HONG ELLIOTT and COMCARE Professor RM Creyke, Senior Member 7 May 2013 Canberra

[2013] AATA 276

[2013] AATA 276

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1005
Re	HONG ELLIOTT
APPLICANT
And	COMCARE
RESPONDENT

INTERLOCUTORY DECISION

Tribunal	Professor RM Creyke, Senior Member
Date	7 May 2013
Place	Canberra

The application is dismissed for no jurisdiction.

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Professor RM Creyke, Senior Member

Catchwords

PRACTICE AND PROCEDURE – jurisdiction – whether Tribunal has jurisdiction where no decision has been made by Comcare

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) sections 3 and 25

Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 19-21A, 38, 60, 62 and 64

REASONS FOR INTERLOCUTORY DECISION

Professor RM Creyke, Senior Member

7 May 2013

1. Ms Elliott sought review by the Tribunal of ‘Comcare’s new policy approach’ to deciding incapacity entitlements when a retired employee is entitled to receive their superannuation benefits.

2. At an interlocutory hearing on 27 March 2013, it was decided that as the Tribunal had no jurisdiction to consider the issue, the matter was dismissed.

3. Ms Elliott sought reasons for the decision on 27 March 2013.

Background

1. Ms Elliott was receiving incapacity payments under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

2. Ms Elliott has retired from employment. She has also reached the minimum compulsory preservation age (currently 55 years) to be entitled to receive her superannuation benefits. She had chosen not to receive those benefits since there are financial advantages in not doing so until she reaches the age of 65 years.

3. Under the policy being implemented by Comcare, once a person has reached the minimum compulsory preservation age Comcare adjusts their incapacity payments under sections 20, 21 and 21A of the Act based on the employer funded superannuation benefits the person is entitled to receive whether or not the person has elected to receive it.

4. In its letter to Ms Elliott dated 11 December 2012 Comcare stated ‘You will receive a determination advising you of your new rate of pay as soon as we have calculated your entitlement under the appropriate section of the SRC Act’.

5. The letter also noted that if Ms Elliott had received a pension or lump sum from a superannuation fund, such as Comsuper, she should advise her claims services officer in order for her compensation entitlement to be reviewed. If no lump sum has been received, Comcare intended to use the information it had received from Comsuper to decide her entitlement.

6. Ms Elliott was asked in that letter to complete and return an ‘Authority and Release of Superannuation Information’. She did so.

7. The letter contained as an attachment a Fact Sheet concerning the ‘new policy position’. The Fact Sheet stated, as relevant:

   Comcare will generally consider an employee has ‘received’ their superannuation amount if they have retired from the Commonwealth and:

   ·accessed their superannuation, or        

   ·reached their minimum preservation age, whether they have elected to receive/continue to preserve/elect to roll-over, etc, their superannuation benefits.

   Where an employee receives, or is deemed to have received any employer-financed superannuation benefits, Comcare needs to take the employer-financed amount into account when calculating ongoing incapacity payments.

8. At the interlocutory hearing, the representative of Comcare undertook to encourage an early decision in Ms Elliott’s matter.

Legislation and Consideration

1. The relevant legislation is found in the Administrative Appeals Tribunal Act 1975 (Cth) (Act) in conjunction with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

2. Section 25 of the Act provides for the review powers of the Tribunal. The section provides that an Act (an ‘enactment’) may provide for the Tribunal to review certain decisions. If an Act does so, an application may be made to the Tribunal:

   25(1) (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. A ‘decision’ has a defined meaning. Section 3(3) of the Act provides:

   3(3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:

   (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.

   This definition of ‘decision’ also applies to the SRC Act.[1]

   [1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) s 60(1).

4. The SRC Act is an ‘Act’ for the purposes of section 25 of the Act. Part VI of the SRC Act provides which decisions under the SRC Act may be reviewed by the Tribunal. Section 64 of the SRC Act provides that the Tribunal may only review ‘a reviewable decision’. As section 64(3) states: ‘a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section’.

5. A ‘reviewable decision’ is defined in section 60 to mean ‘a decision made under subsection 38(4) or section 62’. Section 38(4) is not relevant to Ms Elliott’s claim since it relates solely to decisions concerning rehabilitation.

6. Section 62 provides for the Tribunal to review decisions which have either been reconsidered by Comcare of its own motion, or one which has been reconsidered by Comcare following a request for a reconsideration of a ‘determination’. A ‘determination’ is defined in section 60 to mean ‘a determination, decision or requirement made under section [as relevant]…20, 21, 21A’. Section 20, 21 and 21A of the SRC Act are the sections to which Comcare referred in its letter to Ms Elliott as those on which it will rely when making its ‘determination’. That means when Comcare has made an initial decision relying on any or all of those provisions, Ms Elliott has sought further review, and Comcare has in response made a ‘reviewable decision’, the Tribunal will have jurisdiction to consider Ms Elliott’s claim.

7. At present, however, no ‘own motion’ determination has been made by Comcare on Ms Elliott’s claim. Nor has Comcare made a determination following a request for reconsideration by Ms Elliot. No reconsideration can take place until an initial determination has been made and, as explained in the Comcare letter to Ms Elliott, this has not yet occurred.

8. In these circumstances, and in accordance with the provisions of the Act and of the SRC Act, the Tribunal has no authority at this point to review the application by Ms Elliott. When a ‘determination’ is made by Comcare setting out any revision to her entitlement to compensation for incapacity and that ‘determination’ has been reconsidered by Comcare either ‘of its own motion’ or following a request for a reconsideration by Ms Elliott, there will be a ‘reviewable decision’ which gives authority to the Tribunal to hear Ms Elliott’s matter. Until then, the Tribunal is unable to hear the matter.

9. Ms Elliott has referred in her submission to the Tribunal to financial concerns if her incapacity entitlements are reduced. If those concerns materialise, Ms Elliott should be aware that she can apply to the Tribunal for an order staying the operation of the ‘reviewable decision’ until the Tribunal has considered the matter. The application for a stay order may be opposed by Comcare, in which event the Tribunal makes a decision about that issue as a preliminary matter.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member

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Associate

Dated 7 May 2013

Date of interlocutory hearing	27 March 2013
Applicant	In person
Respondent	In person
Representative for the Respondent	Kate Watson