Michael O’Donohue and Australian Electoral Commission
[2013] AATA 23
•21 January 2013
[2013] AATA 23
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3118
Re
Michael O’Donohue
APPLICANT
And
Australian Electoral Commission
RESPONDENT
DECISION
Tribunal Hon. Brian Tamberlin, QC, Deputy President
Date 21 January 2013 Place Sydney The application to reinstate the application for review to allow the Tribunal to review the decision of Deputy President Handley of 17 August 2012 is dismissed.
.................[sgd DP Tamberlin]..........................
Hon. Brian Tamberlin, QC, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – judgments, decisions and orders – whether Tribunal has the power or jurisdiction to review an earlier decision of the Tribunal (differently constituted) finding no jurisdiction – whether jurisdiction decision is a decision for the purposes of s 44 of the Tribunal Act – Tribunal’s power to reinstate – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 3, 42A, 44
CASES
Re Joseph and Repatriation Commission (1989) 18 ALD 766
Siebert v Timi Islands Shire Council (No. 2) [2012] FMCA 1100
SECONDARY MATERIALS
Pearce D C, Administrative Appeals Tribunal, (Second Edition, LexisNexis Butterworths, 2007)
REASONS FOR DECISION
Hon. Brian Tamberlin, QC, Deputy President
21 January 2013
The Applicant seeks a review of a decision by Deputy President R P Handley, who decided that the Tribunal did not have jurisdiction under s 121 of the Commonwealth Electoral Act 1918 (Electoral Act) to entertain his application, for review of a decision of the Australian Electoral Commission to record a new Secretary of the New South Wales Branch (NSW Branch) of the Democratic Labor Party of Australia (the party). Mr O’Donohue had previously been recorded as the Secretary of the NSW Branch.
ISSUE
The question before me is whether the Tribunal has power or jurisdiction to review the decision of Deputy President Handley by way of reinstatement of the application of Mr O’Donohue or otherwise.
BACKGROUND
On 30 January 2012 an application was made to the Australian Electoral Commission (AEC) to record a new Secretary, Mr Stephen Rawson, as the Secretary of the NSW Branch of the party. The AEC invited Mr O’Donohue to comment on the application. Mr O’Donohue contended that the AEC was not the appropriate body to make a judgment affecting the internal workings of an unregistered branch of a registered political party and that this issue should be decided by a court.
On 27 June 2012 the AEC wrote to Mr O’Donohue informing him that, notwithstanding his submissions, Mr Rawson had been recorded as the NSW State Secretary. On 20 July 2012 Mr O’Donohue lodged his application with the Administrative Appeals Tribunal for review of this decision.
On 17 August 2012 an interlocutory hearing was held to determine whether the Tribunal had jurisdiction under the Electoral Act to entertain Mr O’Donohue’s application.
After hearing submissions and considering the relevant legislative provisions and circumstances, Deputy President Handley decided that the Tribunal did not have jurisdiction to entertain the application for review.
In the Applicant’s submissions he contends that the decision of Deputy President Handley is wrong, because he says the finding as to lack of jurisdiction should not have been made at a directions hearing, but should have been made at a hearing which took into account the merits and substance of the Applicant’s case.
In support of this proposition, the Applicant submits that the best way to deal with jurisdictional issues is to stage the hearing process so that preliminary issues are dealt with promptly before evidence needs to be called. See Pearce D C, Administrative Appeals Tribunal (Second Edition, LexisNexis Butterworths, 2007) at [2.27] and the decision of this Tribunal in Re Joseph and Repatriation Commission (1989) 18 ALD 766 at [56] – [58], where the Tribunal said:
[56] It emerged that this jurisdictional question had, prior to the hearing, been the subject of a ruling by a presiding member of this Tribunal. That ruling was that the Tribunal had jurisdiction in consequence of para (a).
[57] In the view of the Tribunal as constituted for the hearing, it is not a wise practice for rulings on questions of jurisdiction to be sought at a so-called “directions hearing” in advance of a hearing proper. There must be at least a doubt as to whether a ruling made in that fashion is a decision for the purposes of s 44 of the Administrative Appeals Tribunal Act. In our view such a ruling can only be safely made at a hearing.
[58] Of course, there are many circumstances (revolving around questions of costs and convenience to parties and witnesses in the main) where the parties would desire a ruling in advance of the main hearing. The safe course is that a Tribunal be constituted for the hearing of the case and the hearing dates be staged so that the preliminary question is dealt with and ruled upon in a way which, beyond doubt, is covered by the appeal provision.
REASONING ON PRESENT APPLICATION
In my view, the above remarks do not purport to establish any general principle as to the timing or making of a decision relating to a jurisdictional issue. Each case depends on its circumstances. The quoted observations on their face are in the nature of a general caution, designed to indicate a “preferable” approach which could have been taken in the circumstances of that case. In that case, a decision had been made in the form of a preliminary ruling by a presiding member alone on the question of jurisdiction. On the hearing of the substantive case the Tribunal was constituted by three members. The central concern of the members, as indicated by the quoted remarks, is that the decision as to jurisdiction which has been made was not made by the Tribunal as constituted for the merits hearing, and therefore they considered that there might be some doubt as to whether the ruling was a “decision” for the purposes of the appeal provisions in s 44 of the Administrative Appeals Tribunal Act 1975 (AAT Act).
In the present case, these special circumstances do not exist since there is no differently constituted Tribunal. Of course, the question of jurisdiction raises a fundamental issue and, notwithstanding consensus or agreement between parties, the Tribunal must be satisfied in all cases that it has jurisdiction to decide an issue. It is not a matter for the parties to decide. The Tribunal must give a full opportunity to the parties to make submissions concerning jurisdiction if they wish to raise the issue. A preliminary determination as to jurisdiction can be highly desirable in many cases because it can avoid waste, delay and expense in the preparation, and avoid the necessity to hear a matter on the merits in circumstances where extensive work and preparation may otherwise be necessary.
In my view, in this case, the Tribunal decision that there was no jurisdiction is a “decision” within the meaning of s 44 of the AAT Act, in respect of which an appeal could have been taken to the Federal Court.
The decision that there is no jurisdiction is clearly a refusal to make a determination or a refusal to do an act, within the meaning of the definition of decision in s 3 of the AAT Act, and is therefore a decision for the purposes of s 44.
Furthermore, since there has been no appeal lodged by the Applicant, and the Tribunal has performed its function on the review there is now no jurisdiction for the Tribunal to “review” its earlier determination. In addition it is undesirable that, in the absence of an appeal, an applicant should be permitted to re-agitate jurisdictional issues already decided by the Tribunal, which could have been the subject of an appeal.
The Applicant made a further submission that there is a specific power in this Tribunal to reinstate an application pursuant to subss 42A(8), (9) and (10) of the AAT Act. In particular he refers to subs 42A(9) which provides that if it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
The difficulty with the Applicant’s submission is that subs 42A(8) providing for reinstatement is done so only in respect of the dismissal of an application under subs 42A(2), which is concerned with dismissal for want of appearance. It is not a general power to reinstate an application. This is not a dismissal for want of appearance.
Another difficulty in the Applicant’s submission is that the application must be made within 28 days after receiving notification and that time has expired. A further difficulty which he faces is that under subs (9) the Tribunal has a discretion to reinstate the application, yet nothing has been shown that would justify the granting of such an extension, even if there were power to do so.
The Tribunal does not accept the submission that subs 42A(10) has a general application so as to permit the Tribunal, differently constituted, to make a decision that there has been error in the circumstances of this case. Such general application would be inconsistent with the right of appeal to the Federal Court conferred by s 44.
The Applicant referred to the decision Siebert v Tiwi Islands Shire Council (No.2) [2012] FMCA 1100. That decision has no relevance in the present circumstances because it is based on different legislation in a different factual context, and it was concerned with the question whether a discretion should be exercised to grant an extension of time based on the particular facts of that case. This case does not assist the Applicant in the present application.
CONCLUSION
The application to reinstate the application for review to allow the Tribunal to review the decision of Deputy President Handley of 17 August 2012 is dismissed.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Hon. Brian Tamberlin, QC, Deputy President .......[sgd].................................................................
Associate
Dated 21 January 2013
Date(s) of hearing 11 December 2012 Applicant In person Solicitors for the Respondent Australian Government Solicitor
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