Kerferd and Secretary, Department of Education, Employment and Workplace Relations

Case •

[2012] AATA 675

•

17 September 2012

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL                 )

)No: 2012/1651

General Administrative Division           )

Re: LOUISE KERFERD

Applicant

And: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

TRIBUNAL:             Deputy President J W Constance

DATE:                      17 September 2012

PLACE:                   Melbourne

DECISION

In accordance with section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), this application is dismissed.

.......................[sgd]...........................

Deputy President

[2012] AATA  675

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/1651

Re

Louise Kerferd

APPLICANT

And

Secretary, Department of Education, Employment and Workplace Relations

RESPONDENT

REASONS FOR DECISION

(EDITED TRANSCRIPT OF REASONS GIVEN ORALLY)

Deputy President J W Constance

  1. This is an application by the respondent for a decision as to whether the Tribunal has jurisdiction to entertain this application.  The application before the Tribunal is to review a decision of the Social Security Appeals Tribunal that was made on 16 April 2012 in which the Social Security Appeals Tribunal decided that it had no jurisdiction to review a decision of the authorised review officer.

  2. It is important to note that this Tribunal only has jurisdiction to review decisions when the enabling legislation gives it that jurisdiction.  It has no power to review decisions generally. 

  3. Section 25 of the Administrative Appeals Tribunal Act 1975 provides:

    (1)  An enactment may provide that applications may be made to the Tribunal:

    (a)  for review of decisions made in the exercise of powers conferred by that enactment; or

    ...

    (3)  Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:

    (a)  shall specify the person or persons to whose decisions the provision applies;

    (b)  may be expressed to apply to all decisions of a person, or to a class of such decisions; and

    …

    (4)  The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

  4. The Tribunal is a creature of statute and is therefore bound by the statute which establishes it.  As counsel for the Secretary points out, and correctly in my view, the power of the Tribunal to review the decision of the Social Security Appeals Tribunal is provided by section 142 of a New Tax System (Family Assistance) (Administration) Act 1999. 

  5. Section 142, subsection (1) 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; 

    the Secretary or a person affected by the decision made by the SSAT may apply to the AAT for review of that decision. 

  6. In this matter, I accept the argument put forward on behalf of the Secretary that the Social Security Appeals Tribunal has neither affirmed, varied, nor set aside the decision of the authorised review officer.  The Tribunal decided that it itself did not have jurisdiction to review the decision.  As the conditions of the jurisdiction of this Tribunal have not been satisfied, that is, that it has not been shown that a decision was reviewed by the Social Security Appeals Tribunal and affirmed, varied, or set aside, it follows that this Tribunal does not have jurisdiction to review the decision which Mrs Kerferd seeks to have it review. 

  7. I note that this decision is in accordance with the decision of the Tribunal in the matter of Mason v Secretary, Department of Families, Housing, Community Services, and Indigenous Affairs, and Hamer, which is reported as [2008] AATA 1105.

  8. The decision of the Tribunal is that it does not have jurisdiction to review the decision sought, and the application is dismissed. 

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

..................[sgd]...............................................

Associate

Dated   4 October 2012

Date(s) of hearing 17 September 2012
Advocate for the Applicant David Kerferd
Advocate for the Respondent Mark Hester, Centrelink Program Litigation and Review Branch
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