McGarvin and Australian Fair Pay Commission
[2006] AATA 1071
•27 November 2006
CATCHWORDS – PRACTICE AND PROCEDURE – jurisdiction – decision to include part only of applicant’s submission to Fair Pay Commission on its website – no jurisdiction
Administrative Appeals Tribunal Act 1975 ss 3, 25, 25(1), 25(3), 25(4) and 43(2A)
Administrative Appeals Tribunal Regulations 1976 r 19(7)(a)
Financial Management and Accountability Act 1997
Public Service Act 1999 ss 10 and 13
Workplace Relations Act 1996 ss 3, 21(d), 41, 46, 47, 48(1), 48(2), 48(3) and 54
DECISION AND REASONS FOR DECISION [2006] AATA 1071
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2006/1006
GENERAL ADMINISTRATIVE DIVISION )
Re JAMES McGARVIN
Applicant
AndAUSTRALIAN FAIR PAY COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 27 November 2006
Place: Melbourne
Decision:1.the Tribunal has no jurisdiction to hear the application for review; and
2. the application is dismissed.
S A FORGIE
Deputy President
REASONS FOR DECISION
Mr James McGarvin made both oral and written submissions to support his view that the Tribunal has the power to review a decision by the Director of the AFPC Secretariat of the Australian Fair Pay Commission (Commission). The Director advised Mr McGarvin of her decision in a letter dated 12 September 2006. It was a decision to post several pages of his submission to the Commission on its site on the internet but not to post his submission in its entirety. Both the Commission and the Director were advised of the proceedings. They informed the Tribunal that they did not propose to make submissions regarding jurisdiction, but reserved their position should it be decided that the Tribunal had jurisdiction. I decided that the Tribunal does not have the power or the jurisdiction to review the Director’s decision and gave Mr McGarvin my reasons at the hearing. As he is entitled to do under s 43(2A) of the Administrative Appeals Tribunal Act 1975 (AAT Act), he has asked for written reasons for my decision.
When does the Tribunal have jurisdiction to review a decision?
In determining the Tribunal’s jurisdiction, the starting point is s 25 of the AAT Act. That section does not give the Tribunal the power or jurisdiction to review all administrative decisions made by Commonwealth officers of agencies. Instead, it may only review a decision if it is specifically given the power to do so by either the AAT Act or another piece of legislation. This is the effect of s 25 of the AAT Act. Section 25(1) provides that:
“An enactment may provide that applications may be made to the Tribunal:
(1)for review of decisions made in the exercise of powers conferred by that enactment; or
(2)for review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”
The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made.[1]
[1] AAT Act, s 25(3)
It is not enough that an enactment provide for review of specified decisions. The Tribunal must also be given power to review those specified decisions. That power is given by s 25(4) which is the necessary corollary to s 25(1). It provides:
“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
A reference in the AAT Act to a “decision” includes:
“(a) making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.”[2]
[2] AAT Act, s 3(3)
The practical effect of these provisions is that I have to take two steps to determine whether or not the Tribunal has the power to review a particular decision. The first step is to identify precisely the decision of which review is sought and the second is to identify whether there is an enactment providing that an application may be made to the Tribunal for review of that decision or class of decision. If there is such an enactment, it is necessary to determine the limits of the power that it gives to the Tribunal to review the decision.
Does the Tribunal have the power or jurisdiction to review the Director’s decision?
Mr McGarvin has asked the Tribunal to review a decision made by Ms Jennifer Taylor, who is the Director of the AFPC Secretariat of the Commission. Her decision is contained in a letter dated 12 September 2006 and states that it is in response to Mr McGarvin’s letters dated 9, 19, 20 and 21 August 2006 and two letters said to be “incorrectly dated 14 & 15 September” 2006. Ms Taylor’s letter reads:
“Thank you for taking the time to attend one of the Australian Fair Pay Commission consultations. The additional written contribution you provided at the Footscray consultation was received and noted.
In relation to your initial submission, much of the material was either photocopied from other sources or fell outside the Commission’s statutory function. It also contained statements and questions relating to the name and membership of the Commission and issues of the Commissioners’ remuneration, all of which are outside of the Commission’s functions.
I have arranged to have several pages of your submission posted on the internet and I would thank you for taking the time to submit to the Australian Fair Pay Commission. All submissions are read and given consideration, regardless of their posting on the internet.”
Mr McGarvin submitted that the public needs to know the information that is deliberately withheld from it and should expect a reasonable standard of administration. He had, he continued, sent 11 letters to Ms Taylor but she ignored them. This was something that he could not accept. If a person, an agency or a body makes a 50 page submission, the whole of that submission should be placed on the Commission’s website. That should be the same whether the submission is made by The HR Nichols Society or by him as an individual. Mr McGarvin said that he did not want any benefit greater than the benefits accorded to others. The Tribunal, Mr McGarvin submitted, has the power to review Ms Taylor’s decision on its merits and so to look at her decision afresh. It must act according to the principles of natural justice and free from bias or the appearance of it as must the Commission and its AFPC Secretariat.
As to statutory support for his submission, Mr McGarvin referred to the AAT Act, the Public Service Act 1999 (PS Act), the Financial Management and Accountability Act 1997 (FMA Act) and the Workplace Relations Act 1996 (WR Act). He said that the AAT Act has given the Tribunal power to review a deliberate abuse of power but was unable to refer to the section of that legislation that does so. Given more time, he suggested, he would be able to find it.
In relation to the WR Act, Mr McGarvin referred to s 3. That sets out the principal object of the legislation which is to “… provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia …” by adopting strategies set out in the 14 paragraphs following that statement. By picking and choosing what it wanted to from the submissions, the Commission was not observing the opening words of the object. The AFPC Secretariat has been established by s 46 of the WR Act. Its function is to assist the Commission in the performance of the Commission’s functions.[3] The Chair of the Commission may give the Director of the AFPC Secretariat directions regarding the function of the AFPC Secretariat and the Director must ensure compliance with those directions.[4] In recognition of the statutory obligations that are imposed on the Director under the PS Act and the FMA Act, and not upon the Chair or the Commission, s 48(3) clarifies any doubts about the about the ability of the Chair or of the Commission to direct the way in which those obligations are fulfilled. It provides that “To avoid doubt, the AFPC Chair must not give directions under subsection (1) in relation to the performance of functions, or exercise of powers, under the Financial Management and Accountability Act 1997 or the Public Service Act 1999.” As must the Commissioners,[5] the Director must disclose to the Minister all interests that could conflict with the proper performance of the duties of the position.[6] Mr McGarvin said that he would be interested to know, and wanted a hearing to explore, whether the Director and the Commissioners have a conflict of interest when they act in a bureaucratic manner and contrary to the statutory function of the Commission:
“to undertake activities to promote public understanding of matters relevant to its wage-setting and other functions.”[7]
[3] WR Act, s 47
[4] WR Act, ss 48(1) and (2)
[5] WR Act, s 41. With the Chair, four Commissioners comprise the AFPC: s 20(2).
[6] WR Act, s 54
[7] WR Act, s 21(d)
With regard to the PS Act, Mr McGarvin submitted that Ms Taylor has not observed the Crown because she has not responded to 11 of his letters. Under that legislation, she is obliged to act with a reasonable degree of competency and efficiency and to comply with the values and standards provided for in s 13 of the PS Act. These are referred to as the Code of Conduct. Ms Taylor should be accountable and act with integrity, care and diligence. Mr McGarvin referred particularly to s 10 setting out the APS values.
I understand that Mr McGarvin feels that he should be given the opportunity to air his view at a hearing in the Tribunal that all of his submissions should be placed on the Commission’s website. As I have said, the Tribunal only has the power, or the jurisdiction, to hold such a hearing if there is a piece of legislation or a section in a piece of legislation, that gives it that power or jurisdiction. The AAT does not do so as it only authorises, as it were, provisions to that effect in other pieces of legislation. The WR Act, the FMA Act and the PS Act have no such provisions. It follows that the Tribunal does not have the power or the jurisdiction to enable it to review the Director’s decision. This means that the filing fee that Mr McGarvin has paid will be returned to him in due course as a result of the provisions of r 19(7)(a) of the Administrative Appeals Tribunal Regulations 1976.
I certify that the eleven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Jayne Rathjen Associate
Date of Hearing/Decision 27 November 2006
Date of Written Reasons 12 December 2006
For the Applicant self represented
For the Respondent no appearance
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