NNXF and National Disability Insurance Agency - [2019] AATA 5552

NNXF and National Disability Insurance Agency [2019] AATA 5552 (23 December 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2019/1354
Re:NNXF
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:The Hon. Justice D G Thomas
Deputy President S A Forgie
Deputy President Britten-Jones

Date:23 December 2019
Place:Adelaide

The Tribunal has jurisdiction to hear the application for review lodged on 8 March 2019.
...........................[SGD].........................................
The Hon. Justice D G Thomas
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – where agency experiences delay in making internal review decision – whether “as soon as reasonably practicable” is a “prescribed period” – whether a decision may be deemed to have been made due to the agency’s failure to make a decision “as soon as reasonably practicable” – “as soon as reasonably practicable” is an ascertainable timeframe and a “period prescribed” – “as soon as reasonably practicable” is an ascertainable timeframe and a “period prescribed”
PRACTICE AND PROCEDURE – jurisdiction – tribunal has jurisdiction to hear the application – reviewable decision deemed to have been made
LEGISLATION
Administrative Appeals Tribunal Act 1975; ss 3(3), 24Z, 25(1), (2), (3), (5) and (6), 27(1),
29(3), 33, 34D, 35(1), 39(1), 42A, 42B, 42C and 43(1)
Administrative Appeals Tribunal Amendment Bill 1977
Administrative Appeals Tribunal Bill 1975
Disability Discrimination Act 1992; s 5(2)
Fisheries Management Act 1991; s 165(5)
Freedom of Information Act 1982; ss 54, 55 and 56
National Disability Insurance Scheme Act 2013; ss 20(a), 21(1) and (3), 26(2)(c) and (3),
32(2), (3) and (5), 32A, 33(2), 34, 48(1), (2) (3) (4), (5) and (6), 73L, 73M, 73P, 99(1),
100(1), (1A), (2), (3), (4), (5), (6), (7) and (8), 101, 102, 103, 204, 104-116, 118, 181E, 209
Ombudsman Act 1976; s 10
Safety Rehabilitation and Compensation Act 1988; s 62
Social Security (Administration) Act 1999; s 135
Superannuation Industry (Supervision) Act 1993; 344
Statute Law (Miscellaneous Amendments) Act (No.1) Bill 1982
Tribunals Amalgamation Bill 2015
National Disability Insurance Scheme Rules
National Disability Insurance Scheme (Plan Management) Rules 2013
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013
CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009)
239 CLR 27; 260 ALR 1
Al-Kateb v Godwin (2004) 219 CLR 562
Australian National University v Burns [1982] FCA 191; (1982) 64 FLR 166; 43 ALR 25; 5
ALD 67
Australian National University v Lewins (1996) 68 FCR 87; 138 ALR 1
Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126
Babaniaris v Lutony Fashions Proprietary Ltd [1987] HCA 19; (1987) 163 CLR 1
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378; 293 ALR 412
Chhua v Commissioner of Taxation [2018] FCAFC 86
Cobiac v Liddy (1969) 119 CLR 257
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24ALR 307, 41 FLR 338, 2 ALD 1
Comcare v Sassella [2001] FCA 1514; (2001) 34 AAR 142
Commissioner of Police v Eaton [2013] HCA 2; (2013) 252 CLR 1; 294 ALR 608
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719; 87
ATC 4670; 19 ATR 74
Commissioner of Taxation v Comber (1986) 10 FCR 88
Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594
Deputy Commissioner of Patents v Board of Control of Michigan Technological University
[1979] FCA 84; (1979) 28 ALR 551; 43 FLR 9; 2 ALD 711
Director-General of Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571; 47 FLR
80; 3 ALD 161
Director-General of Social Services v Hales (1983) 5 ALN 116
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR
409
Dyer v Watson [2002] UKPC D1; [2004] 1 AC 379 [2002] 3 WLR 1488; [2002] 4 All ER 1
Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130;
224 ALR 238
Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629
Goodwin v Phillips (1908) 7 CLR 1
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724; 82 ALD 289
Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; (1970) 122 CLR 49
Jones v Daniel [2004] FCAFC 278; (2004) 212 ALR 588
Kim v Minister for Immigration [2008] FCAFC 73; (2008) 167 FCR 578; 248 ALR 51
Maroondah City Council v Fletcher [2009] VSCA 250; (2009) 169 LGERA 407
McLeish v Faure [1979] FCA 38; (1979) 40 FLR 462; 25 ALR 403
McMillan v Territory Insurance Office (1988) 57 NTR 24; 91 FLR 436
Muller v Dalgety and Co Limited and Rodger (1909) 9 CLR 693; 16 Argus LR 17
NAIS v Minister for Immigration and Multicultural Affairs [2005] HCA 77; (2005) 228 CLR
470; 223 ALR 171; 88 ALD 257
O’Sullivan v Barton [1947] SASR 4
P v P (1994) 181 CLR 583
Plaintiff M174/20 16 v Minister for Immigration and Border Protection [2018] HCA 16;
(2018) 353 ALR 600
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355;
72 ALJR 841; 153 ALR 490
Re Coshott and Commissioner of Taxation [2013] AATA 822; (2013) 96 ATR 967; (2013)
140 ALD 436
Re Duarte and Australian Maritime Safety Authority [2011] AATA 530; (2011) 55 AAR
180; 127 ALD 620
Re FJKH and National Disability Insurance Agency [2018] AATA 1294
Re Jetopay Pty Ltd and Australian Fisheries Management Authority [1993] AATA 388;
(1993) 32 ALD 209; 19 AAR 20
Re KRBG and National Disability Insurance Agency [2019] AATA 144
Re LQTF and National Disability Insurance Agency [2019] AATA 631
Re LQMG and National Disability Insurance Agency [2019] AATA 4975
Re Newbridge Civil Pty Ltd and Comptroller-General of Customs [2016] AATA 81
Re Simpson and National Disability Insurance Agency [2018] AATA 1326
Re Wells and Repatriation Commission [1986] AATA 257; (1986) 10 ALD 190
Re Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and
Secretary of Social Services [2018] AATA 3865
Re Young and Telstra Corporation (1993) 32 ALD 307
Royal Automobile Club of Australia Incorporating Imperial Service Club v Sydney City
Council (1992) 27 NSWLR 282; 75 LGRA 292
SAS Trustee Corporation v Miles [2018] HCA 55; 92 ALJR 1064
Scharer v New South Wales [2001] NSWCA 360; (2001) 53 NSWLR 299; 116 LGERA
217
Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25
Secretary, Department of Social Security v Alvaro [1994] FCA 1124; (1994) 50 FCR 213;
19 AAR 460; 34 ALD 72
Shi v Migration Agents (2008) 235 CLR 286
Silk Bros Pty Ltd v State Electricity Comm (Vic) [1943] HCA 2; (1943) 67 CLR 1
Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156,
(2014) 230 FCR 82, 315 ALR 352, 145 ALD 273
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716
The Queen v County Council of Norfolk [1891] 60 LJQB 379
Trade Practices Commission v Collings Construction Co Pty Ltd (1994) 53 FCR 137; 130
ALR 115
Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459
Watts v Australian Postal Corporation [2014] FCA 370
Williams v The Queen [1986] HCA 88, (1986) 161 CLR 278, 66 ALR 385
SECONDARY MATERIALS
Explanatory Memorandum to the Administrative Appeals Tribunal Bill 1975 (Cth) Chambers 21st Century Dictionary (1999, reprinted 2004)
Black’s Law Dictionary with pronunciations, 5th edition, 1989, West Publishing Company, St Paul
REASONS FOR DECISION
The Hon. Justice D G Thomas
Deputy President Britten-Jones
23 December 2019

The issue before the Administrative Appeals Tribunal (“the Tribunal”) in this matter is a discrete question of law arising under the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”). The question that has been posed is whether, in circumstances where the National Disability Insurance Agency (“the respondent”) has failed to make a reviewable decision within a reasonably practicable period of time, a reviewable decision may be deemed to have been made so that the Tribunal’s jurisdiction is enlivened.
[2] [2018] AATA 1326.
A three member Tribunal heard this application because there are conflicting authorities from the Tribunal with respect to this issue. Deputy President Bean in Re FJKH and National Disability Insurance Agency[1] (“FJKH”) and Deputy President Humphries in

Re Simpson and National Disability Insurance Agency[2]
found that there was jurisdiction. Deputy President Forgie took an opposing view in Re KRBG and National Disability Insurance Agency.[3]
[3] [2019] AATA 144.
[1] [2018] AATA 1294.
BACKGROUND FACTS
NNXF (“the applicant”) is a fifty year old woman who has a diagnosis of Down syndrome with a severe intellectual disability.
The applicant resides with her two older sisters, one of whom acts as her guardian. The applicant has minimal expressive communication and requires substantial support for all activities of daily living and 24-hour supervision.
The applicant was receiving support prior to the implementation of the National Disability Insurance Scheme (“the NDI Scheme”) through Disability SA. On 18 September 2017, the respondent advised the applicant that her NDIS Access Request had been successful.
On 28 June 2018, a delegate of the Chief Executive Officer of the respondent (“the CEO”) advised the applicant that a decision had been made under s 33(2) of the NDIS Act to approve the statement of participant supports. The applicant’s plan came into effect on

27 June 2018.
The applicant’s sister was not satisfied with the supports approved under the plan. On 10 September 2018, the applicant’s sister completed a Plan Review Request Form. The applicant’s sister stated in the form that the budget for the core supports would not cover all the supports that the applicant had been receiving from Disability SA.
It is not in dispute that the purpose of lodging this form was to request an internal review of the decision dated 28 June 2018 to approve the applicant’s plan, because, the applicant’s sister (on behalf of the applicant) disagreed with the decision.
On 8 March 2019 (nearly six months later), having not received an internal review decision, the applicant’s representative from Disability SA lodged an application with the Tribunal.
The internal review decision was eventually made on 9 April 2019, after the review application was lodged but before the hearing of the application. In one sense the making of that decision which is reviewable by the Tribunal resolves the complaint made by the applicant. Nevertheless, there remains an important issue to be resolved, namely whether the Tribunal has jurisdiction to determine the application lodged on 8 March 2019. This remains a live issue between the parties about which the parties have sought a decision and its resolution has significant implications for disabled applicants whose requests for an internal review of an adverse decision have not been dealt with in a time that they consider is as soon as is reasonably practicable.
KEY LEGISLATIVE PROVISIONS
The key legislative provisions are ss 100(6) and 103 found in Part 6–Review of decisions of the NDIS Act and s 25(5) of the Administrative Appeal Tribunal Act 1975 (Cth)
(“the AAT Act”). We will refer to these as s 100(6), s 103 and s 25(5) without including the name of the Act.
Section 100(6) provides that:
The reviewer must, as soon as reasonably practicable, make a decision:
(a)confirming the reviewable decision; or
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and substituting a new decision.
Section 103 provides that applications may be made to this Tribunal for review of a decision made by a reviewer under s 100(6).
Section 25(5) provides:
Failure of decision maker to meet deadline
(5) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.
THE POSITIONS OF THE PARTIES
The applicant submits that the Tribunal has jurisdiction to review a decision deemed to have been made by s 25(5).[4] The applicant relies upon the failure by the respondent to make a decision under s 100(6) as at the date of the application for review.
[4] Applicant’s Submissions on Jurisdiction at [61] (6 May 2019).
A request for internal review was made on 10 September 2018. It is not disputed that, as at 8 March 2019, the respondent had not made a decision to confirm, vary or set aside the CEO’s approval of the Statement of Participant Supports (“SPS”) under s 33(2) of the NDIS Act.
The Respondent concedes that no decision was made as soon as reasonably practicable as required by s 100(6).[5]
[5] Submissions of the Respondent Regarding Jurisdiction at [38] (3 May 2019); Transcript of proceedings, page 71, lines 12 – 23.
In the absence of the making of an internal review decision, the respondent argues that the Tribunal does not have jurisdiction. The respondent contends that there is no jurisdiction under s 25(5) because:
(a)
there is no “period prescribed” by the NDIS Act and in particular the words

“as soon as reasonably practicable” in s 100(6) do not prescribe a period;
(b)the wording of s 100(6) obliges a decision-maker to do one of three things, namely to confirm, vary or set aside the reviewable decision and substitute a new decision, whereas s 25(5) assumes a binary decision choice and is therefore not capable of applying to s 100(6); and
(c)the NDIS Act excludes or impliedly repeals s 25(5).
These submissions require consideration of the way in which ss 100(6), 103 and 25(5) operate. The ultimate question for determination is whether, in circumstances where no decision has been made, s 25(5) can deem a decision to have been made under s 100(6) which enlivens the Tribunal’s jurisdiction under s 103.
STATUTORY INTERPRETATION OF TWO RELATED ACTS
In Sweeney v Fitzhardinge,[6] Griffith CJ concluded that, where a number of Acts form a scheme of legislation, it is proper to look at all of the Acts comprising that scheme for the purpose of construing the expressions in any one of those Acts.
[6] (1906) 4 CLR 716 at 726.
In Commissioner of Stamp Duties v Permanent Trustee Co Ltd,[7] Kirby P said:
[I]n construing the legislation under consideration here, I prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co-owners…We should presume that Parliament intended its legislation to operate rationally, efficiently and justly, together.
[7] (1987) 9 NSWLR 719 at 723–724.
As Warren CJ and Osborn AJA said in Maroondah City Council v Fletcher: [8]
Where construction of separate but related legislation is simultaneously required, the object is to arrive at a construction of the provisions which assumes that Parliament intended its legislation to operate harmoniously or, in other words, rationally, efficiently and justly together.
[8] (2009) 169 LGERA 407 at [85].
In Commissioner of Police v Eaton, [9] Gageler J said:
Stated at its highest level of generality, it is that statutory texts enacted by the same legislature are to be construed so as far as possible to operate in harmony and not in conflict. The principle of harmonious construction applies to the construction of provisions within different statutes of the same legislature to create “a very strong presumption that the…legislature did not intend to contradict itself, but contended that both…should operate”.
[References omitted]
[9] (2013) 252 CLR 1 at [98].
The NDIS Act and the AAT Act are beneficial legislation and the policy behind these statutes is to promote opportunities for persons aggrieved by a decision to have that decision reviewed and to ensure that the correct and preferable decision is made.[10]
[10] Re Young and Telstra Corporation (1993) 32 ALD 307 at 309 (per President O’Connor J).
The sections of each Act should be construed harmoniously and justly[11] so as to achieve the purposes outlined in each Act, and consistently with the “General principles guiding actions” set out in s 4 of the NDIS Act (“the General Principles”).
[11] See the cases referred to above of Sweeney v Fitzhardinge (1906) 4 CLR 716 at 726; Commr of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 723 – 724 (Kirby P); and Maroondah City Council v Fletcher (2009) 169 LGERA 407 at [85].
As Kirby P observed in Commr of Stamp Duties v Permanent Trustee Co Ltd,[12] this approach facilitates the sensible operation together of the two statutes mentioned, avoiding inefficiency and a capricious outcome which would seriously impede or discourage the availability of beneficial statutory provisions.
[12] (1987) 9 NSWLR 719 at 723–724.
Lockhart J in the earlier case of Director-General of Social Services v Hales[13] said:
No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the Administrative Appeals Tribunal. The multiplicity of statutes which continue to grow and to confer jurisdiction on the Administrative Appeals Tribunal, and the manifold and diverse circumstances which attract the power of the decision-maker, all call for a liberal approach to the definition of the word “decision”… It is necessary to examine the Act which confers jurisdiction on the Administrative Appeals Tribunal and the administrative framework in which it operates to determine whether there is a “decision” susceptible of review under the Administrative Appeals Tribunal Act.
[13] (1983) 5 ALN 116 at 164.
Finally, the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection,[14] recently referred to:
…the evident legislative purpose of the conferral of jurisdiction on the Tribunal “to promote good government by those carrying out the actual practical task of administrating Acts of Parliament and making decisions incidental to that task”.[15]
[14] [2018] HCA 16 at [39] (Gageler, Keane and Nettle JJ).
[15] See discussion of Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [39] (Gageler, Keane and Nettle JJ).
We will follow this approach in considering the way in which ss 25(5), 100(6) and 103 operate together.
THE OBJECTS AND GENERAL PRINCIPLES GUIDING ACTIONS UNDER THE NDIS ACT
As we have said, ss 100(6) and 103 must be construed in the context of the NDI Scheme as a whole and should be construed in a way which is consistent with the Objects of the NDIS Act and the General Principles under the NDIS Act.
Section 3(1) provides the objects of the NDIS Act which include providing reasonable and necessary supports for participants,[16] and protecting and preventing people with disability from experiencing harm from poor quality or unsafe supports or services provided under the NDI Scheme.[17]
[16] National Disability Insurance Scheme Act 2013 (Cth), s 3(1)(d) (subsequent sections in footnotes are with respect to the National Disability Insurance Scheme Act 2013 (Cth) unless stated otherwise).
[17] Section 3(1)(ga).
Section 4 sets out the General Principles which include that:
(5)People with disability should be supported to receive reasonable and necessary supports …
(7)People with disability have the same right as other members of Australian society to pursue any grievance.
Section 5 states the intention of the Parliament that the CEO (amongst others) is to perform functions and exercise powers under the NDIS Act in accordance with the principles in ss 4 and 5 and provides a further relevant General Principle that “people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves”.[18]
[18] Section 5(a).

An essential aspect of the ability to pursue a grievance is the right to independent merits review by the Tribunal. As a general proposition it would be contrary to the General Principles under the NDIS Act for the legislation to operate in the way suggested by the respondent, namely that participants in the NDI Scheme are deprived of their rights to merit review if the decision maker fails to make a decision as to the participant’s request for review of a plan. Essentially, the effect of the respondent’s submissions is that the decision maker, by inaction (for any reason), can deprive the participant of the right to pursue a grievance by way of merits review. The effect of the respondent’s submission is that the provisions of the NDIS Act deprive NDIS applicants of rights enjoyed by other members of the Australian community (which would come into effect due to the operation of s 25(5)) to pursue a grievance.
STAGES OUTLINED IN THE NDIS ACT
The NDIS Act comprises three distinct stages. The first stage is found in Chapter 3, Part 1 and relates to the process of gaining access to the NDI Scheme. The second stage is found in Chapter 3, Part 2 and focuses on an applicant’s plan getting approved. The third and final stage is Chapter 4, Part 6 which relates to the review of decisions both internally and by the Tribunal.
Chapter 3 provides for certain decisions to be made by the CEO relating to accessing the NDI Scheme and approving a plan. Chapter 4 then provides for internal review with respect to the decisions listed in s 99. The reviewer must make this internal review decision as soon as reasonably practicable under s 100(6). If the applicant remains dissatisfied with the internal review decision, then an application may be made to the Tribunal for a further review.[19]
[19] Section 103.
Stage 1–Becoming a participant
Sections 18 to 30 deal with a person who is seeking to gain access to the NDI Scheme. In this case, the applicant was receiving support through Disability SA and when the NDI Scheme became operative the applicant was transitioned to the NDI Scheme. Nevertheless, it remains useful to examine this first stage in the process.
Section 18 enables a person to make a request to the NDIA to become a participant in the NDI Scheme. A request to become a participant is put before the CEO. The CEO must, within 21 days of receiving the access request, decide whether or not the person meets the access criteria or the CEO can make a request for further information.[20] Where the CEO requests further information, a decision must be made within 14 days of the CEO receiving that information.[21]
[20] Section 20.
[21] Section 26(2).
If the CEO does not make a decision within the prescribed periods, then the CEO is taken to have decided that the person “does not” meet the access criteria.[22] What is important here for the person requesting access is that, because the CEO has either decided that the person does not meet the access criteria or the CEO has failed to make a decision in the time permitted, the person has a right of review under s 100 of the NDIS Act (discussed below).
[22] Section 21(3).
Stage 2–Preparing participants’ plans
The sections of the NDIS Act that are of relevance in stage 2 include ss 31 to 33 and 48.
Section 32 requires the CEO to facilitate the preparation of the participant’s plan. The CEO is required to commence facilitating the preparation of the plan “as soon as reasonably practicable”, having regard to the obligations of the CEO under the rules to commence facilitating the preparation of other participants’ plans.[23] This is the first example where the phrase “as soon as reasonably practicable” has been used to describe a time period in which something must be done.
[23] Section 32(3).
Section 32 is also the first example where there is no consequence for the CEO not fulfilling its obligation. If the CEO does not facilitate the preparation of the participant’s plan “as soon as reasonably practicable”, the participant is left with no redress under the NDIS Act. The failure of the CEO to commence facilitation “as soon as reasonably practicable” is not a reviewable decision.
Section 32A(3) grants the CEO even more flexibility when it comes to facilitating the preparation of a participant’s plan. Under this section, the CEO can delay the commencement of facilitating the preparation of a participant’s plan in circumstances where the CEO is satisfied that it is appropriate to deal with another, arguably more urgent, participant’s plan first.
Once the preparation of a participant’s plan has commenced, the participant prepares a statement of participant supports (“SPS”). The SPS must be approved by the CEO under s 33(2).[24] Section 33(4) states that the CEO “must endeavour” to make a decision either approving or not approving the SPS “as soon as reasonably practicable”. A decision by the CEO to approve the SPS is a decision reviewable under s 100. A decision not to approve the SPS is not reviewable.
[24] It was the CEO’s decision to approve the SPS that the applicant requested to review.
Section 33 does not deal with the situation where the CEO does not make a decision
“as soon as reasonably practicable”. Section 33(4) is another example where there is an obligation on the CEO to make a decision and Parliament has only given a direction to the CEO with respect to fulfilling that obligation. Where the CEO does not do anything, the participant is left with no statutory redress to get the CEO to make a decision.
Section 48 covers requests by participants for their plans to be reviewed (“s 48 review”). A s 48 review needs to be distinguished from an internal review under s 100. Section 48 applies when participants already have an effective plan in progress but wish to review that plan. A participant may request the CEO to conduct a review of their plan at any time.[25] Section 48 imposes three obligations on the CEO.
[25] Section 48(1).
The first of these obligations is to decide whether or not to conduct the review. The CEO must satisfy this obligation within 14 days after receiving a s 48 review request. Parliament has imposed a consequence for when the CEO does not do this, namely that the CEO is taken to have decided “not” to conduct the review. The decision by the CEO not to conduct the review is reviewable under s 100.[26]
[26] Section 99, item 6.
If the CEO decides to conduct the review, he or she must commence to facilitate that review within 14 days after deciding to conduct the review. This is the second obligation under s 48. Here, however, Parliament has decided not to incorporate any mechanism for enforcing the CEO’s obligation. There is no statutory redress available to the participant if the CEO does not commence facilitating the review within 14 days.
The third obligation imposed on the CEO is to complete the review “as soon as reasonably practicable”. If the CEO fails to complete the review “as soon as reasonably practicable” there is no consequence under the NDIS Act.
Stage 3–Review of decisions
The decisions that may be reviewed are listed in s 99. Of greatest relevance to the Tribunal are the decisions listed in items one through to six, particularly items one, four and six. These are the decisions that relate to current and prospective participants of the NDI Scheme.
Where one of the decisions referred to in s 99 has been made, s 100 will apply. Section 100(1) facilitates the internal review process by requiring the respondent to give written notice that a decision has been made to each person who is directly affected by the decision. A person who is directly affected by the decision may then request the decision-maker to review that decision. Such a request needs to be made within three months after receiving the s 100(1) notice.[27]
[27] Section 100(2).
Section 100(5) deals with the CEO’s obligations once a request is received. The CEO “must cause the reviewable decision to be reviewed by a person (the reviewer)”. The reviewer is someone to whom the CEO can delegate the CEO’s powers and functions and who was not involved in making the reviewable decision. There is no time limit provided in which the CEO must allocate the decision to the reviewer. There appears to be no statutory consequence if the CEO does not carry out this obligation.
Pursuant to s 100(6) the reviewer is obliged to make a decision. The reviewer can confirm the reviewable decision, vary the reviewable decision, or set aside the reviewable decision and substitute a new decision. The reviewer “must” do one of these three actions “as soon as reasonably practicable”.
Finally, s 103 allows for a participant who has received a decision under s 100(6) to make an application to the Tribunal for merits review. The Tribunal only has jurisdiction to deal with an application under the NDIS Act if there has been a decision under s 100(6).
SECTION 25 OF THE AAT ACT
Under s 25(1) other enactments can provide that applications can be made to the AAT for the review of decisions made in the exercise of powers made under the other enactment.
For the Tribunal to have jurisdiction to carry out a review, there must be a decision made under another enactment that is capable of being reviewed under the AAT Act.
One such enactment is the NDIS Act which, as mentioned earlier, provides in s 103 that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6).
It is convenient to consider separately the purpose of s 25(5) and its elements, namely:
·for the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions;
·a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing;
·shall be deemed to constitute the making of the decision by that person at the expiration of that period;
·not to do that act or thing.
Section 25 was previously s 26 in the 1975 version of the AAT Act and was amended with no material differences in 1982.
With respect to s 25(5), the Explanatory Memorandum to the Administrative Appeals Tribunal Bill 1975 (Cth) explains:
Sub-clause 26(5) provides that where a person fails to do an act within a prescribed period as provided by statute that failure is to be regarded as a decision not to do that act. This allows a person seeking the decision to place the matter before the Tribunal.
[Emphasis added]
The opening words to s 25(5) of the AAT
The opening words of s 25(5) are:
for the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions…
The NDIS Act is such an enactment as s 103 enables applications to be made to the Tribunal for review of a decision made under the exercise of powers contained in s 100(6).
It follows that s 25(5) operates for the purpose of the NDIS Act, specifically s 103, in the context of applications being made to the Tribunal.
The fact that s 25(5) is to operate for the purpose of the enactment (the NDIS Act), is a clear indication that the two Acts are to be read together, so as to form what has been described as a scheme of legislation, in a way that is both harmonious and just.[28]
[28] Sweeney v Fitzhardinge (1906) 4 CLR 716 at 726; Commr of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 723 – 724 (Kirby P); and Maroondah City Council v Fletcher (2009) 169 LGERA 407 at [85].
The respondent contends, in an alternative argument, that the NDIS Act impliedly repeals or excludes the operation of s 25(5).[29] There seems to be no clear express indication of this in the NDIS Act, and the words used in s 25(5) strongly suggest the contrary. Reading the Acts together in a way that is harmonious and just does not support the respondent’s contentions.
[29] See Further Submissions of the Respondent Regarding Jurisdiction at [21] (21 May 2019); Applicant’s Further Submissions at [20] (3 June 2019).
Moreover, such an implied repeal or exclusion would lead to the NDIS Act operating in a way which is contrary to the General Principles of the NDIS Act as the implied repeal or exclusion would deprive NDIS participants of rights to pursue a grievance by way of merits review.
Further, s 25(6) provides expressly for the circumstances where the enactment may include provisions “…adding to, excluding or modifying” the operation of specified provisions in the AAT Act. Those provisions do not include s 25. If Parliament intended that s 25(5) could be excluded by another enactment then one would have expected s 25 to be included in the list contained in s 25(6).
The First Element – A failure to act
The first element of the deeming provision in s 25(5) is that there is “a failure by a person to do an act or thing”.
As at the date of the application to the Tribunal, the reviewer had not made a decision as required under s 100(6).
It would seem that it will always be possible to identify whether a decision has been made in response to the request by the applicant.
The Second Element – A temporal requirement
The second element in s 25(5) provides the temporal requirement. The failure to act must occur “within the period prescribed by that enactment…as the period within which that person is required or permitted to do that act or thing”.
It is not disputed by the applicant, and is clearly the case, that s 25(5) will have no operation if there is no period prescribed by s 100(6).
An example of such a position is expressed in Comcare v Sassella[30], where Finn J said:
The SRC Act does not prescribe a time within which a s37(1) decision is to be made such as might attract a deeming provision equating a failure to decide with a negative determination: cf Administrative Appeals Tribunal Act, 1975, s 25(5)…
[30] [2001] FCA 1514 at [26].
Another example is s 135 of the Social Security (Administration) Act 1999 (Cth), which obliges the Secretary, the Chief Executive Centrelink or an Authorised Review Officer to review certain decisions (including with respect to a disability support pension) but imposes no time limit within which to do so. Consequently, s 25(5) will not operate to deem a decision in the event of a failure to carry out the review required by s 135 of the Social Security (Administration) Act (Cth).
It is an integral element of the deeming provision in s 25(5) that there is a
“period prescribed” by the other enactment (here the NDIS Act).
It is necessary to consider the terms of the other enactment (the NDIS Act) to determine whether there is a “period prescribed”. In this case s 100(6) provides that the decision must be made “as soon as reasonably practicable”.
The respondent accepts, for the purposes of the present proceeding only, that the
s 100(6) decision was not made as soon as reasonably practicable.[31] Counsel for the respondent expanded upon this at the hearing and said:
It is only a concession in the applicant’s case that in the circumstances of her case a decision was not made as soon as reasonably practicable. It is not a concession as to what date was the reasonably practicable one, and for all the reasons I’ve given that is something that is very difficult to identify. The admission only has the effect of enabling the tribunal, if it’s satisfied that reasonably practicable is a period prescribed and you’re also against me on the second part of my construction of 25(5). It has the effect of enabling 25(5) to be enlivened in this case as a practical matter, but it’s no concession that reasonably practicable is actually a period that is capable in every case of being able to be objectively ascertained, ascertained in any efficient practical sense, and that is some concession as to how the Act itself should be construed. [32]
[31] Submissions of the Respondent Regarding Jurisdiction at [38] (3 May 2019).
[32] Transcript of proceedings, page 71, lines 12 – 23.
The ascertainment of the meaning of “as soon as reasonably practicable” is the first step in determining whether there is a “period prescribed” by s 100(6).
The starting point in statutory construction is the legislative text[33] which is to be read in its context and with its purpose in mind.[34]
[33] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[34] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] (McHugh, Gummow, Kirby and Hayne JJ); and SAS Trustee Corporation v Miles [2018] HCA 55 at [20]; (2018) 92 ALJR 1064 at 1071 (Kiefel CJ, Bell and Nettle JJ).
For the reasons we outline, we have concluded that the obligation to make a decision as soon as reasonably practicable is a time period prescribed by the NDIS Act for the purposes of s 25(5).
The respondent questions whether a period can be prescribed by reference to what is “reasonably practicable”.
In this context the contention of the respondent was that s 25(5) has no application to a timeframe which has indefinite parameters that cannot be objectively ascertained and would invariably permit a range of possibilities.
The phrase “as soon as reasonably practicable” has been considered judicially in various legislative frameworks.
In Williams v The Queen[35] the statutory obligation to bring a person before a justice
[35] (1986) 161 CLR 278 at 283 (Gibbs CJ).
[36] Ibid at 283 – 284.
“as soon as is practicable” after he has been taken into custody required that the person making the arrest bring the arrested person before a justice in as short a time as is reasonably practicable. Gibbs CJ said that what is reasonably practicable in a particular case is a question of fact depending on the time when, the place in which and the conditions under which the arrest was made.[36]
McMillan v Territory Insurance Office[37] involved consideration of a requirement to make a claim “as soon as practicable” after a motor car accident. It was found there, that the phrase “as soon as practicable” was “designed to impose a reasonably practicable time limit”.
[37] (1988) 91 FLR 436 at 439 (Gakkio J).
In Al-Kateb v Godwin,[38] Gummow J considered the phrase “as soon as reasonably practicable” in the context of s 198 of the Migration Act 1958 (Cth) and said:
…there is a temporal element, supplied by the phrase “as soon as”. The term “practicable” identifies that which is able to be put into practice and which can be effected or accomplished. The qualification “reasonably” introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme.
[38] (2004) 219 CLR 562 at 608, [121].
In Snedden v Minister for Justice[39] (“Snedden”) it was held that:
There are essentially three elements to the composite expression “as soon as is reasonably practicable”. First, the word “practicable” has the meaning of “capable of being carried out in action; feasible”. It identifies that which is able to put into practice and which can be effected or accomplished. Secondly, the qualification “reasonably” limits or qualifies what would otherwise be an absolute obligation. It introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme. Thirdly, the phrase “as soon as” supplies a temporal element. It directs the decision-maker to make the determination without delay once it is reasonably practicable to do so.[40]
[References omitted]
[39] (2014) 230 FCR 82 at 103, [116].
[40] (2014) 230 FCR 82 at 103, [116].
In Snedden[41] it was also said:
The words “as soon as is reasonably practicable” do have work to do in the context of the availability of mandamus. They determine the time from which a person can commence proceedings to enforce the Minister’s duty.
[41] Ibid at 102, [109]. See also at 103, [117] where the Full Court (Middleton and Wigney JJ) in Sneddon said that a determination of a reasonably practicable period “will depend on a consideration of all the relevant circumstances of the particular case at hand.”

As is obvious, in that context it was concluded that the words “as soon as reasonably practicable” can define timeframes, in Snedden’s case, from which a person can commence proceedings to enforce the Minister’s duty.
We agree with the authorities outlined above, that words such as “as soon as reasonably practicable” introduce an assessment or judgment of the period which is appropriate or suitable for the purpose of the legislative scheme. In other words, such a description introduces a “period prescribed” by s 100(6).
In the context of the legislative scheme, including the General Principles of the NDIS Act, people with disability should have the same right as other members of Australian society to pursue any grievance. Consistent with that objective, the decision-making process would not be expected to be open ended and without accountability and the words

“as soon as reasonably practicable” provide a temporal limitation on the obligation to make a decision. The intent of s 100(6) is to define the period prescribed within which the decision must be made by requiring the decision to be made without delay once it is reasonably practicable to do so.
The time within which it is reasonably practicable to have made the decision can, against the background of the surrounding circumstances and on appropriate evidence,

be determined by the Tribunal.[42]
[42] See Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459, at 468 (Tamberlin J).
For a prescribed period, it must be possible to ascertain the commencement of that period as well as the conclusion of that period. Where a “prescribed period” is expressed in the terms “as soon as reasonably practicable” these two dates are able to be determined against the background of the specific circumstances relevant to the applicant.
The beginning of the period expressed in s 100(6) is when the person directly affected by the reviewable decision requests the decision-maker to review the reviewable decision under s 100(2).
The time limit or the expiration of the period within which the decision is to be made will be established by reference to the time at which it would have been reasonably practicable to have made the required decision.
The legislative scheme, set out in the NDIS Act, involves internally reviewing a decision which might, in one case, be a time-consuming task, but in another case, be less time‑consuming. In those circumstances, it is not feasible to specify a defined period within which the decision must be made. Thus, consistent with the NDI Scheme, s 100(6) requires that the decision be made “as soon as reasonably practicable”.
As will be obvious, we are of the view that the timeframe imposed by the words “as soon as reasonably practicable” does not involve indefinite parameters that cannot be objectively ascertained. We agree with the observations of Deputy President Bean in FJKH[43] who said:
…noting the multitude of different decisions which are reviewable decisions under the NDIS Act, and the multitude of different circumstances in which those decisions are required to be made, it is also not entirely surprising that s 100(6) does not impose a rigid timeframe, or a series of different timeframes, within which internal review decisions must be made. Rather, it requires internal review decisions to be made “as soon as reasonably practicable”. To my mind, however, that does not necessarily have the consequence that there is no applicable timeframe which can ever give rise to a deemed affirmation pursuant to s 25 of the AAT Act.
[43] [2018] AATA 1294 at [46].
Consistent with the principles outlined, in this case the time frame specified is therefore sufficient to enable determination of the time within which the reviewer must make a decision under s 100(6). It is a period prescribed by an enactment as referred to in

s 25(5).For the reasons outlined we conclude that, based on the facts of individual cases it will be possible to identify these dates.
Does the wording of s 29 assist in understanding the operation of s 25(5)?
Section 25(5) is referred to in s 29(3) when dealing with the prescribed time for making applications. Section 29(3) provides:
Prescribed time for making applications—decision‑maker’s failure to meet deadline
(3) In the case of a decision that is deemed to be made by reason of the operation of subsection 25(5) or (5A), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is deemed to be made and ending:
(a) in a case to which paragraph (b) does not apply—on the twenty‑eighth day after that day; or
(b) in the case where the person whose failure to do an act or thing within a particular period is deemed by subsection 25(5) or (5A) to constitute the making of the decision makes or purports to make, after the expiration of that period, a decision either to do or not to do that act or thing, being a decision the terms of which were recorded in writing and set out in a document that was given to the applicant—on the twenty‑eighth day after:
(i)if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or
(ii)if the decision does not set out those findings and reasons—the day that would be ascertained under paragraph (2)(b) if subsection (2) were applicable in relation to the decision.
Section 29(3)(b) deals with the position where a deemed decision arises from a failure to do an act or thing within a particular period and an actual decision is later made. Section 29(3)(a) applies to a case to which s 29(3)(b) does not apply. The reference to a failure to act “within a particular period” is clearly different language from that used in s 25(5), namely “within the period prescribed by the enactment”. This suggests that the period prescribed for the purposes of s 25(5) can be a particular period (e.g. within 14 days), in which case s 29(3)(b) applies or some other prescribed period (e.g. as soon as reasonably practicable), in which case s 29(3)(a) applies.
We agree with what was said by Mayo J in O’Sullivan v Barton[44]:
It is a rule of construction that where in the same statute, in relation to the same subject matter, different words are used, the court must see whether the legislature has not made the alteration intentionally, and with some definite purpose. Prima facie such alteration would be considered intentional.
[References omitted]
[44] [1947] SASR 4 at 8-9.
By using different words,[45] the legislation distinguishes between where an enactment prescribes a particular period, for example a specific number of days, and where an enactment prescribes some other period, for example a “reasonably practicable” period. Either way, there is a prescribed period for the purposes of s 25(5). The structure of

s 29(3) suggests that a prescribed period is not confined to a particular period of days.
[45] See Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25 at 30 (Irvine CJ).
This supports the conclusion we have reached that the reference in s 100(6) to making a decision as soon as reasonably practicable is a period prescribed by the NDIS Act and so falls within the operation of s 25(5).
Further contentions of the respondent
The respondent contends that the phrase “as soon as reasonably practicable” in s 100(6) does not give rise to a prescribed period for the purposes of s 25(5) having regard to the structure of the sections in the NDIS Act which suggest a legislative intention not to prescribe a time. The phrase appears in ss 32(3), 33(4) and 48(3) with respect to the CEO’s obligations to commence facilitating the preparation of a plan, to decide whether or not to approve a SPS, and to complete the review referred to in s 48(1) respectively. There is no stated consequence in the NDIS Act if the CEO fails to carry out these obligations despite the requirement to do so “as soon as reasonably practicable”.
The respondent submits that this indicates a legislative intention to not prescribe a period within which the obligation must be carried out, but instead to provide guidance in the nature of a direction for which there is no consequence for non-compliance. Further,

by contradistinction, the respondent notes there are other obligations in the NDIS Act which are defined by specified temporal limitations (e.g. 14 or 21 days) and for which there are stated consequences for non-compliance. Examples of these obligations can be found in ss 21(3) and 48(2) which are both reviewable decisions listed in s 99. There is a note accompanying each of these provisions that notice of the decision must be given because of s 100(1).
The respondent relies upon this contextual analysis as to the use of the phrase “as soon as reasonably practicable” within the NDIS Act to inform the meaning that should be given to it and in particular whether it was intended that it gives rise to a period prescribed for the purpose of s 25(5). The respondent submits that a consideration of the whole of the NDIS Act supports its contention that the phrase “as soon as reasonably practicable”, wherever used in the NDIS Act, does not give rise to a prescribed period and does not impose a time limitation for which there is a consequence if breached.
It is submitted that this analysis of the NDIS Act establishes a pattern that in circumstances where an obligation is accompanied by the phrase “as soon as reasonably practicable” there is generally no consequence expressed in the NDIS Act for a failure to comply. On the other hand, where an obligation is accompanied by a temporal limitation specified by a number of days, there is a consequence, namely a right of internal review for a failure to comply.
The fact that the NDIS Act provides, in some sections, for a consequence for breaches of time limitations defined by a specified number of days but provides no consequence for breaches of time limitations specified by the phrase “as soon as reasonably practicable”

is not, in our view, a basis for not giving the phrase its ordinary meaning. The interpretive approach urged by the respondent is at odds with the mandated General Principles (outlined earlier) guiding the operation of the Act.
Within the NDIS Act, there are numerous obligations to which temporal limitations have been applied. Sometimes the temporal limitation is specified by reference to a number of days; other times, the temporal limitation is specified by the phrase “as soon as reasonably practicable”. Either way, a temporal limitation is being imposed on the particular obligation and a period is being prescribed within which the obligation is to be carried out. Where the phrase “as soon as reasonably practicable” is used, the time limit or expiry of the prescribed period is ascertainable taking into account all the circumstances.
The respondent also relies upon the deeming provisions in s 21(3) and s 48(2) of the NDIS Act in support of its argument that the absence of a deeming provision in the NDIS Act with respect to s 100(6) is deliberate and shows an intention that the deeming provision in s 25(5) would not apply. We do not think that the inclusion of a deeming provision with respect to the decisions of the CEO in ss 21(3) and 48(2) is significant. Those decisions are not reviewable by the Tribunal (s 25(5) has no application to such decisions). If the intention was to create a deeming provision with respect to these first level decisions, then such a provision had to be included within the NDIS Act. However, with respect to the internal review decisions made under s 100(6) there was no need to include a deeming provision within the NDIS Act given that s 25(5) applies to such decisions. The failure of the reviewer to meet the deadline imposed by s 100(6) to make a decision “as soon as reasonably practicable” is expressly dealt with in s 25(5).
The respondent does not point to any express provision, but submits that because of the structure of the NDIS Act it is to be implied that the phrase, “as soon as reasonably practicable”, does not give rise to a particular time period with the result that s 25(5) would not apply. As mentioned elsewhere in these reasons, the effect of this submission is that persons with a disability would be deprived of rights (available to others under s 25(5)) to pursue their grievances by way of merits review. The outcome is contrary to the General Principles under the NDIS Act. We do not think it can be implied that such an outcome was intended nor that there was any implied legislative intention to that effect. There is no room for such an implication particularly in light of the objects and General Principles.
In Snedden[46]it was held that the phrase “as soon as reasonably practicable” does not condition the power of the reviewer to make a decision but rather conditions the exercise of the performance of the duty to exercise the power.[47] The authority of Snedden is not relevant to whether s 100(6) is a prescribed period. The question relating to s 100(6) is whether a decision was made within a time “as soon as reasonably practicable”. Relevantly, in this case we have found that s 100(6) expresses a temporal limitation such that the beginning and end of the period of limitation can be readily ascertained.
[46] (2014) 230 FCR 82 at 101, [107].
[47] Ibid at 102 – 103, [114 – [115]; Submissions of the Respondent Regarding Jurisdiction at [26] (3 May 2019).
The Third Element – A deemed decision
The third element provides for the deemed decision. A failure by a person to do an act or thing in the prescribed period “shall be deemed to constitute the making of a decision by that person at the expiration of that period”.
The use of the word “deemed” in s 25(5) can create a statutory fiction, depending on the context.[48]
[48] Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696 (Griffith CJ).
We agree with the view expressed by Cave J in The Queen v County Council of Norfolk[49] when he said:
…generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless, for the purposes of the Act, it is to be deemed to be that thing.
[49] [1891] 60 LJQB 379 at 380.
When considering the scope and effect of the deeming provision it is important to consider the purpose for which the provision is introduced.[50]
[50] Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96.
The purpose of the deeming provision in s 25(5) is to enable a person to make an application to the Tribunal when there has been a failure to make an actual decision as required by s 100(6). In the absence of an actual decision under s 100(6), s 25(5) deems a decision under s 100(6) so as to give jurisdiction to the Tribunal to hear the grievance.
The Fourth Element – What is the decision that is deemed by s 25(5) of the AAT Act?
The fourth and final element is the nature of the deemed decision. The deemed decision is “not to do that act or thing”.[51]
[51] Section 25(5) of the AAT Act.
The words “not to do that act or thing” provide a description of the decision that is deemed to have been made. It is the decision not to do the act or thing which becomes the deemed decision. Therefore, the relevant factor is what it is that the reviewer has not done.
The respondent contends that the provision of three alternatives under s 100(6) makes the application of s 25(5) unworkable because it is not possible to determine what decision is deemed not to have been made. The respondent also argues that s 25(5) assumes a binary decision-making framework and is not applicable because s 100(6) provides three alternative decisions that may be made.
For the reasons which follow we disagree with the respondent.
In order to answer the question as to what the reviewer has not done, it is necessary to consider the context of and what the reviewer was asked to do pursuant to s 100(2).
The reviewer was asked to review the reviewable decision. A request for a review is a challenge to the decision already made. The applicant seeking a review of a decision plainly does not ask for a confirmation of the decision. That would make no sense in general terms, and, in this case, is contrary to the actual request made in which the applicant said “I am seeking an internal review of the decision to approve the participant’s plan because I disagree with the decision…”.[52]
[52] T-documents, T5, Plan Review Request Form, dated 10 September 2018, page 19.
Having ruled out one of the three possible options under s 100(6), namely to confirm the reviewable decision, it follows that the act or thing being requested is either:
(a) to vary the reviewable decision; or
(b) to set aside the reviewable decision and substitute a new decision.
Therefore, for the purposes of s 25(5), the act or thing that the reviewer has not done is either to vary the reviewable decision or to set aside the reviewable decision and substitute a new decision.
A deemed decision not to vary or set aside and substitute the reviewable decision is a decision which, in effect, maintains the status quo (as the reviewable decision remains in place unaltered) and therefore confirms the reviewable decision. Deputy President Bean in FJKH[53] refers to the deemed decision as a “deemed affirmation”. Finn J earlier in Comcare v Sassella[54] referred to a deemed decision as a “negative determination”. A “deemed affirmation” and a “negative determination” amount, in effect, to the same outcome, namely that the challenge is unsuccessful and the status quo remains. We agree with the approach of Deputy President Bean.
[53] [2018] AATA 1294 at [46].
[54] [2001] FCA 1514 at [26].
In practice, the nature of the task before the Tribunal is to undertake a de novo review to reach the correct or preferable decision. In that deliberation, the Tribunal does not focus on, or seek to find error in, the decision of the original decision maker but rather stands in the shoes of the original decision maker and makes a fresh decision on the merits.[55]
[55] Shi v Migration Agents (2008) 235 CLR 286 at 324–325; and Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629 at 64 [51].
The nature of the decision deemed to have been made is, in fact, not relevant to the way in which the Tribunal must deal with the matter. What is required is a decision under

s 100(6) with respect to which an application can be made to the Tribunal pursuant to

s 103 exercising rights outlined in s 25(1). That is clearly what s 25(5) is intended to provide.
As Deputy President Bean said in FJKH:[56]
A deemed decision under s 25(5) will necessarily always affirm the decision already made. This is simply a mechanism to allow an applicant access to the Tribunal and does not result in any change to the applicant’s status or entitlement.
[56] [2018] AATA 1294 at [64].
The respondent contends that any decision deemed by s 25(5) cannot be the subject of an application pursuant to s 103 because it is a decision not to make a decision

(i.e. a decision to not review, essentially to refuse to embark on the process required by

s 100(6), resulting in a failure by the decision maker to make any decision under s 100(6)) and is therefore not “a decision made by a reviewer under s 100(6)”.[57]
[57] Transcript of proceedings, page 61.
To interpret the language to have the effect contended would defeat the object and operation of s 25(5).
Section 25(5) operates where there is “a failure by a person to do an act or thing within the period prescribed by that enactment”.
The respondent’s contention seems to be that the deeming provision does no more than to deem to have happened what actually happened, namely, there was a failure to do the act or thing (i.e. make the decision) within the period prescribed by the enactment

(the NDIS Act).

When language proscribes a thing being deemed to be something, we do not think this language is intended to “mean to say that it is that which it is to be deemed to be,”[58] or putting it another way, that the language was intended to say it is deemed to be what it is. That result makes little sense and allows no operation of the deeming provision.
[58] The Queen v County Council of Norfolk [1891] 60 LJQB 379 at 380 (Cave J).
We do not agree with the contention advanced.
Considering the effect of the deeming provision in light of all the circumstances including the purpose of the provision and the nature of what the applicant was seeking in the request made, we have concluded that the deemed decision was not to vary or set aside and substitute the decision but rather to affirm the decision.
CONCLUSION
The decision to which the application relates is the deemed decision and that is the application which will proceed in the Tribunal. As we have said earlier, the decision being reviewed makes little practical difference as the review is a de novo review. All information available as at the date of the hearing must be taken into account. That will include all the information which caused the reviewer to reconsider whether the original decision should be reviewed.
We conclude that:
(a)s 100(6) of the NDIS Act expresses a readily ascertainable temporal limitation and prescribes a period for the purposes of s 25(5) of the AAT Act;
(b)the reviewer failed to make a decision “as soon as reasonably practicable” as required by s 100(6) of the NDIS Act[59];
(c)as a result of the conclusions reached in (a) and (b) above, a decision pursuant to s 100(6) was deemed by operation of s 25(5) of the AAT Act;
(d)the terms of the deemed decision are in the letter from the respondent to the applicant dated 28 June 2018[60]; and
(e)the applicant was entitled pursuant to s 103 of the NDIS Act to bring her application to the Tribunal.
[59] Submissions of the Respondent Regarding Jurisdiction at [38] (3 May 2019); Transcript of proceedings, page 71, lines 12 – 23.
[60] T-documents, T8, NDIS Plan (27.06.2018 – 27.06.2019), dated 28 June 2018, pages 47 – 53.
With respect to Question 1 posed by the respondent “can s 25(5) operate to deem a s 100(6) decision to have been made in circumstances where none was actually made?” the answer is “yes”.[61]
[61] Submissions of the Respondent Regarding Jurisdiction at (3 May 2019).
With respect to Question 2 posed by the respondent “did s 25(5) of the AAT act operate to deem a decision pursuant to s 100(6) to have been made… prior to 4 April 2019?” The answer is “yes”.
DECISION
The decision of the Tribunal is that it has jurisdiction to hear the application for review lodged on 8 March 2019.

I certify that the preceding 141 (one hundred and forty -one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Justice D G Thomas, Deputy President P Britten-Jones

.................................[SGD]....................................
Associate
Dated: 23 December 2019
REASONS FOR DECISION
Deputy President S A Forgie

On 8 March 2019 NNXF lodged an application in the Tribunal for review of a decision made by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) on 28 June 2018 to approve a participant’s plan under the National Disability Insurance Scheme Act 2013 (NDIS Act). That plan started on 27 June 2018 and would be reviewed by 27 June 2019. The delegate’s decision was not a decision that had been reviewed by a reviewer under s 100(6) of that legislation even though NNXF had requested its review. Therefore, on its face, NNXF could not make an application for its review under s 103 of the NDIS Act. What she could do, and did on 10 September 2018 was to ask the NDIA to review the decision under s 100(6) of the NDIS Act. When she had not received a decision on her request by 8 March 2019, NNXF lodged an application for review in the Tribunal. In doing so, she relied on s 25(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act) and said that the reviewer had been deemed to have made a decision under s 100(6) because he or she had not complied with the obligation imposed by that provision to make a decision “as soon as reasonably practicable”.
On that issue and for reasons I will come to, I have decided that the requirement in s 100(6) of the NDIS Act to make a decision “as soon as reasonably practicable” is not a requirement to do so “within the period prescribed by” the NDIS Act as those words are understood in the context of s 25(5) of the AAT Act. When read together with s 29(3) of the AAT Act, the reference to “the period prescribed by” an enactment is a reference to a period that can be ascertained objectively because it has been framed by reference to a fixed period of time or by reference to a particular event. Even if I am incorrect in that conclusion, the outcome of reading s 100(6) and s 25(5) together would lead to the reviewer’s being deemed not to have made a decision at all. The reviewer would not be deemed to have made a decision to choose to confirm the decision when that is only one of three options available on review under s 100(6). I would have dismissed NNXF’s application on the basis that she was not entitled to make it under s 103 of the NDIS Act.[62]
[62] As a matter of practicality, it is my experience that, in each case of this nature, the NDIA has proceeded to a review of the decision very quickly and applicants have had a substantive and considered decision under s 100(6) of the NDIS Act. They have either been satisfied with that decision or made a further application to the Tribunal.
A further issue arose when a reviewer made a decision on 9 April 2019 after reviewing the delegate’s original decision on 18 September 2018. NNXF applied for its review on 16 May 2019. The parties have now reached an agreement as to the terms of the statement of participant supports. Rather than relying on s 42C of the AAT Act and asking the Tribunal to make a decision by consent, they have decided that the NDIA should conduct a separate review of NNXF’s participant’s plan under s 48 of the NDIS Act. They have done so on the basis that the delegate of the CEO will approve the plan so that it includes the terms of the statement of participant’s supports agreed upon between them. While I understand why they have taken this course, I do not think that there is any need to do so. For the reasons I will give, NNXF was entitled to make an application for review of the decision that had, in fact, been made under s 100(6) and to do so within the time prescribed by s 29(3)(b) of the AAT Act. Whether or not the reviewer acted beyond power in doing so is not a relevant consideration. Once NNXF had made her application, the Tribunal could exercise all of its powers including those powers under s 42C.
BACKGROUND
NNXF, who has Down syndrome and an intellectual disability, is a participant in the National Disability Insurance Scheme (NDIS). She is cared for by one of her sisters, who also cares for another of their sisters. On 27 June 2018, the National Disability Insurance Agency (NDIA) approved a participant’s plan for NNXF for the period to 27 June 2019.[63] On 10 September 2018 and acting on her behalf, NNXF’s sister used NDIA’s form to request internal review of the decision to approve the participant’s plan.[64] In setting out her reasons for requesting review, NNXF’s sister explained that the amount of funding in

Core Supports did not cover all of the supports previously received from Disability SA and detailed the shortfall. She also noted that the transport funding did not cover all of NNXF’s costs and, without appropriate funding, her placement in the family home would be in jeopardy. NNXF’s sister followed her request some time later with a complaint about not having received a response to the request for review. On 21 September 2018, the NDIA determined that the additional Core Funding was not reasonable and necessary.[65]
[63] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T8 at 47-53
[64]T documents; T5 at 18-25. Although the request was made for review of the plan, the request has been taken as a request for review of the statement of participant supports. This reflects the substance of the request made by NNXF’s sister and is appropriate.
[65] This document is not included in the T documents but reference is made to it in the statement of reasons of the reviewer dated 9 April 2019 and lodged in the Tribunal.
An occupational therapy report prepared following an assessment on 7 February 2019 recommended that NNXF’s Core Supports be increased to assist NNXF’s sister with her caring role and to provide support services and respite to enable her to have NNXF continue to live at home.[66] On 22 February 2019, NNXF’s sister completed a form entitled Change of Circumstances explaining that additional in kind support coordination hours were needed to explore further supports to eliminate current stresses, carer burnout and to strengthen and enhance her sister’s supports. Among those stresses was the length of time the NDIA was taking in making its decision on the review application.
[66] T documents; T6A at 27-30
On 8 March 2019 NNXF’s sister lodged an application in the Tribunal for review of the NDIA’s decision dated 27 June 2018. She noted that she had made numerous telephone calls to the NDIA to check on the progress of the request for review with her last call being made on 1 March 2019 but was yet to receive a decision in response to that request.

In making her application, NNXF asserted that the Tribunal had jurisdiction by virtue of the operation of s 25(5) of the AAT Act when read with s 100(6) of the NDIS Act. During the proceeding, the NDIA conceded that the reviewer had not made a decision under s 100(6) “as soon as reasonably required”.
On 9 April 2019, a reviewer made a decision under s 100(6) after reviewing the NDIA’s determination on 21 September 2018 that:
“1.Additional Respite hours (Core Daily Activities Budget) is reasonable and necessary
2.Additional Core Consumables Budget is not reasonable and necessary
3.Additional Transport and Funding is not reasonable and necessary”.
NNXF’s solicitors lodged an application for review of this decision on 16 May 2019. A conference was held in the matter under Division 3 of Part IV of the AAT Act and the parties also engaged in their own discussions to resolve the matter. On 2 December 2019, the NDIA’s solicitors wrote to the Tribunal’s Registry advising that they had resolved the matter and identified the supports that would be added to NNXF’s statement of participant supports. I have set out how they proposed to proceed at [144] above.
BROAD OUTLINE OF SUBMISSIONS
In this section of my reasons, I have summarised the broad features of the submissions made by the parties. I will return to further details of their submissions in the course of considering them.
NNXF’s submissions
NNXF’s solicitor, Ms Higgins, submitted that the effect of s 25(5) of the AAT Act is to deem a reviewable decision to have been made by the NDIA. Her submission starts from the proposition that the decision, which the NDIA made under s 33(2), is a reviewable decision within the meaning of Item 4 of s 99(1) of the NDIS Act. It was a decision to approve the statement of participant supports in a participant’s plan approved by the NDIA’s Chief Executive Officer (CEO) for NNXF. NNXF requested review of that reviewable decision as provided for in s 100(2). Under s 100(6), a reviewer must, “as soon as reasonably practicable”, make a decision. Given that NNXF had been waiting for two days short of six months for a decision to be made on her request for review and her current plan must be reviewed 12 months after it commenced, a “reasonably practicable” period must have passed. Given that an applicant has three months within which to lodge an application, a decision by the NDIA would be made as soon as reasonably practicable if it were made within three months of receiving the application. Ms Higgins referred to the cases of Snedden and Williams v The Queen[67] to illustrate the way in which similar expressions have been considered in other contexts. She submitted that, in its context, the words used in s 100(6) are imperative and impute a sense of urgency to the time frame.
[67] [1986] HCA 88; (1986) 161 CLR 278; (1986) 66 ALR 385; Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ
Looking at the matter in the context of her plan, it would be unlikely that the Tribunal could hold a conference and any conciliation could be scheduled and agreed upon before the plan is due to be reviewed. That would mean that NNXF will have gone through her entire plan without being able to seek meaningful review from the Tribunal. It would be inconsistent with a participant’s right of review under s 103 if a “reasonably practicable” period could be a period in which a participant’s review rights to the Tribunal were practically rendered nugatory. Delays of this kind must be beyond a reasonably practicable timeframe.
The NDIA’s failure to make a decision must be taken to be a decision to affirm the original decision. Ms Higgins relied on a passage from the reasons for decision in Re FJKH and National Disability Insurance[68] (FJKH):
“… A deemed decision under s 25(5) will necessarily always affirm the decision already made. This is simply a mechanism to allow an applicant access to the Tribunal and does not result in any change to the applicant’s status or entitlements.”[69]
[68] [2018] AATA 1294
[69] [2018] AATA 1294 at [64]
Even if that is not the case and the decision that the NDIA is deemed to have made is a decision not to do one of the three things listed in s 100(6) of the NDIS Act, that decision would still be reviewable by the Tribunal. That follows from the wide definition of the word “decision” that is found in s 3(3) of the AAT Act and particularly from paragraph (g) which provides that a reference to a decision includes a reference to doing, or refusing to do, any act or thing. In any event, it is arguable that the three courses of action listed in s 100(6) of the NDIS Act are illustrative, and not exclusive, of the courses of action open to the reviewer. As the reviewer’s not making a decision has not been expressly excluded, it is open to read s 100(6) as including a decision not to make a decision.
Ms Higgins also referred to the case of Re Wells and Repatriation Commission,[70] in which Deputy President Thompson had found that a failure by the Veterans’ Review Board (VRB) to review a decision of the Repatriation Commission was a deemed decision for the purposes of s 25(5) of the AAT Act. He characterised that deemed decision as a decision to affirm the Repatriation Commission’s decision.
[70] [1986] AATA 257
NDIA’s submissions
On behalf of the NDIA, Ms Roughley of counsel submitted that a requirement that the reviewer make a decision under s 100(6) of the NDIS Act “as soon as reasonably practicable” cannot be regarded as a requirement to make that decision within a

“period prescribed” as set out in s 25(5) of the AAT Act. In summary, Ms Roughley’s submitted that s 100(6) does not prescribe a period within which is to be made. It only conditions the performance of the reviewer’s duty to exercise the power. Had Parliament chosen to impose a strict time limit on the review under s 100(6), it would have set that time limit clearly as it has done elsewhere in the NDIS Act e.g. s 100(2), which prescribes the time within which a participant may request a decision-maker to review a decision. Ms Roughley drew support from the judgment in Snedden.
Section 25(5) could not, in any event, have any application because the time frame it specifies cannot be objectively ascertained and would admit of a range of possibilities. The word “period” is used in s 25(5) in a manner that refers to a definite or fixed period which is objectively knowable and/or knowable or ascertainable without detailed and extensive enquiries of surrounding circumstances and facts that are not publicly available or that go to broader matters of the availability of resources, competing priorities involving other people’s cases as well as those relating to an individual.
Even if that period could be ascertained, the nature of the decision that must be made under s 100(6) precludes the operation of s 25(5) because it assumes that a binary decision will be made. The NDIS Act does not provide a foundation on which s 25(5) may be used to select one of several possibilities. A decision to do nothing is not one of the possibilities contemplated by s 100(6) of the NDIS Act. The reviewer has no power under s 100(6) to decline to make a decision.
The questions that would arise if a decision were deemed to have been made illustrate why Parliament cannot have intended it to do so. The questions are:
(1)What is the decision deemed to have been made?
(2)What is the date of that deemed decision?
(3)Did the reviewer thereafter have power to make a new s 100(6) decision in respect of NNXF’s application for internal review?
(4)Did the reviewer thereafter have power to alter the deemed decision?
(5)What is the status and character of the s 100(6) decision made on 4 April 2019 by the reviewer in respect of NNXF’s application for internal review?
In further submissions addressing issues raised at the hearing, Ms Roughley referred to the general principles of statutory interpretation addressed by Gageler J in Commissioner of Police v Eaton[71] (Eaton). She did so to support her submission that full force and effect can be given to the provisions of the NDIS Act and to s 25(5) of the AAT Act. The relationship between two enactments is to be extracted from all available indications. Ms Roughley submitted that the NDIS Act represents a carefully structured and staged process of access, approval of a statement of supports and review. It is meant to be a self-contained code and its specificity precludes the operation of the general s 25(5) of the AAT Act in circumstances in which the NDIS Act operates. If it is determined that there is a conflict between the provisions of the two enactments, then those of the NDIS Act should prevail. Ms Roughley referred to Ferdinands v Commissioner for
[71] [2013] HCA 2; (2013) 252 CLR 1 at [98]; 294 ALR 608; Heydon, Crennan, Kiefel and Bell JJ; Gageler J dissenting
[72] [2006] HCA 5; (2006) 225 CLR 130; 224 ALR 238; Gleeson CJ, Gummow, Hayne and Callinan JJ; Kirby J dissenting
Public Employment[72] (Ferdinands).
DETERMINING THE TRIBUNAL’S JURISDICTION
The question whether the Tribunal has jurisdiction to review a particular decision is of critical importance for, as an administrative body, it may act only within the legal limits of its power. It is not a question to be treated lightly and nor is it a question to be approached from one particular point of view or another. However heartbreaking an applicant’s circumstances may be, the answer to the question must always lie in the proper construction of the legislation. That legislation has been drafted to implement a scheme that is underpinned not only by policy considerations but by financial costings. An applicant’s circumstances will be relevant in the speed with which the question is determined but not in the construction of the legislation. That is always the case whatever the nature of the decision of which review is sought. One piece of that legislation will always be the AAT Act and the other the specific enactment providing that an application may be made to the Tribunal.
In Re LQTF and National Disability Insurance Agency,[73] I explained why its having jurisdiction underpins the Tribunal’s power to consider an application at all:
“… [It is imperative that the Tribunal be confident that it has jurisdiction to consider an application and it is important to resolve any doubts before it embarks on dealing with substantive issues. That follows from the fact that the Tribunal has no power to consider a matter unless an application for review has been made to it. An application for review may only be made to it if an enactment has provided that an application may be made for review of decisions identified in that enactment.[74] That requires consideration of that other enactment, which in this case is the NDIS Act. If the decision is one in relation to which that other enactment provides that an application may be made to the Tribunal then the Tribunal will have power to review the decision provided the application is made within the prescribed time or an extension of that time. Jurisdiction itself is not a matter that can be resolved by negotiation or agreement between the parties. As was said by the Full Court of the Federal Court in McLeish v Faure,[75] and it applies equally to the Tribunal:
‘It is trite law that parties, by consent, cannot confer jurisdiction upon the court.’[76]”[77]
[73] [2019] AATA 631
[74] Administrative Appeals Tribunal Act 1975; s 25
[75] [1979] FCA 38; (1979) 40 FLR 462; 25 ALR 403 per Sweeney, Evatt and Northrop JJ
[76] [1979] FCA 38; (1979) 40 FLR 462; 25 ALR 403 at [9]; 467; 409
[77] [2019] AATA 631 at [5]
THE ADMINISTRATIVE APPEALS TRIBUNAL ACT

In the course of his judgment, Smithers J referred to the earlier case of Brian Lawlor and to his own judgment when he said:
“… there is a distinction between the decision and action taken upon it. It is the decision itself which is the important thing. Whether right or wrong it may have serious results for the citizen (p 336). Such serious results may follow from a decision not to exercise the power, or that a power does not exist. It is important because of this, that it is with the actual administrative decisions that the AAT Act is concerned. As was said by Bowen CJ in Lawlor’s case (at p 317): ‘As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in the exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not the action on the basis there was power to make the decision was right or wrong.’
It was also pointed out by Bowen CJ in Lawlor’s case that it would be unsound to adopt an interpretation of s 25 of the AAT Act which would restrict reviewable decisions under the Act to those only which constitute a legally effective exercise of powers conferred by an enactment. He said: The Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and law … It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by determination of a court or tribunal. It appears to me that the Act is designed to give a simple remedy in all such cases.”[215]
[215] [1979] FCA 84; (1979) 28 ALR 551; 43 FLR 9; 2 ALD 711 at 561; 20-21; 718-719
Returning to the case of Deputy Commissioner of Patents v Board of Control of Michigan Technological University, the Full Court found that the Deputy Commissioner of Patents had made a decision even if it was a decision that he could not make in the exercise power conferred upon him under s 160(2). It was a decision made in the exercise of powers conferred on him by r 7B(8) of the Patent Regulations. As Smithers J explained:
“… It is said that what was actually decided was that the Commissioner could not entertain the applications. It is suggested that if the matter is properly expressed in that form it is clear that the Commissioner did not enter upon the business of considering and disposing of the application pursuant to the Act. But it is manifest that he did. He could not decide that he had no power to give relief under s. 160 in the application made under that section until he had acquainted himself with its contents and ascertained that the extension of time sought therein related to a lapsed application for a patent. It was only for the purpose of deciding whether on the facts disclosed in the applications he could or should give the relief sought therein that the Commissioner had cause to refer to s. 160(2). It was in the course of deciding what to do with the application, in the course of performing his function under the Act, that he necessarily consulted and construed s. 160(2). Having done that and made his decision that the provisions of s. 160(2) did not apply to an application concerning a lapsed application and that the application for restoration under reg. 7B(8) must therefore necessarily fail, and having informed the defendant thereof he officially disposed of the applications. In effect he rejected them. It is impossible to regard the Commissioner's intimation that s. 160(2) did not empower him to grant the relief sought as an exercise independent altogether of the performance of his functions in relation to the applications, or to say that he made the decision merely ‘in gross’ so to speak. When what actually was done is examined it is clear that the applications were dealt with and disposed of by reference to what was regarded as the proper construction of s. 160(2).”[216]
[216] [1979] FCA 84; (1979) 28 ALR 551; 43 FLR 9; 2 ALD 711 at 559; 18; 717
It was not an approach that was available in Wells because of the way in which s 107VZW of the Repatriation Act was worded. Section 107VZW(1) provided that an application might be made to the Tribunal where a decision had been reviewed and either affirmed or set aside. There had to be a decision that had in fact been made and that had led to the decision’s being affirmed or set aside. Unlike r 92 of the Patent Regulations, it is not enough that the decision has been made “in the exercise of powers conferred by …”, as it had been under r 7B(8) in the case of Deputy Commissioner of Patents v Board of Control of Michigan Technological University.
So much depends on the wording chosen by Parliament to confer a right upon persons to make applications to the Tribunal for review of decisions made in the exercise of powers under a particular enactment. This is illustrated in more recent times by von Doussa J, with whom Spender and French JJ agreed, in Secretary, Department of Social Security v Alvaro[217] (Alvaro). Mr Alvaro had pleaded guilty to conspiring to defraud the Commonwealth in relation to his receipt of supporting parent’s pension and unemployment benefit over a period of some eight years. An officer of the Department of Social Security (DSS) wrote to Mr Alvaro stating that he had been overpaid $66,682.04 and that DSS was required to recover it. An Authorised Review Officer (ARO) affirmed the officer’s decision as did the Social Security Appeals Tribunal (SSAT). When Mr Alvaro applied to this Tribunal for further review of the recovery decision, it declined to do so on the basis it was not satisfied that the officer who decided to seek recovery of the debt was authorised to do so.
[217] [1994] FCA 1124; (1994) 50 FCR 213; 19 AAR 460; 34 ALD 72
Section 1283(1) of the Social Security Act 1991 (SS Act) provided that, if a decision had been reviewed by the SSAT, application might be made to the Tribunal for a review of the SSAT’s decision. For the purposes of s 1283(1), s 1283(2) provided that the decision made by the SSAT would be taken to be, where it had affirmed the decision, the decision as affirmed. In his judgment, von Doussa J focused on both s 25 of the AAT Act and s 1283 of the SS Act saying:
“ Section 1283 refers simply to ‘a decision’ which has been reviewed by the SSAT, and ‘the decision’ of the SSAT. Unlike the context in which the word ‘decision’ appears in s.25 of the AAT Act, ‘decision’ in s.1283(1) is not qualified by the words ‘made in the exercise of powers conferred by that enactment’. In s.1283(1), even on a literal reading, there is no reason why ‘decision’ should be narrowly construed. The reasons of convenience given by Brennan J at first instance in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, and by the majority of the Full Court on appeal, supra, apply to require that the narrow interpretation of ‘decision’ in s.1283(1) adopted by the AAT must be rejected. To hold otherwise would defeat the purposes of the review procedures established under the Act. …
The right of review by the AAT of a decision of the SSAT given by s.1283(1) arises where an administrative decision made in purported exercise of powers conferred by the Act has, as a matter of fact, been reviewed by the SSAT. That right exists whether or not the decision reviewed by the SSAT, or the decision of the SSAT itself, was legally effective. A similar construction should also be accorded to ‘decision’ in ss.1239 and 1247 which respectively provide for internal review of decisions by the Secretary, and the review of decisions by the SSAT.”[218]
[218] [1994] FCA 1124; (1994) 50 FCR 213; 19 AAR 460; 34 ALD 72 at [13]-[14]; 219; 466; 78
Ms Higgins submitted that the operation of s 1283 of the SS Act considered in Alvaro is comparable with the combined operation of ss 100(6) and 103 of the NDIS Act. Relying on the principles in Brian Lawlor, the outcome should be the same. In each instance, the Tribunal’s jurisdiction is not reliant on the existence of a valid decision by the second decision-maker in the hierarchy. Alvaro stands for the proposition that the term “decision” used in s 103 of the NDIS Act cannot be construed narrowly. Provided the preceding decision-maker had purported to make a decision in the exercise of power conferred by the NDIS Act and that decision affected the interests of the person seeking review,

the Tribunal has power to review the decision.
The logic that must underpin this submission is that the reviewer must be deemed to have made a decision affirming the CEO’s decision under s 33(2) for no decision has been made in fact. For the reasons I have given, the decision that s 25(5) of the AAT Act deems the reviewer to have made for the purposes of the NDIS Act is a decision not to make a decision. Under the NDIS Act, s 103 is quite specific in that applications may be made for review of a decision made by a reviewer “under” s 100(6). No provision is made for applications for review of decisions made “in the exercise of powers” under s 100(6) or for review of either no decision at all or, if s 25(5) of the AAT Act were to apply, a decision not to make a decision.
My conclusion is consistent with that in Re Duarte and Australian Maritime Safety Authority,[219] to which Ms Higgins referred, where the Tribunal had found that s 25(5) had no operation because there was no prescribed time within which a decision had to be made on Mr Duarte’s application. As no decision had been made in fact, there was nothing for the Tribunal to review. My conclusion is also consistent with the general statement of principle set out by Gageler, Keane and Nettle JJ in the passage I have quoted from Plaintiff M174/2016 v Minister for Immigration and Border Protection at [262] above. Their Honours had no need to go beyond the two general principles that are imperative for the implementation of the principles in Brian Lawlor. One is that there is a decision in fact; its lawfulness is irrelevant. The other is that the decision that has been made in fact is a decision in respect of which an enactment might provide for review.

I suggest that there is no need to go beyond that in this case. The reviewer has not made, and has not been deemed to have made, a decision under s 100(6). Therefore,

an application may not be made to the Tribunal under s 103.
[219] [2011] AATA 530; (2011) 55 AAR 180; 127 ALD 620; Senior Member Britton
Finally, I must sound a note of caution in relation to a passage from the reasons for decision given by Deputy President McCabe and Dr Bygrave, Member, in Re Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services[220] when they said:
“There is a danger of over-thinking some of the jurisprudence on jurisdictional error. The provisions of the AAT Act (read in light of the decisions in Brian Lawlor) point the way to dealing with defective decisions by original decision-makers. The fact the Tribunal is independent of the agencies whose decisions it reviews does not change the fact the Tribunal remains part of the executive. The Tribunal’s decision-making processes are incorporated by operation of law into the executive decision-making process that it reviews. If there is a problem – even a fundamental problem – encountered during the course of the original decision-making process, the Tribunal can set things to right.”[221]
[220] [2018] AATA 3865
[221] [2018] AATA 3865 at [26]
As I concluded in Re KRBG and National Disability Insurance Authority,[222] unfortunately, the Tribunal cannot “set things to right” if the relevant legislation, which includes s 25(5) of the AAT Act and the enactment that makes provision for an application to be made to the Tribunal, does not allow it to do so.
[222] [2019] AATA 144 at [13]
DECISION
For the reasons I have given, I would decide that the period described in s 100(6) of the NDIS Act is not a “period prescribed” as that expression is used in s 25(5) of the AAT Act. Therefore, s 25(5) does not operate with s 100(6) to deem a reviewer to have made a decision under s 100(6). As no decision has been made under s 100(6), s 103 did not authorise NNXF to make an application for review on 8 March 2019. She was entitled to make an application for review of the decision made by the reviewer under s 100(6) on

9 April 2019. Provided it was satisfied that the agreement complied with s 42C,

the Tribunal was entitled to make a decision in the terms that the parties agreed would resolve the matter and to do so when it received them.
ATTACHMENT A
BECOMING A PARTICIPANT IN NDIS AND HAVING A PARTICIPANT’S PLAN
An outline of provisions of the NDIS Act
Part 6 of Chapter 4 of the NDIS Act specifies those decisions which may be reviewed and the steps that must be taken to seek that review. In this case, NNXF has sought review of the CEO’s decision to approve her statement of participant supports. Whether or not that is what she actually seeks or whether she will be found to have sought review of her statement of participant supports is not a matter I must consider. I simply note that her choice will lead to different outcomes and it may be that she will want to think about whether she should clearly seek review of her statement of participant supports.[223] I will focus on both review rights and also on others more generally.
A. Becoming a participant
[223] I have explained the different outcomes in Re LQTF and National Disability Insurance Agency [2019] AATA 631 at [31]-[32]
When a person makes a request to the NDIA to the NDIA to become a participant in the NDIS;
“… the CEO must, within 21 days of receiving the access request:
(a)decide whether or not the prospective participant meets the access criteria; or
(b)make one or more requests under subsection 26(1).”[224]
[224] NDIS Act; s 20
A person meets the access criteria if the CEO is, at the time of considering the request, satisfied that the person meets the residence and age requirements and either meets the disability requirements or meets the early intervention requirements as set out in ss 22, 23, 24 and 25 respectively.[225] If the CEO does not decide whether or not a person meets the access criteria, he or she must make a request under s 26. Under that section,
[225] NDIS Act; s 21(1)

the CEO may make a request:
“(a) that the prospective participant, or another person, provide information that is reasonably necessary for deciding whether or not the prospective participant meets the access criteria;
(b)that the prospective participant do either or both of the following:
(i)undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
(ii)undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.”
If the CEO receives the information and reports requested under s 26(1) within the time specified in the request:
“… the CEO must, within 14 days of receiving the access request:
(a)decide whether or not the prospective participant meets the access criteria; or
(b)make one or more requests under subsection 26(1).”[226]
[226] NDIS Act; s 26(2)(c) and (d)
If the CEO does not receive the information or reports requested within the specified time, the person is taken to have withdrawn his or her access request unless the CEO is satisfied that it was reasonable for the person not to have complied with the request.[227]
[227] NDIS Act; s 26(3)
Section 21(3) sets out the consequences of the CEO’s not making a decision or a request under s 20 within 21 days of receiving an access request or making a decision or a request under s 26(2) within 14 days of receiving the last information or report.

The consequences are that the “… CEO is taken to have decided that the prospective participant does not meet the access criteria …”.[228]
B. Participant’s plan
[228] NDIS Act; s 21(3)
B.1 Facilitation of the preparation of the participant’s plan
If a person becomes a participant, the CEO must commence facilitating the preparation of the participant’s plan in accordance with the NDIS rules. That is the effect of ss 32(1) and (2). Section 32(3) provides for the situation in which the NDIS rules made for the purposes of s 32(2) do not require the CEO to commence facilitating the preparation of a participant’s plan within a prescribed period or in prescribed circumstances. In those circumstances, the CEO must:
“… commence facilitating the preparation of the plan as soon as reasonably practicable, having regard to the obligations of the CEO under the rules to commence facilitating the preparation of other participant’s plans.”
The National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013 is made under s 204. They applied only to a limited time and the ordinary timeframes specified in the NDIS Act now apply.
As noted above, s 32 of the NDIS Act requires the CEO to facilitate the preparation the participant’s plan and to do so in accordance with the NDIS rules.[229] Without limiting their generality under s 32(2), the NDIS rules made for that subsection may require the CEO to commence facilitating the preparation of the plan for a participant included in a class prescribed by the rules within a period prescribed by the rules or in the circumstances prescribed in the rules. That is the effect of s 32A(1).
[229] NDIS Act; ss 32(1) and (2)
The content of those rules is the subject of s 32A. Without limiting s 32(2), the NDIS rules made for the purposes of s 32(2):
“…may do one or more of the following:
(a)prescribe a class by reference to a decision of the CEO about a matter prescribed by the rules;
(b)prescribe a period or circumstances by reference to a decision of the CEO;
(c)prescribe matters by reference to a decision of the CEO.”[230]
[230] NDIS Act; s 32A(6)
Examples of the classes that may be prescribed are set out in s 32A(2):
“Without limiting the classes that may be prescribed as mentioned in subsection (1), a class may be prescribed by reference to one or more of the following:
(a)whether the participant’s name is included on a prescribed waiting list;
(b)whether the participant is receiving support from a prescribed service provider or under a prescribed program;
(c)whether, when the participant first made an access request, he or she was not receiving supports other than informal supports in relation to his or her disability;
(d)the place of residence of the participant on a prescribed date or throughout a prescribed period;
(e)whether, when the participant first made an access request, he or she had left, or was reasonably likely to leave, school at a prescribed time or during a prescribed period;
(f)the participant’s age;
(g)other matters.”
Situations of urgency may arise. They are the subject of ss 32A(3) and (4). Section 32A(3) provides that, despite ss 32(2) and 32A(1), which require the CEO to facilitate the preparation the participant’s plan and to do so in accordance with the NDIS rules:
“… if the CEO is satisfied that, because of the urgency of the circumstances, it is appropriate to commence facilitating the preparation of a participant’s plan at a particular time:
(a)the CEO may do so; and
(b)if doing so means that it is necessary not to commence facilitating the preparation of the plans of one or more other participants—the CEO may delay commencing such facilitation, so far as is reasonably necessary.”

The NDIS rules may prescribe:
“… matters to which the CEO is to have regard in deciding for the purposes of subsection (3) whether or not he or she is satisfied that, because of the urgency of the circumstances, it is appropriate to commence facilitating the preparation of a participant’s plan.”[231]
[231] NDIS Act; s 32A(4)
Section 32A(7) provides that:
“The CEO does not have a duty to consider whether to exercise a discretion conferred upon the CEO by:
(a)subsection (3); or
(b)National Disability Insurance Scheme rules made for the purposes of subsection 32(2) (including as mentioned in subsection (1) of this section).
Section 32(5) is also relevant to the scope of the CEO’s duty under s 32(2) and the NDIS rules when it provides:
“If the CEO commences or delays facilitating the preparation of a participant’s plan in accordance with subsection (3), the CEO does not breach subsection 32(2), or National Disability Insurance Scheme rules made for the purposes of that subsection, in relation to the participants concerned.”
B.2 Principles relevant to the preparation, review and replacement of a plan
Section 31 of the NDIS Act sets out the principles relating to a plan:
“The preparation, review and replacement of a participant’s plan and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a)be individualised; and
(b)be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons to support participants who are significant in the life of the participant; and
(d)where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da)if the participant and the participant’s carers agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i)maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate delivery of disability services where there is more than one disability service provider.”
B.3 Content of a plan
A participant’s plan must include a statement of the participant’s statement of goals and aspirations and a statement of participant supports.[232] The participant’s statement of goals and aspirations must specify:
“(a) the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i)living arrangements; and
(ii)informal community supports and other community supports; and
(iii)social and economic participation.” [233]
[232] NDIS Act; ss 33(1) and (2)
[233] NDIS Act; ss 33(1)
B.4 Statement of participant supports
A statement of participant supports must be prepared with the participant and be approved by the CEO. It specifies:
“(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.”[234]
[234] NDIS Act; ss 33(2)
In deciding whether or not to approve a statement of participant supports, the CEO must:
“(a) have regard to the participant’s statement of goals and aspirations;
(b)have regard to the relevant assessments conducted in relation to the participant;
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purpose of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.”[235]
[235] NDIS Act; s 33(5)
For the purposes of specifying in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded:
“… the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.”[236]
[236] NDIS Act; s 34
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Participants Rules) must be used by the CEO in deciding whether to approve a statement of participant supports. The Outline summarises the criteria and tools to which the CEO must have regard:
“2.6 Part 3 sets out criteria or considerations that the CEO is to use in deciding whether the CEO is satisfied in relation to some of the matters in paragraph 2.3. These are:
(a)value for money (see paragraph 2.3(c));
(b)whether the support is effective and beneficial (see paragraph 2.3(d));
(c)taking account of the expectations of what is reasonable to expect families, carers, informal networks and the community to provide in informal supports (see paragraph 2.3(e));
(d)whether the support is appropriate under the NDIS (see paragraph 2.3(f)).
2.7Part 4 relates to the needs assessments and the use of assessment tools when conducting such assessments.
2.8Part 5 sets out general criteria for supports, and supports that will not be funded or provided.
2.9Part 6 provides for other matters, such as how these Rules are to be interpreted.
2.10Schedule 1 sets out considerations relating to whether supports are most appropriately funded through the NDIS, which is relevant to the matter set out in paragraph 2.3(f) [i.e whether “… the support is most appropriately funded, or provided through the NDIS, and is not more appropriately funded or provided through other service systems …”].”
These are matters of which the CEO must be satisfied under s 34 of the NDIS Act but they are not the only matters.
Section 35 provides that the NDIS rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports. Matters which may be prescribed in those rules include, but are not limited to:
“(a) methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and
(b)reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(c)reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.”[237]
[237] NDIS Act; s 35(1)
B.4 When a participant’s plan comes into effect
A participant’s plan comes into effect when the CEO has received the participant’s statement of goals and aspirations from the participant and approved the statement of participant supports.[238] A participant’s plan cannot be varied once it comes into effect but can be replaced under Division 4 of part 2 of Chapter 3 of the NDIS Act.
B.5 New participant’s plan when participant’s statement of goals and aspirations changed but statement of participant supports unchanged
[238] NDIS Act; s 37(1)
Division 4 is concerned with reviewing and changing participants’ plans. A plan can be changed at any time by a participant giving the CEO a changed version of the participant’s statement of goals and aspirations.239 The participant’s plan is taken to be replaced by a new plan comprising the changed version of the participant’s statement of goals and aspirations and the statement of participant supports in the existing plan.240 The NDIA must provide a copy of the new plan to the participant within seven days of receiving the changed version of the participant’s statement of goals and aspirations.[239]
[239] NDIS Act; s 47(1)
C. Review of participant’s plan by CEO
Under s 48(1), a participant may request the CEO to conduct a review of the participant’s plan at any time. Section 48(2) provides:
“The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review.
Note 1: The period may be extended under the National Disability Insurance Scheme rules made under section 204.
Note 2: Notice of a decision that the CEO makes, or is taken to have made, must be given because of subsection 100(1), and a decision that the CEO is taken to have made will be automatically reviewed because of subsection 100(5).”
If the CEO decides to conduct a review under s 48(1), he or she must commence to facilitate the review as soon as reasonably practicable.[240] Quite apart from a request from a participant, the CEO may conduct a review of a participant’s plan at any time and, in any event, before the plan’s review date.[241] If the CEO decides to conduct a review under s 48(1), the CEO must commence to facilitate the review within 14 days after so deciding and must complete the review as soon as reasonably practicable. If the CEO does not make a decision within that 14 day period, he or she is taken to have decided not to conduct the review.
[240] NDIS Act; s 47(2)
[241] NDIS Act; s 47(3)
If the CEO conducts a review of a participant’s plan under s 48, he or she must facilitate the preparation of a new plan in accordance with the provisions of the NDIS Act I have set out above.244 As the Notes to s 49 state, the preparation of a new plan will comprise the participant’s statement of goals and aspirations either in its original form or, if the participant wishes, in a new form. It will also require the CEO to approve a fresh statement of participant supports under s 33(2). That is a separate reviewable decision prescribed in Item 4 of the table at s 99(1).
I have referred to the relevant provisions in ss 99, 100 and 103 at [294]-[300] above.

I certify that the preceding 215 (two hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

............................[SGD]...................................
Associate
Dated: 23 December 2019

Date of hearing: 7 May 2019

Date final submissions received: 5 June 2019

Solicitor for the Applicant:
Ms Kate Higgins, Legal Services Commission of South Australia

Counsel for the Respondent: Ms Fiona Roughley

Solicitor for the Respondent: Ms Kim Robbins, National Disability Insurance Agency

[78] Second Reading Speech by the Attorney-General, Mr Enderby: Hansard, House of Representatives at 1138, 6 March 1975

Date of hearing:	7 May 2019
Date final submissions received:	5 June 2019
Solicitor for the Applicant:	Ms Kate Higgins, Legal Services Commission of South Australia
Counsel for the Respondent:	Ms Fiona Roughley
Solicitor for the Respondent:	Ms Kim Robbins, National Disability Insurance Agency