Hng; Secretary, Department of Education and (Social services second review)

The Administrative Appeals Tribunal (AAT) considered an application by the Secretary, Department of Education and (Social Services) for a stay of a previous AAT decision. The dispute concerned the respondent's entitlement to the Child Care Subsidy (CCS) for a specific period. The AAT had previously set aside a decision by the Authorised Review Officer and remitted the matter for reconsideration, directing that the respondent be paid the CCS for the period of 12 July 2021 to 28 November 2021. The Secretary sought to stay this decision pending the determination of their substantive application for review.

The primary legal issue before the Tribunal was whether it was desirable to grant a stay order under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth). This required the Tribunal to consider the interests of any persons affected by the review. The Tribunal also had to assess the prospects of success of the substantive application, determining whether the applicant had at least an arguable basis for appeal. The applicant argued that the respondent had failed to meet the CCS reconciliation conditions for the relevant income year due to late lodgement of tax returns, which they contended did not constitute "special circumstances" under section 103B of the Social Security Act 1991 (Cth).

The Tribunal reasoned that the word "desirable" in section 41(2) connotes a positive aspiration, something worthy of achievement, rather than merely advisable. While not definitively assessing the merits of the case, the Tribunal acknowledged the applicant's argument regarding the late lodgement of tax returns and the respondent's assertion of special circumstances, namely their accountant's medical emergency and COVID-19 restrictions. The Tribunal noted that the interpretation of section 41(2) should not be read narrowly, allowing for consideration of the broader interests of affected persons to ensure the review is not rendered nugatory or ineffective.

The Tribunal refused the application for a stay order.