KRBG and National Disability Insurance Agency
[2019] AATA 144
•11 February 2019
KRBG and National Disability Insurance Agency [2019] AATA 144 (11 February 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Numbers: 2018/7192
Re:KRBG
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 11 February 2019
Place:Melbourne
The Tribunal decides that, as it does not have the jurisdiction to consider the application for review, that application is dismissed.
[sgd].....................................................................
Deputy President S A Forgie
PRACTICE AND PROCEDURE – JURISDICTION – application for review of a decision to approve a Statement of Participant Supports – where request made for internal review of decision – where no decision made within reasonable time –decision deemed to be made not substantive decision – no jurisdiction to review decisions of which review sought – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975
Customs Act 1901
Freedom of Information Act 1982
Migration Act 1958
National Disability Insurance Scheme Act 2013
Tribunals Amalgamation Act 2015
Cases
Bienstein v Attorney General [2009] FCA 1501
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1
Kim v Minister for Immigration [2008] FCAFC 73; (2008) 167 FCR 578; 248 ALR 51
McLeish v Faure [1979] FCA 38; (1979) 40 FLR 462
MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25
R v Moodie; Ex parte Mithen (1977) 17 ALR 219
Re FJKH and National Disability Insurance Agency [2018] AATA 1294
Re Judith Adella Cooney and Repatriation Commission [1991] AATA 143; 23 ALD 431
Re Newbridge Civil Pty Ltd and Comptroller-General of Customs [2016] AATA 81
Re Raymond Lyle Wells and Repatriation Commission [1986] AATA 257
Re Simpson and National Disability Insurance Agency [2018] AATA 1326
Re Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services [2018] AATA 3865
Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554
Schulz v Medical Board of Queensland [2001] FCA 1771
Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495
REASONS FOR DECISION
Deputy President S A Forgie
KRBG has been accepted as a participant in the National Disability Insurance Scheme (NDIS). On 27 March 2018, the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) approved a plan for KRBG under the National Disability Insurance Act 2013 (NDIS Act). That plan included a Statement of Participant’s Supports but KRBG was not satisfied with it. Therefore, as he was entitled to do, he sought review of the Statement of Participant’s Supports. He requested an internal review of the decision on 26 April 2018. By December 2018, KRBG had not received a decision from the reviewer. He applied for review of a decision on the basis that, in the absence of a decision by a reviewer under s 100(6) of the NDIS Act, a decision confirming the original decision to make the Statement of Participant Supports had been deemed to have been made by virtue of s 25(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The decision that he said had been deemed to have been made was a decision confirming the decision to make a Statement of Participant Supports.
The parties agreed that the deemed decision was reviewable but the Tribunal’s jurisdiction cannot be determined by agreement.[1] I have looked separately at the issue and have decided that, when s 100(6) of the NDIS Act and s 25(5) of the AAT Act are read together, they do not lead to a deemed decision that the Tribunal can review. The practical resolution of the matter was achieved by the NDIA’s undertaking to have a reviewer review the Statement of Participant’s Supports immediately. When he received the decision, KRBG would then need to lodge a new application for review in the Tribunal.
[1] In the context of a court, “It is trite law that parties, by consent, cannot confer jurisdiction upon the court.”: McLeish v Faure [1979] FCA 38; (1979) 40 FLR 462 at [9]; 467; JB Sweeney, Evatt and Northrop JJ. It is no different in the Tribunal: R v Moodie; Ex parte Mithen (1977) 17 ALR 219 at 225; Stephen, Murphy and Aickin JJ.
Administrative Appeals Tribunal Act 1975: review of decisions made by decision-maker
The Tribunal does not have an unlimited power to review the merits of an administrative decision made by a Commonwealth agency or decision-maker. Putting aside deemed decisions for the moment,[2] the Tribunal’s power is limited to those decisions in respect of which a person affected by a particular decision is entitled under an enactment to make an application to the Tribunal for its review. This follows from the fact that provision is made in s 25(1) of the AAT Act that 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
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”
Given that the Tribunal is given powers in relation to applications made to it and in relation to the review of decisions as well as authority to determine the scope of review of a decision under s 25(4A), it must be implied that the Tribunal is given jurisdiction to consider those applications and review the decisions.[3]
[2] See [17]-[24] below
[3] Before its repeal by the Tribunals Amalgamation Act 2015; s 3 and Schedule 1, Item 40, s 25(4) expressly stated that this was so: “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
The courts have not read s 25(1) as limited to those decisions that have been validly made in the exercise of powers conferred by that enactment. As Bowen CJ said in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[4] (Brian Lawlor):
“… an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.”[5]
[4] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1; Bowen CJ and Smithers J; Deane J dissenting
[5] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 317; 346; 7
In his judgment, Smithers J agreed saying:
“… it is my view that the fact that a decision is made by an administrator to take action which he has no power to take in a legally effective way does not exclude that decision from review by the Tribunal.
But to be a reviewable such a decision must satisfy the criterion that it may properly be described as a decision made in the exercise of powers conferred by the relevant enactment … “[6]
[6] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 337; 370; 25
His Honour’s reference to the proper description of the decision is a reference to the words of s 25(1). An enactment may provide that applications may be made to the Tribunal “for review of decisions, made in the exercise of powers conferred by the relevant enactment” (emphasis added). The exercise may be actual or may be purported and may be a lawful or an imperfect, or perhaps unlawful, exercise of the power that has been conferred. The power exercised may be expressly given by the enactment or may be implied.
The rationale for this approach was explained by Bowen CJ in Brian Lawlor. It is a practical one, as Bowen CJ explained:
“… It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the [AAT] Act is designed to give a simple remedy in all such cases. …”[7]
[7] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 314; 343; 5 Many other cases have adopted and applied the same approach e.g. Kim v Minister for Immigration [2008] FCAFC 73; (2008) 167 FCR 578; 248 ALR 51 at [21]; 583; 56 per Tamberling and Besanko JJ
Another rationale is apparent from the dissenting judgment of Deane J in the same case. It is based on the legal principle that applies in the Commonwealth, unlike the Australian States, that there is a separation between judicial and administrative power. Courts exercise the former and bodies such as the Tribunal exercise the latter:
“ An administrative tribunal will ordinarily have no authority to transcend the limits of the jurisdiction conferred upon it by hearing an application aimed not at invoking the jurisdiction which it possesses, but at securing an authoritative determination of questions of fact or law anterior to the existence of that jurisdiction. The provisions of the Act do not purport to confer any such authority upon the Administrative Appeals Tribunal. If they did, a serious question would arise as to whether, to that extent, they purported to confer part of the judicial power of the Commonwealth upon an administrative body which was not a court for the purposes of Ch III of the Constitution.”[8]
[8] [1979] FCA 21; (1979) 24 ALR 307 at 343-344. There may be exceptions as mentioned by Weinberg J in Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554: “The AAT is able to decide questions of law arising in proceedings before it - Administrative Appeals Tribunal Act 1975 (Cth), s 42. Accordingly, if the AAT thinks it necessary to consider, as part of the process of reconsideration of the first and second sanctions decisions, the validity of the 1998 and 1999 Principles, it may do so. Although it cannot exercise judicial power, and may not be entitled to grant the declaratory relief which is specifically sought in the proceeding before this Court, the AAT can arrive at a conclusion as to whether or not the steps preceding the making of the sanctions decisions were lawful, and whether or not various provisions of the Act were contravened - Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 245 per Brennan J. The AAT is entitled to treat delegated legislation as invalid where it is satisfied, on proper grounds, that this is so - Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; and Re Jonsson and Marine Council [No. 2] [1990] AATA 192; (1990) 12 AAR 323 at 335-341.”: Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554 at [103]; 575
The point made by Deane J is an important one and particularly so in this case. While it is important to understand the nature of merits review undertaken by the Tribunal, it is also important to understand that the Tribunal cannot undertake merits review when it has no authority to do so. It is its authority to undertake merits review, and not the nature of merits review, that is at the heart of this case.
If, for example, the decision of which an applicant seeks review is not a decision of the sort which Parliament has provided by enactment, either expressly or by necessary implication, that applications may be to the Tribunal for its review, the Tribunal does not have jurisdiction to review that decision. It cannot take to itself what Parliament has not given it. That situation may arise if the enactment provides that the Tribunal may review a decision made after an original decision made in an agency has been internally reviewed and a decision made. Even if the original decision is made within power, the Tribunal has no jurisdiction to review it because the relevant legislation has provided that an application may only be made to it for review of a decision made on internal review or after a decision has been internally reviewed. The situation may arise if the enactment simply does not provide for review either of the specific type of decision made in the exercise of powers conferred by it or at all.
Another example arises when the exercise of power by a decision-maker is not affected by any error but there is a deficiency in the conditions that must exist for the exercise of that power. That situation arose in the case of Yilmaz v Minister for Immigration and Multicultural Affairs,[9] in which a delegate of the Minister had decided an application for a protection visa on its merits. The Migration Act 1958 required the applicant for a protection visa to comply with certain criteria but he had not done so. In light of the statutory regime, the application was not a valid application. It was, as Spender J said, “inchoate” and, under s 47(3), a delegate of the Minister had a duty not to consider it.[10] When an application for review of that decision was made to the Refugee Review Tribunal (RRT), that tribunal could not ignore statutory constraints. It could not make a valid decision that is not authorised by the Migration Act or regulations made under it.[11] As it was, the defect in the application was modified after the delegate’s decision and before the RRT reviewed it. Perfection of the application before the RRT reviewed it was permitted so that the RRT had jurisdiction.[12]
[9] [2000] FCA 906; (2000) 100 FCR 495; Spender and Gyles JJ; Marshall J dissenting
[10] Yilmaz v Minister for Immigration [2000] FCA 906; (2000) 100 FCR 495 at [19]; 499 per Spender J
[11] [2000] FCA 906; (2000) 100 FCR 495 at [93]; 516 per Gyles J
[12] [2000] FCA 906; (2000) 100 FCR 495 at [93]; 516 per Gyles J and see also MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25; Kenny, Tracey, Buchanan, Robertson and Mortimer JJ, which held that substantive compliance was sufficient.
I have given but a handful of examples relating to the Tribunal’s jurisdiction. I do so because they show the care that must be taken to consider each enactment that provides that an application may be made to the Tribunal for review of decisions made in the exercise of powers conferred under that enactment. The case of Brian Lawlor does not express a universal principle that will necessarily overcome all shortcomings in the decision-making process before an application is made to the Tribunal so that it has jurisdiction. Care must be taken to read the relevant provision in its context and to have careful regard to the factual matrix. Indeed, I think that it is inescapable.
For these reasons, I would respectfully disagree with the conclusion reached by Deputy President McCabe and Dr Bygrave, Member, in Re Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services[13] when they said:
“ There is a danger of over-thinking some of the jurisprudence on jurisdictional error. The provisions of the AAT Act (read in light of the decisions in Brian Lawlor) point the way to dealing with defective decisions by original decision-makers. The fact the Tribunal is independent of the agencies whose decisions it reviews does not change the fact the Tribunal remains part of the executive. The Tribunal’s decision-making processes are incorporated by operation of law into the executive decision-making process that it reviews. If there is a problem – even a fundamental problem – encountered during the course of the original decision-making process, the Tribunal can set things to right.”[14]
Unfortunately, the Tribunal cannot “set things to right” if the relevant legislation does not allow it to do so.
[13] [2018] AATA 3865
[14] [2018] AATA 3865 at [26]
The NDIS Act
The second thing to do is to look to the relevant provisions of the NDIS Act under which the decision dated 27 March 2018 approving KRBG’s plan was made and under which review of the Statement of Supports included in that plan was sought. Section 33(1) provides that a participant’s plan must include a Participant’s Statement of Goals and Aspirations and s 33(2) that it must include a Statement of Participant Supports. A Statement of Participant Supports must not only be prepared with the participant but be approved by the Chief Executive Officer (CEO) of the NDIA. It specifies:
“(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.”
Sections 33(4) provides that:
“The CEO must endeavour to decide whether or not to approve the statement of participant supports as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports).”[15]
[15] The NDIS Act makes no provision for deeming the CEO to have made a decision if there is a failure to approve a Statement of Participant Supports as soon as reasonably practicable.
The CEO’s decision was made in this case and it was a “reviewable decision” within the meaning of Item 4 of s 99(1) of the NDIS Act.[16] Consequently and under s 100(2), KRBG could request the CEO to review that reviewable decision. He did that and the CEO was then obliged to cause the reviewable decision to be reviewed by a person to whom the CEO had delegated his powers and functions under s 100 and who was not involved in making the reviewable decision.[17] The delegate is known as the “reviewer” and, under s 100(6):
“The reviewer must, as soon as reasonably practicable, make a decision:
(a)confirming the reviewable decision; or
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and substituting a new decision.”
Administrative Appeals Tribunal Act 1975: review of decisions deemed to have been made by decision-maker
[16] See also definition of “reviewable decision”; NDIS Act; s 9
[17] NDIS Act; s 100(5)
The preceding paragraphs set the background for the review of a deemed decision, for the provisions relating to the review of deemed decisions are dependent upon there being an enactment that makes provision in accordance with s 25 of the AAT Act for making applications to the Tribunal for review of such decisions. Section 25(5) provides:
“For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.”[18]
[18] See also AAT Act; s 25(5A) regarding failure to do an act or thing as prescribed by a Norfolk Island enactment.
A review of the authorities shows that care must be taken to ensure that each of the two criteria specified in s 25(5) must be met before it will come into effect. The first is that the enactment which makes provision for the making of applications to the Tribunal for review of decisions also provides that an act or thing must be done.[19] If there is an obligation, the second criterion that must be fulfilled is that the enactment (or another having effect under that enactment) prescribes a period within which that act or thing is required or permitted to be done.[20]
[19] See, for example, Schulz v Medical Board of Queensland[2001] FCA 1771 at [12]-[13] per Kiefel J
[20] In Re Raymond Lyle Wells and Repatriation Commission [1986] AATA 257 at [8], Deputy President Thompson would seem to have overlooked this requirement when concluding that “… I have no doubt that the effect of section 25(5) of the AAT Act is to require that, unless the [Veterans’ Review] Board had no power to review the Commission's decision as to the date of the increase, its failure to exercise its power of review is to be deemed to be a decision by it to affirm the Commission's decision. The issue is, therefore, whether it had power to review it or not.” Five years later, Deputy President Thompson was less certain when he decided Re Judith Adella Cooney and Repatriation Commission [1991] AATA 143; 23 ALD 431. He first accepted that s 25(5) of the AAT Act could be relied on to deem the Veterans’ Review Board to have affirmed a decision that it was reviewing when it had not considered the rate of pension payable in a particular period. He also acknowledged the submission that no time limit had been set within which the VRB was required to make its decisions. Ultimately, Deputy President Thompson decided that it was not clear whether the VRB’s refusal to make a decision, which it had both the power and duty to make, could be treated as a decision to affirm the assessment which it had to review: [1991] AATA 143; 23 ALD 431 at [25]; 439
If the two criteria are met, the next thing to consider is what it is that s 25(5) deems to have happened. Failure to do that act or thing within the period prescribed “… shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing”. It follows that the substance of the deemed decision can only be determined by reference to the nature of the act or thing that the person has failed to do and by reference to what it is that s 25(5) deems i.e. a decision not to do that act or thing.
In Re FJKH and National Disability Insurance Agency,[21] Deputy President Bean focused on whether the requirement in s 100(6) of the NDIS Act that the reviewer make a decision “as soon as reasonably practicable” could be regarded as a requirement that the reviewer do so within a “period prescribed” for the purposes of s 25(5) of that AAT Act. If so, what was a time limit that was “as soon as reasonably practicable” and how was it to be determined? That is the first criterion I have identified under s 25(5). Deputy President Bean also focused on the legal effect were the reviewer deemed to have made a decision by virtue of the application of s 25(5) but then completed an internal review and made a decision on it. For the moment, that is beyond the second criterion under s 25(5) that I am now exploring. Although there is some suggestion that any deemed decision would be a deemed decision to affirm the NDIA’s original decision, the case did not throw that issue into focus and it does not seem to have been the subject of any detailed submissions or analysis. Deputy President Bean decided that the requirement under s 100(6) of the NDIS Act that a decision be made decision “as soon as reasonably practicable” could be regarded as a requirement that the reviewer do so within a “period prescribed” for the purposes of s 25(5) of that AAT Act. She did not go on to decide whether a time that was “as soon as reasonably practicable” had passed.
[21] [2018] AATA 1294
The issue was not the focus of any detailed submissions or analysis in Re Simpson and National Disability Insurance Agency[22] and there were two reasons for this. One was that the parties agreed that, if the reviewer had not made a decision “as soon as reasonably practicable”, the NDIA would be deemed to have refused Mrs Simpson’s request for review. Deputy President Humphries noted, however, that the Tribunal had to itself be satisfied that the legislative requirements had been met and could not simply accept the agreement of the parties regarding jurisdiction.[23]
[22] [2018] AATA 1326; Deputy President Humphries
[23] See also, for example, authorities cited at above
Mrs Simpson had made an application to become a participant in the NDIS. Her application was rejected on the basis that she did not meet the access criteria in s 21 of the NDIA Act as she had not met the disability or early intervention requirements in ss 24 or 25 of that legislation. Mrs Simpson asked for the NDIA’s decision to be reviewed. It was a reviewable decision under s 99(a) as it then appeared in the NDIS Act.[24] Deputy President Humphreys found that the NDIA had made a reviewable decision on her application and that the Tribunal had power to review it under s 103. If he should be mistaken in his conclusion, he also considered s 25(5) of the AAT Act. He found that the decision had not been made as soon as reasonably practicable and that Mrs Simpson’s application was deemed to have been refused. The Tribunal had jurisdiction through that avenue. In reaching that conclusion, he relied on FJKH and its reasoning but did not address the further issue which was the characterisation of the decision that was deemed to have been made.
[24] NDIS Act; s 99(1), Item 1
Identifying the decision in respect of which KRBG has applied to the Tribunal
The first thing to do when considering the Tribunal’s jurisdiction is to characterise the decision, of which review is sought. In order to do that, I have traced what has happened in this matter in the past.
(1)14 March 2017: the NDIA prepared a plan for KRBG to commence on that day and to be reviewed by 14 March 2018.
(2)28 March 2018: the NDIA wrote to KRBG advising that his NDIS plan had been approved on 27 March 2018. The plan set out KRBG’s Participant Statement of Goals and Aspirations. It also included a Statement of Participant’s Supports setting out the supports determined to be reasonable and necessary supports and the budget for each. The plan would be reviewed by 27 March 2019.
(3)26 April 2018: the NDIA received a request to review KRBG’s Statement of Participant’s Supports (internal review request).
(4)10 January 2019: the NDIA conceded that it had not made a decision on the internal review request within a reasonably practicable time as required by s 100(6) of the NDIS Act. The NDIA asked me to determine that the Tribunal had jurisdiction to review the deemed decision and to list the matter for a conference under the AAT Act.
Turning to s 25(5) of the AAT Act, its first criterion is met for s 103 provides that applications may be made for a decision made by a reviewer under s 100(6). A reviewer who makes a decision under s 100(6) will be making that decision in response to a request for review of a reviewable decision. The only decisions that are “reviewable decisions” are those set out in s 99. A decision made under s 33(2) to approve a Statement of Participant Supports is a reviewable decision under s 99(1), Item 4. That is a decision of the sort made on 28 March 2018 in this matter.
That brings me to the second criterion under s 25(5). It focuses on s 100(6) of the NDIS Act. Assuming that an obligation to make a decision as soon as reasonably practicable is the prescription of a period within which to do an act or thing, that provision prescribes a period. The act or thing that the reviewer must do is to make a decision confirming the reviewable decision, varying the reviewable decision or setting aside the reviewable decision and substituting a new decision. When the reviewer does not make a decision to do one or other of those three things, the effect of s 25(5) is that he or she is deemed to make a decision not to do one or other of those three things i.e. not to do the act or thing for which the period was prescribed. Section 103 of the NDIS Act provides that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6). It does not provide that applications may be made to the Tribunal for review of a decision, deemed or otherwise, not to make a decision to do one or other of three things.
Another way of looking at the matter is that the reviewer is deemed not to have acted to confirm the reviewable decision, vary it or set it aside and substitute a new decision. There are three alternative actions that the reviewer could have taken and s 25(5) does not provide that a person is deemed to have made a particular decision when the act the person was required to undertake within a prescribed period was not limited to one course.[25]
[25] The NDIS Act does, however, provide for a decision not to be made and for that decision to be reviewed.
Whether s 25(5) of the AAT Act has a role to play depends on the way in which Parliament has formulated the act or thing that a person must undertake when determining whether s 25(5) of the AAT Act deems a decision to have been made. I note that s 25(5) remains in the AAT Act in the same terms as it appeared in that legislation when first enacted. In the early days, applications were made directly to the Tribunal without the imposition of internal review.[26] When the decision that has not been made is a decision whether a person should be granted or not granted, is entitled or not entitled to an entitlement or benefit in whatever shape or form or obliged or not obliged to pay an amount of money as a debt, penalty or otherwise, s 25(5) can work well. The act or thing that must be done is a decision to grant or not grant the entitlement or benefit. When that decision is not made within a time that has been prescribed, s 25(5) deems the decision to be not to grant that benefit or entitlement.
[26] See s 26 and the Schedule to the AAT Act as originally enacted: Act No. 91 of 1975.
Since then, growing workloads in the agencies and the need to manage that workload, has led to Parliament’s often introducing a two tiered decision-making process comprising a primary decision that was, if requested by the person affected by the decision, internally reviewed. An application to the Tribunal could only be made after the two tiered process had been completed. That is the process adopted in the NDIS Act. I respectfully suggest that s 25(5) of the AAT Act was drafted with a single tiered decision-making process in mind and cannot be adapted to a two-tiered decision-making process. Whether it had these difficulties in mind or not, in subsequent years Parliament has, in some enactments, made particular provision for applications to be made to the Tribunal when decisions have not been within periods prescribed in those enactments.[27]
[27] The Freedom of Information Act 1982 (FOI Act) provides one example. Section 56, as it was drafted in 2007, was considered by Gray J in Bienstein v Attorney General[2009] FCA 1501 (Bienstein). It provided for the situation in which a Minister or an agency had not responded to a request for access under the FOI Act within 30 days or within that period as extended under s 15(6). For the purpose of enabling an application to be made to the Tribunal, s 56(1) deemed a decision refusing to grant access to the document to have been made on the last day of the period. Section 56(5) dealt with the situation in which the Minister or agency later made a decision on the request. The Tribunal was to treat the proceedings before it as extending to a review of that decision. In the FOI Act as currently drafted, s 54D makes a similar provision in relation to an application for review to the Information Commissioner from whose decisions an application for review may be made to the Tribunal. Review by the Information Commissioner is an additional step in the review process since Bienstein was decided and an equivalent of s 56 is no longer found in the FOI Act in relation to the Tribunal’s power to review decisions first reviewed by the Information Commissioner.
DECISION
For these reasons, I have decided that the Tribunal does not have jurisdiction to consider KRBG’s application and dismiss it.
| I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
[sgd]........................................................................
Associate
Dated: 11 February 2019
| Heard: | 18 January 2019 |
| Advocate for the Applicant: | Fiona Tipping, Grampians Disability Advocacy |
| Solicitor for the Respondent: | Adrian Downie, National Disability Insurance Agency |
4
12
0