Manchester & Manchester and Ors (SSAT Appeal)
[2011] FMCAfam 1215
•18 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANCHESTER & MANCHESTER and ORS (SSAT APPEAL) | [2011] FMCAfam 1215 |
| CHILD SUPPORT – SSAT Appeal – decision of SSAT Principal Member to remove party to SSAT proceedings – decision of delegate of SSAT Principal Member to dismiss SSAT proceedings – whether right of appeal against each decision – whether each decision a “decision of the SSAT”. |
| Child Support (Registration and Collection) Act 1988, ss.4(1), 88-92, 94-98, 100-103, 103C-103E, 103G, 103K-103S, 103ZA Families, Community Services and Indigenous Affairs Legislation Amendment(Child Support Reform Consolidation and Other Measures) Act 2007 Social Security (Administration) Act 1999, ss.139, 141, Schedule 3 Clauses 1, 10, 21 Administrative Appeals Tribunal Act 1975, ss.5, 10A, 20(2), 20B, 23, 23A, 30(1A), 33, 42A(1), (2)(a) and (4), 42B(1)(a) Judiciary Act 1903, s.33 Federal Magistrates Act 1999, ss.5, 103(1), 104(2) Family Law Act 1975, s.94AAA(1) Federal Court of Australia Act 1976, s.24(1)(d) and (e) Australian Crime Commission Act 2002, ss.4(1) and 22 Bankruptcy Act 1966, ss.129A and 130 Telecommunications (Interception and Access) Act 1979, ss.6DB and 116 Federal Magistrates Court Rules 2001, r.20.00A, Part 42 |
| Manchester & Manchester (SSAT Appeal) [2010] FMCAfam 947 Byrne & Graham & Another (SSAT Appeal) (2010) FMCAfam 1116 McCormack & McCormack & Another (SSAT Appeal) [2011] FMCAfam 963 Simon v Social Security Appeals Tribunal [2011] FMCA 857 Child Support Registrar & Farley & Anor [2011] FamCAFC 207 Director General of Social Services v Chaney (1980) 31 ALR 571 News Corporation Ltd and Others v National Companies and Securities Commission (1984) 57 ALR 550 |
| Applicant: | MR MANCHESTER |
| First Respondent: | MS MANCHESTER |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| Third Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | PAC 5144 of 2009 |
| Judgment of: | Halligan FM |
| Hearing date: | 11 November 2011 |
| Date of Last Submission: | 11 November 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 18 November 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Maclarens Lawyers |
| Solicitors for the Respondent: | Legal Aid Commission of New South Wales |
| Council for the 2nd Respondent: | Mr Caplan |
| Council for the 3rd Respondent: | Mr Niall SC |
ORDERS
The applicant’s Second Amended Notice of Appeal (Child Support) filed on 3 June 2011 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Manchester & Manchester and Ors (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5144 of 2009
| MR MANCHESTER |
Applicant
And
| MS MANCHESTER |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
| COMMONWEALTH OF AUSTRALIA |
Third Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Manchester (the father) on a question of law against two decisions, both made on 15 February 2011, in a review application by the father to the Social Security Appeals Tribunal (the SSAT). The respondents to the appeal are Ms Manchester (the mother), the Child Support Registrar (the Registrar), and the Commonwealth of Australia (the Commonwealth), which successfully sought leave to intervene at the hearing.
The appeal is brought under s.110B, Child Support (Registration and Collection) Act 1988 (the Registration Act).
The first decision in time that the father seeks to challenge was to remove him as a party to the SSAT proceedings (the removal decision), and the second was to dismiss his application for review (the dismissal decision).
The Registrar has objected to the competency of the father's appeal, on the basis that the right of appeal sought to be exercised by the father lies against a decision of the SSAT and both decisions under appeal are decisions of the SSAT Principal Member or her delegate, not of the SSAT.
Background
On 7 September 2010, Dunkley FM allowed an appeal by the father against an earlier decision of the SSAT determining his application for review and remitted the review to the SSAT for rehearing (Manchester & Manchester (SSAT Appeal) [2010] FMCAfam 947). What followed in the SSAT was in relation to that rehearing.
On 20 December 2010, the father was directed to provide further documentation to the SSAT by 21 January 2011. The father sought and was granted an extension of time to comply with this direction until
31 January 2011. He did not comply with parts of that direction.
By letter dated 1 February 2011, the Deputy Registrar of the SSAT invited the father to show cause why he should not be removed as a party to the SSAT proceedings.
The father responded to the show cause invitation by letter from his solicitors received by the SSAT on 11 February 2011.
On 15 February 2011, the SSAT Senior Member, NSW/ACT, wrote to both the father and his solicitors advising that-
“The Principal Member … has now directed, pursuant to paragraph (c) of section 101(5) of the Child Support (Registration and Collection) Act 1988, that (the father) is no longer a party to review number SC233936 because of a failure to comply with directions given by me. The Principal Member has instructed me to advise you that she intends to provide a statement of written reasons for her direction, although there is no requirement to do so under the provisions of the Child Support (Registration and Collection) Act 1988.
…
The second party in this matter, (the mother), has today advised the SSAT that she does not intend to proceed with the review and that she consents to the dismissal of the review, pursuant to paragraph (c) of section 100(1) of the Child Support (Registration and Collection) Act 1988. Accordingly, in exercise of power delegated to me by the Principal Member, I have dismissed application for review number SC233936 pursuant to section 100 of the Child Support (Registration and Collection) Act 1988.”
The Principal Member gave written reasons for the removal decision which are dated 22 February 2011. Those reasons were forwarded to the father's solicitors under cover of a letter from the Principal Member bearing the same date. In that letter, the Principal Member advised the father's solicitors that-
“Subsequent to my decision, (the SSAT Senior Member for NSW/ACT) exercised the power, which had been delegated to her, to dismiss the application for review pursuant to s 100(1) of the Child Support (Registration and Collection) Act 1988. (The SSAT Senior Member for NSW/ACT) stated her reasons for doing so in the letter sent to you on 15 February 2011.”
The father filed a Notice of Appeal (Child Support) on 11 March 2011 appealing against the decision “of the Social Security Appeals Tribunal made on 15th February 2011”. The grounds of appeal stated in the Notice of Appeal asserted that on 15 February 2011, the Principal Member directed that the father “be removed as a party to the review and then dismissed the review”. However, the only documentation from the SSAT as to a decision or the reasons for it accompanying the Notice of Appeal was the reasons of 22 February 2011 for removal decision, and the covering letter to the father's solicitors of the same date forwarding those reasons.
The father filed an Amended Notice of Appeal (Child Support) on
15 March 2011 challenging “the Decision of the Social Security Appeals Tribunal made on 15th February 2011”. The stated grounds of appeal repeated the reference to the Principal Member removing the father as a party and dismissing the proceedings. In the alternative, the Amended Notice of Appeal sought an order of review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act).
At the first directions hearing, I directed that any application for an order of review under the Judicial Review Act be by way of separate application in accordance with Part 42 of the Federal Magistrates Court Rules 2001. I did so because the appeal under the Registration Act and the application for an order of review under the Judicial Review Act are different causes of action with different parties and different avenues of appeal from the decisions I make in each (cf. s.94AAA(1), Family Law Act 1975 and Child Support Registrar & Farley & Anor [2011] FamCAFC 207 at [12], and s.24(1)(d) and (e), Federal Court of Australia Act 1976).
On 3 June 2011, the father filed a Second Amended Notice of Appeal (Child Support) seeking to challenge “the decisions of the Social Security Appeals Tribunal made by (the Principal Member) and (the SSAT Senior Member for NSW/ACT) on 15th February 2011 pursuant to sections 101(5)(c) and 100(1) of the (Registration Act)”. The grounds of appeal asserted that on 15 February 2011 “the SSAT by the Principal Member directed that (the father) be removed as a party to the review and by the Senior Member dismissed the review”.
Also on 3 June 2011, the father filed an application seeking an extension of time in which to apply for an order of review, and seeking an order of review, of both decisions under the Judicial Review Act. The father sought to proceed first with his appeal under the Registration Act. These reasons relate to the appeal only.
It is necessary first to determine the challenge to jurisdiction raised by the Registrar.
The father's submissions
In the father's summary of argument, it was conceded that the decisions under challenge were made by the Principal Member under s.101(5)(c) and by the Senior Member as delegate of the Principal Member under s.100(1)(c). It was put that while in Byrne & Graham & Another (SSAT Appeal) [2010] FMCAfam 1116 (Byrne) it had been held that a removal decision by the Principal Member (formerly called the Executive Director) was not a decision of the SSAT amenable to appeal under s.110B, what was described as the literal interpretation of the Registration Act adopted in Byrne was incorrect.
It was submitted on behalf of the father that it was the intention of Parliament for the courts to have a supervisory role over the entire review process dealing with questions of law. It was submitted that to deny an appeal to the Court under the provisions of the Registration Act would leave the aggrieved party with no readily available remedy for review under the Registration Act, leaving an aggrieved party to pursue remedies under the Judicial Review Act or by way of prerogative writ. It was submitted that it was the intention of Parliament to create “a straight forward system and pathway for external review of child support decisions”.
I was not referred to any aids to interpretation that might be said to evince such a legislative intent, such as the relevant Explanatory Memorandum, Second Reading Speech or any report on which the extensive amendments to the child support legislation, that inter alia introduced merits review of Registrar’s decisions by the SSAT and s.110B appeals, were based.
It was further submitted on behalf of the father that under s.103S(1) of the Registration Act, if a person applies to the SSAT for review of a decision, the SSAT must affirm, vary or set aside the decision, and if it sets the decision aside, substitute a new decision or remit the matter to the Registrar for reconsideration. It was submitted that the effect of the two decisions under challenge was to affirm the Registrar’s decision under challenge in the review proceedings, and, having regard to s.103S(1), the decisions should be viewed as decisions of the SSAT subject to appeal under s.110B.
It was the father's case that when the Principal Member exercises the various powers vested in that office by Part VIIA of the Registration Act in relation to review proceedings, the decisions are decisions of the SSAT. It was suggested the distinction between a decision made by the Principal Member and a decision made by the SSAT “is a distinction without difference”, it being submitted by way of analogy that “decisions made by Federal Magistrates are decisions of the Court”. In support of that analogy attention was drawn to the reference in various sections of the Federal Magistrates Act 1999 to the Court and Federal Magistrates in a way that it was submitted would make it a nonsense to suggest a decision of a Federal Magistrate was not a decision of the Court.
With respect, I do not accept the validity of the suggested analogy. First, the specific sections of the Federal Magistrates Act to which reference was made use the phrase “the Federal Magistrates Court or a Federal Magistrate”. The reference to “Federal Magistrate” in this phrase is defined as meaning “a Federal Magistrate sitting in Chambers” (s.5, Federal Magistrates Act), and simply permits the Court to exercise its jurisdiction and discharge its functions in certain circumstances in chambers rather than in open court.
Second, not every decision of a Federal Magistrate is a decision of the Federal Magistrates Court. For example, the performance by a Federal Magistrate of an administrative function as distinct from one involving the exercise of judicial power does not render the decision a decision of the Federal Magistrates Court. For example, the exercise of a statutory power vested in a Federal Magistrate as persona designata does not give rise to a decision of the Federal Magistrates Court (see, for example, ss.4(1) (definition of eligible person) and 22, Australian Crime Commission Act 2002; ss.129A and 130, Bankruptcy Act 1966; and ss.6DB and 116, Telecommunications (Interception and Access) Act 1979). And decisions of the Chief Federal Magistrate in the administration of the Federal Magistrates Court as an organisation are not decisions of the Court in the curial sense.
It was submitted on behalf of the father that the reference to the Principal Member as the decision maker in an extension of time application under s.92 of the Registration Act supports the conclusion that the Principal Member’s decisions are decisions of the SSAT.
There is a specific right of further merits review from a decision of the Principal Member refusing an extension of time application to the Administrative Appeals Tribunal (the AAT) (s.92(7), Registration Act). In my view it would be a curious result if there was a limited right of appeal on a question of law from a decision in relation to which there was also a separate right to seek a full merits review by the AAT with a subsequent further right of appeal on a question of law to the Federal Court. This in fact in my view supports the opposite interpretation to that urged on me on behalf of the father, even though the right to seek merits review in the AAT only applies to a person aggrieved by a decision to refuse an extension of time, and not to a person aggrieved by a decision to grant an extension of time.
It was further submitted on behalf of the father that a construction excluding decisions of the Principal Member from the purview of s.110B would mean there was no appeal against a decision that could in effect finalise review proceedings before the SSAT, bringing about a result that was unjust and capricious. That submission in my view is not sustainable in light of the acknowledged right to seek an order of review of the Principal Member’s decisions under the Judicial Review Act.
The mother's submissions
The mother supported the submission on behalf of the father that the decisions under challenge were amenable to review under s.110B, and that Byrne (above) was wrongly decided. However, it was the mother's case that the decisions under challenge were not affected by error on a question of law.
In the written submission on behalf of the mother it was submitted that the two decisions under challenge in this case “cannot be characterised as merely intermediate steps, as they have the effect of terminating the review proceedings. This strengthens the view that it was the intention of parliament that these decisions be subject to judicial review”. Of course, these decisions remain subject to judicial review even if I find that they may not be subject to appeal under s.110B, as the father's alternate application under the Judicial Review Act illustrates.
It was further submitted that “there is no express avenue of appeal from the removal decision or the dismissal decision to the (AAT) as there is for a decision of the Principal Member to refuse an extension of time. In the absence of such an express avenue, it seems unlikely that these decisions were intended to be excluded from the provisions of s.110B”.
Of course, there remains the option of the Judicial Review Act. But on this reasoning, there would be a right of appeal on a question of law from a decision of the Principal Member to grant an extension of time application, because there is no right to seek review of that decision by the AAT, but not from a decision of the Principal Member to refuse to grant an extension of time, because there is a right to seek review of the decision by the AAT with a subsequent right of appeal to the Federal Court on a question of law from any decision of the AAT.
In support of the submission that Byrne was wrongly decided, it was submitted on behalf of the mother that whether a decision of the Principal Member should be construed as a decision of the SSAT should be looked at in the context of the whole of Part VIIA of the Registration Act and Schedule 3 of the Social Security (Administration) Act 1999 (the Administration Act). It was submitted that “the Principal Member’s decisions should be seen as being made on behalf of the SSAT”, and that the expressions “SSAT Principal Member” and “SSAT” “appear to be used interchangeably throughout Part VIIA”, with the suggestion that ss.91 and 92 (applications to extend time to apply to the SSAT for review) are illustrative of this.
A further argument in favour of the position advocated on behalf of the mother was that usually both parents are parties to review proceedings before the SSAT and hence to any appeal under s.110B. It was put this would not be so if the avenue of redress for a party to review proceedings before the SSAT who was aggrieved by a decision of the Principal Member was by way of application for an order of review under the Judicial Review Act or by application under the Judiciary Act 1903. However, if not initially joined to such proceedings, the other parent could always seek leave to intervene in such proceedings, as the mother has in fact successfully done in the Judicial Review Act application the father has filed.
The written submission on behalf of the mother asserted that the SSAT “through the Principal Member or the presiding member is also empowered to make specific directions about the time for filing evidence, and procedural matters 103(2) and 103ZA (sic)”.
Section 103 of the Registration Act empowers the Principal Member to convene conferences with the parties to a review, at which the Principal Member may fix a day for the hearing and give directions about lodging evidence and submissions. The Principal Member is also empowered to give directions as to the procedure to be followed by the SSAT generally or in connection with a particular review, subject to certain conditions (s.103ZA(1) – (3)), even after the hearing of a review has commenced (s.103ZA(3)). The presiding member of the SSAT as constituted for a particular review is also empowered to give procedural directions for the review provided the direction is not inconsistent, inter alia, with a direction by the Principal Member (s.103ZA(4) and (5)). The drawing of this distinction between the Principal Member and “the presiding member of the SSAT as constituted for the purposes of a particular review” is in my view very significant, and inconsistent with the contention that the Principal Member’s decisions in the exercise of powers conferred on that office are decisions of the SSAT when exercised in relation to a particular review.
In supplementary written submissions on behalf of the mother, reference was made to the decision in McCormack & McCormack & Another (SSAT Appeal) [2011] FMCAfam 963 (McCormack), but made no further submissions based on it in support of the contention that the removal decision and the dismissal decision were amenable to appeal under s.110B.
The Registrar’s submissions
The written submission on behalf of the Registrar drew attention to the relevant provisions of the Administration Act, highlighting the provisions of Clause 10 in Schedule 3 dealing with the constitution of the SSAT for each hearing. It was submitted that references to the SSAT in the Registration Act should be understood as a reference to the SSAT as constituted either for a particular review or reviews of a particular kind. It was submitted that decisions of the Principal Member under either s.100(1)(c) or s.101(5)(c) are not decisions of the SSAT, and cannot be the subject of appeal under s.110B, reliance being placed on Byrne to support this submission.
It was submitted on behalf of the Registrar that there was no direction under Clause 10 of Schedule 3 of the Administration Act that the Principal Member constitute the SSAT for the purposes of the father's review application, and hence it could not be said the decisions of the Principal Member or her delegate under challenge in this case were decisions of the SSAT.
It was put on behalf of the Registrar that Part VIIA of the Registration Act drew a clear distinction between the Principal Member and the SSAT, and that “Parliament clearly envisaged … that a party to proceedings in the SSAT could only appeal to the Federal Magistrates Court once a review has been concluded (that is, once a decision under s.103S is made by the SSAT as constituted for the purposes of the review in question)”. In support of this latter contention, reliance was placed on the Explanatory Memorandum for the Families, Community Services and Indigenous Affairs Legislation Amendment(Child Support Reform Consolidation and Other Measures) Act 2007, which introduced the current regime of merits review by the SSAT and appeal on a question of law to a court with jurisdiction under the Registration Act, in particular the following passage-
“Once a review is finalised by the SSAT, a parent who remains dissatisfied may appeal to a court on a question of law.”
The Commonwealth’s submissions
It was submitted by Senior Counsel for the Commonwealth that both the removal decision and the dismissal decision were made in the exercise of powers expressly conferred on the Principal Member, and were not decisions of the SSAT amenable to appeal under s.110B of the Registration Act. It was submitted that Part VIIA of the Registration Act draws a clear distinction between “administrative powers conferred on the ‘Principal Member’ in that capacity, and those conferred on the ‘SSAT’ for the purposes of carrying out a review”. I infer this alludes to the adjudicative function of the SSAT, as constituted for a particular review, in the hearing and determination of that review, in contrast with the functions of the SSAT Principal Member, which do not include such adjudicative functions unless constituting the SSAT for the hearing and determination of a review.
Legislative background
The right of appeal the father seeks to exercise arises under s.110B of the Registration Act, which provides-
“A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.”
The elements of the right of appeal under s.110B are-
a)The person seeking to appeal must be “a party to a proceeding”;
b)The “proceeding” must be “before the SSAT”;
c)The “proceeding before the SSAT” must be under Part VIIA of the Registration Act;
d)There must be a “decision”;
e)The “decision” must be “of the SSAT”;
f)The “decision of the SSAT” must be “in that proceeding”, that is, in the proceeding before the SSAT under Part VIIA in which the person wishing to appeal was a party; and
g)The appeal must be based on a “question of law”.
The Registrar’s challenge to the competency of the father's appeal is in relation to subpara.(e) of the preceding paragraph.
The power to remove a party, the exercise of which is under challenge in this case, is in the following terms (s.101(5)(c), Registration Act)-
“(5) The SSAT Principal Member may direct that a party to a review no longer be a party to the review if:
…
(c) the party fails to comply with a direction or order of the SSAT or of the SSAT Principal Member given in relation to the review; or
…”
The power to dismiss a review application, the exercise of which is under challenge in this case, is in the following terms (s.100(1)(c), Registration Act)-
“(1) The SSAT Principal Member may, on the request of a party or on his or her own initiative, dismiss an application for review of a decision if:
…
(c) all of the parties consent; or
…”
Were each of the decisions a “decision of the SSAT”?
Prior authority
There are three prior decisions of this Court touching on the question whether a removal decision is a “decision of the SSAT”.
In the first of those decisions, Byrne (above), an appeal under s.110B, Riethmuller FM held that a decision by the SSAT Executive Director, as the position of Principal Member was then called, under s.101(5)(c) to remove a party to a review proceeding before the SSAT under Part VIIA of the Registration Act was not a decision of the SSAT for the purposes of s.110B, and hence there was no right of appeal from that decision under s.110B.
Riethmuller FM said (at [22] and [23])-
“22. It is argued before me that the Executive Director’s decision is not a decision of the SSAT as contemplated by the Child Support (Registration and Collection) Act 1988 and therefore, there is no appeal available under the relevant provisions. The only right of review that would remain would then be for the appellant to seek judicial review of the Executive Director’s decision.
23. It seems clear that the SSAT must be constituted by a specific member for the purpose of conducting a review. The appeal provisions relate to decisions of a member nominated for the purpose of conducting their review. In this case, the proceedings had not reached that point, but the Executive Director had exercised various other powers under the Act. Those powers do not appear to be the subject of the appeal provisions or review by the Tribunal.”
After considering relevant provisions of the Administrative Appeals Tribunal Act 1975 (the AAT Act) in relation to the AAT, his Honour continued (at [35] – [39])-
“37. There appears to be no right of appeal from decisions of the Executive Director (or in the current version of the Act, the SSAT Principal Member). Nor does there appear to be any right of review from a decision of the Executive Director or Principal Member by the Tribunal itself, pursuant to the provisions of the Child Support (Registration and Collection) Act 1988 or the Social Security (Administration) Act 1999.
38. In these circumstances the appellant’s appeal … must fail as the appellant was removed from being a party, and the respondent ceased to pursue a review, the result of which was that no decision was required or made by the ‘SSAT’ as defined in the Child Support (Registration and Collection) Act 1988 and the Social Security (Administration) Act 1999.
39. To the extent that the dismissal may have been effected by an officer of the SSAT on behalf of the Executive Director, it appears that there are various delegations and powers provided for in clause 20 of Schedule 3 of the Act, and no specific challenge has been made to the particular delegation said to have been in place and exercised by the officer.”
The second of the prior decisions is McCormack (above), another appeal under s.110B. Hughes FM was concerned in that case with an appeal against both a removal decision and the decision determining the review proceedings before the SSAT on their merits after a hearing, albeit a hearing in which the removed party (the applicant before her Honour but the respondent before the SSAT) was precluded from participating consequent on his removal as a party. Her Honour found that in the circumstances of that case, the removal decision was open to challenge on a question of law as part of the determination of the appeal against the ultimate decision determining the review. There was no issue that the ultimate decision determining the review was a decision of the SSAT.
Hughes FM referred (at 41]) to Reithmuller FM’s decision in Byrne and (at [46] – [52]) to the decisions of the Full Court of the Federal Court of Australia in Director General of Social Services v Chaney (1980) 31 ALR 571 and News Corporation Ltd and Others v National Companies and Securities Commission (1984) 57 ALR 550, both involving appeals on a question of law from decisions of the AAT. Her Honour said (at [51] –[53]), referring to the News Corporation case-
“51. … Counsel for the NCSC relied upon Chaney to argue that only the final decision of the AAT was appealable and not the decision concerning the conduct of the proceedings leading to the final determination. The Full Court of the Federal Court rejected that argument. Chaney was distinguished on the basis that there had been no final decision of the Tribunal in that case whereas, in News Corporation the appeal was brought after the final decision of the AAT.
52. The Full Court in News Corporation held that any interlocutory decision which affects the final determination and results in an error of law is justiciable as part of the appeal from the final decision.
53. In the present case, the final decision of the Tribunal has been made. The interlocutory decision to remove the appellant as a party to the proceedings had an immediate and determinative affect on the final determination. Without anyone to oppose the application by the first respondent, the outcome was a foregone conclusion adverse to the appellant.”
After referring to the power to remove a party to SSAT proceedings under s.101(5) of the Registration Act, her Honour continued (at [56] – [57])-
“56. In this case the objections officer had made a decision in favour of the appellant. The first respondent sought to reverse that decision in the SSAT. The appellant was actively engaged in the proceedings. He wished to present evidence and make submissions. Removing him as a party was punitive in nature. It prevented him from even arguing his case on the material available, whether or not he was able to present further evidence. To classify that decision as merely procedural, denies reality. In the words of Deane J in Chaney, it ‘effectively disposed of the preceding before it’.
57. In the circumstances, the nature of the decision renders it justiciable in this Court on a question of law as part of the determination of the ultimate decision of the Tribunal. (emphasis added)
Her Honour in McCormack was faced with inconsistent evidence as to who made the removal decision. There was correspondence from the SSAT referred to in the judgment saying the decision was for “the Tribunal” to make, and that the decision had been made by “the Tribunal”. Her honour said (at [63])-
“63. The decision, however, is not a matter for the Tribunal. The legislation is clear – the Principal Member is the only person empowered to direct a party be removed unless the power has been delegated in accordance with … the Social Security (Administration) Act 1999. …”
The decisions in Byrne and McCormack are consistent on this point.
There was some suggestion in some of the submissions made to the Court in this case that the decision in McCormack was inconsistent with the decision in Byrne, albeit that inconsistency was not identified.
In my view, there is no inconsistency between Byrne, in which it was held that there was no right of appeal under s.110B from a removal decision, and McCormack, in which it was held that a removal decision could be challenged on a question of law in an appeal under s.110B from a decision of the SSAT determining the review in which the removal decision was made. In Byrne, there was no decision of the SSAT determining the review application against which the aggrieved party could appeal, whereas in McCormack the Court had before it an appeal against a decision of the SSAT determining the review application. McCormack does not contradict a proposition based on the decision in Byrne that a removal decision of the Principal Member or delegate under s.101(5)(c) of the Registration Act is not a decision of the SSAT and is not amenable to appeal under s.110B. Nor does Byrne contradict a proposition based on McCormack that a decision in the course of proceedings before the SSAT that is infected by error on a question of law and which in turn infects the ultimate decision of the SSAT determining the proceeding before it is open to challenge in an appeal under s.110B against the ultimate decision.
In the third and most recent relevant prior decision, Simon v Social Security Appeals Tribunal [2011] FMCA 857 (Simon), Jarrett FM determined an application for an order of review under the Judicial Review Act of a removal decision. The issue raised for determination in Simon was whether the removal decision was taken by the SSAT, or by the presiding member as delegate of the Principal Member, the removal decision having been made pursuant to s.101(5)(c). His Honour (at [13] and [14]) said that the power of removal “is vested in the Principal Member”, and “is not vested in ‘the SSAT’ or any particular tribunal constituted for the purposes of a particular review”. His Honour found that “the decision to remove (the applicant) from the appeal before the SSAT … was made by the Tribunal as it was then constituted, not by the presiding member as delegate of the Principal Member exercising delegate power” (at [24]), and held that “the SSAT had no power to exclude (the applicant) as a party to the appeal” (at [27]).
In my view, Byrne, McCormack and Simon are all inconsistent with a submission that a removal decision by the Principal Member or delegate under s.101(5)(c) is a decision of the SSAT, or that the SSAT has power to make such a decision under s.101(5)(c). By analogy, in my view these decisions also apply to a decision to dismiss an application under s.100(1)(c).
Relevant legislative provisions
I have already set out ss.100(1)(c) and 101(5)(c) of the Registration Act, under which the decisions under challenge were made, and 110B of the Registration Act, under which the appeal against those decisions is brought.
In the Registration Act, “SSAT” means the Social Security Appeals Tribunal and “SSAT Principal Member” means the Principal Member of the SSAT (s.4(1), Registration Act).
The SSAT is a statutory creation (s.139, Administration Act), and consists of the Principal Member and such Senior Members, Assistant Senior Members and other members as are appointed (Schedule 3, Clause 1, Administration Act).
However, while the SSAT “consists” of the Principal Member and such Senior Members, Assistant Senior Members and other members as are appointed, the SSAT for the hearing of a particular review or class of reviews shall be “constituted” by such member or members as the Principal Member directs in writing (Ibid, Clause 10(1)). Clause 10(3) of Schedule 3 provides-
“(3) For the purposes of a review, the SSAT is to be constituted by the member or members ascertained in accordance with the directions given under subclause (1).”
If the SSAT is constituted by two or more members for the purposes of a review under the Registration Act, the Principal Member must designate one of them to preside at the hearing of the review (s.103M(1), Registration Act). If the Principal Member is one of the members that constitute the SSAT for the review of a decision, the Principal Member may designate himself or herself to preside (s.103M(2), Registration Act). Otherwise, the constitution of the SSAT for hearing reviews is governed by Part 2 of Schedule 3 of the Administration Act (including Clause 10 previously referred to).
Part 3 of Schedule 3 of the Administration Act deals with “Administrative matters”. Clause 20, which appears in Part 3 of Schedule 3, provides-
“The Principal Member may, in writing, delegate to a member of the SSAT, or a member of the staff of the SSAT, all or any of the powers and functions of the Principal Member under this Act, the family assistance law, the Student Assistance Act 1973, the Employment Services Act 1994, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.”
The Administration Act makes comprehensive provision in relation to the appointment of members, the administration of the SSAT, the management of its work, and the powers and functions exercisable in a review proceeding before the SSAT brought under the Administration Act. However, the Registration Act sets out powers and functions that may be exercised in the course of an application for review to the SSAT under the Registration Act. To the extent of any inconsistency, the specific provisions of the Registration Act would override the general provisions of the Administration Act.
However, one provision of the Administration Act that expressly applies to SSAT review proceedings brought under the Registration Act is the power of delegation of the powers and functions of the Principal Member under the Registration Act (Administration Act, Schedule 3, Clause 20).
The structure of Part VIIA
The Registration Act restates the objective of the SSAT in carrying out its functions under that Act in terms identical to its objective when carrying out its functions under the Administration Act, that is, it must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (cf. s.88, Registration Act and s.141, Administration Act).
The structure of Part VIIA of the Registration Act, providing for SSAT reviews, is-
a)The right to seek merits review is established (s.89);
b)A time limit is imposed for seeking review (s.90);
c)Time to apply to the SSAT for review may be extended by the Principal Member on written application, with a right to an unsuccessful applicant for an extension of time to seek merits review of the refusal decision by the AAT (ss.90-92);
d)Formal requirements for an application to the SSAT for review and the initial actions required of the SSAT and the Registrar on an application for review being received by the SSAT are specified (ss.94-98). The powers and functions in relation to an application for review throughout this process are expressed to repose in the Principal Member (see, for example, Registration Act, ss.95, 96 and 98);
e)The Registration Act then makes provision for dismissal of applications to the SSAT in circumstances that do not entail a hearing of the application on its merits (ss.100 and 100A). The contrast between these two sections is most significant, in my view. The power to dismiss under s.100 is expressed to be repose in the Principal Member. However, if an applicant discontinues or withdraws a review application under s.100A, it is taken to have been dismissed by the SSAT, not the Principal Member (s.100A(2)), and the power to reinstate the review application reposes in the SSAT, not the Principal Member (s.100A(4) and (5)).
f)The Registration Act next specifies who are the parties to a review, but confers a power to add and remove parties (s.101). This power is conferred on the Principal Member. Related to the power to add parties is a provision requiring the Principal Member to give notice of the proceedings before the SSAT to a person not a party to the proceedings but whose interests may be affected by the decision to be reviewed (s.102).
g)There is provision for pre-hearing conferences (s.103). It is the Principal Member who may convene pre-hearing conferences, at which the Principal Member may fix a day for the hearing of the review and may give direction about the time in which evidence is to be brought before the SSAT and submission are to be made to the SSAT.
h)Division 4 of Part VIIA deals with hearings of reviews, but again refers to the Principal Member as the repository of various functions and powers concerning the arrangements for and in relation to the hearing. Thus, the power to make directions about a hearing proceeding without oral submissions (s.103D), or oral submissions being made by electronic communications (s.103C(3)), or interpreters being arranged to assist a party (s.103C(5)), as well as the power to obtain information, or to request the Registrar to obtain information, for the purposes of a review (ss.103K and 103L), are all conferred on the Principal Member. Even in relation to the conduct of a hearing before the SSAT, it is the Principal Member, not the SSAT conducting the particular hearing or the presiding member, in whom some powers and functions repose. Thus, if a party fails to attend a hearing before the SSAT, either in person or via electronic communications as permitted by the Principal Member, the SSAT may only proceed to hear the application without oral submissions from that party if so authorised by the Principal Member (s.103E(2) and (3)). Further, the power to control who may be present at a hearing before the SSAT (s.103P) and to direct a person present at a hearing not to disclose information obtained in the course of the hearing (s.103Q) reposes in the Principal Member, not the SSAT conducting the relevant hearing. And it is the Principal Member who has overriding power to determine the procedure to be followed in reviews, both generally or in a particular case (s.103ZA(1), (3), (4) and (5)(c)).
i)The functions and powers explicitly vested in the SSAT are limited to aspects of the hearing of a review on its merits, and in the decision after the hearing of a review on its merits. The SSAT may take evidence on oath (s.103G), the way it is to review a decision is specified (s.103N), it is empowered to adjourn a review hearing (s.103R), and the decisions open to the SSAT on hearing a review are specified (s.103S).
Thus, the structure of Part VIIA suggests that the function of the SSAT is to conduct a hearing of review applications as listed before it by the Principal Member and in the manner determined by the Principal Member, and to determine review applications after the completion of the hearing, while all other functions and powers in relation to review applications to the SSAT (other than the reinstatement of a withdrawn review application) are vested in the Principal Member, who may delegate those functions and powers. Further, the powers and functions that do repose in the SSAT in relation to a review repose in the SSAT as constituted for that review.
The issues that may arise where a delegate of the Principal Member is also a member of the SSAT as constituted to hear and determine a particular review application, and a power expressed to repose in the Principal Member is exercised after a hearing of the review application before the SSAT has commenced, is well illustrated by Simon, above.
Comparison with similar provisions for the AAT Act
The right of appeal created by s.110B of the Registration Act is virtually identical to the right of appeal to the AAT under s.44(1) of the AAT Act. The AAT, like the SSAT, is an independent administrative review body established by the Parliament (s.5, AAT Act). The equivalent position to the Principal Member for the AAT is the President. As with the Principal Member, the President may delegate his or her powers under the AAT Act (s.10A, AAT Act). As with the SSAT, the AAT “consists” of the President, presidential members, senior members and other members (Ibid), but is “constituted” for the purpose of a review or classes of review as directed by the President (ss.20B, 23 and 23A, AAT Act).
The President, like the Principal Member, may give directions about the procedures of the AAT both generally (s.20(2) AAT Act) and in a particular case (s.33(2)(a), AAT Act), and may conduct directions hearings (s.33(1A), AAT Act). In relation to the power to give directions and hold directions hearings in particular proceedings, the AAT Act expressly confers the power on others in addition to the President. In relation to directions in a particular case, the AAT Act draws a clear distinction between those who may give directions before the hearing of the review has commenced (s.33(2)(a)) and those who may do so after the hearing has commenced (s.33(2)(b)). Once the hearing has commenced, directions may only be given “by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions”. In contrast, under Part VIIA of the Registration Act, the Principal Member retains a number of powers in relation to a review even after the hearing of it has commenced before the SSAT as constituted for that review.
Some of the powers which the Registration Act confers on the Principal Member are conferred on the AAT, not the President, by the AAT Act, including-
a)The power to add a party to proceedings (cf. s.101(4), Registration Act and s.30(1A), AAT Act); and
b)The power to dismiss a review application because the decision is not reviewable (cf. s.100(1)(a), Registration Act and s.42A(4), AAT Act), or because the application is frivolous or vexatious (cf. s.100(1)(b) and s.42B(1)(a)), or where all parties consent (cf. s.100(1)(c) and s.42A(1)), or for failure to attend the hearing (cf. s.100(1)(e) and s.42A(2)(a));
Where the expression of the right of appeal in s.110B is so clearly modelled on s.44(1), it in inconceivable that the Legislature did not have the AAT Act in mind in determining the provisions of Part VIIA of the Registration Act. The modelling of some provisions of Part VIIA on like provisions of the AAT Act with the reference to the AAT or the presiding member altered not to the SSAT but to the Principal Member must be deliberate, and in my view evinces a clear legislative intention to depart in certain respects from the legislative scheme otherwise applying to reviews in the AAT when it comes to reviews in the SSAT.
Most significantly for present purposes, it seems to me quite deliberate that the Legislature has conferred a range of powers in relation to reviews to the SSAT on the Principal Member and not on the SSAT as constituted for a review or the presiding member of the SSAT as so constituted.
Decision
In my view, Part VIIA of the Registration Act draws a clear distinction between the Principal Member and the SSAT in conferring various powers and functions in relation to an application for review.
The clear distinction drawn in Part VIIA between the Principal Member and the SSAT and the failure to mention decisions of both in s.110B must be for a reason, and in my view that reason is that it was not intended to create any right of appeal to a court on a question of law under s.110B from a decision of the Principal Member in relation to a review.
In my view, the structure of the Administration Act and the Registration Act makes clear that a reference to the Principal Member cannot be synonymous with a reference to the SSAT. The Principal Member may only constitute the SSAT for a review if subject to a direction in writing by himself or herself under Clause 10, Schedule 3 of the Administration Act. But when so directed, the Principal Member is indistinguishable from any Senior Member, Assistant Senior Member or other member subject to a written direction under Clause 10. That is, a member or members of the SSAT, including the Principal Member, directed to constitute the SSAT for a review is or are the SSAT for that review, but not otherwise, and their decisions are decisions of the SSAT only when so constituted.
In my view, the “decision of the SSAT” to which s.110B refers is a decision of the SSAT as constituted pursuant to Clause 10, Schedule 3 of the Administration Act and s.103M of the Registration Act for the proceeding under Part VIIA in which the decision is made.
This view is consistent with the decisions in Byrne, McCormack and Simon.
Both decisions the father appeals against were made in the exercise of a power conferred on the Principal Member, albeit one was exercised by the Principal Member and the other by a delegate of the Principal Member. I am satisfied neither is a decision of the SSAT within the meaning of s.110B. I am therefore satisfied there is no right to appeal from either decision under s.110B of the Registration Act, and hence the father's appeal must be dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Halligan FM
Date: 18 November 2011
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