Nisha and Department of Family and Community Services - [2003] AATA 378

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 378

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/390

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAINAZ NISHA

Applicant

And

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent
DECISION

Tribunal

Ms G Ettinger – Senior Member

Date28 April 2003
PlaceSydney

Decision The Tribunal holds as follows:

·The Tribunal does have jurisdiction to review a decision of the SSAT (T1) which determined it did not have jurisdiction to review the application before it.
·The Tribunal affirms the decision of the SSAT (T1) and decides that the SSAT was correct in holding it did not have jurisdiction to consider the appeal brought by Ms Sainaz Nisha because she was not a person who may apply under section 142 of the Social Security (Administration) Act 1999 for a review of a decision which was in fact a decision of the AAT.
·Mindful of its flexible procedures pursuant to section 33 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides it has jurisdiction to review an existing decision of the AAT in certain circumstances, holding however that there is no statutory basis for so doing in a case such as the present where social security legislation is involved.
...............................................
Ms G Ettinger
Senior Member

Catchwords

JURISDICTION – whether the Tribunal has jurisdiction to review a decision of the SSAT where it has held that it has no jurisdiction – whether the Tribunal has jurisdiction to review its own decisions - Tribunal has jurisdiction in certain circumstances.

legislation

Social Security Act 1991 s 23

Social Security (Administration) Act ss 126 129 135 142

Administrative Appeals Tribunal Act s 42D

case law

Farmer v Secretary, Department of Social Security (1993) 31 ALD 262

Meyza v Repatriation Commission (1999) 59 ALD 269

Ward v Nicholls (1988) 16 ALD 353

Crompton v Repatriation Commission (1992) 29 ALD 98

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1

Nisha and Secretary, Department of Family and Community Services [2000] AATA 315

Lewis and Comcare [2000] AATA 158

Lewis and Comcare [2002] AATA 197

Matusko v Australian Postal Corporation (1995) 21 AAR 9

Comcare v A’Hearn (1993) 45 FCR 441

REASONS FOR DECISION

28 April 2003

Ms G Ettinger – Senior Member

The matter before the Administrative Appeals Tribunal (“the Tribunal” also to be referred to as “the AAT” throughout the decision), was the application of Ms Sainaz Nisha dated 15 March 2002 to this Tribunal in which she stated as follows in relation to the decision of the Social Security Appeals Tribunal (“the SSAT”) (T1), dated 4 February 2002:
“1) The SSAT erred in ruling that the applicant was not a person who could apply to the SSAT
2) The SSAT erred in its construction of the relevant provisions of the Social Security (Administration) Act”
At the Hearing Ms Nisha was represented by Mr S Hodges, solicitor, and the Secretary, Department of Family and Community Services, the Respondent in these proceedings, by Ms M Buckley. The matter was adjourned for written submissions to be made to finalise the position of the parties.
Accordingly when the matter closed, I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and submissions of the Applicant dated 13 January 2003, submissions of the Respondent dated 26 February 2003 and the Statements of Facts and Contentions of both parties.

ISSUES BEFORE TRIBUNAL

The preliminary issues to be decided by the Tribunal were:

whether it had jurisdiction to consider an application for review of a decision of the SSAT where the latter had determined it did not have jurisdiction to review the application before it;
whether the Tribunal had jurisdiction, on the basis of what was claimed to be “fresh evidence”, to review an application for review of an existing decision of the AAT, and if so;
at which level of administrative review that review should be carried out.

LEGISLATIVE CONTEXT

The relevant legislation was the Social Security (Administration Act) 1999, (“the Act”) in particular sections 126, 129, 135, 142, section 42D of Administrative Appeals Tribunal Act 1975 (“the AAT Act”), and section 23 of the Social Security Act 1991, which follow as relevant:
“Social Security (Administration Act) 1999
Section 126 - Review of decisions by Secretary
(1)       The Secretary may review:
(a)Subject to subsection (2), a decision of an officer under the social security law; or
(c)a decision of an officer under the Farm Household Support Act 1992; or
(e)a decision under section 44-24 of the Aged Care Act 1997 by the Secretary or by a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act;
if the Secretary is satisfied that there is sufficient reason to review the decision.
(2)       The Secretary may review a decision:
(a)       whether or not any person has applied for review of the decision; and
(b)even though an application has been made to the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for review of the decision.
(3)       The Secretary may:
(a)       affirm a decision; or
(b)       vary a decision; or
(c)set a decision aside and substitute a new decision.
(4)       If:
(a)       the Secretary sets a decision aside under subsection (3); and
(b)the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.
Section 129 - Application for review
(1)       Subject to subsections (3) and (4), a person affected by:
(a)       a decision of an officer under the social security law; or
(c)a decision of an officer under the Farm Household Support Act 1992; or
(e)a decision under section 44-24 of the Aged Care Act 1997 by the Secretary or by a person to whom the Secretary has sub-delegated power under section 96-2(7) of that Act;
may apply to the Secretary for review of the decision.
(3)       If:
(a)an officer makes a decision under Part 3 in relation to pension bonus; and
(b)       notice is given to the person concerned;
the person is not entitled to make an application under subsection (1) for review of the decision more than 13 weeks after the giving of the notice.
(4)       A person may not apply under subsection (1) for review of:
(a)       a decision made by the Secretary himself or herself; or
(b)a decision under subparagraph (2)(b)(i) regarding the information to be given to a person under that subparagraph; or
(c)       a decision made by the Employment Secretary:
(i)        under section 28 of the 1991 Act; or
(ii)       approving a course of study or a labour market program; or
(iii)exempting a person from the application of a provision of the social security law; or
(d)a decision made by the Minister for Agriculture, Fisheries and Forestry or the Secretary to the Department of Agriculture, Fisheries and Forestry under the Farm Household Support Act 1992; or
(e)a decision made by the Health Secretary under or in relation to the social security law; or
(f)a decision made by the CEO himself or herself in the exercise of a delegated power.
(5)A reference in this section to a decision of an officer under the social security law includes a reference to a determination that the Secretary is taken, by virtue of a provision of the social security law, to have made.
Section 135 - Review of decisions following application under section 129
(1)Subject to subsection (3) and subsection 127(1), if a person applies under section 129 for review of a decision, the Secretary, the CEO or an authorised review officer must:
(a)       review the decision; and
(b)       do one of the following:
(i)        affirm the decision;
(ii)       vary the decision;
(iii)      set the decision aside and substitute a new decision.
(2)In the case of an application for review of a decision made by an officer of the Employment Department as a delegate of the Secretary, the reference in subsection (1) to an authorised review officer is to be read as a reference to an authorised review officer who is an officer of that Department.
(3)An authorised review officer may not review a decision relating to the exercise of the Secretary's power under section 1285A of the 1991 Act.
(5)       If:
(a)       a person sets aside a decision under subsection (1); and
(b)the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.
Section 142 – Application for review by SSAT
(1)       Subject to section 144, if:
(a)a decision has been reviewed by the Secretary, the CEO or an authorised review officer under section 126 or 135; and
(b)       the decision has been affirmed, varied or set aside;
a person whose interests are affected by the decision of the Secretary, the CEO or the authorised review officer may apply to the SSAT for review of that decision.
(2)Subject to section 144, if a decision has been made by the Secretary himself or herself or by the CEO himself or herself, a person whose interests are affected by the decision may apply to the SSAT for review of the decision.
(4)For the purposes of subsection (1), the decision made by the Secretary, the CEO or the authorised review officer is taken to be:
(a)if the Secretary, the CEO or the authorised review officer affirms a decision—that decision as affirmed; and
(b)if the Secretary, the CEO or the authorised review officer varies a decision—that decision as varied; and
(c)if the Secretary, the CEO or the authorised review officer sets a decision aside and substitutes a new decision—the new decision.
(5)       For the purposes of subsection (2), if:
(a)an application has been made under subsection 129(1) for review of a decision made by the Secretary himself or herself or the CEO himself or herself; and
(b)before the application under subsection 129(1) was made, the Secretary or CEO had reviewed the decision under section 126;
the decision made by the Secretary or CEO is taken to be:
(c)if the Secretary or CEO had affirmed or varied the decision—that decision as affirmed or varied; and
(d)if the Secretary or CEO had set the decision aside and substituted a new decision—the new decision.
Administrative Appeals Tribunal Act 1975
Section 42D
Power to remit matters to decision-maker for further consideration
(1)At any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
(2)If a decision is so remitted to a person, the person may reconsider the decision and may:
(a)       affirm the decision; or
(b)       vary the decision; or
(c)set aside the decision and make a new decision in substitution for the decision set aside.
(3)       If the person varies the decision:
(a)the application is taken to be an application for review of the decision as varied; and
(b)       the person who made the application may either:
(i)proceed with the application for review of the decision as varied; or
(ii)       withdraw the application.
(4)If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a)the application is taken to be an application for review of the new decision; and
(b)       the person who made the application may either:
(i)        proceed with the application for review of the new decision; or
(ii)       withdraw the application.
Social Security Act 1991
Section 23 - General definitions
officer means a person performing duties, or exercising powers or functions under or in relation to this Act, the Administration Act, the Farm Household Support Act 1992 or subsection 91A(3) of the Child Support (Assessment) Act 1989 and, in the case of sections 1312 to 1321 of this Act, includes:
(a)       a person who has been such a person; and
(b)a person who is or has been appointed, or employed by the Commonwealth and who, as a result of that appointment or employment may acquire or has acquired information concerning a person under this Act or the Farm Household Support Act 1992; and
(c)a person who, although not appointed or employed by the Commonwealth, performs or did perform services for the Commonwealth and who, as a result of performing those services may acquire or has acquired information concerning a person under this Act or the Farm Household Support Act 1992.”

BACKGROUND

The background to the application before me concerned an overpayment raised against Ms Nisha in regard to Sole Parent Pension for the period 17 November 1994 to 5 March 1998 in which the Respondent held that the Applicant was living in a marriage-like relationship. The following decisions had been made in that regard.

A decision of the Respondent dated 23 March 1998 stated: “The reason for your debt – You received Sole Parent Pension from 17.11.94 to 5.3.98 whilst living in a marriage-like relationship with Ajit Shekhar.”
A decision of the Authorised Review Officer of the Respondent dated 12 October 1998 stated: “Having considered all the available evidence, I consider that you are living in a marriage like relationship (albeit a relationship beset by enormous cultural and religious differences) with Mr Ajit Shekhar and have been since at least 17/11/94. This is why I agree with the decision to consider you as a member of a couple and to cancel your SPP/PPS.”
A decision of the Social Security Appeals Tribunal dated 3 February 1999 dealt with the above mentioned two decisions, the raising of an overpayment of Sole Parent Pension for the period 17 November 1994 to 5 March 1998, and stated: “On 3 February 1999 the tribunal decided to affirm the decision.”
A decision of the Administrative Appeals Tribunal dated 20 April 2000 in which Senior Member Bullock stated: “The decision under review is set aside and in substitution therefor the Tribunal decides that the portion of the debt owed by Ms Nisha to the Commonwealth from 17 September 1996 to 5 March 1998 be waived under section 1237AAD of the Social Security Act 1991. The remainder of the debt from 17 November 1994 to 16 September 1996 should be recovered commensurate with Ms Nisha’s ability to pay.”
A decision of the Respondent dated 17 July 2001 (T11) in which the decision to raise an overpayment regarding Parenting Payment Single for the period 17 November 1994 to 16 September 1996 was affirmed. The decision maker wrote: “In making my decision I have taken into account the following factors: The “fresh evidence” provided by your solicitor, Blacktown Local Court transcript dated 15/2/01, Social Security Appeals Tribunal (SSAT) transcript dated 3/2/99 and the Administrative Appeals Tribunal (AAT) transcript dated 20/4/00.”
A decision of an Authorised Review Officer dated 16 October 2001 (T13), in which the Respondent affirmed the decision to raise an overpayment of $16,587 as held by the AAT in its decision Nisha and Secretary, Department of Family and Community Services [2000] AATA 315 dated 20 April 2000.
A decision of the SSAT (T1) dated 4 February 2002 which decided that: “Ms Nisha is not a person who may apply under section 142 of the Social Security (Administration) Act 1999 for a review of a decision that is, in fact, a decision of the AAT.”

SUBMISSIONS AND CONCLUSIONS

whether the tribunal has jurisdiction to review an application for review of a decision of the ssat where the ssat determined it did not have jurisdiction

In considering first whether this Tribunal has jurisdiction to review the finding of the SSAT (T1) that “Ms Nisha is not a person who may apply under section 142 of the Social Security (Administration) Act 1999 for a review of a decision that is, in fact, a decision of the AAT,” I considered the submissions of the parties.
Mr Hodges submitted that this Tribunal had jurisdiction to consider an application for review from the SSAT even though the latter had determined it did not have jurisdiction to consider the appeal to it by Ms Nisha. In support of his submission, Mr Hodges sought to rely on Farmer v Secretary, Department of Social Security (1993) 31 ALD 262 at 270 and 271 where Deputy President Johnston (as he then was) held at paragraphs 28 and 29:
“(28) Although it is only a minor part of the mosaic, logically this tribunal must first determine whether the finding of the SSAT that it was unable to consider waiver of the amount precludes this tribunal dealing with that issue. In the tribunal's opinion, it does not. The tribunal has recognised in previous decisions that a finding of no jurisdiction on the part of an intermediate tribunal like the SSAT does not bind this tribunal when determining for itself, whether it has jurisdiction to review a matter.4 The Federal Court in Ward v Nicholls (1988) 16 ALD 353 considered the interrelationship between the Veterans' Review Board (VRB) and the tribunal under the Veterans' Entitlements Act 1986 (Cth) and in particular whether the tribunal could review a finding by the VRB that an application had not been validly before it. Wilcox J said at 361, in terms which are appropriate to the present consideration:
It would be a very odd situation if the position were as perceived by ...; that is to say, if the appointed first instance reviewer, the Veterans Review Board, erroneously found that it had no jurisdiction and the Administrative Appeals Tribunal - which is set up by statute to review on their merits decisions of that board - was then precluded from considering for itself whether the board in fact had jurisdiction and if so, what decision it should have made. There would be a lacuna in the system of administrative review, disappointing to those who had laboured to set up the comprehensive system which appears to be provided by the statute. I cannot think that this is right. I think that the true position is that the Veterans Review Board is always in the position of having to decide whether to affirm, to vary or to set aside the decision of the commission; and that, whatever decision it makes, that decision is subject to review by the Administrative Appeals Tribunal.
That view about the relationship of intermediate review tribunals and the AAT was cited with approval and applied by Presidential Member Purvis J in Re Crompton and Repatriation Commission (1992) 29 ALD 98.
(29) The tribunal therefore concludes that the finding by the SSAT that it lacked jurisdiction to review waiver is not of itself a bar to this tribunal's entering upon such a review. It should be understood, however, that this conclusion is limited in its effect. A recognition that a negative finding of jurisdiction by an intermediate tribunal does not prevent consideration of waiver by this tribunal does not necessarily mean that this tribunal has jurisdiction. That is a matter which the tribunal must determine for itself having regard to the terms of the Act.”
The Respondent did not dispute that where an intermediate review body such as the SSAT holds that it does not have jurisdiction to consider an application, then the AAT may yet have jurisdiction to review the decision. Ms Buckley, relying on Meyza v Repatriation Commission (1999) 59 ALD 269, Ward v Nicholls (1988) 16 ALD 353 and Crompton v Repatriation Commission (1992) 29 ALD 98, submitted that the person seeking to challenge that jurisdiction may apply to the Federal Court under the Administrative Decisions (Judicial Review) Act 1997 or section 39B of the Judiciary Act 1903 or apply to the AAT.

Ms Buckley submitted that if the intermediate review body was wrong in holding that it lacked jurisdiction, then the AAT would have jurisdiction to consider the substance of the decision under review as in Meyza (supra). Ms Buckley submitted that this was contrary to the submissions of the Applicant who suggested the matter be remitted to the SSAT. She emphasised that the SSAT had held that the review decision made by the Authorised Review Officer had not been made pursuant to sections 126 or 135 of the Act.
I accepted on the basis of the submissions and the case law (Farmer (supra), Ward v Nicholls (supra) and Crompton (supra)), that notwithstanding the finding of the SSAT that it lacked jurisdiction to hear and determine Ms Nisha’s case on the basis of the decision of the Authorised Review Officer of 16 October 2001 (T13), this Tribunal has jurisdiction to decide that question for itself. I was guided in particular by the decision of Deputy President Johnston (as he then was), whom I cited above in that regard when dealing with the submissions of the Applicant. I was mindful also that the AAT derives power to remit matters to persons who have made decisions subsequently appealed to the AAT, pursuant to section 42D of the AAT Act.
I noted also that Purvis J, Presidential Member (as he then was), referred in Crompton (supra), to the Federal Court in Ward v Nicholls (supra) which considered the interrelationship between the Veterans’ Review Board (“VRB”) and the Tribunal under the Veterans’ Entitlements Act 1986, and in particular whether the Tribunal could review a finding by the VRB that an application had not been validly before it. I noted that Wilcox J stated therein:
“It would be a very odd situation if the position were as perceived by …; that is to say, if the appointed first instance reviewer, the Veterans’ Review Board, erroneously found that it had no jurisdiction, and the Administrative Appeals Tribunal – which is set up by statute to review on their merits decisions of the Board – was then precluded from considering for itself whether the Board in fact had jurisdiction and, if so, what decision it should have made.”
That view about the relationship of intermediate review tribunals and the AAT was cited with approval by Purvis J (Presidential Member) in Crompton (supra).
I noted that in Meyza (supra), the Tribunal, once again in the context of veterans affairs legislation, exercised its power to review the veteran’s application after it had been remitted from the Federal Court and held that the application before it was not a reviewable decision. The Tribunal accordingly dealt with the application and dismissed the claim for want of jurisdiction.
I was mindful also that in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, O’Connor J placed considerable importance therein on the availability of statutory power for the Respondent to revisit decisions of its own motion. O’Connor J stated that the power to reconsider in section 62(1) of the Safety Rehabilitation and Compensation Act 1988 established that a determination in a compensation matter was not a final judgment.
Applying what Deputy President Johnston endorsed in Farmer (supra), I concluded that the finding by the SSAT that it lacked jurisdiction was not of itself a bar to this Tribunal’s entering upon such a review. It should be understood, however, that this conclusion is limited in its effect. A recognition that a negative finding of jurisdiction by an intermediate tribunal does not prevent consideration of waiver by this Tribunal does not necessarily mean that this Tribunal has such jurisdiction. That is a matter which the Tribunal must determine for itself having regard to the terms of the Act.
I then moved to consider whether the SSAT was right in holding that the purported decision of the Authorised Review Officer (T13), was not made pursuant to sections 126 or 135 of the Act, and that Ms Nisha was therefore not a person who could apply under section 142 of the Act for a review of her decision in the SSAT.

whether the ssat was right in holding that the purported decision of the authorised review officer was not made pursuant to sections 126 or 135 of the social security (administration) act 1999

Mr Hodges argued that section 129 ((sic) 126(2)(b)) of the Act permitted the Respondent to review a decision nothwithstanding that an application had been made to the SSAT or the AAT. Mr Hodges also argued, referring to Re Quinn (supra), that O’Connor J had placed considerable importance therein on the availability of statutory power for the Respondent to revisit decisions of its own motion. He noted O’Connor J stated that the power to reconsider in section 61(1) of the Safety Rehabilitation and Compensation Act 1988 established that a determination in a compensation matter was not a final judgment.
Mr Hodges also submitted that as “fresh evidence” had become available in Ms Nisha’s case, common sense and good management dictated that because the Respondent had dealt with the fresh application at first instance, and had not declined to exercise jurisdiction, and there was a decision of the Authorised Review Officer which affected the interests of the Applicant, she was free to apply to the SSAT (section 142 of the Act).
Accordingly, Mr Hodges submitted, that by way of the powers under section 42D of the Administrative Appeals Tribunal Act 1975, the AAT should remit the matter to the SSAT to be heard and determined because that was the quicker and more cost effective way to do so. He argued in the alternative, that the matter be relisted for Hearing in the AAT to consider whether Ms Nisha should be allowed to introduce “fresh evidence” and to determine whether (at the relevant time), she had been living in a marriage-like relationship.
The argument of the Respondent was that because an application had not been made pursuant to section 129 of the Act by the Applicant, the power to review pursuant to section 135 had not been enlivened and there was no power to review by the Respondent, either pursuant to sections 126 or 135 of the Act. Further, that power is restricted to “an officer under the social security law”, and neither the SSAT nor the AAT are “officers”. In that regard the Respondent referred to section 23 of the Social Security Act 1991 and relied on Dixon CJ in Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at 6 where his Honour considered it unlikely that a court would fall within the notion of a “person”.
The Respondent contended that given the requirements of sections 126 and 135 of the Act, its officers had erred in considering they had authority to review the decision of the AAT. The Respondent submitted that the AAT had already reviewed the decisions of the Respondent and the SSAT, and made a decision (Nisha and Secretary, Department of Family and Community Services [2000] AATA 315), so that the Secretary had no power thereafter to review that decision of the AAT. The Respondent argued that the SSAT was correct in concluding that the purported review by the Authorised Review Officer (T13), was not made pursuant to sections 126 or 135 of the Act, and that therefore the Applicant had no power to seek review of any such decision in the SSAT.
The Respondent argued in the alternative, that if the Tribunal found there was power to review decisions of the AAT pursuant to section 126 of the Act, then it would follow that the SSAT was wrong in refusing jurisdiction, and that pursuant to Meyza (supra), the AAT should hear and determine the case and not remit it to the SSAT. The Respondent however, drew to my attention its view that it would then “wish to argue that the fresh evidence sought to be relied upon by the Applicant (being evidence that could have been placed before the AAT on the prior occasion) does not provide a sufficient reason to review the AAT’s original decision.”
I noted the submissions of both parties, and considered whether the SSAT decision to hold that Ms Nisha was not a person who could apply under section 142 of the Act for a review of her decision, was correct in law. I was mindful of Mr Hodges’ application that if Ms Nisha was found not to be able, at law, to apply to the SSAT for a review, then she would be satisfied to have the AAT review her decision again by accepting her application.
In coming to a decision, I had to decide whether the decisions of the Respondent (T11 and T13), had been decisions which empowered Ms Nisha to appeal to the SSAT for review. In the normal course of events of course, a person dissatisfied with, and affected by the decision of the decision maker and Authorised Review Officer, can appeal to the SSAT, and in certain instances, also to the AAT. In considering Ms Nisha’s situation, I have noted that section 142 of the Act provides for a person to apply to the SSAT for review of an administrative decision, in this case, a decision which has been reviewed by the Secretary or the CEO or an authorised review officer pursuant to sections 126 or 135 of the Act if her interests have been affected by that decision.
Ms Nisha must have considered, when she first received the decision of the Respondent dated 17 July 2001, (T11), and the decision of the Authorised Review Officer dated 16 October 2001, (T13), that her rights had thus been affected. Accordingly, she applied to the SSAT for review. Were those decisions however, decisions made under sections 126 or 135 of the Act? Firstly, pursuant to section 126(1)(a) of the Act, the Secretary may review, that is initiate a review of a decision of an “officer” under the social security law if the Secretary is satisfied that there is sufficient reason to review that decision. Further, the Secretary may initiate a review whether or not a person has applied for such review, (section 126(2)(a) of the Act), and even though an application for review may have been made to the SSAT or indeed the AAT (section 126(2)(b) of the Act). It should be noted, as abovementioned, that the AAT had already made a decision in this matter, Nisha and Secretary, Department of Family and Community Services [2000] AATA 315.
Now in Ms Nisha’s case, it was not a question of the Secretary or his delegate initiating a review. The Secretary did not initiate any review pursuant to section 126(1)(a) of the Act, and what occurred here was an application by Ms Nisha for review. The usual consequence of an application would then have been that the Secretary must review the application and either affirm the decision, vary it or set it aside and substitute a new decision (section 135 of the Act). However, a section 135 review requires that a person applying for review under section 129 of the Act, be a person affected by a decision of an “officer” under the social security law. Certainly Ms Nisha can be said to have been affected by a decision under the social security law (if indeed it was a decision). However in her case, the purported decisions of the Respondent and the reviewable decisions were nullities, and the only decision to review, was that of Ms Bullock of the AAT. I have noted the references in the Act to an “officer” as distinct from reference to the SSAT and the AAT, and I do not believe that the AAT can be characterised as an “officer” pursuant to section 129 of the Act. In support of that view, I have reproduced below the definition of “officer” as it appears in section 23 of the Social Security Act 1991:
“officer means a person performing duties, or exercising powers or functions under or in relation to this Act, the Administration Act, the Farm Household Support Act 1992 or subsection 91A(3) of the Child Support (Assessment) Act 1989 and, in the case of sections 1312 to 1321 of this Act, includes:
(a) a person who has been such a person; and
(b)a person who is or has been appointed, or employed by the Commonwealth and who, as a result of that appointment or employment may acquire or has acquired information concerning a person under this Act or the Farm Household Support Act 1992; and
(c)a person who, although not appointed or employed by the Commonwealth, performs or did perform services for the Commonwealth and who, as a result of performing those services may acquire or has acquired information concerning a person under this Act or the Farm Household Support Act 1992.”
Referring to the definition of “officer”, and on the authority of Dixon CJ in Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at 6 where his Honour considered it unlikely that a court would fall within the notion of a “person”, I find that neither the SSAT nor the AAT can be characterised as an “officer” under social security legislation. I noted his Honour, in the context of a case which dealt with unpaid income tax, and in connection with his Honour’s consideration of divulging of information or communication by an “officer”, stated at 6:
“The point would be of no materiality if it were not for the doubt as to whether the Court could be considered ‘a person’ within the meaning of the provision. … But, when the whole provision is looked at, and the use of the words ‘make a record of’ and then of the words ‘any such information’ is considered, together with the position the intervening words take, it seems to me more probable that the draftsman was using the expression ‘to any person’ in relation to both the words ‘divulge’ and ‘communicate’.. If that is so, the section probably cannot apply to courts, which would hardly be called persons.”
I was mindful in applying his Honour’s words that he was referring to “courts”, and of course neither the SSAT nor the AAT are courts, but found the dicta to be relevant.
I also took into account and agreed with Ms Buckley’s submission regarding the role of members of the SSAT vis-a-vis section 9(3) and 9(4) of the Act, and was satisfied that this could be extended then to include members of the AAT who would not be classified as “officers” either under social security legislation. Sections 9(3) and 9(4) of the Act follow:
Section 9(3) states:
“In exercising powers under the social security law, the Executive Director and the Social Security Appeals Tribunal must have regard to any statement a copy of which has been given to the Executive Director under subsection (1).”
Section 9(4) states:
“In exercising powers under the social security law, the Executive Director and the Social Security Appeals Tribunal must have regard to any statement a copy of which has been given to the Executive Director under subsection (1).”
Accordingly, although she did not explicitly say so, and would not indeed have been expected to say so, Ms Nisha did not apply for review pursuant to section 129 of the Act, and hence the decision made was not a decision pursuant to section 135 of the Act. Unfortunately, the Authorised Review Officer did not explicitly state under what section of the Act he was making the decision, but he did indicate that he was reviewing the amount of debt of $16,587 which was the decision of Ms Bullock of the AAT. The Authorised Review Officer wrote at T13:
“After carefully looking at the matters presented in your case, as well as relevant parts of Social Security Act and policy guidelines, I have decided that the decision to ask you to pay back debt amount of $16587.00 is correct. This means your request to have the original decision changed has been unsuccessful. Centrelink initially raised a debt amount of $30153.80 for the period 17 November 1994 to 5 March 1998. However Administrative Appeals Tribunal decided that part of the debt shall be waived and only $16587 shall be recovered by the Commonwealth.”
Section 181 of the Act states “that the AAT may only review a decision that has been reviewed by the SSAT.” There was thus no statutory basis for the SSAT to review the decision of the AAT. Ms Nisha had already been through review by the decision maker, the Authorised Review Officer and the SSAT to reach the AAT, and have Ms Bullock make the decision of Nisha and Secretary, Department of Family and Community Services [2000] AATA 315.
Accordingly I agreed with the submissions of Ms Buckley that the Authorised Review Officer and therefore the Respondent, did not have power to make further decisions (T11 and T13), with regard to the same issue which had already been decided by Senior Member Bullock at the AAT. I find, in accepting the above stated submissions of the Respondent, that the SSAT was correct in holding that it did not have power to review a decision of the AAT or the Secretary, unless the Secretary initiated a review of a decision (section 126(1)(a) of the Act), or unless Ms Nisha had made an application pursuant to section 129 of the Act, and that accordingly Ms Nisha was not a person who may apply under section 142 of the Act for a review of a decision of the AAT.

whether the tribunal has jurisdiction to review a decision of the aat which has already decided the same issue

Mr Hodges submitted on behalf of Ms Nisha that the issue of reviewing a previous AAT decision was considered in Lewis and Comcare [2000] AATA 158 and the substantive decision, Lewis and Comcare [2002] AATA 197.
He also drew my attention to Senior Member Sassella’s statements in paragraph 91 of Lewis and Comcare [2002] AATA 197 where the Senior Member stated:
“91. The tribunal has decided to resist Ms Adamson’s somewhat convincing arguments inviting it to refuse to hear this application given the existence of the earlier decision. The tribunal considers that the interlocutory decision by Senior Member Allen effectively disposed of the issue. The tribunal accepts that Senior Member Allen’s decision was correct. There was the appearance of a fresh diagnosis that could conceivably have commended itself to a newly constituted tribunal. At the same time the tribunal emphasises that its decision to hear this application was not influenced in the least by the applicant’s approaches to Comcare seeking to reopen the earlier decision.”
Mr Hodges referred me to Matusko v Australian Postal Corporation (1995) 21 AAR 9, where the Tribunal had reviewed a number of authorities and discussed the questions of issue estoppel and functus officio. He cited paragraph 33 of that decision which I have reproduced below:
“33. From the authorities cited we conclude:
(a) No formal issue estoppel arises from the Tribunal’s findings in Re Matusko 1991,
(b) The Tribunal should not generally allow relitigation of issues already decided,
(c) But the Tribunal should use its flexible procedures to allow further consideration of issues where there is a reason to do so, for instance:
(i) where there is a different decision,
(ii) where there is a clear legislative intent,
(iii) where the reconsideration decision is not final,
(iv) where there has been a change in circumstances or fresh evidence, or
(v) where justice to the parties requires a departure from the general rule.
(d) The Tribunal should usually consider the evidence proposed to be called and make appropriate directions as to its admissibility during the hearing, as suggested in Re Quinn, rather than in a directions hearing prior to the substantive hearing.”
The Respondent submitted that it did not deny that there were factual contexts in which the AAT could review issues which had been previously considered. It wrote that: “Indeed, it is not unusual in the context of legislation which permits people repeatedly to lodge claims for the one incident; hence, the Applicant’s reliance upon Comcare and veterans cases.” The Respondent submitted however that there was no rule that the AAT could re-determine issues which it had already determined absent statutory authority to do so. Further that there was nothing in the social security legislation which permitted the AAT to reconsider the merits of its previous decisions because an applicant had fresh evidence, at least not in a case such as the present. Accordingly, the Respondent submitted, there was not an issue estoppel but a lack of jurisdiction because there was no statutory basis to review the AAT’s first decision.

In coming to a decision whether the Tribunal has jurisdiction to review a decision of the AAT which has already decided the same issue, I agreed with Senior Member Allen who stated at paragraph 11 of Lewis and Comcare [2000] AATA 158 that:
“11. Various decisions of both this Tribunal and of the Federal Court point out that issue estoppel has no application to matters before the AAT. See Re Quinn and Australian Postal Corporation 15 AAR 519, Midland Metals Overseas Ltd v Comptroller-General of Customs 30 FCR 87 at 96 et seq, Power v Comcare 56 ALD 141.
12. On the other hand, the Tribunal does have the power to control its own proceedings and to prevent relitigation of matters previously determined . In Morales v Minister for Immigration and Multicultural Affairs 82 FCR 374 at 389, 390 the Full Court of the Federal Court said:
‘To enable the Tribunal to perform its functions, the Tribunal has a very wide discretion as to the procedure it should adopt and as to the manner in which it should inform itself about factual matters. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, O’Connor J, the President of the Tribunal and Mr Barbour observed (at 526):
‘s 33 of the Administrative Appeals Tribunal Act provides the Tribunal the flexibility needed to control its process. It is with regard to the dictates of fairness and expedition, after proper consideration of all the facts, that the Tribunal conducts itself.’
The procedural flexibility that the AAT Act gives to the Tribunal has been seen as a source of power not to allow a matter finally determined before it to be relitigated (see Comcare Australia v Grimes at 67; 592 per Wilcox J and Re Quinn and Australian Postal Corporation at 525 – 526), and it has been suggested that s 33 provides a series of bases on which the Tribunal can decline to revisit previously determined matters or, as the situation demands, reconsider the totality of the matter or some aspect of it. …”
I was mindful also that in Matusko (supra), the Tribunal concluded that the AAT should not generally allow relitigation of issues already decided, but emphasised its flexible procedures to allow further consideration of issues where justice to the parties required a departure from the general rule, or a reason to do so could be identified. The Tribunal there gave examples of such reasons which included the reason pleaded in this case, namely “fresh evidence”. In Matusko (supra), the Tribunal considered that:
“It would in our opinion be wrong for the Tribunal to refuse Mr Matusko the opportunity to seek a reconsideration of the issue whether or not incapacity after 28 November 1987 resulted from work stress and to present further relevant evidence, if such evidence existed.”
The Tribunal there referred to the consequences of Mr Matusko’s case having been inadequately prepared, the remedies for such behaviour in another forum, and the Full Court of the Federal Court’s comments on not visiting the sins of solicitors on their clients which was an issue in Comcare v A’Hearn (1993) 45 FCR 441. The Tribunal also recognised that there was additional medical evidence which should be permitted to be called. Accordingly, the Tribunal in Matusko (supra) refused the application for his appeal to be dismissed, and directed that the matter be relisted at the AAT.
I considered in a preliminary way what constituted “fresh evidence” in regards to Ms Nisha, and understood from the decision of the Respondent dated 17 July 2001 (T11), that the “fresh evidence” taken into account in making that decision was:
“Blacktown Local Court transcript dated 15/2/01, Social Security Appeals Tribunal (SSAT) transcript dated 3/2/99 and the Administrative Appeals Tribunal (AAT) transcript dated 20/4/00.”
As I understood the way the matter proceeded, Senior Member Bullock did not have the transcript of the Blacktown Local Court hearing before her when she handed down the decision in April 2000 because the AAT Hearing predated that Hearing. I was mindful also, that regardless, the AAT is not bound by any findings made in another jurisdiction pursuant to a different standard of proof. Further, I was mindful that the evidence of the parties who gave evidence before the Local Court was available at the time of the AAT hearing. I noted from paragraph 14 of the decision of the SSAT (T1), that the submission of Ms Nisha to that body, acknowledged that the fresh evidence sought to be addressed at the SSAT, was available at the time of the previous SSAT and AAT Hearings. I am inclined to hold that if this so-called “fresh evidence” was not put before Senior Member Bullock, then it goes more to the way the Hearing was prepared by Ms Koller and the Welfare Rights Centre who represented Ms Nisha at that Hearing, than to “fresh evidence”. I add however, that no suggestion was made that Ms Nisha had been in any way poorly represented at the Hearing, and I know Ms Koller as a very experienced and skillful legal practitioner. I do not find that this is a case of visiting the sins of solicitors on their client.
I have already noted above that section 181 of the Act states that “the AAT may only review a decision that has been reviewed by the SSAT.” There was thus no statutory basis for the SSAT to review the decision of the AAT. There was no valid decision for the SSAT to review because the purported decisions of the first decision maker and the Authorised Review Officer were nullities in that they sought to review the decision of the AAT decision. (Nisha and Secretary, Department of Family and Community Services (supra)).
Re-opening of AAT decisions in Comcare or veterans’ affairs matters may occur from time to time depending on circumstances, but in this case which is brought under social security legislation, there was no statutory basis to review the AAT’s first decision.
Accordingly, whilst recognising that this Tribunal has power to be flexible to allow further consideration of issues where justice to the parties requires a departure from the general rule, I cannot find a reason to do so in this case. Accordingly, whilst recognising that the issue of the overpayment of Sole Parent Pension, Ms Nisha was found to have incurred could in some circumstances be relitigated, I refuse that way forward.

DECISION

The Tribunal holds as follows:

The Tribunal does have jurisdiction to review a decision of the SSAT (T1) which determined it did not have jurisdiction to review the application before it.
The Tribunal affirms the decision of the SSAT (T1) and decides that the SSAT was correct in holding it did not have jurisdiction to consider the appeal brought by Ms Sainaz Nisha because she was not a person who may apply under section 142 of the Social Security (Administration) Act 1999 for a review of a decision which was in fact a decision of the AAT.
Mindful of its flexible procedures pursuant to section 33 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides it has jurisdiction to review an existing decision of the AAT in certain circumstances, holding however that there is no statutory basis for doing so in a case such as the present where social security legislation is involved.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of

Senior Member Ettinger

Signed: .......................................................................................
Associate

Date/s of Hearing 13 January 2003;
Written submissions received 26 February 2003
Date of Decision 28 April 2003

Solicitor for the Applicant Mr S Hodges
Advocate for the Respondent Ms M Buckley