Garnaut and Other

[2023] AATA 4862

Garnaut and Other [2023] AATA 4862 (7 July 2023)

Division:GENERAL DIVISION

File Number(s):      2023/3771

Re:Michael Vincent Garnaut

APPLICANT

AndOther

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:7 July 2023  

Date of written reasons:        3 August 2023

Place:Adelaide

WRITTEN REASONS FOR DECISION DATED 7 JULY 2023 NAMELY: 

For the reasons given orally at the hearing of this matter, this application for review is dismissed.

........................[Sgnd].........................................

Senior Member B J Illingworth

CATCHWORDS

PRACTICE AND PROCEDURE – interlocutory application regarding jurisdiction of Administrative Appeals Tribunal in respect of Commonwealth decisions capable of review by the Tribunal – whether application for review filed in the Tribunal is in respect of a decision which enlivens the jurisdiction of the Tribunal pursuant to section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) – application dismissed

REASONS FOR DECISION

Senior Member B J Illingworth

3 August 2023

1. At the hearing, the decision and reasons were provided orally. The Applicant has requested written reasons under s43(2A) of the Administrative Appeals Tribunal Act 1975.

2. The oral reasons for the decision have been transcribed. Minor amendments have been made to correct grammar or to render parts legible.

3. The transcript is annexed and provided to the Respondent as the written reasons for the Tribunal’s decision.

I certify that the preceding three [3] paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.........................[Sgnd].........................................

Associate

Dated: 3 August 2023

Written Reasons:         3 August 2023

Date of hearing:           7 July 2023

Applicant:         Michael Vincent Garnaut

Respondent:     Decision-maker

ORAL DECISION OF SENIOR MEMBER B J ILLINGWORTH                 [2:17PM]

1. SENIOR MEMBER:  I now make an oral decision in relation to the application for review which is before me, filed by Michael Vincent Garnaut, in relation to five purported decisions about which he is aggrieved.

2. I will first give some background. Prior to lodging the application for review, the Applicant had been in email communication with the Administrative Appeal Tribunal (“AAT”), namely, the Adelaide Registry.  In an email dated 16 May 2023, he was advised by the AAT Adelaide Registry that, quote: 

   “The Administrative Appeals Tribunal can only review a decision if an act, regulation, or other legislative instrument specifically provides that the AAT can review the decision.”

3. He was directed to the AAT webpage, which provided a list of Commonwealth laws under which decisions may be made that can be reviewed by the AAT. He was also advised that the decision letter he would have received should inform him of his review rights, and the time period within which to lodge the application for review.

4. On 28 May 2023, the AAT received an application for review of a decision, which I will call ‘the Application’, filed by the Applicant. The Application identifies the following as the decisions the Applicant seeks to review, namely: 

   (1)   8 April 2022, email from ASIC;

   (2)   28 June 2022, decision from ASIC;

   (3)   18 August 2022, review by ASIC;

   (4)   19 January 2023, decision from Commonwealth Ombudsman, a decision in relation to a complaint made by the Applicant; and

   (5)   4 May 2023, a review by Commonwealth Ombudsman.

5. The Reasons for the Application as contained within that document, refer to the attachments to the Application. The attachments are a significant number of documents which I will not detail, save that one of the documents includes a 30‑page letter to the AAT. That letter starts: 

“Dear Administrative Appeals Tribunal, I am having a difference of opinion with ASIC, and subsequently, the Commonwealth Ombudsman, in relation to Regulatory Guideline 267, ‘Oversight of the Australian Financial Complaints Authority (RG 267)’.

The reason I have continued to follow up this matter is for the benefit of complainants who in the future seek assistance from AFCA, because my research has found the handling of complaints is not always in accordance with Operational Guidelines or AFCA’s other publications, and which I have argued, amounts to non-compliance with certain listed regulations and sections of the Corporation Act which are contained within the letter.”

Mr Garnaut goes on to say:

“My concerns are about complaint handling, to assist AFCA to improve both its EDR complaint handling, and service provided to complainants.”

Further, in that letter, he also says:

“My 17 February 2023 request for a review of the decision by the Commonwealth Ombudsman’s Senior Complaints Office again drew attention to significant amounts of money that have been spent to improve complaint handling – IDR and EDR – through various inquiries, investigations, changes to legislation, et cetera, but as detailed in my writings, many complaints continue to be treated unfairly.”

1. The decisions to which the Applicant seeks review can be generally summarised as follows:

   (1)8 April 2022, email from ASIC, was an email from ASIC responding to concerns expressed by the Applicant about how AFCA handled his dispute, and recommending the dispute is best resolved with the benefit of legal advice or through communication with AFCA, and not formal intervention by ASIC;

   (2)28 June 2022, decision from ASIC, was an email from ASIC advising the Applicant that the matters he raised have been noted and considered, and the consequences that would follow, including that ASIC does not intervene in the decision‑making process of the scheme;

   (3)18 August 2022, review by ASIC, was a letter from ASIC referring to the Applicant’s email to ASIC, dated 5 July 2022, raising concerns about the handling of his report of misconduct, that the concerns have been reviewed and the Applicant was advised of the outcome of that review. He was told if he continued to have concerns, he could lodge a complaint with the Commonwealth Ombudsman;

   (4)19 January 2023, decision from Commonwealth Ombudsman, was a decision of a Senior Complaints Officer, advising under heading ‘Conclusion’, that ‘the assessment of the complaint is now finished, and no further action will be taken in regards to the complaint for the reasons explained’. In that explanation, the Applicant was advised there was no further appeal right from that decision, and he may wish to seek legal advice about his options; and

   (5)4 May 2023, review by Commonwealth Ombudsman, was a review of the complaint made about ASIC. The Review Officer agreed with the decision of the Senior Complaints Officer referred to in item 4, and that the review will remain closed.

2. I now turn to the jurisdiction of the AAT, and the decision with respect to jurisdiction.  The AAT came into existence by operation of the Administrative Appeals Tribunal Act 1975, which I will call ‘the Act’, and its powers to hear applications for review of decisions is provided in section 25 of the Act. Section 25 relevantly reads:

   “(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. Hence, an enactment will provide that certain decisions may be reviewed by the AAT.

4. Turning to the decision that is the subject of the Application for review. Those communications, dated 8 April 2022, 28 June 2022, and 18 August 2022, and referred to as decisions 1-3 in the Application for review, are not decisions, but are explanatory communications between the Applicant and ASIC, and in particular, what would or would not be done as a consequence of those processes and considerations by those departments.

5. The communication, dated 19 January 2023, and referred to as decision 4 in the Application for review, is a decision of the Senior Complaints Officer of the Commonwealth Ombudsman’s Office. However, that decision was not made pursuant to an enactment that provided that an application for review of that decision may be made to the AAT.

6. The communication, dated 4 May 2022, and referred to as decision 5 in the Application for review, is a letter from the Review Officer of the Commonwealth Ombudsman’s Office who affirmed the decision of 19 January 2023. Again, that decision was not made pursuant to an enactment that provided that an application for review of that decision may be made to the AAT.

7. Hence, it is clear that the Applicant has an issue with the manner in which AFCA, ASIC, and the Office of the Commonwealth Ombudsman dealt with complaints raised by him, and in particular, that the internal review processes of AFCA and ASIC were not conducted to an appropriate standard and in accordance with the relevant operational guidelines.

8. I note, in an email from the Applicant to the AAT Adelaide Registry, dated Monday 12 June 2023, he writes:

   “Should the laws I refer to not enable the AAT to review the decisions by AFCA, ASIC, or the office of the Commonwealth Ombudsman, please advise contact details to enable me to make a submission on behalf of complainants.”

9. This Application appears to have been brought by the Applicant in the hope that the AAT will deal with his complaints or guide him to such organisation that will do so, and provide him with the relief sought.

10. There is no decision identified by the Applicant which, pursuant to an identified enactment, is a decision that can be reviewed by the AAT, and importantly for the Applicant, I must advise that the AAT does not have jurisdiction with regard to the Application for review because of that shortcoming.

11. Further, for the benefit of the Applicant, I must indicate that it is not a function of the AAT, nor is it appropriate to advise or give advice to an applicant on how to conduct their grievance, either within the process of the AAT or in such other arena that may exist.  To do so, as requested by the Applicant, would not be appropriate.

    DECISION

12. Finally, therefore it is my decision that this Application for review is wholly misconceived and does not enliven the jurisdiction of the AAT. My decision is, for the reasons given, pursuant to section 42(4) of the AAT Act, the Application for review is dismissed. That is my decision.

    END OF ORAL DEICISION   [2:31PM]