Klewer and Minister for Health and Ageing

[2002] AATA 930

DECISION AND REASONS FOR DECISION [2002] AATA 930

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1212

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      LUCY KLEWER     
  Applicant
           And    MINISTER FOR HEALTH AND AGEING         
  Respondent

DECISION

Tribunal       Mr M J Sassella, Senior Member

Date16 October 2002

PlaceSydney

Decision      The tribunal has no jurisdiction in this matter.   
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
JURISDICTION – Financial Assistance to Australian Residents Requiring Life Saving Medical Treatment Overseas – decision refused assistance – whether tribunal has jurisdiction to review decision – tribunal lacks jurisdiction

Administrative Appeals Tribunal Act 1975 s 25(1), (4)
National Health Act 1953 s 105AB
Health Insurance Act 1973

REASONS FOR DECISION

16 October 2002     Mr M J Sassella, Senior Member            

THE APPLICATION

1. Ms Lucy Klewer ("the applicant") is seeling a review by the Administrative Appeals Tribunal ("the tribunal") of a decision of a delegate of the Minister for Health and Ageing ("the respondent") dated 6 August 2001 which refused the applicant's claim for a financial assistance under a scheme known as the "Financial Assistance to Australian Residents Requiring Life Saving Medical Treatment Overseas" ("the scheme").  The application for review was lodged with the tribunal on 20 August 2002.

2. On 13 September 2002 a representative of the respondent wrote to the tribunal submitting that the tribunal has no jurisdiction to entertain this application.
   THE HEARING

3. The tribunal convened a hearing by telephone on 15 October 2002 to hear submissions and make a decision on jurisdiction.  Ms Klewer represented herself.  Mr Edwin Stone of the Department of Health and Ageing represented the respondent.
   RESPONDENT'S SUBMISSIONS

4. In its letter dated 13 September 2002 the respondent cited as reasons for a lack of jurisdiction in the tribunal:

   (a)The tribunal, in accordance with s 25(1) and (4) of the Administrative Appeals Tribunal Act 1975 ("the Act") may review a decision in respect of which application has been made to it under an enactment.  There must be an Act of Parliament, or ca regulation, that confers on the tribunal jurisdiction to hear applications in respect of all or certain decisions made under that Act of Parliament or regulation.

   (b)The scheme was established by Cabinet in decision in 1995.  The scheme is not established under an Act of Parliament or a regulation.

   (c)There is no Act of Parliament or regulation conferring on the tribunal jurisdiction to accept applications for review of decisions made under the scheme.

APPLICANT'S SUBMISSIONS

1. Ms Klewer submitted that there must be a legal avenue for review of the adverse decision made under the scheme and affecting her.  She had discussed the matter with a lawyer and the Federal Court and there appeared a consensus that she would do best to approach the tribunal.  She had complained to the Commonwealth Ombudsman and the Ombudsman had closed the file in April 2002.  Ms Klewer was not satisfied with the outcome of the Ombudsman's investigation.

2. Ms Klewer suggested that s 105AB of the National Health Act 1953 or an undefined provision in the Health Insurance Act 1973 ought to provide the tribunal with jurisdiction. The tribunal went through the provisions of s 105AB during the hearing with the parties and it was agreed by all that none of the subsections of that section referred to decisions under the scheme. The tribunal has considered the Heath Insurance Act itself and is satisfied that none of the provisions in that Act touch or concern decisions made under the scheme.
   CONCLUSION

3. The tribunal finds that it lacks jurisdiction to review decisions made under the scheme.  There is no Act of Parliament or any subordinate legislation conferring such jurisdiction on the tribunal.  The tribunal would add that it would be unusual if the position were otherwise given that the scheme is non-statutory.  The very absence of a statute relating to the scheme would provide a hurdle in the event that policy was developed to make decisions under the scheme reviewable.
   DECISION

4. The tribunal has no jurisdiction in this matter.

   I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

   Signed:         .....................................................................................
     Associate

   Date of hearing  15 October 2002
   Date of decision  16 October 2002
   Advocate for the applicant       Self-represented

   Advocate for the respondent    Mr Edwin Stone, Department of Health and Ageing