Ingram

[2003] AATA 858

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 858

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N03/1082

GENERAL ADMINISTRATIVE DIVISION		)
Re		Noel INGRAM
Applicant

DECISION

Tribunal Ms N Isenberg, Member

Date2 September 2003

PlaceSydney

Decision The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints.

[Sgd] Ms N Isenberg, Member

REASONS FOR DECISION

2 September 2003 Ms N Isenberg, Member

1.      A hearing was held before the Tribunal on 12 August 2003 at which Mr Noel Ingram (“the Applicant”) who was unrepresented, spoke to the Tribunal by conference telephone. 

2.      At the outset the Tribunal invited the Applicant to identify the decision in relation to which he sought review.

3.      The Applicant referred the Tribunal to the material he had filed.  This included a letter to the Applicant from the Deputy Chief of Air Force (“DCAF”) which set out, in general terms the Applicant’s complaint.  Briefly stated, the Applicant had sought higher duties allowance (“HDA") for the period 17 March 1999 to 10 July 2000, while he occupied the position of Stock Control Officer at Williamtown Air Force Base.  His application had been refused by his Commanding Officer (“CO”), as the position was to be ‘disestablished’ and the responsibilities redistributed.  The Applicant lodged a Redress of Grievance (“ROG”) which was referred to the Complaints Resolution Agency to investigate.  The ROG was ultimately referred to DCAF for determination.  Part way through that process the Applicant was offered part payment but he rejected this offer. 

4.      As he was dissatisfied with DCAF’s response to his ROG, the Applicant took his complaint to the Defence Force Ombudsman.  Some correspondence ensued but the decision that the Applicant was not entitled to HDA was affirmed.  There was further reference to the offer of part payment and it was again noted that the Applicant had rejected that offer.  The Applicant expressed concern that on the one hand Defence, through DCAF, said that there was no entitlement to HDA, but he was also being offered part payment.

5. In a letter to the Tribunal dated 15 July 2003 the Applicant stated that he believed the Tribunal had authority under Sections 58F and 117B of the Defence Act 1903. He also referred to Defence Determination 2000/1.

6.      On the basis of the material before it the Tribunal turned to address whether the Applicant’s complaints may be considered by the Tribunal.  The Administrative Appeals Tribunal Act 1975 (“the AAT Act”) does not itself set out the decisions that may be reviewed by the Tribunal. Instead, section 25 states that an enactment may provide for review of decisions made in the exercise of powers conferred under that enactment or conferred by an instrument such as rules, regulations or by-laws made under that enactment. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision, reference must be made to the legislation governing the original decision. As each of approximately 330 pieces of legislation which give jurisdiction to the Tribunal may not give it in relation to all decisions made under each piece of legislation, care must be taken to ensure that jurisdiction has indeed been given in relation to the particular decision under consideration.

7.      Having regard to the contentions of the Applicant the Tribunal reviewed relevant legislation with a view to ascertaining if that legislation was one which gives jurisdiction to the Tribunal.

8.      Firstly, there is no provision in part IIA of the Ombudsman Act 1976, ‘Establishment, function, powers and duties of the Defence Force Ombudsman’, for review by the Administrative Appeals Tribunal. Next the Tribunal considered the provisions in the Defence Act to which the Applicant had referred. Section 58F is a section, which defines certain terms in that Act, including ‘relevant allowances’.. Section 117B provides as follows:

S 117BMembers and former members may bring actions for money due in respect of service

A person who is or has been a member of the Defence Force may recover from the Commonwealth, by an action in a court of competent jurisdiction, money due to the person by the Commonwealth in respect of the person’s service as a member of the Defence Force.

While an action may lie against the Commonwealth for the alleged failure to pay HDA, such an action cannot be brought before this Tribunal, as it is not a ‘court of competent jurisdiction’.  Defence Determination 2000/1 to which the Applicant referred may be relevant in this regard but the Tribunal expressly makes no comment as to the merits of such an application.

9.         No other Commonwealth legislation was found to be relevant to the Applicant’s complaints.

DECISION

10. The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         A. Krilis

Associate

Date of Hearing  12 August 2003

Date of Decision  2 September 2003