HVYY and National Disability Insurance Agency

The Administrative Appeals Tribunal (AAT) considered a request by HVYY for a declaration under subsection 28(5) of the *Administrative Appeals Tribunal Act 1975* (Cth) (AAT Act). HVYY sought a statement of reasons, evidence, and findings of material facts from the National Disability Insurance Agency (NDIA) regarding a reviewable decision. The core dispute revolved around whether subsection 28(1) of the AAT Act, which outlines the process for requesting such a statement, applied when the application for review had already been lodged with the Tribunal.

The Tribunal was required to determine the proper interpretation of section 28 of the AAT Act, specifically whether the request for a statement of reasons under subsection 28(1) must be made *before* an application for review is lodged with the Tribunal. The Tribunal also considered whether alternative mechanisms within the AAT Act, such as sections 33 and 38, could be used to compel the provision of further information or particulars after an application for review has been filed.

The Tribunal reasoned that while section 28 of the AAT Act does not explicitly state that the request must precede the lodgement of an application for review, this is implicitly suggested by the wording of subsection 28(1). The Tribunal noted that Parliament did not include phrases like "or has applied" or "or has been made" in subsection 28(1), which would have indicated its applicability after an application had been lodged. Furthermore, the placement of section 28 early in the AAT Act, before section 29 which deals with initiating an application for review, supports the interpretation that it is a step intended to be taken prior to lodging an application. The Tribunal also acknowledged the existence of other provisions within the AAT Act that allow for compelling a decision-maker to provide information once an application for review is before the Tribunal.

Consequently, the Tribunal concluded that section 28 of the AAT Act did not apply in the circumstances of this matter because the request for the declaration was made after HVYY had lodged its application for review. Therefore, the application was not granted, and the Tribunal would not issue a declaration under subsection 28(5).