Gary Heath and Commonwealth Superannuation Corporation
[2013] AATA 43
[2013] AATA 43
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5708
2012/5709
Re
Gary Heath
APPLICANT
And
Commonwealth Superannuation Corporation
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 31 January 2013 Place Sydney The Administrative Appeals Tribunal has no jurisdiction under s 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints.
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Ms N Isenberg, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE - jurisdiction – defence force retirement benefits – applicant resigned from Australian Army – applicant requested assessment by Chief of Army that applicant could have been retired on grounds of invalidity or of physical or mental incapacity to perform his duties – Chief of Army delegate failed to inform respondent whether such grounds existed – no reviewable decision made by respondent –no jurisdiction
LEGISLATION
Defence Forces Retirement Benefits Act 1948 s 51
Defence Force Retirement and Death Benefits Act 1973 ss 37, 107
Administrative Appeals Tribunal Act 1975 s 25
CASES
Defence Force Retirement and Death Benefits Authority v Britt (1984) 57 ALR 199
Sullivan and Commonwealth Superannuation Corporation [2012] AATA 774
REASONS FOR DECISION
Ms N Isenberg, Senior Member
Date 31 January 2013
BACKGROUND
In January 1971 Mr Heath separated from the Australian Army following his resignation after 16 years of service. His separation was other than on the ground of invalidity. He did not have operational service.
Section 51(6) of the Defence Forces Retirement Benefits Act 1948 provides, relevantly, that:
Where a member who is a contributor has, before 1 October 1972, been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but … a person authorized in writing by the … Chief of Army …informs [Comsuper] that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.
Mr Heath applied to a delegate of the Chief of Army to seek the benefit of that provision. His application was unsuccessful. He provided to the Tribunal a decision of Brigadier Simpson, Commander Career Management Army dated 8 September 2008. There was also another later decision of Colonel Reynolds dated 22 September 2009 to the same effect.
Mr Heath now seeks an extension of time to apply for the Tribunal's review of Brigadier Simpson’s decision (although the Respondent had thought the application for review was in respect of Colonel Reynolds’ decision). That was a decision of a delegate of the Chief of Army that grounds did not exist on which Mr Heath could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties. It should be noted that, for the reasons that follow, it is immaterial whether the decision Mr Heath seeks review is that of Brigadier Simpson or Colonel Reynolds.
APPLICANT’S SUBMISSIONS
Mr Heath said that he had been in dispute for eight years about his separation status. He said the decision of Brigadier Simpson was flawed. He noted that in that decision Brigadier Simpson had invited him to make further application in the event there was ‘new and compelling’ evidence. He said that as recently as four months ago he had submitted new evidence but ‘no-one in Defence will talk to [him]’.
CONSIDERATION
The Administrative Appeals Tribunal Act 1975 does not itself set out the decisions that may be reviewed by the Tribunal. Instead, s 25 states that an enactment may provide for review of decisions made in the exercise of powers conferred under that enactment or conferred by an instrument such as rules, regulations or by-laws made under that enactment. It has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. As each of the several hundred pieces of legislation which give jurisdiction to the Tribunal may not give it in relation to all decisions made under each piece of legislation, care must be taken to ensure that jurisdiction has indeed been given in relation to the particular decision under consideration.
Jurisdiction is conferred on the Tribunal for review of decisions made by the respondent: s 107, Defence Force Retirement and Death Benefits Act 1973.
However, as a pre-requisite to the Respondent making a reviewable decision under s 51(6), the Chief of Army must have informed the Respondent that the relevant grounds existed. I was referred to Defence Force Retirement and Death Benefits Authority v Britt (1984) 57 ALR 199 (‘Britt’), at 203 (although in Britt the issue turned on s 37 of the (later) Defence Force Retirement and Death Benefits Act 1973, whose text is relevantly identical to s 51(6)):
The section confers a specific function upon the Chiefs or Staff, that is, the function of determining whether the member could have been retired on the ground of invalidity and informing the Authority of that fact. This is a function properly imposed upon the Chiefs of Staff for they are aware of the requirements of service and are therefore able to determine whether the member's medical condition was such as to justify his retirement on the ground that he was unable to perform his duties. But that is the only function which s 37 confers upon the Chiefs of Staff, it does not confer upon them the power to decide whether, in the whole of the circumstances of the case, the former member should be treated as if he had been retired on the ground of invalidity or even the power to request that he be so treated. The section makes the advice of a Chief of Staff a pre-condition of the exercise of the discretion which the section confers and not in itself an exercise of that discretion.
The Full Federal Court in Britt made clear that s 51(6) provides for a two-stage decision-making process that starts with a determination by a service Chief that the relevant grounds existed and communication of that to the Respondent. In the absence of such communication, the second stage of s 51(6) is not engaged - that is, there is no occasion for a reviewable exercise of the Respondent's discretion whether or not to treat a member as if he had been retired on the ground of invalidity.
The process was neatly described in the Tribunal’s recent decision of Sullivan and Commonwealth Superannuation Corporation [2012] AATA 774 at [6]:
Section 37 involves a two-step process. Firstly, it confers on the Chief [of Air Force] the function of determining whether grounds existed on which the member could have been retired on the ground of invalidity or of physical or mental incapacity to perform his or her duties. It then falls to the CSC (and, on review, the Tribunal) to decide whether, the member should be treated as if he or she had been retired on that ground.
The second decision involves the exercise of discretion, a pre-condition to the exercise of which is the relevant information from the Chief of Air Force: Re Defence Force Retirement and Death Benefits Authority v Douglas Harry Britt (1984) 57 ALR 199.
The first step was for the Chief of Army to inform the Respondent that grounds existed on which the Applicant could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties. This did not occur. The Respondent therefore made no decision capable of being reviewed by this Tribunal. Consequently, the Tribunal has no jurisdiction to entertain the application for review.
As I discussed at the hearing, the Tribunal only has jurisdiction to review a decision by the Respondent, and not the failure by the Chief of Army to decide not to inform the Respondent in accordance with s 51(6) of the Defence Forces Retirement Benefits Act 1948. Further, there is no scope for the review of the failure of the relevant service Chief not to make a decision at all.
As it stands, the Applicant disputes the decision(s) of the delegate(s) of the Chief of Army. He has submitted further material which, he says, is not being considered. He understands he has no avenue to review the decision, or to require the delegate to make a decision on the newly-submitted material.
I was referred to the decision of Sullivan and Defence Force Retirement And Death Benefits Authority [2009] AATA 152 at [8] (which referred to s 37 of Defence Force Retirement Benefits Act 1973 (which is in identical terms):
It is quite clear, as per the Applicant’s submissions, that there is a lacuna in the DFRDB Act as there is no provision allowing a challenge to the decision (or failure to state) of the relevant service Chief of Staff as to the opinion to be formed for the purposes of section 37.
I have not explored the merits of the Applicant’s complaint, but I agree with the characterisation of the present circumstances as ‘a lacuna’. There was some discussion at the hearing about whether the Defence Force Ombudsman or the Inspector-General might provide some avenue for the Applicant to pursue his complaint as, unfortunately for the reasons given above, the Tribunal has no jurisdiction to review the matter.
DECISION
The Administrative Appeals Tribunal has no jurisdiction under s 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints. There being no jurisdiction, the extension of time application is also dismissed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Isenberg. ..........[SGD]...........................................
Associate
Dated 31 January 2013
Date(s) of hearing 29 January 2013 Applicant In person Solicitors for the Respondent Australian Government Solicitor
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