JQCC and Secretary, Department of Social Services
[2015] AATA 300
•8 April 2015
[2015] AATA 300
DivisionGENERAL ADMINISTRATIVE DIVISION
File Number 2015/0835
ReJQCC
APPLICANT
And Secretary, Department of Social Services
RESPONDENT
DECISION
TribunalDeputy President S A Forgie
Date8 April 2015
Date of written reasons 6 May 2015
PlaceMelbourne
The Tribunal decides that it does not have jurisdiction to review the decision of the Social Security Appeals Tribunal of 23 January 2015 relating to his entitlement to receive Disability Support Pension under the Social Security Act 1991.
…[sgd] S A Forgie…...
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – SOCIAL SERVICES – disability support pension – applicant seeks to have date of entitlement backdated - powers of review exhausted – no jurisdiction
LEGISLATION
Administrative Appeals Tribunal Act 1975; sections 25, 29, 43, 44
Administrative Decisions (Judicial Review) Act 1977; section 13
Judiciary Act 1903; section 39B
Migration Act 1958; sections 360, 474
Social Security Act 1991; sections 16B, 23, 94, 94A
Social Security (Administration) Act 1999; sections 12, 13, 23, 129, 135, 142, 152, 179, 181
Social Security Amendment (2007 Measures No.2) Act 2007; sections 2, 3, Schedule 1, Items; 47, 48
Veterans’ Entitlement Act 1976CASES
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; 131 ALR 595; 39 ALD 193
Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329; 8 AAR 285
Johnson v Veterans’ Review Board [2005] FCA 1136; (2005) 88 ALD 652; 41 AAR 120
Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 25; 294 ALR 84; 132 ALD 1
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225
Re Garrett in his capacity as an Authorised Officer etc. and Commissioner of Taxation [2015] AATA 247
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; 83 ALD 545; 79 ALJR 1009; 215 ALR 162REASONS FOR DECISION
After hearing submissions on the issue by JQCC, who represented himself, and Mr Henderson, who represented the Secretary of the Department of Social Services (Secretary), I decided that the Tribunal does not have jurisdiction to review the decision made by the Social Security Appeals Tribunal (SSAT) on 23 January 2015 relating to his entitlement to receive Disability Support Pension (DSP) under the Social Security Act 1991 (SS Act). I made that decision on 8 April 2015 after giving oral reasons. Later on the same day, JQCC asked:
“… that the person who made the decision about my hearing today on 8 April 2015 please give me a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for their [sic] decision.”
These are my written reasons.
BASIS ON WHICH WRITTEN REASONS MAY BE REQUESTED
JQCC did not specify the basis on which he requested written reasons. Section 43(2A) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that:
“Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.”
A copy of my decision has been sent to both JQCC and the Secretary but it is not a decision of the sort to which s 43(2A) refers. A decision of the sort referred to in s 43(2A) is a decision given after a Tribunal has reviewed a decision affirming or varying a decision under review or setting it aside and substituting another in its place or sending the matter back to the decision-maker for reconsideration. The decision that I made relates to a matter that precedes any consideration of the merits of a decision. It relates to the Tribunal’s power to review the decision at all. It follows that s 43(2A) of the AAT Act does not entitle JQCC to ask for reasons or oblige me to give them.
Given the way in which he has expressed his request for reasons, it would seem more likely that JQCC was making a request for a statement of reasons under s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). That section provides that:
“Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision.”
The decision-maker must provide the statement no later than 28 days after receiving the request.[1]
[1] ADJR Act; s 13(2)
JQCC’s CLAIM FOR INCOME SUPPORT PAYMENT AND RELATED MATTERS
On 22 September 2005, JQCC lodged with Centrelink a “Claim for Payments for people with disabilities, illnesses or injuries”. When asked by the form to nominate whether he claimed a DSP or a Sickness Allowance, JQCC ticked the box marked “Sickness Allowance”. He listed his disabilities as distorted vision, gastroenteritis, migraine and insomnia, which had started to make work or full-time study difficult for him from June 2005. The events that followed include those listed below. Those appearing in bolded italics also appear in the tables at [8]-[10] below.
Date
Action
5 October 2005
JQCC granted NSA and advised of decision in writing together with review rights and time limits.
18 May 2006
Centrelink issued JQCC a notice requiring his attendance at a medical assessment by Health Services Australia (HSA).
16 June 2006
HSA completed report after consultation with JQCC and opinion expressed that none of his conditions warranted any impairment points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension. JQCC was assessed as having capacity to work for more than 30 hours each week.
29 August 2006
Centrelink advised JQCC of HSA’s assessment.
5 September 2006
JQCC advised Centrelink that he and his General Practitioner disagreed with HSA's assessment.
20 September 2006
JQCC attended a Job Capacity Assessment (JCA) which concluded that he had a temporary work capacity of 15 to 22 hours per week until 16 November 2006 but that it would increase to 30 hours or more after that date.
7 May 2008
JQCC asked for a claim form for DSP. Centrelink provided that form together with a form for his treating medical practitioner to complete. JQCC did not lodge either form.
10 February 2009
JQCC contacted Centrelink to ask whether he had been granted an incapacity exemption for NSA purposes in October 2006. Centrelink advised him that the JCA dated 20 September 2006 had concluded that he had a work capacity of 15 to 22 hours per week at the time.
11 February 2009
JQCC lodged a complaint about the JCA. Centrelink noted its view that the JCA did not support an assessment of partial capacity to work under s 16B of the SS Act or indicate eligibility for other income support payments.
28 July 2009
Centrelink gave JQCC a claim form for DSP at his request. He did not lodge the claim form.
6 January 2010
JQCC told Centrelink that he intended to claim DSP. Centrelink acknowledged his notice of intention.
12 January 2010
JQCC lodged a claim for DSP at Centrelink on the basis of irritable bowel syndrome and bladder dysfunction.
15 January 2010
JQCC attended a JCA and was assigned 20 points under Table 20 of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension for his irritable bowel syndrome. Work capacity was assessed as 8 to 14 hours per week.
23 February 2010
A delegate of the Secretary decided that JQCC was qualified for a DSP and granted his claim from 6 January 2010.
8 April 2010
JQCC requested a review of the decision to grant him NSA, and not DSP, in September 2005.
20 April 2010
ARO decided affirmed the decision that JQCC’s DSP started from 6 January 2010.
13 January 2011
JQCC lodged an application for review of the ARO’s decision.
17 March 2011
SSAT affirmed ARO’s decision.
1 February 2013
JQCC lodged application in the Tribunal to extend the time within which he could lodge an application for review of SSAT’s decision.
7 March 2013
Tribunal refused to extend the time.
14 June 2013
JQCC contacted Centrelink about the decision not to backdate his DSP payment to September 2005.
31 January 2014
JQCC contacted Centrelink about back payment of DSP.
6 February 2014
JQCC contacted Centrelink requesting a review of decision to grant him DSP from 6 January 2010 rather than from 22 September 2005.
21 February 2014
JQCC contacted the Department on the same matter.
18 March 2014
JQCC contacted the Department on the same matter and stating that the basis of the HSA’s assessment dated 16 June 2006 giving him no impairment points was incorrect.
18 March 2014
Centrelink determined that JQCC’s start date of 6 January 2010 was correct.
19 March 2014
JQCC requested that the matter be referred to an ARO as the nil assessment rating was incorrect and he should have been granted DSP in September 2005.
4 June 2014
JQCC wrote to Centrelink requesting a review of the decision made on 18 March 2014.
4 November 2014
ARO decided that the decision had already been reviewed.
11 November 2014
JQCC lodged an application with the SSAT to review the ARO’s decision.
23 January 2015
SSAT decided it had no jurisdiction to review the decision.
23 February 2015
JQCC lodged with the Tribunal an application for review of the SSAT’s decision.
The documents I have been given include medical reports dated 19 September 2006, 12 May 2008, 2 April 2009 and 28 October 2009.
THE DECISION OF WHICH JQCC SEEKS REVIEW
For all practical purposes, JQCC wants the Secretary’s decision dated 5 October 2005 that he was entitled to NSA changed to a decision that he was entitled to DSP from 22 September 2005. He refers to three groups of decisions that he submits underpin his application to the Tribunal. The first group comprises those that lead directly to the SSAT’s decision made on 23 January 2015 of which JQCC seeks review. They begin with the decision made by a delegate of the Secretary on 20 April 2010. The second group comprises those decisions that relate to JQCC’s earlier request to have the Secretary’s decision dated 23 February 2010 and the subsequent ARO decision dated 20 April 2010 reviewed. The third group is, perhaps, a subset of the second group. It comprises exchanges between JQCC and Centrelink. JQCC characterises them as decisions and the Secretary does not.
The exchanges and decisions leading to JQCC’s current application for review
These are the exchanges between JQCC and Centrelink that JQCC submits is reviewable by the SSAT and so by this Tribunal:
Date
Exchange
18 March 2014
JQCC contacted the Department on the same matter and stating that the basis of the HSA’s assessment dated 16 June 2006 giving him no impairment points was incorrect.
18 March 2014
Centrelink determined that JQCC’s start date of 6 January 2010 was correct.
19 March 2014
JQCC requested that the matter be referred to an ARO as the nil assessment rating was incorrect and he should have been granted DSP in September 2005.
4 June 2014
JQCC wrote to Centrelink requesting a review of the decision made on 18 March 2014.
The Secretary submitted that the relevant decision was that made on 12 January 2010 with effect from 6 January 2010. The SSAT agreed. On that submission, if the Secretary made a decision on 18 March 2014, it has no relevance. The chain of decision-making relevant to the Tribunal’s review begins with the decision dated 12 January 2010 to grant NSA from 6 January 2010. That chain ended when the Tribunal dismissed JQCC’s application for an extension of time on 7 March 2013. The decisions made after that time were:
Date
Decision-maker
Decision
Reason
4 November 2014
ARO
Refuse to review a different ARO’s decision dated 20 April 2010.
No jurisdiction as Secretary’s decision already reviewed by an ARO.
23 January 2015
SSAT
Affirm ARO’s decision dated 4 November 2014.
No jurisdiction to review decision previously reviewed by SSAT on 17 March 2011.
The decisions relating to JQCC’s previous application for review of ARO’s decision dated 20 April 2010
The decisions following the Secretary’s decision dated 12 January 2010 are:
Date
Decision-maker
Decision
Reason
23 February 2010
Secretary
Decision on claim made on 12 January 2010. DSP granted from 6 January 2010 when claim deemed to have been made.
20 April 2010
ARO
Affirmed decision dated 23 February 2010 granting DSP from 6 January 2010 but not from a prior date.
DSP could not be granted from a date prior to date JQCC’s claim deemed to have been made i.e. 6 January 2010.
17 March 2011
SSAT
Affirmed the decision.
As JQCC had applied for review more than 13 weeks after ARO’s decision, the earliest date any favourable decision could take effect was 13 January 2011 when he lodged an application to the SSAT.
7 March 2013
Administrative Appeals Tribunal
Application for extension of time within which to lodge application refused.
GROUNDS ON WHICH JQCC APPLIED FOR REVIEW
Applications for review made in 2010 and 2011
For all practical purposes, in each series of applications and decisions, JQCC sought review of the date from which the Secretary had decided that he was entitled to receive DSP. In her decision dated 20 April 2010, the ARO wrote that JQCC felt that he was entitled to DSP from 19 September 2005. That was the date on which he had been granted Newstart Allowance (NSA). At the time, he had been granted an exemption from the activity test covering the period from 1 August 2005 to 31 October 2005. The decision to pay JQCC NSA was made on 5 October 2005.
JQCC advised that he considered that he should have been paid DSP from 2005 on two bases. The first was that his condition had not changed between 2005 and 2010 when he was granted that payment. The second was that s 12 of the Social Security (Administration) Act 1999 (SSA Act)[2] provides that a claim for an income support payment may be deemed to have been made in certain cases in which a person becomes qualified for the new payment while receiving, or immediately after receiving, another type of income support payment. The ARO was not satisfied on either basis. She found that JQCC had not lodged a written claim for DSP until 12 January 2010. He had, however, made an informal claim on 6 January 2010[3] and the payment could be made from that date. The ARO also found that JQCC had not applied for review of the Secretary’s decision dated 5 October 2005 within 13 weeks of that date. As he had not applied until 8 April 2010, any decision, even if favourable, could only take effect from that date. It could not be backdated to 2005.
[2] The SSA Act is an Act to provide for the administration of the social security law, which includes the SS Act: Long Title and s 23.
[3] As JQCC lodged a written claim within 14 days of making informal contact with Centrelink, the effect of s 13(1) of the SSA Act is that he is taken to have made a claim for DSP on the day on which he made informal contact.
The basis on which the SSAT made its decision was that, like the ARO, it could not backdate any decision that it might make in favour of JQCC to a date in 2005. The effect of s 152(4) of the SSA Act is that, if a person applies to the SSAT more than 13 weeks after being given notice of a decision, any favourable decision by the SSAT takes effect from the day the application is made to the SSAT.
Applications for review made in 2014 and 2015
An ARO declined to review the decision to pay JQCC DSP from 6 January 2010 and not from an earlier date as the decision had already been reviewed by another ARO. The SSAT also decided that it did not have jurisdiction to pay JQCC DSP from any date earlier than 6 January 2010. It did so on the basis that it did not have power to revisit the decision made by an earlier SSAT.
At the hearing on 8 April 2014, JQCC submitted that, when his claim was considered in 2010, his entitlement to DSP should have been considered from an earlier date in 2005 when he fulfilled the qualifications to receive that income support payment. The amendments made to s 12 of the SSA Act were not taken into account by the ARO. Those amendments were made by the Social Security Amendment (2007 Measures No. 2) Act 2007 (2007 Amendment Act)[4] with effect from 1 January 2008.[5] They repealed s 12 and replaced it with the following provision:
[4] 2007 Amendment Act; s 3; Schedule 1, Item 47
[5] 2007 Amendment Act; s 2(1); Item 7 and see also transitional provisions in Schedule 1; Item 48
“(1) The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment), if:
(a)the person became qualified for the new payment while receiving another income support payment; or
(b)the person became qualified for the new payment immediately after ceasing to receive another income support payment.
(2)The person is taken to have made the claim for the new payment on the day specified in the Secretary’s determination. That day must not be earlier than:
(a)the day that is 13 weeks before the day on which the Secretary’s determination is made; or
(b)if the person became qualified for the new payment after the day referred to in paragraph (a) – day on which the person became qualified for the new payment.”
Item 48 of Schedule 1 to the 2007 Amendment Act sets out the transitional provisions relating to the application of the new s 12:
“(1) A determination (including a determination on review) made on or after 1 January 2008 under section 12 of the Social Security (Administration) Act 1999 must be made under section 12 as amended, and cannot be made under section 12 as in force before 1 January 2008 (whether or not the determination would relate to a person who became qualified for a payment before that date).
(2)Subitem (1) does not apply in relation to a determination on review if a review of the decision (whether or not the review on which the determination was made) was:
(a)initiated by the Secretary; or
(b)applied for by a person;
before 1 January 2008.
(3)In this item:
determination on review means a determination made on review of a decision in accordance with Part 4 of the Social Security (Administration) Act 1999.”
THE TRIBUNAL’S POWER TO REVIEW A DECISION
Section 25(1)(a) of the AAT Act provides that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred, or that may be conferred, by that enactment. Where an enactment makes provision in that way, it is required to specify the person or persons to whose decision the provision applies.[6] The provision may be expressed to apply to all decisions of the person or persons or to a class of those decisions.[7] It may specify conditions subject to which applications may be made.[8]
[6] AAT Act; s 25(3)(a)
[7] AAT Act; s 25(3)(b)
[8] AAT Act; s 25(3)(c)
Even if an enactment provides that applications may be made to the Tribunal, that is not enough to confer power on the Tribunal to review the decisions in respect of which any applications are made. Its power comes from s 25(4), which provides:
“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
THE TRIBUNAL’S POWER TO REVIEW A DECISION UNDER THE SS ACT
Section 179(1) of the SSA Act provides:
“If:
(a)a decision has been reviewed by the SSAT; and
(b)the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.”
This provision has effect subject to s 29 of the AAT Act.[9] Section 29 provides for the way in which an application is made and the time within which it must be lodged with the Tribunal. The Tribunal does not have power to review a decision unless it has been reviewed by the SSAT.[10]
[9] SSA Act; s 179(3)
[10] SSA Act; s 181
For the purposes of s 179(1):
“… the decision made by the SSAT is taken to be:
(a)where the SSAT affirms a decision – that decision as affirmed; and
(b)where the SSAT varies a decision – that decision as varied; and
(c)where the SSAT sets a decision aside and substitutes a new decision – the new decision; and
(d)where the SSAT sets aside a decision and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT – the directions or recommendations of the SSAT.”[11]
[11] SSA Act; s 179(2)
In the context of this case, that means that the ARO’s decision dated 4 November 2014 that the Secretary did not have jurisdiction to review the decision made on 23 February 2010 is the decision under review in this case.
THE SSAT’S POWER TO REVIEW A DECISION
In this case, it is relevant to understand how a decision made by a delegate of the Secretary may come before the SSAT for its consideration. First, the person affected by that decision must apply for its review under s 129 of the SSA Act. That review is conducted by an ARO. In most cases, including this one, s 135 requires an ARO to review the decision and either affirm the decision, vary it or set it aside and substitute a new decision.
Once an ARO has made a decision under s 135, a person whose interests are affected by that decision may apply to the SSAT for its review. The application is made under s 142 of the SSA Act. The decision that is reviewed by the SSAT is not the ARO’s decision to affirm, vary or set aside and substitute a decision. Rather, it is the operative decision that remains after the review process. Therefore, if the ARO has affirmed the decision made by the delegate of the Secretary, the delegate’s decision is the subject of the review. If the ARO varied the decision or substituted another, it is the decision as varied or the substituted decision that is reviewed.[12]
[12] SSA Act; s 142(4)
That is the effect of s 142(4). When read with s 179(1) that I have set out above, it means that, whether review is conducted by the ARO, the SSAT or the Tribunal, it is always the operative decision that is under review.
CONSIDERATION
The nature of administrative decision-making
The decision made by the Tribunal on review is one of a suite of possible decisions that may be made in the process of coming to a final outcome when a person makes a claim for a social security payment of some form or other. The process was explained by Davies J in Jebb v Repatriation Commission[13] when he said that:
“… the general approach of the tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal’s function as part of that continuum …”.[14]
[13] [1988] FCA 105; (1988) 80 ALR 329; 8 AAR 285
[14] [1988] FCA 105; (1988) 80 ALR 329; 8 AAR 285 at [10]; 333; 289
It is a continuum that encompasses not only the role of the initial or primary decision-maker in making the initial decision but extends through the internal review processes provided for in the agency and to external review in the Tribunal. Supervision of those forming part of the continuum is provided by the courts through the means of appeals on questions of law and judicial review under the Administrative Decisions (Judicial Review) Act 1977 and under s 39B of the Judiciary Act 1903.
A.The general rule
Once each step is taken, the general rule is that it can be taken again. That general rule was explained by Lander J in Johnson v Veterans’ Review Board.[15] His Honour was considering decisions made under the Veterans’ Entitlements Act 1976 (VE Act) in response to claims for pensions. The VE Act sets out a suite of decision-making and review consistent with that in the SSA Act. Lander J said:
“The proceedings before the AAT are quite formal. The AAT is given extensive powers to vary or set aside administrative decisions and its decision will stand in substitution for the decision-maker’s decision. The AAT Act evinces an intention that the AAT will become functus officio on making its decision. That is confirmed by the provisions of s 43AA and the right of appeal which is given to a party from the AAT’s decisions.
There is nothing in the AAT Act from which it may be implied that the AAT has a power to enter into a review of its own decisions....”[16]
[15] [2005] FCA 1136; (2005) 88 ALD 652; 41 AAR 120
[16] [2005] FCA 1136; (2005) 88 ALD 652; 41 AAR 120 at [61]-[62]; 662; 130
If an administrative decision-maker is “functus officio”, a person affected by that decision may appeal to the court on the basis of that error of law. That person may not ask the administrative decision-maker to revisit the decision, either with or without further evidentiary material, and make another. The administrative decision-maker has exhausted its powers and is said to be “functus officio”. Just when a decision-maker has exhausted the decision-making powers will depend upon the statutory provisions under which the decision is made and practical considerations relating to the time at which the decision-maker cannot change his or her mind. Those practical considerations would include the time at which the decision is communicated to the parties to the review. Some were canvassed by the Full Court of the Federal Court recently in Minister for Immigration and Citizenship v SZQOY.[17]
[17] [2012] FCAFC 131;(2012) 206 FCR 25; 294 ALR 84; 132 ALD 1; Buchanan, Logan and Barker JJ
When I apply what I have described as the “general rule”, the outcome is this:
(1)When JQCC lodged a claim for Sickness Allowance on 22 September 2005, an obligation to consider and make a decision on that claim was imposed on the Secretary.
(a)The Secretary’s obligation was not limited to a consideration of whether JQCC was entitled to Sickness Allowance for s 12 permitted the Secretary to treat JQCC as having made a claim for another payment if he was entitled to that payment.
(2)When, on 5 October 2015, a delegate of the Secretary made a decision that JQCC was entitled to be paid NSA with effect from 6 January 2010:
(a)the Secretary’s obligation was fulfilled; and
(b)the Secretary had no further power to make another decision on that claim i.e. he was functus officio.
(3)The only way in which that decision could be changed was by a body that was given power to review the decision:
(a)the SSA Act gives that power first to the SSAT and then to the Tribunal as I have set out above.
(b)A party to a proceeding in the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.[18]
[18] AAT Act; s 44(1)
The outcome is that the power that any person or body had to make any decision at all relating to JQCC’s claim for Sickness Allowance came to an end when, on 7 March 2013, the Tribunal refused to extend the time within which to lodge an application for review of the SSAT’s decision.
B.An exception
B.1Formulation of the exception
There is an exception to the general rule. A statement of that exception can be found in the case of Minister for Immigration and Multicultural Affairs v Bhardwaj.[19] The Immigration Review Tribunal (IRT) had purported to review a decision but, after finding that it had failed to comply with s 360 of the Migration Act 1958 (Migration Act) requiring it to give Mr Bhardwaj an opportunity to appear, give evidence and present arguments, it reviewed the decision again and gave a second decision. When the High Court asked itself whether the IRT could make that second decision, it answered the question in terms of whether the IRT had made a decision at all when it purported to make its first decision. In brief, the High Court decided that the IRT had not made a decision at all as it had made a jurisdictional error.
[19][2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615
The reasoning of Gaudron and Gummow JJ, with whom McHugh J concurred,[20] was:
“… a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. …”[21]
[20] McHugh J’s concurrence was subject to two important qualifications but they do not affect the principles on which the majority based their judgment. Gleeson CJ and Callinan J reached the same conclusion. Gleeson CJ concluded that it was inconsistent with the scheme of the Migration Act to conclude that the IRT could treat a decision as legally ineffective and consider a matter afresh simply because it had been persuaded that it had denied one of the parties procedural fairness. There was, however, more to it than a denial of procedural fairness. What had occurred was an error in fact leading the IRT to fail to conduct a review:
[21] [2002] HCA 11; (2002) 259 CLR 597; 187 ALR 117; 67 ALD 615 at [53]; 616; 129-130; 628
Their Honours reached their conclusion based on the general law but also referred to the Migration Act under which the IRT reviewed certain migration decisions. Their analysis of the Migration Act led them to conclude that:
“… a decision which does not involve jurisdictional error and which is not challenged within 28 days is effective for all purposes notwithstanding that, for the purposes of that Part, it involves reviewable error. There is no like limit with respect to decisions involving jurisdictional error which may be the subject of proceedings in this Court. …”[22]
[22] [2002] HCA 11; (2002) 259 CLR 597; 187 ALR 117; 67 ALD 615 at [50]; 614; 128; 626-627
B.2Rationale of exception
This issue was addressed in Bhardwaj by Gleeson CJ who said:
“ The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires the examination of two questions. Has the Tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or … reconsider the whole matter afresh?”[23]
[23][2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615 at [8]; 603-604; 119; 617-618
The general principles underpinning these judgments is that, if there was no authority to make a decision in the first place, there was no decision and an administrative decision-maker can decide the issue again. That is to be distinguished from those situations in which an administrative decision-maker might have made a decision and made an error of law in doing so but not a jurisdictional error.
B.3What is jurisdictional error?
If the principles identified in Bhardwaj are to permit me to consider JQCC’s claim, I must be able to identify a jurisdictional error in the decision that was made in the decision-making process. What amounts to a “jurisdictional error”? It was discussed by the High Court in Craig v South Australia[24] (Craig):
“…If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”[25]
[24] [1995] HCA 58; (1995) 184 CLR 163; 131 ALR 595; 39 ALD 193; Brennan, Deane, Toohey, Gaudron and McHugh JJ
[25] [1995] HCA 58; (1995) 184 CLR 163; 131 ALR 595; 39 ALD 193 at [82]; 179; 602; 199
What amounts to jurisdictional error was also touched upon by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf[26] (Yusuf):
[26] [2001] HCA 30; (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225
“ It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia,[27] if an administrative tribunal (like the [Refugee Review] tribunal):
... falls into error which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. … Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring the relevant material. …”[28]
38. Their Honours went on to make the point that the exercise of power must be affected in order to find jurisdictional error. They went on to say:
“… What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. …”[29]
[27] (1995) 184 CLR 163 at 179; 131 ALR 596 at 602
[28] [2001] HCA 30; (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225 at [82]; 351; 21-22; 245
[29] [2001] HCA 30; (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225 at [82]; 22; 245
The issue has also been considered in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs.[30] McHugh J explained both when jurisdictional error arises and how to identify when it arises in the following passage from his judgment:
“ Jurisdictional errormay arise where a decision-maker fails to discharge ‘imperative duties’ or to observe ‘inviolable limitations or restraints’ found in the Act. To determine whether a decision under the Act involves a jurisdictional error, it is necessary to take two steps. First, it is necessary to determine the limitations and restraints found in the Act. Secondly, it is necessary to attempt, through statutory construction, to reconcile them with s 474 of the Act to ascertain whether failure to observe any particular procedural or other requirement in the Act constitutes an error which has resulted in the decision-maker failing to exercise or exceeding its jurisdiction.”[31]
[30] [2005] HCA 24; (2005) 228 CLR 294; 83 ALD 545; 79 ALJR 1009; 215 ALR 162
[31] [2005] HCA 24; (2005) 228 CLR 294; 83 ALD 545; 79 ALJR 1009; 215 ALR 162 at [72]; 319; 564; 1024; 181
The reference to s 474 in this passage is a reference to s 474 of the Migration Act. It is a privative clause but does not prevent the judicial review of decisions involving jurisdictional error.
Was a jurisdictional error made?
JQCC submitted that the Secretary and SSAT had not made a jurisdictional error in making their decisions in the current suite of decision-making if it is regarded as limited to the claim he was deemed to have made on 6 January 2010. If, however, the suite of decisions is intended to refer to the claim deemed to have been made on 22 September 2005, JQCC submitted it is affected by jurisdictional error. That jurisdictional error is that the decision-makers, including the SSAT, did not take s 12 of the SSA Act into account.
As I understand JQCC’s submissions, he is arguing that the Secretary should have decided that he was qualified to receive DSP from 22 September 2005. The suite of decisions that have led to his current application have their foundation in a decision made on a claim lodged on 12 January 2010 for DSP. There has been no jurisdictional error in there having been no decision backdating the operative date of that decision before 6 January 2010. That follows from the fact that the SSA Act only permits a decision to be made that a person is qualified for a social security payment on a date earlier than the date on which the claim was made in two situations.
One is the situation in which the claimant has made an informal approach regarding payment and follows it with a formal claim within 14 days.[32] That situation arose when JQCC first approached Centrelink on 6 January 2010 regarding DSP and lodged a formal claim for DSP on 12 January 2010. The delegate’s decision made on 23 February 2010 was to grant JQCC DSP with effect from 6 January 2010 and so from the date of his informal approach to Centrelink.
[32] SSA Act; s 13(1)
The other situation arises under s 12, to which I have referred. The earliest date from which a determination made under that section is 13 weeks before the determination is made. It is not a determination that can itself be deemed to have been made at a date earlier than 13 weeks. That is clear from the words of s 12 and particularly from those in s 12(2)(a) i.e. “… That day must not be earlier than: (a) the day that is 13 weeks before the day on which the Secretary’s determination is made. …”. Even if the Secretary had made that determination on 22 January 2010, the earliest date from which JQCC could have been entitled to payment of DSP was a date in October 2009. It could not have been a date earlier than that and certainly not back to 2005. Even if the Secretary had been satisfied that JQCC met the qualifications for DSP in 2007 when the current version of s 12 was enacted, the Secretary would not have had the power to backdate his entitlement to a date in 2005.
The reason why Parliament has limited the operative effect of s 12 to just three months is explained in the Second Reading Speech given by the then Minister for Workforce Participation:
“ The Bill improves the operation of social security provisions governing a person’s transfer between one income support payment and another. These provisions currently enable a person to be transferred from one payment to another, without the need for a claim form, where the person becomes newly eligible for the other payment and the secretary considers it appropriate to make the transfer. The amendments will further reduce the administrative burden in transferring people from one payment to another, by placing restrictions on the time frame in which a transfer can be made. This will ensure a recipient’s qualification for payment will be assessed in a similar time period as the claim was made. …”[33]
[33] Hansard, House of Representatives, 16 August 2997 at 11
Neither s 12 nor s 13(1) of the SSA Act permitted the Secretary or the SSAT to backdate the grant of DSP to 22 September 2005. There was no jurisdictional error in that regard.
The only other avenue for a jurisdictional error to have been made arises in the application of the provisions relating to qualification for DSP. In 2010 when JQCC lodged his claim for DSP, s 94(1) read:
“(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d)the person has turned 16; and
(e)the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person became an Australian resident while a dependent child of an Australian resident.
…”
Section 94(2) set out the circumstances in which a person had a “continuing inability to work”:
“A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
Note: …”
Except in limited circumstances when the person had turned 55,[34] in deciding whether a person had a continuing inability to work, the Secretary was not permitted to have regard to the availability of work in the person’s locally accessible labour market or to the availability of educational or vocational training or on-the-job training.[35] The term “work” meant:
“work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.”[36]
[34] SS Act; s 94(4)
[35] SS Act; s 94(3)
[36] SS Act; s 94(5).
Section 94A set out a different path that could be taken to qualify for a DSP. In summary, it looked at the situation of a person who was already receiving a social security benefit or a social security entitlement, including NSA.[37] The person had to be a person whom, last time the Secretary considered or reviewed his or her capacity to work, was found to be a person who had a current inability to work because of a physical, intellectual or psychiatric impairment. A person has a “current inability to work because of an impairment” if the Secretary is satisfied that the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support. Two years must pass between the Secretary’s consideration or review of the person’s capacity to work and the next which must be undertaken in connection with the particular social security benefit or entitlement which the person is receiving. If found to have a current inability to work, that current inability to work must be because of an impairment that is 20 points or more under the Impairment Tables.
[37] SS Act; s 23(1)
For several reasons, s 94A could not apply to JQCC’s circumstances. While he met s 94A(1)(a)(i) in that the Secretary had considered or reviewed his capacity to work in connection with a social security benefit or social security payment, being NSA, the Secretary had not been satisfied that he had a current inability to work on the day he determined JQCC’s entitlement to NSA. The only evidence was to the effect that JQCC had capacity to work and it was a capacity that would increase in the short term.
Section 94A(1)(e) requires consideration of when the Secretary reviewed JQCC’s capacity to work. Arguably, before January 2010, the last date on which the Secretary had reviewed his capacity to work was 11 February 2009. That was less than two years before JQCC lodged a claim for DSP and his work capacity again came into issue. Therefore, he could not meet s 94A(1)(e) of the SS Act and so could not satisfy s 94A(1).
If what occurred on 11 February 2009 was not a consideration or review, and arguably it was not, the previous date on which JQCC’s work capacity was considered was 20 September 2006. That was a date that was more than two years before the Secretary looked at JQCC’s work capacity again in January 2010. That meant that s 94A(1)(e) would have been met but it would not have advanced JQCC’s claim to be entitled to DSP under s 94A. It would not have done so for the Secretary’s consideration of JQCC’s work capacity in January 2010 was not in connection with the benefit or entitlement that he was receiving immediately before DSP was considered in January 2010. That benefit was NSA. Therefore, he could not meet the criterion in s 94A(1)(e) of the SS Act and so could not qualify for DSP under s 94A.
As JQCC could not qualify under s 94A, there was no jurisdictional error in its not being considered by those making decisions in connection with his claim lodged on 12 January 2010. Even if he had been qualified, JQCC would not have been found to have been qualified for DSP at a date in 2005. The evidence was that he was not qualified for it at that time. I understand that JQCC disputes the findings made in the Job Capacity Assessments but the time at which he should have aired his dissatisfaction with them passed long before he lodged his first claim for DSP in January 2010. Even if there had been a mistake made by those making those Job Capacity Assessments, that mistake does not infect the decisions connected with JQCC’s claim for DSP on 12 January 2010 or the earlier decisions dating back to October 2005 made in connection with his earlier claim for Sickness Allowance. JQCC’s capacity for work was assessed on the basis of the evidence as the Secretary was required to do and there was no jurisdictional error in the decision-making.
Is the Tribunal functus officio regarding the claim deemed to have been made on 6 January 2010?
JQCC’s application for review traces back to the decision made by a delegate of the Secretary on his claim first made on 6 January 2010. That is the decision reviewed by the ARO and then by the SSAT on 23 January 2015. The Secretary’s decision of 22 January 2010 relating to that claim had, however, already been reviewed by an ARO and by the SSAT. Those decisions led to JQCC’s making, on 1 February 2013, an application to the Tribunal for an extension of time within which to lodge an application for review. That application was refused and, in the absence of any jurisdictional error, it brought to an end JQCC’s rights to have the decision made on his claim lodged with effect from 6 January 2010 reviewed. None of the decision-makers in the suite of decisions from that made on the claim to that made by the SSAT could make a further decision. They were functus officio. As they could not make further decisions, there was no decision that this Tribunal could review.
Did the delegate of the Secretary make a further decision dated 18 March 2014?
JQCC submitted that a delegate of the Secretary made a further decision on the claim deemed to have been made on 6 January 2010 when he was advised that JQCC’s start date of 6 January 2010 was correct. That was not a decision that the Secretary had power to remake on the claim. The context in which the Secretary did have that power was that of examining whether there had been defective administration in managing JQCC’s claim. That examination occurs in the course of considering a claim under the Compensation for Detriment caused by Defective Administration scheme.[38] It is apparent from the papers that Centrelink has been considering such a claim.
Could JQCC’s application for review be regarded as a further application for an extension of time within which to lodge an application for review of the SSAT’s first decision dated 17 March 2011?
[38] The scheme is commonly referred to as the CDDA scheme.
In asking that question, I recognise that one application for an extension of time has already been made and refused by the Tribunal. That raises the question whether a second application could be made but I do not need to answer that question for, even if JQCC can be considered to have made a second application and I have the power to consider it, I would not grant the application.
I have set out the principles relevant in considering an application for an extension of time within which to lodge an application for review most recently in Re Garrett in his capacity as an Authorised Officer etc. and Commissioner of Taxation.[39] I adopt the relevant passages from my decision as part of these. The principles that are particularly relevant in this case relate to the passage of time between the decision of which review is sought and the application and the merits of the application. The time that has passed is in the order of ten years. That is a significant amount of time although JQCC has, if somewhat spasmodically, kept Centrelink aware that he is dissatisfied with the decision made in 2005. The merits of the case turn again on the application of s 12 of the SSA Act. I have already set out my views regarding the application of that provision and concluded that its application cannot achieve the outcome that JQCC seeks i.e. an award of DSP from 22 September 2005.
[39] [2015] AATA 247 at [18]-[24]
I certify that the fifty seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ……[sgd]...........................................
Associate
Date of Hearing 8 April 2015
Date of Decision 8 April 2015
Date of Written Reasons 6 May 2015
Representative for the Applicant Self-represented
Advocate for the Respondent Mr James Henderson
“In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate’s decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.” ([2002] HCA 11; (2002) 259 CLR 597; 187 ALR 117; 67 ALD 615 at [15]; 606; 121; 619)
Hayne J and Callinan J reached the same conclusion on the basis that what had happened:
“… was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise. If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made … review the Minister’s decision. This means that the tribunal must exercise the jurisdiction of reviewing the Minister’s decision …”: ([2002] HCA 11; (2002) 259 CLR 597; 187 ALR 117; 67 ALD 615 at [163]; 649; 156-157; 654-655) and see per Hayne J at ([2002] HCA 11; (2002) 259 CLR 597; 187 ALR 117; 67 ALD 615 at [155]; 647; 155; 653)
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