McDonald and National Disability Insurance Agency

This matter concerned an application by a nominee of a participant in the National Disability Insurance Scheme (NDIS) for review of a decision by the CEO of the National Disability Insurance Agency (NDIA) to cancel their appointment. The dispute arose when the participant requested the cancellation of the nominee's appointment, and the CEO did not make a decision within the prescribed 14-day period. The Administrative Appeals Tribunal was required to determine whether it had jurisdiction to review the CEO's decision, given the delay.

The primary legal issue before the Tribunal was whether the CEO's failure to decide on the cancellation of the nominee appointment within the 14-day period stipulated by section 90(3)(a)(i) of the National Disability Insurance Scheme Act 2013 (Cth) divested the CEO of the power to make such a decision, and consequently, whether the Tribunal retained jurisdiction to review a decision made outside that timeframe. The NDIA argued for a broad interpretation of the CEO's power, suggesting Parliament intended the power to continue beyond the 14 days, citing an alternative power under the Acts Interpretation Act 1901 (Cth), the beneficial interpretation of the NDIS Act in favour of participants, and the Tribunal's general ability to review decisions made without power.

The Tribunal, applying the principles of statutory interpretation, found that the language of section 90(3)(a)(i) was mandatory, stating "the CEO must decide whether to cancel the appointment within the following number of days." While acknowledging the potential for a participant's request to be left in limbo if the CEO's power ceased entirely after 14 days, the Tribunal ultimately concluded that it did not need to definitively resolve the consequence of the delay for the CEO's power. This was because the Tribunal was satisfied that it possessed jurisdiction to review the NDIA's decision regardless of the timeliness of the CEO's action.