an application by Mr. Elliott seeking review of a decision concerning a youth allowance overpayment debt. Mr. Elliott had previously sought review of the debt by a Centrelink authorised review officer, which affirmed the original decision. He then applied to the Social Services and Child Support Division of the AAT (AAT1), which waived a portion of the debt and directed recalculation of the remainder. Mr. Elliott subsequently applied to the General Division of the AAT (AAT2) for review of the recalculated debt. An agreement to settle the AAT2 proceedings was reached, resulting in a further waiver of debt under section 1237AAB(2) of the *Social Security Act 1991* (Cth). The AAT2 proceedings were then taken to be dismissed pursuant to section 181(2) of the *Social Security (Administration) Act 1999* (Cth). Following his admission to legal practice in Victoria, Mr. Elliott lodged a new application with the AAT, seeking review of the "decision to agree to the settlement," which he claimed was made under duress.

The primary legal issues before the Tribunal were whether the execution of the settlement agreement or the consequential waiver decision constituted reviewable decisions. Specifically, the Tribunal had to determine if these decisions were reviewable by the AAT1 under section 142(1) of the *Administration Act*, or by the AAT2 under section 179 of the *Administration Act*. Further questions arose regarding whether the decisions were made by the Secretary "personally" and if they related to the exercise of the Secretary’s power to settle proceedings before the AAT within the meaning of sections 135(3) or 144(s) of the *Administration Act*. Mr. Elliott argued that the absence of a reference to section 181 in section 144(s), which specifies non-reviewable decisions, indicated a drafting error and that section 144(s) should be interpreted to include such decisions.

The Tribunal reasoned that the settlement agreement, executed by Mr. Elliott and a government lawyer, led to the AAT2 proceedings being dismissed by force of section 181(2) of the *Administration Act*. Mr. Elliott's subsequent application sought review of the "decision made under s 181(1) of the Social Security Administration Act," which the Secretary contended was not a reviewable decision by the AAT. The Tribunal concluded that the decisions in question were not reviewable by the AAT1 as part of a first review, nor consequently by the AAT2 as part of a second review.

The application was dismissed under section 42A(4) of the *Administrative Appeals Tribunal Act 1975* (Cth) on the basis that the Tribunal lacked jurisdiction to review the decisions.