Kennedy and Secretary, Department of Education, Employment and Workplace Relations
[2011] AATA 102
•16 February 2011
CATCHWORDS – PRACTICE AND PROCEDURE – extension of time for making an application – all required criteria to be met before application taken to be made.
Re Application of the NEWS CORP LTD (1987) 15 FCR 227
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Tax [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151
Re Eggu and Minister for Minister for Immigration and Citizenship [2010] AATA 1003
Re Gallagher and Minister for Immigration and Citizenship [2011] AATA 10
Re Jackson and Minister for Immigration and Citizenship [2011] AATA 60
Administrative Appeals Tribunal Act 1975 ss 29, 29(1)(a)-(d), 29(2)(a), 29(3), 29(7), 29(11), 29A, 29A(1), 29A(2), 37, 70(1)(2)(a)(i), 70(2)(a)
Administrative Appeals Tribunal Regulations 1976 r 19(1), 19(1)(a), Schedule 1
Amendment of the Administrative Appeals Tribunal Regulations, No146 of 1977
Administrative Appeals Tribunal Regulations (Amendment), No 156 of 1997
Administrative Appeals Tribunal Amendment Bill 1977
Higher Education Support Act 2003 ss 19-85, 79-1, 206-1, 19-50, 209-1(2), 209-5, 212-1
Migration Act 1958 s 501
DECISION AND REASONS FOR DECISION [2011] AATA 102
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2011/0018
GENERAL ADMINISTRATIVE DIVISION )
Re:SARAH KENNEDY
Applicant
And:SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 16 February 2011
Decision:The Tribunal decides:
to extend the time within which the applicant may make an application to the Tribunal for review of a decision of the respondent dated 6 December 2009 to close of business on 19 January 2011.
S A Forgie
Deputy President
REASONS FOR DECISION
I have been asked to make an order granting an extension of time within which Ms Sarah Kennedy may apply to the Tribunal for review of a decision made by an officer of the Associate Director, Student Connections Department of the Victoria University. While I have made the order, I have taken the opportunity to consider whether it is necessary to do so for Ms Kennedy lodged her application on 5 January 2011 and so within the time permitted by s 29 of the Administrative Appeals Tribunal Act 1975 (AAT Act) but did not pay the prescribed fee until 19 January 2011. The matter raises difficult questions, some of which I considered in Re Jackson and Minister for Immigration and Citizenship[1] (Jackson) and Re Eggu and Minister for Immigration and Citizenship.[2] They involve the distinction between the lodgement of an application for review and the making of that application and a certain lack of clarity in the drafting of the extension of time provisions in s 29(7) of the AAT Act. That provision provides for extending the time for making an application to the Tribunal and yet no time is prescribed in s 29 for making an application; only for lodging it.
[1] [2011] AATA 60
[2] [2010] AATA 1003
I am conscious that I am moving away from the conclusion I reached in Jackson[3] in some, but not all, respects. In particular, I am not moving away from the distinction between lodging and filing and the distinction between lodging and making an application. I am not moving away from my conclusions regarding refund of the prescribed fees.
[3] [2011] AATA 60 at [6]
What I have moved away from is my conclusion that I agree with Deputy President Groom in Re Gallagher and Minister for Immigration and Citizenship[4] (Gallagher) that, in the case of an application for review of a decision under s 501 of the Migration Act 1958 (Migration Act) by a person within the migration zone, it is enough that the application was lodged within time even though the prescribed fee was not paid within that time. This matter has led me to look even more closely at s 29(7) of the AAT Act and r 19(1) of the Administrative Appeals Tribunal Regulations 1976 (Regulations) than I did in Jackson.
[4] [2011] AATA 10
Although I would have preferred not to have changed my mind, different cases draw attention to different aspects and one tends to build on another. I have decided that it is better to do that than to try to defend what I now think is an incorrect view of the law. Whatever is ultimately found to be the correct position, I trust that the decisions of both Deputy President Groom and myself add something to the debate.
BACKGROUND
Based on the statement in her application and on the date of the letter, I find that Ms Kennedy received a letter dated 6 December 2010 on 9 December 2010. It advised her that the Associate Director of the Student Connections Department of the Victoria University had decided to confirm an earlier decision refusing to remit Ms Kennedy’s HECS debt or to re-credit her Student Learning Entitlement (SLE). Ms Kennedy lodged her application on 5 January 2011.
Section 70(2)(a) of the AAT Act provides that the regulations “… may make provision … prescribing fees to be payable in respect of applications to the Tribunal”.[5] Regulation 19(1)(a) provides that an application fee of $777 “… is payable for lodging with the Tribunal … an application for review of a decision …” of the sort made in this matter. In the circumstances set out in r 19(6A), the Registrar, District Registrar or a Deputy Registrar “… may order that a fee of $100 is payable instead of the application fee.” Both come within the description of a prescribed fee and I will use that term in these reasons.
[5] AAT Act, s 70(1)(2)(a)(i)
Ms Kennedy did not pay a prescribed fee when she lodged her application. A Case Service Officer in the Registry wrote to her on 6 January 2011 advising her of the two fees. Before giving her a telephone number should she wish to contact the Tribunal, the letter advised her:
“Please note that your application to the AAT is not valid until you have paid a fee. You should do this before the time limit for lodging your application runs out. In your case, the time limit is 28 days after you received the decision you want reviewed. If you pay the fee after the time limit runs out, you will need to apply to extend the time for lodging your application.
If we do not hear from you within 14 days, the AAT will assume that you do not want to continue with your application.” (emphasis added)
The letter followed precisely the wording of the standardised or pro forma letter uploaded on the Tribunal’s computerised case management system for use in these circumstances.
On 14 January 2011, Ms Kennedy lodged a form asking that she pay a fee of $100 instead of the application fee. The District Registrar decided to order that she pay that fee instead of the application fee and advised her of her decision in a letter of the same date. After telling Ms Kennedy how she could pay the fee, the District Registrar wrote:
“Please note that your application to the AAT is not valid until you have paid a fee. In your case, the time limit is 28 days after you received the decision you want reviewed. As the time limit has run out, you will need to apply to extend the time for lodging your application. Enclosed is an application for an extension of time. Please complete and return the enclosed application with your filing fee.” (emphasis added)
Again, the wording of the letter followed precisely the wording of the standardised or pro forma letter uploaded on the Tribunal’s computerised case management system for use in the circumstances.
On 20 January 2011, a Case Service Officer wrote again to Ms Kennedy enclosing a further form on which to apply for an extension of time. She gave further information as to how Ms Kennedy’s application for an extension of time would be dealt with were she to lodge it.
Ms Kennedy lodged an application for an extension of time on 21 January 2011. A copy of her application was sent to the Secretary of the Department of Education, Employment and Workplace Relations (Secretary) asking whether her application would be opposed. On 3 February, a notice was lodged on behalf of the Secretary advising that she does not oppose the application for an extension of time.
LODGING, FILING AND MAKING AN APPLICATION
In Jackson, I set out the differences between lodging, filing and making an application. I adopt my analysis and reasons for it in this case as if they were incorporated into and reproduced in these reasons.
I remain of the view that a party lodges an application when he or she sends it to the Tribunal’s Registry and it is received. Lodgement is the act of a person other than a member of the Tribunal or an officer in its Registry. Making an application is not an act of the person lodging the application. It is a consequence of the filing fee’s having been paid and the application’s meeting all of the criteria required of it by s 29 of the AAT Act.[6] Filing an application is the act of a person within the Tribunal and not the act of a person outside the Tribunal. It occurs once the application has been made.
[6] The enactment providing that an application may be made to the Tribunal for review of the particular decision of which review is sought may prescribe additional criteria that an application must meet: AAT Act, s 25(3)(c). An application is not made until any additional criteria are also met.
APPLYING FOR REVIEW OF A REVIEWABLE DECISION REGARDING AN SLE
Under the Higher Education Support Act 2003 (HES Act), a higher education provider must charge student contribution amounts and tuition fees for each unit of study in which it enrols students.[7] Chapter 3 of that legislation provides for three kinds of assistance for students. They are set out in Chapter 3 and, in most cases, take the form of a loan to a student. In order to have access to any of those three kinds, a student must have an SLE. Each student must have sufficient SLE to cover the units of study in which he or she enrols. In broad terms, each student begins with SLE equivalent to seven years of full-time study. As the student undertakes those units, his or her SLE is reduced.
[7] HES Act, s 19-85
Part 3-1 regulates SLE. Section 79-1 provides that a higher education provider must, on the Secretary’s behalf, re-credit a person’s SLE in certain circumstances. Victoria University is that higher education provider. Its decision is a reviewable decision under item 1 of s 206-1 of the HES Act. The reviewable decision in this case was made by a delegate of the Victoria University.[8] The review of that reviewable decision was conducted by another delegate of the Victoria University who stated that she met the requirements of s 209-1(2) of the HES Act. She confirmed the decision under s 209-5. Section 212-1 provides that an application may be made to the Tribunal for review of a reviewable decision confirmed under s 209-5. The HES Act does not vary the provisions of the AAT Act in any way.
[8] Section 19-50 of the HES Act provides for a review officer of a higher education provider to be either its chief executive officer or a delegate of that officer.
CRITERIA TO BE MET BY AN APPLICATION FOR REVIEW
As I have said, an application must meet all of the criteria set out in s 29(1) of the AAT Act and in the enactment providing that the application may be made to the Tribunal. Among the criteria that it must meet are that the application be in writing[9] and, if the decision was recorded in writing, that it be “lodged within the prescribed time.”[10] In the case of the HES Act, the prescribed time is 28 days from the day on which a document setting out the terms of the decision is given to the applicant.[11]
[9] AAT Act, s 29(1)(a)
[10] AAT Act, s 29(1)(d)
[11] AAT Act, s 29(2)(a)
There is a further criterion. It is contemplated in s 70(2)(a) of the AAT Act and provided for in the Regulations. Subject to qualifications that are not relevant in this matter, r 19(1) provides that an application fee “… is payable for lodging with the Tribunal of … an application for review of a decision …”. Regulation 19(6A) provides that “a fee of $100 is payable instead of the application fee”. No reference is made to its being “… payable for lodging with the Tribunal of … an application for review of a decision …” but that qualification must be implicitly understood. It is, after all, a fee “instead of the application fee” and so must be payable in respect of the same thing i.e. “… for lodging with the Tribunal of … an application for review of a decision …”.
No time is expressly prescribed for the payment of a prescribed fee but the fact that it is “… for lodging with the Tribunal of … an application for review of a decision …”, suggests to me that its payment is required as a precondition of lodgement. To do so seems to me to be within the regulation making power conferred by s 70(1).
That takes me back to s 29A of the AAT Act which refers to the payment of prescribed fees and the consequences of their payment and non-payment. If a prescribed fee is payable, the effect of s 29A(1) is that an application is not taken to be made unless it has been paid. Where the fee has been waived and so is not payable, lodgement and the making of the application are taken to occur at the same time. That is the effect of s 29A(2) but will have increasingly diminishing effect as time passes if, as I concluded in Jackson, for there is no longer power to waive a prescribed fee.[12]
[12] [2011] AATA 60 at [11]-[12] and [43]
Section 29(7) of the AAT Act provides that:
“The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”
Although s 29(7) uses the language of the “making … of an application”. It does not use the language of lodgement even though the time limits in ss 29(1)(d), (2) and (3) are expressed in terms of lodgement of an application. The Administrative Appeals Tribunal Amendment Bill 1977 (1977 Bill) repealed and substituted s 29.[13] Apart from the addition of the final words that I have shown in bold in setting out s 29(7) in the previous paragraph, it remains in the form in which it was enacted in 1977. The words in bold add nothing to the matter I must consider.
[13] Act No 58 of 1977, s 18
I am mindful that Bowen CJ said in Re Application of the NEWS CORP LTD[14] that:
“...In the end the task of the court is to ascertain and to enforce the actual commands of the legislature: Scott v Cawsey ... [(1907) [1907] HCA 80; 5 CLR 132] at 155. This will best be achieved by studying the words used and the context and the purpose or object underlying the Act.”[15]
[14] (1987) 15 FCR 227; Bowen CJ, Lockhart and Beaumont JJ
[15] (1987) 15 FCR 227 at 236
I am also mindful that Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Tax:[16]
“... The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.”[17]
Brennan CJ, Dawson, Toohey and Gummow JJ discussed legitimate aids to construction in CIC Insurance Ltd v Bankstown Football Club Ltd:[18]
“ It is well settled that at common law, apart from any reliance upon
s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure …. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy …. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent…”[19]
[16] [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151
[17] [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151 at 320, 169-170
[18] (1997) 187 CLR 384; 141 ALR 618
[19] (1997) 187 CLR 384; 141 ALR 618 at 408; 634-5 (footnotes omitted) per Brennan CJ, Dawson, Toohey and Gummow JJ, and see also Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317 at 25-26; 335-6 per Mason J; TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496 at 507-508; and Alexandra Private Geriatric Hospital v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375-6; 271-2 per Woodward J)
A legitimate aid to identifying the context, purpose or object of the 1977 Bill is to look to the Explanatory Memorandum but I have searched for it without success. The Second Reading Speech given by the then Attorney-General, Mr Ellicott, is also a legitimate aid. It does not specifically canvass the amendments made to s 29. At the conclusion of his speech, the Attorney-General said:
“ The remaining provisions of the Bill relate to procedures in proceedings before the Tribunal. They are designed to simplify procedures and to facilitate the hearing of appeals by the Tribunal. Finally I should mention that the Bill has been very carefully considered by the Administrative Review Council which was appointed late last year. The Council endorses the changes proposed to be made to the structure of the Tribunal and to the procedures before the Tribunal. …”[20]
[20] Hansard, House of Representatives, 28 April 1977, 1394
In view of his reference to it, I have looked also at the letter written by the Administrative Review Council (ARC) to the Attorney-General after he had submitted the 1977 Bill to it for its consideration. It is a law reform body of the sort referred to in CIC Insurance Ltd v Bankstown Football Club Ltd above. The views it conveyed to the Attorney-General are summarised in its First Annual Report dated 1977. With regard to extension of time:
“The Council also recommended that the Tribunal should have the power to extend the time for applying for review by the Tribunal whether the period specified has expired or not. …”.[21]
It does not assist me.
[21] ARC First Annual Report 1977 at [47]
When I look to the words of s 29(7) and its place in s 29 generally, it seems to me that Parliament was consciously drawing a distinction between the lodgement of an application and its being made. While an “application to the Tribunal for review of a decision” had to be lodged with the Tribunal within the prescribed time, such an application was not made to the Tribunal for review of a decision unless it met, at the time it was enacted, all four criteria set out in s 29(1) i.e. criteria relating to form,[22] substance[23] and timing.[24] If it did not meet the criteria relating to form and substance, the fact that it met the criterion of timing would not mean that an application had been made. If it met the criteria relating to form and substance, the fact that it did not meet the criterion of timing would mean that an application had not been made. A would be applicant had to apply for an extension of “… the time for the making by that person of an application to the Tribunal for a review of a decision …”. Had Parliament intended only that the Tribunal had power to extend the time within which the application could be extended, it could have simply said that it had power to “… extend the time for the [lodgement] by that person of an application to the Tribunal for a review of a decision …”. It did not. By choosing to confer power to the Tribunal to extend the time for making an application, it seems to me that Parliament intended that an application that met the criteria of form and substance be lodged within the prescribed time.
[22] In writing and in accordance with the prescribed form: AAT Act, ss 29(1)(a) and (b)
[23] Containing a statement of reasons and the like: AAT Act, ss 29(1)(c), (ca) and (cb)
[24] Lodged within the prescribed time: AAT Act, s 29(1)(d)
When prescribed fees were imposed on the lodgement of an application, I think that they simply became the fourth criterion that an application had to meet; form, substance, timing and payment. Regulation 19 expressly states that the prescribed fee “… is payable for lodging with the Tribunal … an application for review of a decision …”. Payment became either a pre-condition to lodgement or must occur simultaneously with it. Either way, it became the fourth criterion that had to be met before the application was made and before the Tribunal could deal with it. If it has not been paid before the prescribed time for lodgement of the application, the application has not been made in time and an application must be made to the Tribunal for an extension of the prescribed time as contemplated by s 29(7). Where no extension of time is permitted, the result is that the application has been lodged but not made and the Tribunal has no jurisdiction to consider it. Section 29A is entirely consistent with this interpretation.
Once the application for review has been made, the next logical step is for the Tribunal to tell the decision-maker of it. A requirement of that sort was found in s 29(2) of the AAT Act when it was first enacted. It followed upon s 29(1), which set out how a decision was made in substantially less detail than is currently the case. The requirement to notify is still found in the final subsection of 29 but it is now numbered s 29(11) and now reads:
“The Registrar, a District Registrar or a Deputy Registrar shall cause notice in writing of an application for a review of a decision, in accordance with the prescribed form, to be given to the person who made the decision.”
The reference to “an application for review of a decision” must be a reference to an application for review that has been made (rather than simply lodged) and in respect of which the Tribunal is obliged to act. It must be so for the notice that the decision-maker is given under s 29(11) triggers an obligation to lodge a statement of reasons and relevant documents under s 37.
I have set out the Registry’s letters to Ms Kennedy and highlighted their use of the word “valid”. I know that we are all meant to use plain English but plain English is not always appropriate. The Tribunal works in a world of statutory interpretation and I respectfully suggest that it is best to keep as close as possible to the words of the AAT Act.
The letters refer to the application’s not being “valid”. It would be better to refer to its not having been made until the fee is paid and to the Tribunal’s not being able to act upon it until she did. The first letter signed by the District Registrar properly encouraged Ms Kennedy to pay the fee before the time limit for lodging her application ran out. By the time the District Registrar wrote her second letter and the Case Service Officer wrote her first, the time for lodgement had run out. Reference was made in both the later letters to the need for Ms Wilkinson to apply to extend the time for lodging her application. Both should have referred to her applying for an extension of time for making her application. As I said earlier, the letters they sent are standard or pro forma letters that have been settled by others. Any errors in their drafting are not of their making and I do not wish to be thought to be criticising them in any way at all.
THE APPLICATION FOR AN EXTENSION OF TIME
I have considered Ms Kennedy’s application for an extension of the time within which she may make an application.[25] It is an application that the Secretary does not oppose. I am satisfied from the course of correspondence that Ms Kennedy did not rest on her rights. There was some delay over the payment of the fee but not to any extent that is out of the ordinary. It was always clear that she wanted to pursue her application and the Secretary has not been disadvantaged. Therefore, I have decided to extend the time within which she may make an application to the Tribunal for review of the decision made on 6 December 2010 on behalf of the Secretary to and including 19 January 2011. I have chosen 19 January 2011 as that was the day on which Ms Kennedy paid the prescribed fee and so, having regard to my order for an extension of time, the first day on which her application met all of the criteria required under the AAT Act and Regulations.
[25] I note that the form prescribed in Form 2 in Schedule 1 to the Regulations refers on two occasions to its being an application to extend time for lodgement of an application but the Note near its being draws attention to the fact that “Subsection 29(7) of the Act provides that the tribunal may extend the time for the making of an application for review of a decision.” Form 3, which is a “Notice of opposing an application for extension of time for lodging application for review of decision” is drafted consistently with Form 2. Both forms were inserted by the Administrative Appeals Tribunal Regulations (Amendment), No. 156 of 1997. Their predecessors, inserted by the Amendment of the Administrative Appeals Tribunal Regulations, No. 146 of 1977 were each drafted in terms of extending the time for making an application. The only exception was the heading of Form 2. The general rule is that the general rule that regulations may not be taken into account in interpreting an Act: See generallyStatutory Interpretation in Australia, DC Pearce and RS Geddes, 5th edition, 2004, Butterworths at [2.27]-[2.31] at [3.41]. In view of the clear provisions made in the AAT Act and in the body of the Regulations, I see no need to depart from that general rule.
I certify that the thirty one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Leah Berardi, Associate
Extension of time application 21 January 2011
Date of Decision 16 February 2011
ApplicantMs Sarah Kennedy
Solicitor for the Respondent Ms Andrea Olsen
Secretary, Department of Education, Employment and Workplace Relations
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