Gibson and Repatriation Commission
[2006] AATA 1090
•18 December 2006
CATCHWORDS – VETERANS’ AFFAIRS – jurisdiction – application to review decision refusing to accept condition as war-caused - whether jurisdiction to consider assessment of any pension payable after Tribunal’s substituting decision that condition war-caused – no jurisdiction.
VETERANS’ AFFAIRS - jurisdiction – purported dismissal of application of decision under review in relation to hypertension – recorded in transcript but no separate written record – whether power to dismiss part of an application – no power – whether Tribunal retains jurisdiction to review decision – retains jurisdiction
VETERANS’ AFFAIRS - jurisdiction – computer record of affirmation of decision under review in relation to hypertension – no written decision – whether Tribunal functus officio – whether Tribunal retains jurisdiction – retains jurisdiction.
Administrative Appeals Tribunal Act 1975 ss 3(3), 5, 25, 25(1), 25(3), 25(4), 37, 42A(1), 42A(1A), 42A(1B), 42A(2), 42A(4), 42A(5), 42B(1), 42C, 43, 43(1), 43(3), 43(4), 43(6), 44(1) and 44(2A)
Archives Act 1983
Commonwealth of Australia Constitution Act 1900 s 75(v)
Migration Act 1958 ss 360, 500, 500(6C), 500(6J), 501 and 501G(2)
Veterans’ Entitlements Act 1986 ss 9, 13(1), 13A, 14, 14(1), 14(3), 14(5), 14(6),14(7), 15(1), 15(2), 16, 17(1), 17(2), 17(3), 18(1), 19, 19(1), 19(3), 19(5A), 19(5B), 19(5C), 19(5D), 19(5F), 21A, 22, 23, 24, 25, 27, 30, 31, 34(1), 34(2), 135, 135(1), 135(5) and 175
Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1; 55 ALD 1; 73 ALJR 584
Calvin v Carr (1979) 22 ALR 417
Chandler v Alberta Association of Architects [1989] 2 SCR 848
Collector of Customs (NSW) v Brian Lawlor (1979) 24 ALR 307; 2 ALD 1
Craig v The State of South Australia (1995) 184 CLR 163; 131 ALR 595; 39 ALD 193
Gibson and Repatriation Commission [2004] AATA 870
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378; 33 AAR 446
Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387; 59 ALD 458
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494
McWilliam and Civil Aviation and Safety Authority [2005] AATA 1148
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; 72 ALD 1; 77 ALJR 454
Project Blue Sky Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490
Re Michael and Secretary, Department of Employment, Science and Training;
Re Edwards and Secretary, Department of Health and Ageing [2006] AATA 277
Repatriation Commission v Tuite (1992) 37 FCR 571
DECISION AND REASONS FOR DECISION [2006] AATA 1090
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2001/149
GENERAL ADMINISTRATIVE DIVISION )
Re BRUCE WARWICK GIBSON
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 18 December 2006
Place: Melbourne
Decision:The Tribunal decides that:
1.it does not have jurisdiction to consider the assessment of any pension to which the late Mr Bruce Warwick Gibson might have been entitled as a result of the Tribunal’s setting aside the decision of the Repatriation Commission dated 22 March 2000 and substituting a decision that a decision that the applicant’s Post Traumatic Stress Disorder was war-caused within the meaning of s 9 of the Veterans’ Entitlement Act 1986; and
2.the Tribunal does have jurisdiction to review the decision of the Repatriation Commission refusing to accept hypertension as a war-caused injury or disease.
S A FORGIE
Deputy President
REASONS FOR DECISION
Before he died, Mr Bruce Warwick Gibson had applied for review of various decisions of the Repatriation Commission (Commission) that had been affirmed by the Veterans’ Review Board (VRB). When the Tribunal came to review his application for review in respect of one of those decisions relating to hypertension, the parties agreed that he would not pursue his application. The Tribunal made no formal record of its decision and it either purported to dismiss the application in respect of hypertension or to affirm the decision. There is a question whether the Tribunal retains any jurisdiction. I have decided that it does regardless of whether the application was dismissed or the decision affirmed. In the former case, that decision is based on the Tribunal’s having made a jurisdictional error as it does not have power to dismiss an application on the basis that the decision under review is correct. In the latter case, the decision is based on the Tribunal’s not yet having made a decision as it had not made its decision in writing.
There was also a second issue to be decided. That was whether the Tribunal retains any jurisdiction to assess the rate of pension payable to Mr Gibson when it set aside the VRB’s decision to affirm the Commission’s decision to refuse to accept his condition of Post Traumatic Stress Disorder as war-caused within the meaning of the Veterans’ Entitlements Act 1986 (VE Act). I have decided that an application to review a decision to accept or to refuse to accept a condition as war-caused does not give the Tribunal jurisdiction to assess the rate of pension payable to Mr Gibson. That is a matter for a separate decision by the Commission and, if necessary, for review by the Tribunal following a separate application.
BACKGROUND
On 5 August 1999, Mr Gibson lodged with the Department of Veterans’ Affairs (DVA) a form headed “Claim for Disability Pension and Medical Treatment and/or Application for Increase in Pension” (Claim).[1] In answer to the question whether he was claiming a disability pension and medical treatment for disabilities that have not yet been accepted as service related, Mr Gibson ticked the box to show that he was. The sentence printed next to that box told him to complete all questions in the form. He did not tick the box indicating that his application was for an increase in disability pension for previously accepted disabilities. Had he ticked that box, he would have been told by the sentence printed next to it that he was to complete all questions from 20 onwards.[2] At question 17, Mr Gibson was asked to set out the new disabilities that he was then claiming as war or defence-caused. He listed hypertension, diabetes, IHD,[3] emotional and behavioural disorder and hearing loss and tinnitus.[4]
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents), 145-156.
[2] T documents, 148
[3] ischaemic heart disease
[4] T documents, 150-152
On 22 March 2000, the Repatriation Commission (Commission) decided to accept Mr Gibson’s hearing loss and tinnitus and diabetes mellitus as war-caused diseases or injuries (war-caused conditions). It refused to accept as war-caused the conditions of hypertension, ischaemic heart disease and emotional and behavioural disorder which it re-framed as post traumatic stress disorder (with alcohol abuse in remission) (PTSD). On the basis of the war-caused conditions that it did accept, the Commission assessed that a disability pension was payable to Mr Gibson at a rate that was 30% of the General Rate.[5]
[5] T documents, 295
On 4 April 2000, Mr Gibson applied to the Veterans’ Review Board (VRB) for review of the “disability pension”.[6] When asked in the application form to explain why he was unhappy with the decision, Mr Gibson wrote:
“I know how threatened, life threatened I was when we had the boiler problem, on HMAS Sydney in 1969 as per Dr Ewer’s report I have PTSD with alcohol abuse & that caused my hypertension See statement attached describing in detail exactly what happened on these two occasions.
…”[7]
[6] T documents, 321
[7] T documents, 321
On 14 April 2000. Mr Gibson lodged with DVA a Claim in respect of peripheral vascular disease.[8] On 15 June 2000, the Commission accepted his claim and his disability pension was increased to 60% of the general rate with effect from 14 January 2000.[9]
[8] T documents, 307-317
[9] T documents 332-335
On 13 November 2000, Mr Gibson lodged a further Claim. As before, he ticked the box to indicate that he was claiming for disability pension and medical treatment for disabilities that have not yet been accepted as service related. He did not tick the box indicating that his application was for an increase in disability pension for previously accepted disabilities. Mr Gibson claimed that ischaemic heart disease, major depressive disorder and hypertension should be accepted as war-caused conditions.
Except in relation to his claim for major depressive disorder, Mr Gibson’s Claim was premature. This came about because, under the VE Act, he is not permitted to make another claim for a pension in respect of incapacity for a particular injury or disease before a Claim he has already made in respect of that particular incapacity has been finally determined.[10] A claim has been finally determined when a decision made in respect of it is not subject to any form of appeal or review.[11] At the time, Mr Gibson’s application for review of the Commission’s decisions regarding his claim in respect of PTSD and hypertension were still being considered by the VRB. As Mr Gibson had not sought review of the Commission’s earlier decision in respect of ischaemic heart disease, DVA referred his Claim in respect of that condition to the VRB so that it could treat it as an application for review of that earlier decision. In that way, all of the decisions that the Commission had made up to that time were before the VRB.
[10] VE Act, s 14(5)
[11] VE Act, s 14(7)(a)
The Commission considered Mr Gibson’s claim for major depressive disorder but refused it in a decision dated 16 March 2001.[12]
[12] T documents 459-460
On 5 February 2001, the VRB affirmed the Commission’s decision dated 22 March 2000. It told Mr Gibson of its decision in a letter dated 7 February 2001.[13] The VRB dealt separately with each of the three conditions claimed by Mr Gibson as war-caused: PTSD, hypertension and ischaemic heart disease. Its decision grouped hypertension and PTSD under one VRB file number (S00/0197) and ischaemic heart disease under another (S00/0488).
[13] T documents 7-16 (reasons) and 17 (letter)
When Mr Gibson lodged an application for review in this Tribunal, it also opened two files. One, numbered S2001/149 is concerned with the application to review the VRB’s decision relating to PTSD and hypertension. The other, numbered S2001/150, was concerned with the application to review the VRB’s decision relating to ischaemic heart disease. The second file, S2001/150, was destroyed on 10 September 2004 in accordance with the Tribunal’s responsibilities under the Archives Act 1983. It appears from the T documents lodged in S2001/149 that the T documents lodged in both files carried both numbers although there may also have been documents that were lodged specifically in relation to one file or the other. The two files were linked with S2001/149 being the leading file.
On 9 September 2002, Senior Member Purcell conducted a hearing in relation to both applications. The transcript bears both file numbers. The exchanges among Mr Swan, who represented Mr Gibson, Mr Doube, who represented the Commission, and Senior Member Purcell read in part:
“MISS PURCELL: … Now, the decision under review covers many conditions, so what are we here about?
MR SWAN: Post-traumatic stress.
MISS PURCELL: Are we?
MR SWAN: PTSD only.
MR DOUBE: Senior Member, if I could just say something. There are two actions here. Actions numbers 149 and 150, and I think they involve the conditions of hypotension, post-traumatic stress disorder and ischaemic heart disease ---
MISS PURCELL: Sorry, I’ve only got one file.
MR DOUBE: Yes. One ---
MISS PURCELL: I’ve two action numbers with only set of T documents.
MR DOUBLE: Yes, that is right.
…
MR DOUBE: From the conference, as I understand it, the applicant only wished to pursue the post-traumatic stress disorder.
MISS PURCELL: Yes.
MR DOUBE: I think that means that 149 or 150, one of them, would be withdrawn and the other one will be ---
MISS PURCELL: Will be in part.
MR DOUBE: --- in part.
MISS PURCELL: Set aside in part, if successful.
MR DOUBE: Set aside in part and yes.
MISS PURCELL: Right. Because that will be the PTSD and the alcohol; they are on the same one, aren’t they?
MR SWAN: Yes.
MR DOUBE: The PTSD and the hypertension are on the same one. So we would have to set aside the – sorry ---
MISS PURCELL: Well, could we formalise first of all, that other action and have it dismissed now?
MR SWAN: Yes.
MISS PURCELL: Right. So that when I’m writing this I’m only dealing with the remaining one. Okay. So in action number – it would probably be 150, will it, or 149?
MR DOUBE: I think it would be the 150. That is just the ischaemic heart disease, so that would be affirmed.
MISS PURCELL: Well, it is either affirmed by consent or ---
MR DOUBE: Or withdrawn.
MISS PURCELL: --- is withdrawn.
MR DOUBE: Yes, yes.
MISS PURCELL: Yes. So dismissed anyhow.
MR DOUBE: Dismissed. Yes.
MISS PURCELL: 150 is dismissed. Thank you.
MR DOUBE: And in respect of 149 the hypertension would be dismissed and we would continue with the post-traumatic stress disorder.”[14]
[14] Transcript at 5-7
The Tribunal’s electronic case management system, AATCAMS, is the only record that remains of S2001/150. It records that the Tribunal affirmed the decision under review in that matter by consent on 9 September 2002. That is signified by the code “CAC” under “Final Decision”. As is consistent with the transcript, AATCAMS also recorded that there were no written reasons for the decision. In relation to S2001/149, AATCAMS shows “CAC” under the heading “Interlocutory Applications” against the date of 9 September 2002. That indicates that, on 9 September 2002 and by consent, the Tribunal affirmed a part of the decision under review. The earliest “dump sheet” kept on S2001/149 of the AATCAMS information is dated 11 November 2003. It shows that entry under “Interlocutory Applications” and satisfies me that it was never shown under “Final Decision”. The entry does not specify which part of the decision was affirmed. There is no copy of a written decision on S2001/149 affirming the decision under review in relation to hypertension. If such a decision were accidentally placed on S2001/150, that file has, as I said, been destroyed.
On 19 November 2002, Mr Gibson lodged an application for an increase in his Disability Pension. The Commission decided to increase his Disability Pension to 100% of the general rate with effect from that day. Its decision was dated 19 December 2002 and the Commission wrote to Mr Gibson on that day.
On 11 March 2004, Mr Gibson died. The Commission understands from his doctor that Mr Gibson died from acute myocardial infarction with co-morbidities peripheral vascular disease and multiple sclerosis.
On 18 August 2004, I gave a decision setting aside the Commission’s decision dated 22 March 2000, as affirmed by the VRB’s decision dated 5 February 2001, in so far as it related to PTSD and substituted a decision that Mr Gibson’s PTSD was war-caused within the meaning of s 9 of the VE Act. Not having the benefit of the transcript of the proceedings of 9 September 2002, I adjourned further consideration of the Commission’s decisions, also affirmed by the VRB, relating to Mr Gibson’s claims for hypertension and ischaemic heart disease. I did so while referring to both of the Tribunal’s file numbers in the heading and after noting in the reasons:
“… that the whole case focused on PTSD and that no reference was made to the decisions regarding hypertension and ischaemic heart disease. Lest this be an oversight, I have adjourned further consideration on those aspects.”[15]
[15] [2004] AATA 870 at [107]
After I had given the decision, I was advised of Senior Member Purcell’s decision on 9 September 2002 to affirm the Commission’s decision relating to ischaemic heart disease. I also understood that Mr Gibson’s application in relation to hypertension had been dismissed on the same day. As a consequence, I issued a corrigendum on 7 September 2004 to limit the decision to PTSD, delete the words I have set out in the following paragraph and to substitute the following in [3] at the beginning:
“The decision regarding ischaemic heart disease was affirmed by a decision made by the Tribunal with the consent of the parties on 9 September, 2002. On the same day the application regarding hypertension was dismissed.”[16]
On 30 September 2004, I issued a further corrigendum to omit the reference to S2001/150.
[16] [2004] AATA 870 at [3]
I did not remit the matter to the Commission for an assessment of the disability pension that would have been payable to Mr Gibson. The Commission then made an assessment of that pension. Although there were some hiccups in the notification of the assessment and the backdating of it, the final outcome was that the Commission assessed that disability pension was payable to Mr Gibson at 100% from 5 May 1999. The backdated disability pension was paid to Ms Garratt, who was described in the proceedings that I heard as his carer.
On 18 February 2005, Ms Garratt lodged an application in the VRB for review of the decision of 2 November 2004. The VRB decided that her application had been lodged outside the three month time limit specified in s 135(5) of the VE Act and that it had no power to extend it. As a consequence, it decided that it had no power to review the decision.
On 1 November 2005, Ms Garratt’s representative, Mr Terry Paget, lodged an application for review of the VRB’s decision in the Tribunal. Deputy President Jarvis decided that the VRB was correct and that it did not have jurisdiction to consider Ms Garratt’s application.
Does the Tribunal continue to have jurisdiction to review the Commission’s decision relating to hypertension?
A. What if the Tribunal intended to affirm the Commission’s decision?
As I have recorded in the corrigendum to my earlier reasons, it was my understanding that Mr Gibson’s application regarding hypertension had been dismissed. The AATCAMS entry suggests that the Commission’s decision regarding hypertension was affirmed by consent. I will consider the question I have posed against both possibilities.
I will begin with the possibility that the Tribunal purported to affirm the decision by consent on 9 September 2002 even though there is no record of a written decision to that effect on the Tribunal’s hard copy file S2000/149. Does there have to be a document that sets out the Tribunal’s decision?
The Tribunal’s powers in reviewing a decision are set out in s 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act). It provides that:
“For the purposes of reviewing a decision, the Tribunal may exercise all the power and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
Inherent in s 43(1) are two aspects. The first is that the Tribunal may, for the purposes of reviewing a decision, exercise all of the decision-maker’s powers and discretions that have been conferred by a particular enactment. Having done that, the second aspect arises. That is that the Tribunal shall make a decision in writing to take one of the steps set out in ss 43(1)(a), (b) or (c). It may often be that, at the end of a hearing, the Tribunal decides that it will take one of those steps. It may advise the parties of its decision but there may be a delay between its advice and its converting the decision into a written form. At that stage, then, there is no decision in writing as there are no “…written or printed words …”.[17] Does that mean that the Tribunal has not made a decision at all or that it has made a decision even though it has not complied with the form required by s 43(1)?
[17] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
The answer to that question depends upon whether the Tribunal’s obligation to make a “decision in writing” is an obligation that requires strict compliance or whether it is sufficient that the Tribunal has made a decision and announced its decision whether in writing or otherwise. The answer to that question necessarily requires a consideration of the consequences of non-compliance.[18] In some contexts, that requires a consideration of:
“... whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’ ….”[19]
In the context of this case, it requires a consideration of whether the Tribunal’s decision takes effect and whether the Tribunal has exercised the full extent of the power or whether it has not.
[18] Project Blue Sky Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490 at 374; 503-504 per Brennan J
[19] (1998) 194 CLR 355; 153 ALR 490 at 390-1; 516-517 per McHugh, Gummow, Kirby and Hayne JJ
The relevant principles were considered by Finkelstein J in Hall v Minister for Immigration and Multicultural Affairs[20] (Hall) in the context of s 500(6C) of the Migration Act1958 (Migration Act). That section provides that, if a decision under s 501 relates to a person in the migration zone, an application for review of a decision must be accompanied by, or by a copy of, the document notifying the person of the decision and one of the sets of documents given to him or her under s 501G(2). Finkelstein J concluded that a failure to comply with s 500(6C) would not result in invalidity of the application. He added that “no purpose would be served by invalidating an application for a failure to provide documents which the Tribunal can obtain in any event”.[21] His Honour observed that failure to comply with s 500(6C) would still mean that the application would be dealt with expeditiously as intended by Parliament. The Tribunal could require the Minister to produce the documents once the application has been lodged. Cancellation of a visa would result in the deportation of the non-citizen and so cause great hardship to him or her and to his or her family. It was difficult to imagine, he said, that Parliament intended that a non-citizen should lose his or her right to review merely because documents that remained in the possession of the Minister had not been lodged.
[20] (2000) 97 FCR 387; 59 ALD 458
[21] (2000) 97 FCR 387; 59 ALD 458 at 391; 560
A different result was reached by Gray J in Goldie v Minister for Immigration and Multicultural Affairs[22] (Goldie) in analysing a different aspect of the scheme established by s 500. Section 500(6J) provides that an applicant wanting the Tribunal to have regard to any documents other than those provided by the Minister, must give the Minister a copy of those documents at least two business days before the Tribunal holds a hearing.
[22] (2001) 111 FCR 378; 33 AAR 446 (Gray, RD Nicholson and Stone JJ)
Gray J concluded that s 500(6J) required strict compliance:
“It is plain that the scheme is designed to disadvantage an applicant for review. Subsections (6H) and (6J) are not counterbalanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing. The purpose of subss (6H) and (6J) can only be to advantage the Minister at the hearing. Being forewarned as to the entirety of the case of the applicant for review, the Minister is better able to respond to the case. …”[23]
[23] (2001) 111 FCR 378; 33 AAR 446 at 390; 457-8
The two outcomes are consistent when regard is had to the whole scheme. Finkelstein J was concerned with that relating to the application and Gray J with that relating to the Minister’s being forewarned of the documentary evidence to be given at the hearing. They reached different conclusions but from a common basis of reasoning. That common basis of reasoning was that Parliament intended that the Minister be forewarned of the evidence that was to be given on behalf of an applicant for review. Strict compliance with s 500(6C), requiring that the applicant lodge with an application documents that he has already been given by the Minister’s delegate, did not advance the Minister’s knowledge of the applicant’s case. Strict compliance with s 500(6J) relating to documentary evidence did advance the Minister’s knowledge.
The principles adopted by Finkelstein and Gray JJ in Hall and Goldie respectively are equally applicable in this case. Section 43 of the AAT Act provides for the Tribunal’s powers and discretions in reviewing a decision, the parameters of the decision it may make in exercising those powers and discretions and the way in which it communicates its decision i.e. in writing. Those requirements slot into the further obligations that the AAT Act imposes upon the Tribunal. It must, for example, give a copy of its decision to each party to the proceeding.[24] Unless the Tribunal specifies a later date in its decision, “… a decision of the Tribunal comes into operation forthwith upon the giving of the decision.”[25] Where the Tribunal’s decision varies the decision under review or substitutes another decision entirely, its decision is taken to have had effect from the day in which the decision under review had effect.[26] All of these provisions suggest the importance of the Tribunal’s decision being in writing. A written decision ensures that its terms are known to those who heard them at the time that the Tribunal might have indicated the terms of its decision orally. It also ensures those terms are known to those who must implement the decision and to those who may seek to rely upon it. This suggests that it is essential that a decision, as opposed to the reasons for that decision, be in writing. That this is so is supported by the requirement of s 43(3) that the Tribunal cause a copy of its decision to be given to each party in the proceeding.
[24] AAT Act, s 43(3)
[25] AAT Act, ss 43(4) and (5)
[26] AAT Act, s 43(6)
There is a further provision that suggests that a written decision is essential. That is s 44(1) of the AAT Act, which provides that “A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.” A person may appeal to the Tribunal “… not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is given to the person or within such further time as …” the Federal Court allows. That is the effect of s 44(2A). Clearly, the giving of the Tribunal’s written decision is the trigger that starts the appeal period. It is not the oral notification of the Tribunal’s decision just as it is not the giving of the written reasons for decision. The copy of the decision that the Tribunal is required to give the parties under s 43(3) is the same as the document setting out the terms of its decision referred to in s 44(2A). The written decision triggers off the 28 day period within with a party may appeal to the Federal Court. That is so even though “… there is a troublesome lack of coincidence between the wording of s 44(2A) and s 43(3).”[27] As Foster J said:
“… it is quite plain that the document contemplated by each section is the same and that the statutory requirement of each section, so far as the document is concerned, is satisfied by the delivery in written form of the actual decision of the Tribunal expressed as such.”[28]
[27] Repatriation Commission v Tuite (1992) 37 FCR 571 at 575
[28] Repatriation Commission v Tuite (1992) 37 FCR 571 at 575
Given the scheme of the AAT Act and the appeal provisions as well as the practical considerations that arise from the fact that the Tribunal’s decision is taken to be that of the decision-maker, lead me to conclude that the reduction of the Tribunal’s decision to writing is essential before that decision has any legal effect.
I have already noted that there is no written decision on the hard copy file. There is, however, a record on AATCAMS. That record shows “CAC” but it is just that; a record maintained as an administrative tool. It is not the Tribunal’s decision in writing for various reasons. One is that it is not “in writing” in the sense in which that word is commonly understood of a written or printed word. While the code “CAC” represents the Tribunal’s affirmation of the decision, it cannot be regarded as the Tribunal’s decision in writing even though a copy of it can be printed. The Tribunal’s decision must be represented by something that indicates that it is indeed that of the Tribunal. Unless the Tribunal is deemed by a legislative provision to have made a decision,[29] that is done by a document that shows the constitution of the Tribunal making the decision and the terms of the decision. The constitution is shown because the Tribunal comprises its members[30] and, for particular proceedings, may only act through properly constituted tribunals.[31] A printout from AATCAMS could also show this but it is the last two requirements that it cannot fulfil. The document must show the terms of the decision not only because of the requirement in s 43(1) but also because of the obligation upon the Tribunal to give a copy of its decision to each party to the proceeding. The code “CAC” can do neither of these. It does not set out the decision because “CAC” means nothing to anyone outside the Tribunal. Furthermore, it is not given to the parties.
[29] e.g. the effect of ss 42A(1A) and (1B) is that the Tribunal is deemed to have dismissed an application if an applicant gives written notice of an intention to withdraw or discontinue the application.
[30] AAT Act, s 5
[31] AAT Act, Part 3, Division 3
As there is no decision in writing in this case affirming the Commission’s decision regarding hypertension, the Tribunal is not functus officio and retains power to review that decision. In practical terms, this is not an outcome that should bear frequent repetition. Once a matter has been heard, that should be an end of it for the parties as well as for the Tribunal. In this case, though, I do not consider that Mr Gibson’s dependants should be denied the opportunity to present further material and to have the application heard on its merits with regard to hypertension. To “perfect” the decision at this stage knowing that they may wish to do so would seem churlish even if it did not amount to a denial of procedural fairness.
B. What if the Tribunal dismissed Mr Gibson’s application in so far as it relates to hypertension?
It appears from the transcript that Senior Member Purcell and Mr Doube were both thinking in terms of the dismissal of Mr Gibson’s application relating to hypertension. Mr Swan acceded to the notion that it was not an issue for the Tribunal to consider. Although, in view of the AATCAMs entry regarding affirmation of the decision, I am in some doubt whether Senior Member Purcell actually purported to dismiss the application, I have considered the Tribunal’s jurisdiction on the basis that she purported to do so.
I have begun with a consideration of the Tribunal’s power to dismiss an application. The Tribunal is a creation of statute and, as such, its powers and discretions are circumscribed by statute. It is given specific powers to dismiss an application.[32] These occur where:
(1)the parties consent to dismissal: s 42A(1);
(2)an applicant, other than the decision-maker, fails to appear at a directions hearing, an alternative dispute resolution process or a hearing of a proceeding: s 42A(2);
(3)an applicant is unable to show that the decision of which review is sought is in fact reviewable: s 42A(4);
(4)an applicant fails within a reasonable time to proceed with the application or to comply with the Tribunal’s direction: s 42A(5); and
(5)the Tribunal is satisfied that an application for review of a decision is frivolous or vexatious: s 42B(1).
[32] These are in addition to the circumstances in which the Tribunal is taken to have dismissed an application: ss 42A(1A) and (1B)
There is no power to dismiss an application in circumstances in which the Tribunal considers, with the parties’ consent or otherwise, that the decision under review was correct. Instead, the Tribunal is given the power under s 43(1)(a) to affirm the decision. It seems to me that, if Senior Member Purcell did purport to dismiss it in so far as it related to hypertension, she purported to do so under s 42A(1) of the AAT Act.
There is an initial question whether she had the power to do so in relation to part of the application only. Section 42A(1) is framed in terms of the Tribunal’s being given power to “dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.” It is not framed in terms of part of the application but is framed in terms of there being nothing further for the Tribunal to do: It does not have to begin a review or, if it has begun a review, it does not have to complete it. That suggests to me that the power to dismiss exists only in relation to the whole of the application.
My examination of the rest of the AAT Act supports that suggestion. All of the provisions which enable the Tribunal to conclude a matter other than by review of the decision or by making a decision by consent are framed in similar terms. They comprise the other dismissal powers to which I have referred. Section 42C, which enables the Tribunal to make a decision by consent, expressly enables it to do so in relation to the proceeding or in relation to part of the proceeding. The fact that Parliament enabled the power to be exercised in relation to part of the proceeding as well as in relation to the whole suggests that the dismissal power should be read strictly according to its terms. Section 43, which confers the decision-maker’s powers and discretions on the Tribunal and imposes certain obligations upon it, requires the Tribunal to review the decision. It must be read with s 42C but, in so far as a decision has not been set aside, varied or affirmed by consent, there is nothing in s 43 that suggests that the Tribunal may make a decision in relation to only part of the decision under review and so deal with only part of the matters addressed by the application for review. Certainly, the Tribunal may decide to adjourn its review of part of a decision but there is nothing in s 43 or the AAT Act that suggests that it may choose to determine only part of the application. In view of the context in which it appears, I have concluded that the Tribunals’ power to dismiss an application by consent relates to the whole of the application and not to a part of it.
Although I do not consider that the Tribunal had the power to do so, I have considered the effect of any purported dismissal it might have made. That purported decision would relate to that part of the application seeking review of the decision relating to hypertension. Would a purported dismissal exhaust its power to consider the application regarding hypertension? That question raises issue regarding jurisdictional error. If the Tribunal has used its power but made a jurisdictional error in doing so, it may use its power again and decide the matter again. This, in essence, is a proposition approved by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[33]In brief, the High Court decided that the Immigration Review Tribunal (IRT) had not made a decision at all when it reviewed a decision but failed to comply with s 360 of the Migration Act 1958 (“Migration Act”). It had made a jurisdictional error and so could make a second decision reviewing that same decision. The reasoning of Gaudron and Gummow JJ, with whom McHugh concurred,[34] was:
“… a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. …”[35]
[33] (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598
[34] McHugh J’s concurrence was subject to two important qualifications but they do not affect the principles on which the majority based their judgment. Gleeson CJ and Callinan J reached the same conclusion. Gleeson CJ concluded that it was inconsistent with the scheme of the Migration Act to conclude that the IRT could treat a decision as legally ineffective and consider a matter afresh simply because it had been persuaded that it had denied one of the parties procedural fairness. There was, however, more to it than a denial of procedural fairness. What had occurred was an error in fact leading the IRT to fail to conduct a review:
“In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate’s decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.” ((2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598 at 606; 121; 619; 601)
Hayne J and Callinan J reached the same conclusion on the basis that what had happened. As Callinan J said, what had happened:
“… was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise. If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made … review the minister’s decision. This means that the Tribunal must exercise the jurisdiction of reviewing the minister’s decision …”: ((2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598 at 649; 156-157; 655; 626) and see per Hayne J at ((2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598 at 647; 155; 653; 625)
[35] (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598 at 616; 129-130; 628; 607
Not every error is a jurisdictional error and so not every error enables an administrative tribunal to revisit the matter. Gaudron and Gummow JJ accepted the principle stated by the Supreme Court of Canada in Chandler v Alberta Association of Architects[36] as correct. It was stated by Sopinka J, with whom Dickson CJ and Wilson J concurred when they said:
“ As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances …
To this extent, the principle of functus officio applies. It is based …on the policy ground which favours finality of proceedings …”[37]
In approving this passage, Gaudron and Gummow JJ added:
“… As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. …”[38]
[36] [1989] 2 SCR 848
[37] [1989] 2 SCR 848 at 861-862 and cited with approval at (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598 at 615-616; 129; 607. See also Hayne J at 644-645. The distinction between an error as to jurisdiction and an error within jurisdiction may be very fine and, at times, the same error may be recast either way: Collector of Customs (NSW) v Brian Lawlor (1979) 24 ALR 307; 2 ALD 1 at 33; 21-22 per Smithers J.
[38] (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598 at 616; 129-130; 628; 607
Their Honours noted that this was the position under the general law but then considered whether the Migration Act either expressly or impliedly purported to give effect to decisions that involved jurisdictional error. They found no express provision purporting to do so and then considered whether the scheme of the legislation should be interpreted as impliedly doing so. Their analysis of the Migration Act had earlier led them to conclude that:
“… it follows from Pt 8 of the Act, particularly s 478, that a decision which does not involve jurisdictional error and which is not challenged within 28 days is effective for all purposes notwithstanding that, for the purposes of that Part, it involves reviewable error. There is no like limit with respect to decisions involving jurisdictional error which may be the subject of proceedings in this Court. …”[39]
They also referred to:
“… s 476(1) which limits the grounds upon which the Federal Court may set aside a Tribunal decision … and s 485(1) and (3) which expressly provide that the Federal Court has no jurisdiction with respect to judicially reviewable decisions other than that conferred by Pt 8 of the Act.”[40]
[39] (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598 at 614; 128; 628; 606
[40] (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598 at 616; 130; 628; 607
If those provisions did not require the Federal Court to treat a decision as having legal effect until set aside, their Honours said, there was nothing in the Migration Act that required the Tribunal to do so. Assuming that Chapter III of the Commonwealth of Australia Constitution Act 1900 (the Constitution) does not preclude Parliament from requiring the Federal Court to act on the basis is the contrary of that which the High Court would apply in proceedings under s 75(v) of the Constitution,[41] there are good reasons for not reading such a preclusion into the Migration Act.
[41] Those are proceedings in which a writ of mandamus or prohibition or for an injunction is sought against an officer of the Commonwealth.
In Craig v The State of South Australia,[42] the High Court said of administrative tribunals:
“If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”[43]
[42] (1995) 184 CLR 163; 131 ALR 595; 39 ALD 193
[43] (1995) 184 CLR 163; 131 ALR 595; 39 ALD 193at 179; 602; 199
In McWilliam and Civil Aviation and Safety Authority[44] I summarised some of the authorities considering particular examples of a “jurisdictional error”:
[44] [2005] AATA 1148 at [92]
“42. … The expression was considered by Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf.[45] Referring to her earlier judgment in Abebe v Commonwealth[46] when she considered its meaning in the context of and application for relief under s. 75(v) of the Constitution, her Honour said that:
[45] (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105
[46] (1999) 197 CLR 510; 162 ALR 1; 55 ALD 1; 73 ALJR 584 at 552; 31-32; 11-12; 592-593
‘… the notion of jurisdictional error … “is not confined to situations in which a tribunal either lacks jurisdiction or exceeds its jurisdiction’ but extends to situations in which it ‘wrongly den[ies] the existence of its jurisdiction or … mistakenly place[s] limits on its functions or powers”.’[47]
43. What amounts to jurisdictional error when Parliament has provided a statutory framework of judicial review of administrative decisions depends on the general law and any qualifications of that law made by the statutory framework.[48] In the absence of any qualification, jurisdictional error may take various forms including:
‘… taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.’[49]
‘…failure of the tribunal to take a particular matter into account indicat[ing] that, in the circumstances, the tribunal has misunderstood its duty or applied itself to the wrong question and has, on that account, failed to conduct a review as required by … the Act.’[50]
‘Subject to any … statutory provision, denial of natural justice or procedural fairness will ordinarily involve failure to comply with a condition of the exercise of decision-making power, and jurisdictional error.’[51]”[52]
Another example of a jurisdictional error is given by French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs:[53]
“ If the Minister purported to cancel a visa of a kind not held by the applicant, then he would not, in my opinion, have exercised his power with respect to the visa actually held. This is not a mere error of nomenclature which does not affect the subject matter of the ministerial decision. …An error of the kind … is a matter of substance. The Minister would purportedly be exercising his power under s 501 with respect to one subject matter (ie a temporary special category visa) when in fact that relevant visa was a permanent absorbed person visa. That would be a matter of jurisdictional error for the Minister would not be addressing the question …whether a permanent absorbed person’s visa held by the applicant should be cancelled. …”[54]
[47] (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105 at 339; 11; 235; 1113 per Gaudron J
[48] (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105 at 340; 12; 236; 1113
[49] (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105 at 340; 12; 236; 1113
[50] (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105 at 340; 12; 236; 1113
[51] Plaintiff S157/2002 v The Commonwealthof Australia (2003) 211 CLR 476; 195 ALR 24; 72 ALD 1; 77 ALJR 454 at 490; 32; 9; 461 per Gleeson CJ
[52] [2005] AATA 1148 at [42] and [43]
[53] (2004) 136 FCR 494
[54] (2004) 136 FCR 494 at 505-506
A failure to act within power or to exceed power does not necessarily deprive a decision of all consequence. That is illustrated by the case of Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd.[55] In that case, the Full Court of the Federal Court was concerned with a decision that had been made to cancel a warehouse licence. There was no statutory power to make that decision. The majority of the Full Court, Bowen CJ and Smithers J, held that the Tribunal had the power to entertain an application made to it to review such a decision. Bowen CJ said:
“ In the Administrative Appeals Tribunal Act a wide meaning is given to the word ‘decision’ by s3(3). In s25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision. The difficulty lies in interpreting the words ‘made in the exercise of powers conferred by that enactment’. This may mean that it must be shown there was a decision made:-
(a)in pursuance of a legally effective exercise of powers conferred by the enactment; or
(b)in the honest belief that it was in the exercise of powers conferred by the enactment; or,
(c)in purported exercise of powers conferred by the enactment.
…
Interpretation (c) appears to me to be consistent with the context in the Administrative Appeals Tribunal Act. The Acts committed to the administration of each Minister and his Department are set forth in the Administrative Arrangements Orders published from time to time in the Gazette. There might be a rare case where a decision appeared to have no relationship to one of the Acts committed to the administration of the Minister or Department concerned. However, in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act. The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment. It could then proceed to determine whether the decision was properly made in fact and in law. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal: see Calvin v Carr (1979) 22 ALR 417. I would adopt interpretation (c).
...
Turning to the application of interpretation (c) to the present case, it appears to me that there was a decision to revoke the warehouse licence and this decision did purport to be made in the exercise of powers conferred by the Customs Act. Accordingly, in my view, the Administrative Appeals Tribunal did not lack jurisdiction to entertain the application and deal with it.”[56]
[55] (1979) 24 ALR 307; 2 ALD 1
[56] (1979) 24 ALR 307; 2 ALD 1 at 314-315; 4-6
Smithers J reached a conclusion similar to that of the Chief Justice and, in doing so, illustrated the practical consequences of the situation:
“ It is to be noted also that the subjects of reviews are decisions. If an administrator makes a particular decision in the course of government administration, then whether or not he is authorized to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.
There is a distinction also between a decision, the steps that may be taken to implement it and the legal effect thereof. It does not appear to me to be sound to regard a decision to take certain action as a nullity because such action if taken will not be legally effective. In the case under appeal the letter of 31 October 1977 was the communication of the decision which the Collector had made. The decision preceded that letter. The letter was no doubt the act of purported revocation and because of the statutory definition of ‘decision’ (see s 3(3) of the Administrative Appeals Tribunal Act set out below) that act may be a decision within the meaning of s 25. But to decide to revoke the licence was also itself a decision according to the natural meaning of that term. Such a decision may have serious results for the citizen. No doubt the officers of the department will act upon it. Thus, after the decision in question had been made they would be expected to refuse to permit goods to be entered to the defendant's warehouse. In this case, also action was taken against the licensee under s 94 of the Customs Act. That action did not necessarily depend upon revocation but in all probability it would not have been taken had the decision to revoke the licence not been made. …”[57]
[57] (1979) 24 ALR 307; 2 ALD 1 at 335-336; 23-24
It is clear that in the Brian Lawlor case there was a decision in fact that was affecting rights and liabilities even though the decision had not been lawfully made. It was a decision to revoke the applicant’s warehouse licence and that affected the applicant in that it could no longer undertake the activities that he had previously undertaken when it held the licence. Faced with the decision and the application to review it, it was not relevant for the Tribunal to consider whether or not it had been validly made.
These authorities appear to reveal several general principles:[58]
[58] It is apparent from my understanding of the principles that I have drawn from the authorities that I do not have the same understanding of them as Justice Downes, President of the Tribunal, when he decided Re Michael and Secretary, Department of Employment, Science and Training; Re Edwards and Secretary, Department of Health and Ageing [2006] AATA 277. Downes J was very much concerned with the practical ramifications of applying Bhardwaj when the Tribunal appears to be functus officio and it is not competent for the Tribunal to make any ruling as to whether it has made an error of law. Therefore, his focus was very much upon the occasions on which the Tribunal might “reconsider its own decisions” (at [15]) and the difficulties of “making of a second decision by a tribunal” (at [13]). Downes J continued:in the absence of a contrary indication in the statutory framework:
(a)a decision involving jurisdictional error:
(i)is not regarded as a decision at all;
(ii)but will, until set aside by an appropriate court of law or re-made by the decision-maker, stand and have effect for all practical purposes;[59]
(b)the decision-maker may, and has an obligation to, make the decision again; and
(c)a jurisdictional error may take many forms but must be distinguished from an error that occurs in the course of acting within jurisdiction;
Parliament may alter these principles explicitly or its intention to do so may be implicit in the framework of the legislation it enacts.[60]
[59] Therefore, for example, if the Tribunal did dismiss the application and did so without power in circumstances amounting to a jurisdictional error, DVA and the Commission would regard the application as having been finalised in that manner.
[60] The Brian Lawlor case is an example.
The application of these general principles is subject to the particular statutory framework within which the Tribunal’s jurisdiction is being considered. In this case, it is the context of the VE Act as well as the AAT Act. It is clear from both those Acts that the process of decision-making by the Commission and review by the Tribunal are, subject to any appeal on a point of law, intended to resolve a veteran’s claim once and for all. It is equally clear that the Tribunal would review the merits of the Commission’s decision on that claim unless the parties reached an agreement as to what the decision should be or unless the Tribunal dismissed the application in accordance with the appropriate legislative provision. Neither Act contemplates that an application will be dismissed in circumstances other than those they have provided for and in circumstances in which the Tribunal has not exercised all of its powers. In that case, the principles to which I have referred have not been excluded by the particular statutory provisions regulating the Tribunal’s jurisdiction.
If Mr Gibson’s application was in fact dismissed in respect of hypertension, that would be an error as to the limits of the Tribunal’s power. This goes beyond an error of law in the course of exercising its jurisdiction as it exceeded its jurisdiction. Therefore, if this is what happened, the Tribunal has not fulfilled its functions to review the Commission’s decision in respect of hypertension and it retains jurisdiction to carry out that function.
C. Conclusion regarding hypertension
It follows that, whichever view I take of what happened in the earlier proceedings, the Tribunal continues to have jurisdiction to consider whether hypertension is a war-caused disease within the meaning of the VE Act.
Did the Tribunal’s decision of 18 August 2004 deal with all of the issues raised by Mr Gibson’s application for review in relation to PTSD?
This issue revolves around my not having assessed the rate of pension payable to Mr Gibson once I had decided that his PTSD was war-caused within the meaning of s 9 of the VE Act. Mr Paget submitted that the Tribunal retains jurisdiction to hear and determine the rate of pension payable to Mr Gibson. Furthermore, that rate should be at the Special Rate, or TPI Rate as it is generally called. Mr Crowe submitted that the Tribunal was not required to make an assessment and, indeed, had no power to make it in reviewing the decision.
A. General principles
In determining the Tribunal’s jurisdiction, the starting point is s 25 of the AAT Act. The Tribunal may only review a decision if it is specifically given the power to do so by either the AAT Act or another piece of legislation. This is the effect of s 25 of the AAT Act. Section 25(1) provides that:
“An enactment may provide that applications may be made to the Tribunal:
(1)for review of decisions made in the exercise of powers conferred by that enactment; or
(2)for review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”
The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made.[61]
[61] AAT Act, s 25(3)
It is not enough that an enactment provide for review of specified decisions for the Tribunal must also be given power to review specified decisions. That power is given by s 25(4) which is the necessary corollary to s 25(1). It provides:
“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
A reference in the AAT Act to a “decision” includes:
“(a) making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.”[62]
[62] AAT Act, s 3(3)
The practical effect of these provisions is that I have to take two steps to determine whether or not the Tribunal has the power to review a particular decision and three in order to determine whether the Tribunal has any power left to review the decision. The first step is to identify precisely the decision of which review is sought and the second is to identify whether there is an enactment providing that an application may be made to the Tribunal for review of that decision or class of decision. If there is such an enactment, it is necessary to determine the limits of the power that it gives to the Tribunal to review the decision. The third step is applicable to the determination of whether the Tribunal has any power left to review the particular decision under consideration. It requires a comparison of the decision under review with the limits of the power that the Tribunal is given to review that decision on one side against what the Tribunal has actually reviewed, if anything, on the other.
B. The decision
In this case, I have already taken the first step of identifying the decision. It is the decision of the Commission dated 22 March 2000, as affirmed by the VRB’s decision dated 5 February 2001, in so far as it related to PTSD.
C. The legislative provisions
In general terms, s 13(1) of the VE Act provides that the Commonwealth is liable to pay a pension by way of compensation to a veteran who has an incapacity from an injury or disease that is war-caused or, if the veteran’s death was war-caused, to that veteran’s dependants. The amount of that pension and the terms under which it is payable are determined by the VE Act. The dependants of some deceased veterans are paid a pension automatically[63] but those provisions are not applicable in this case. In most cases, a veteran or a deceased veteran’s dependants makes a claim under s 14(1) and in accordance with s 14(3).[64] That latter section requires the claim to be in writing, to be accompanied by relevant evidence available to the claimant and to be lodged at an office of the Department of Veterans’ Affairs (DVA). Having made a claim in respect of incapacity from a particular injury or disease, the veteran may not lodge another in respect of incapacity from that injury or disease until the claim has been finally determined.[65] A similar provision prevents a deceased veteran’s dependants making a further claim before the first is finally determined.[66]
[63] VE Act, s 13A
[64] see also VE Act, s 16
[65] VE Act, s 14(5); a claim is not finally determined until every appeal or review has been finalised or, if none is lodged, until the time for appealing or applying for review has passed: s 14(7).
[66] VE Act, ss 14(6) and (7)
A veteran who is in receipt of a pension in respect of incapacity may apply for an increase in the rate of pension payable on the basis that the incapacity has increased.[67] Some veterans may be refused a pension on the basis that the incapacity is insufficient to justify the grant of a pension even though they are found to have suffered a war-caused injury or disease. They may apply for a pension on the ground that the incapacity has increased since the grant of a pension in respect of the incapacity was refused or last refused.[68]
[67] VE Act, s 15(1)
[68] VE Act, s 15(2)
Where a claim is made for a pension under s 14(1) or an application is made for an increase under ss 15(1) or (2) of the VE Act, the Secretary of DVA is obliged to investigate the matters to which it relates.[69] Once investigated, the Secretary refers the claim or application to the Commission together with all relevant evidence and documents. That is the effect of ss 17(2) and 17(3). The Commission has a duty to consider the claim or application.[70] Its duty is explained further in s 19. In so far as it relates to a claim for a pension, which is the subject of this case, 19(1) provides:
“Where a claim … is submitted to the Commission in accordance with subsection 17(2), the Commission shall:
(a)consider all matters that, in the Commission’s opinion, are relevant to the claim or application; and
(b)subject to this section, determine the claim as provided by subsection (3); …
(c)…
(d)…”
[69] VE Act, s 17(1)
[70] VE Act, s 18(1)
The way in which the Commission determines the claim is set out in s 19(3):
“The Commission shall determine a claim for a pension as follows:
(a)first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:
(i)the incapacity of a veteran from war-caused injury or war-caused disease, or both; or
(ii)the death of a veteran was war-caused;
(b)then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsections (5A), (5B), (5C) and (5D).”
The procedure set out in ss 19(5A), (5B) and (5D) requires the Commission to assess the matters set out in s 19(5C) in accordance with whichever of ss 22, 23, 24, 25, 27 and 30 are applicable in the particular case.[71] Those sections relate to particular rates of pension such as the general rate of pension and extreme disablement adjustment, intermediate rate of pension and special rate of pension. Assessment in their terms is dependant on the Commission’s first determining the veteran’s degree of incapacity from a war-caused injury or disease according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions (GARP).[72] It does that under s 21A. Taking all of these sections into consideration, the Commission must assess the rate or rates at which the pension would have been payable from time to time during the assessment period and the rate at which the pension is payable.[73] After making an assessment, the Commission must determine that pension is payable at the rate assessed.[74] It must also determine the date of effect of the determination.[75] Having made a decision, the Commission may review and vary its decision under s 31.
[71] VE Act, s 19(5B)
[72] VE Act, s 21A
[73] VE Act, s 19(5C)
[74] VE Act, s 19(5D)
[75] VE Act, ss 19(5F) and (6) and 20
The Commission must make a written record of its decision and its reasons when it makes a decision:
“(a) with respect to a claim for a pension in accordance with section 14, or an application for a pension or increased pension in accordance with section 15;
(b)by way of assessing the rate of pension …, or determining the date of commencement or cessation of a pension …;
(c)to vary a decision upon a review carried out under section 31;
(d)to cancel or suspend a pension … under subsection 31(6); or
(e)to decrease the rate of a pension … under subsection 31(6) or to increase the rate of pension … under subsection 31(8);
…”[76]
As soon as practicable after the Commission makes one of these decisions, it must serve a copy of the decision and the reasons on the claimant.[77] It must also give the claimant “… particulars of the right of the person on whom it is served to have the decision reviewed by the [Veterans’ Review] Board.”[78]
[76] VE Act, s 34(1)
[77] VE Act, s 34(2)
[78] VE Act, s 34(2)
These provisions show that the VE Act distinguishes between the various stages in reaching a final determination regarding whether a veteran is entitled to a pension at a particular rate. It does so by isolating the decision made at each stage beginning with a decision in respect of the claim and, in the case of an initial claim, ending with the assessment of the rate.
The isolation of each decision is continued in s 135. That section permits a person, who has made a claim for a pension in accordance with s 14, to apply to the VRB if:
“… dissatisfied with any decision of the Commission in respect of the claim … (including a decision under section 20 or 21 approving a date from which payment of a pension, or payment of a pension at a higher rate, may be made …) …”.[79]
The application is made to the VRB to review the decision.
[79] VE Act, s 135(1)
The theme is continued in s 175(1). It provides:
“Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied, or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:
(a)of the decision of the Commission that was so affirmed;
(b)of the decision of the Commission as so varied; or
(c)of the decision made by the Board in substitution for the decision so set aside;
as the case may be.”
D.Does the Tribunal have jurisdiction to consider the assessment of any pension to which Mr Gibson might have been entitled?
As I said, the question that I have posed requires a comparison of two matters. On the one side is the decision under review and the limits of the power that the Tribunal is given to review that decision. On the other is what the Tribunal has already reviewed, if anything.
In this case, the decision under review is that of the Commission affirmed by the VRB. It is a decision to refuse to accept as war-caused the conditions of, among others, PTSD. That was a decision affirmed by the VRB. Certainly, there were other decisions that the Commission made in respect of the claims that Mr Gibson made in respect of other conditions. That does not alter the fact that the Commission made a decision in respect of the incapacity that he claimed to suffer as a result of PTSD and that he said was a war-caused injury or disease. The decision that the Commission made in respect of PTSD was to refuse to accept the claim. It did not go on to make any assessment of a pension in respect of PTSD. Its assessment was limited to assessing the pension payable in respect of the conditions that it did accept as war-caused injuries or diseases.
The VE Act specifically recognises the division of the Commission’s task into decisions on particular aspects. It specifically permits an application for review to be made to the VRB in respect of each of those decisions. That means that the Tribunal’s jurisdiction must be limited by the particular scope of the decision made by the Commission and reviewed by the VRB.
Given that the Commission’s decision did not go beyond the bounds of refusing to accept Mr Gibson’s claim in respect of incapacity from PTSD and nor did the VRB’s decision, the Tribunal’s jurisdiction is equally circumscribed. As I have already reviewed the Commission’s decision, I have fulfilled the task that is given to me under the VE Act. I do not have any power to assess the pension that might have been payable to Mr Gibson as the Commission had not made a decision on that matter and, consequently, the VRB had not reviewed it. That was a matter that remained solely within the jurisdiction of the Commission to decide. Once it had made a decision, it was open to any dependants of Mr Gibson to seek review within the prescribed time limits. As it turns out, no application for review was made.
For the reasons I have given, I have decided that:
1.the Tribunal does not have jurisdiction to consider the assessment of any pension to which the late Mr Bruce Warwick Gibson might have been entitled as a result of the Tribunal’s setting aside the decision of the Repatriation Commission dated 22 March 2000 and substituting a decision that a decision that the applicant’s Post Traumatic Stress Disorder was war-caused within the meaning of s 9 of the VE Act; and
2.the Tribunal does have jurisdiction to review the decision of the Repatriation Commission refusing to accept hypertension as a war-caused injury or disease.
I certify that the seventy-one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Jayne Rathjen Associate
Date of Telephone Directions Hearing 12 May 2006 and 15 August 2006
Date of Decision 18 December 2006
For the Applicant Mr T. Pagent
For the Respondent Mr A. Crowe. Departmental advocate
14. Only one justice in Bhardwaj addressed the question of when it might be appropriate for a tribunal to reconsider a decision. Hayne J said this (at 645):
‘It is, therefore, not to the point to ask whether the Tribunal was wise to make its October decision without first having the comfort and certainty of a court order holding the September decision to have been not a lawful performance of the Tribunal’s duties any more than it is to the point to ask about the efficiency of adopting the course that was followed in this matter.’
15. It seems to me that because of the substantive and practical problems I have adverted to it will very rarely be "wise" for a tribunal to reconsider its own decisions.
16. Gleeson CJ characterised the error in Bhardwaj on four occasions as "administrative oversight", "administrative slip" or "administrative error" (at pp 602, 605(2) and 606). Kirby J, in dissent, used the phrase "administrative error" three times (at pp 627 and 630(2)). The justices were referring to the fact that the underlying cause of the error was a matter of administration internal to the Registry of the Immigration Review Tribunal and not something associated with the actual conduct of the hearing or the process of decision-making following it. Accordingly, one appropriate basis for a limitation on reconsideration in accordance with Bhardwaj is confining such cases to cases of administrative or similar error.
17. For all these reasons, I conclude that it will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong and when the cause of the error is some administrative or similar mistake. In all but the rarest of cases, tribunal decisions must be treated as final and subject only to reconsideration for error of law on appeal.”
I am hesitant to adopt the President’s characterisation of the task required by the principles set out in Bhardwaj. On my understanding of Bhardwaj the task is to determine whether there was jurisdictional error of the sort leading to there having been no valid exercise of the power to make a decision made in the first place. If that is so, it is not a case of reconsidering its decision but of making an initial decision without jurisdictional error. Considerations of confusion arising from there being two decisions does not arise because the first is a nullity and of no consequence. It is apparent from the authorities that a jurisdictional error may take many forms and is not limited to an “administrative oversight”, “administrative slip” or “administrative error”. Certainly, errors of that sort were referred to in the judgments of Gleeson CJ and Kirby J Bhardwaj as the President has noted but there are far more numerous references to “jurisdictional error” in the judgments of the majority and findings that the IRT’s decision had been infected with jurisdictional error e.g. Gaudron and Gummow JJ at 618; Hayne J at 644. McHugh J characterised the question under consideration as “… whether ‘the Tribunal lacked power and/or jurisdiction to make the October decision’.”: at 618. Callinan J decided that there was “… a failure to exercise a jurisdiction that the Tribunal was bound to exercise” and that “… the Tribunal had not exercised its jurisdiction in September 1998 and that therefore it was open for it to do so in October 1998.”: at 649-650.
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