Moncrieff; Secretary, Department of Social Services and (Social services second review)

This matter concerned a review by the Administrative Appeals Tribunal (AAT) of a decision by the Secretary of the Department of Social Services regarding a claim for Disability Support Pension. The respondent had lodged a claim for the pension, which was initially rejected. Following internal review and a decision by the Social Services and Child Support Division (SSCSD) of the AAT, the respondent sought a further review. The core dispute before the Tribunal was the scope of its jurisdiction when considering a second review of a decision that had been remitted back to the primary decision-maker.

The legal issue before the Tribunal was whether its jurisdiction on a second review was limited to the specific directions or recommendations made by the SSCSD in its previous decision, or if it extended to reviewing the entire matter afresh. This question arose because the SSCSD's initial decision had been made pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), which involves remitting a matter for reconsideration.

The Tribunal reasoned that a decision made under section 43(1)(c)(ii) of the AAT Act does not bring finality to the administrative decision-making process. Instead, it requires the primary decision-maker to reconsider the matter afresh. The Tribunal held that such directions and recommendations are not binding on the primary decision-maker but serve as a guide. Consequently, any subsequent decisions made by the primary decision-maker are new decisions that must follow the usual review pathways. Therefore, the Tribunal concluded that it had jurisdiction to undertake a de novo review of the matter, meaning it could consider all aspects of the decision afresh and was not restricted by the previous directions or recommendations.