LUI and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2011] AATA 743

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 743

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2011/3851

GENERAL ADMINISTRATIVE DIVISION		)
Re		VILI LUI

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date25 October 2011  

PlaceSydney

Decision The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints.

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

Ms N Isenberg

Senior Member

CATCHWORDS

JURISDICTION – whether Tribunal has jurisdiction to review a decision by Centrelink not to pay Newstart allowance – no review undertaken by Authorised Review Officer – no decision under an enactment – no power to review contracts – no jurisdiction to review.

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 25

REASONS FOR DECISION

25 October 2011 Ms N Isenberg, Senior Member

1.An interlocutory hearing was held before me on 18 October 2011 at which the Applicant appeared without representation, and Ms Heggen appeared for Centrelink.

Background

2.Mr Lui complains that he had lodged a claim for Newstart allowance on 17 June 2011 and was paid only once.  Centrelink apparently required him to enter an Employment Pathways Plan - which he describes as ‘a contract’ - whereby he was required, amongst other things, to look for work.  He said he has done this so there is no reason that he not be paid Newstart allowance.  I reminded him that I was determining only whether the Tribunal had jurisdiction and I was not able to consider, at all at this stage, the merits of the substantive matter.

3.It appears that Centrelink decided on 4 July 2011 that Mr Lui was not entitled to Newstart allowance (“the original decision”).  Mr Lui sought review by the Social Security Appeal Tribunal (“SSAT”), which decided on 17 August 2011 that it could not consider the matter because there had been no review by an Authorised Review Officer (“ARO”).  Mr Lui then appears to have sought reconsideration and, on 26 August 2011, the original decision-maker confirmed the decision.  Mr Lui was invited to seek a review by an ARO.  Mr Lui filed an application for review in this Tribunal on 9 September 2011.    

The Administrative Appeals Tribunal’s power of review

4.The Administrative Appeals Tribunal Act 1975 does not itself set out the matters that may be reviewed by the Tribunal. Instead, section 25 states that an enactment may provide for review of decisions made in the exercise of powers conferred under that enactment or conferred by an instrument such as rules, regulations or by-laws made under that enactment. Therefore, the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Relevantly, the Tribunal does not have power to review ‘contracts’.

5.The Tribunal does not have the power to directly review Centrelink decisions, and the legislation has set in place a three tier review process. Firstly, decisions must be internally reviewed by an ARO: sections 129(1) and 135(1) Social Security (Administration) Act 1999 (“Administration Act”). If dissatisfied with the ARO decision, a further application may be made for review to the SSAT: section 142 of the Administration Act. Only then can an appeal, by way of application for review, be considered by this Tribunal: section 179(1) of the Administration Act, and sections 25 and 27 of the Administrative Appeals Tribunal Act 1975.

6.Mr Lui has missed the ARO step and therefore there is no power in the Tribunal to review the Centrelink decision not to pay Newstart allowance.  Until the decision has been reviewed by the ARO, and then the SSAT, this Tribunal has no jurisdiction to hear Mr Lui’s complaints.

7.In the course of the hearing, Ms Heggen indicated that a review of the decision is being undertaken by an ARO and further information has been sought from Mr Lui.  This will commence the three tier review process by the ARO, SSAT, and if necessary, this Tribunal. 

8.I accept Mr Lui has found his dealings with Centrelink to be unsatisfactory when he believes he has complied with all Centrelink requirements.  I do not know if this is the case, and it is not a matter with which I am able to consider in the absence of jurisdiction. 

Decision

9.The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: ................[sgd]...............................
             Associate

Date of Hearing  18 October 2011
Date of Decision  25 October 2011
Representative for the Applicant              Mr V Lui (Self)
Solicitor for the Respondent                      Ms Heggen, Centrelink Legal Services