KRBG and National Disability Insurance Agency

This matter concerned an application for review by KRBG against the National Disability Insurance Agency (NDIA). The dispute centred on a "deemed decision" made by the NDIA, which KRBG sought to have reviewed by the Administrative Appeals Tribunal (AAT). The parties agreed that the deemed decision was reviewable, but the court was required to determine whether the AAT possessed the necessary jurisdiction to conduct such a review.

The primary legal issue before the court was whether, when read together, section 100(6) of the *National Disability Insurance Scheme Act 2013* (NDIS Act) and section 25(5) of the *Administrative Appeals Tribunal Act 1975* (AAT Act) conferred jurisdiction on the AAT to review a deemed decision. The court also considered the general principles governing the AAT's jurisdiction, particularly in relation to decisions that may not have been validly made.

The court reasoned that parties cannot confer jurisdiction upon a tribunal by agreement, a principle that applies equally to courts. Upon examining sections 100(6) of the NDIS Act and 25(5) of the AAT Act, the court concluded that they did not, when read together, create a deemed decision that the AAT had the power to review. The court affirmed that the AAT's jurisdiction is generally limited to reviewing decisions in respect of which an enactment provides for an application for review. While the AAT can review decisions that purport to have been made under an enactment, even if not validly made, this principle did not extend to the specific deemed decision in this case.

The practical resolution of the matter was achieved through an undertaking by the NDIA to have a reviewer examine the Statement of Participant’s Supports immediately. Upon receiving the reviewer's decision, KRBG would then be required to lodge a new application for review with the AAT.