Horan and Department of Transport and Regional Services

[2001] AATA 880

DECISION AND REASONS FOR DECISION [2001] AATA 880

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/738
GENERAL  ADMINISTRATIVE DIVISION
  Re:         JOHN HORAN
  Applicant

And:       DEPARTMENT OF TRANSPORT

AND REGIONAL SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             12 September 2001
Place:            Melbourne

Decision:For reasons given orally at the hearing, the Tribunal decides that the decision dated 17 April 2001 is not reviewable by the Tribunal. Therefore in accordance with s42A(4) of the Administrative Appeals Tribunal Act1975 the Tribunal dismisses the application.

(sgd) G.D. Friedman
  Member
PRACTICE AND PROCEDURE - Regional Solutions Programme - discretionary fund - whether decision made under an enactment - dismissal of application
Administrative Appeals Tribunal Act 1975 s25, s42A(4)

REASONS FOR DECISION

12 September 2001  G.D. Friedman, Member

1. This is an application by John Horan (the applicant) for review of a decision of the Department of Transport and Regional Services (the respondent) dated 17 April 2001 The respondent refused an application by the Sea Lake Beautification Sub Committee (the Subcommittee) for funding under the Regional Solutions Programme (RSP) administered by the respondent. 

2. A hearing of this matter was held by telephone on 12 September 2001.  The applicant represented himself and Mr M. Moran, Solicitor, represented the respondent.

3. At the conclusion of the hearing the Tribunal made an oral decision dismissing the application because of a lack of jurisdiction.  On 12 October 2001 the applicant requested written reasons for the decision.
   BACKGROUND

4. The applicant is a member of the Subcommittee, which made an application for funding under the RSP.  On 15 June 2001 the applicant lodged an application with the Tribunal for review of the decision to refuse the application.  In his application to the Tribunal the applicant claimed that no reasons were given for the decision and that no notice concerning a right of appeal was provided to the Subcommittee.  In correspondence with the Tribunal the respondent stated that the Tribunal has no jurisdiction to consider the application for review.

5. On 20 June 2001 the Tribunal sent a letter to the applicant requesting that he show that the decision is reviewable by the Tribunal.  On 12 July 2001 and 17 August 2001 the applicant provided written submissions.
   EVIDENCE

6. The applicant told the Tribunal that there was no consultation by the Regional Solutions Programme Advisory Council (RSPAC) in the decision-making process.  He said that all attempts by the Subcommittee to seek internal review of the decision were unsuccessful, despite representations by the local Member of Parliament to the Minister for Transport and Regional Services.  He submitted that at the time of decision the respondent should have notified the Subcommittee of the reasons for refusal of the application and the avenues of appeal.
   CONSIDERATION OF THE ISSUES

7. Under s25 of the Administrative Appeals Tribunal Act 1975 the Tribunal has power to review any decision in respect of which application is made under an enactment.  The applicant produced an extract from the 2001 edition of The Rural Book - the Handbook of Major Commonwealth Government Services and Programmes for Regional and Rural Communities and said that the publication states at page 231 that information on a person's appeal rights will be included in the written notice of the decision from the primary decision-maker.  The applicant stated that this was not done.  Further he stated that the RSP is a discretionary fund consisting of public monies, and consequently decisions concerning expenditure of such public monies are reviewable by the Tribunal.  He told the Tribunal that following the refusal by the respondent for a grant under the RSP the programme was advertised a second time, which suggests that the RSP was more than a discretionary fund.

8. Mr Moran, on behalf of the respondent, submitted that the RSP is a discretionary fund, so the decision by the RSPAC to refuse a grant to the Subcommittee was not made under an enactment.  He said that the Tribunal has no jurisdiction to consider the application.

9. In reaching its decision the Tribunal takes into account relevant documents, the oral evidence and submissions made at the hearing. The Tribunal accepts the submission by Mr Moran that the Tribunal has no general review power and may review only those decisions in relation to which it has been given specific jurisdiction by legislation. In this case decisions regarding the RSP are not made under an enactment, so the Tribunal finds that in accordance with s25 of the Act the Tribunal has no power to review the decision.

10. Under s42A of the Act:

    (4)          If:

    (a)a person makes an application to the Tribunal for a review of a decision; and

    (b)the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable;

    the Tribunal may dismiss the application without proceeding to review the decision.

In this case after taking all relevant matters into account the Tribunal is satisfied that the applicant is unable to show that the decision is reviewable, and the application should be dismissed. 
DECISION

1. For reasons given orally at the hearing, the Tribunal decides that the decision dated 17 April 2001 is not reviewable by the Tribunal. Therefore in accordance with s42A(4) of the Administrative Appeals Tribunal Act1975 the Tribunal dismisses the application.

   I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision of:
   G.D.Friedman, Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of hearing:  12 September 2001
   Date of decision:  12 September 2001
   Solicitor for applicant:                  Nil – self-represented

   Solicitor for respondent:              Mr M. Moran, Department of Transport and
     Regional Services