O'Brian and Secretary, Attorney-General's Department

[2019] AATA 4189

O'Brian and Secretary, Attorney-General's Department [2019] AATA 4189 (11 October 2019)

Division:GENERAL DIVISION

File Number(s):  2019/5733

Re:Lindsay O'Brian

APPLICANT

AndSecretary, Attorney-General's Department

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date of oral reasons:             11 October 2019

Date of written reasons:        11 October 2019

Place:Adelaide

The application for review is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)

........................[sgnd].....................................

Deputy President Britten-Jones

Catchwords

PRACTICE AND PROCEDURE – Application to dismiss for lack of jurisdiction – Where internal review decision made under s 37 of the Fair Entitlements Guarantee Act 2012 (Cth) – Where no internal review decision made under s 39 of the Fair Entitlements Guarantee Act 2012 (Cth) – Tribunal has no jurisdiction – Application for review dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Fair Entitlements Guarantee Act 2012 (Cth)

REASONS FOR DECISION

Deputy President Britten-Jones

11 October 2019

1. The applicant lodged with the Tribunal on 12 September 2019 an application for review of a decision made by the respondent under s 37 of the Fair Entitlements Guarantee Act 2012 (Cth) (the Act).

2. The respondent applies for dismissal of this application on the basis that the Tribunal does not have jurisdiction to conduct a review of a decision made under s 37 of the Act.

3. I accept the submission of the respondent for the reasons that follow and the application will be dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

   Legislative Scheme

4. The Act provides for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers where the employer is insolvent and the end of the employment of the former employee was connected with that insolvency and the former employee cannot get payment of the entitlements from other sources.

5. Section 10 of the Act provides that a person is eligible for an advance if the respondent is satisfied of certain conditions. It falls upon the respondent to decide whether a person is eligible for an advance if an effective claim is brought.[1] 

   [1] Section 15 of the Act

6. Division 2 of Part 6 of the Act provides for the review of decisions about advances. The respondent may review its own decision on its own initiative under s 37 of the Act. An applicant may seek a review of the decision of the respondent under s 38 of the Act and if so the respondent must review the decision under s 39.

7. Under s 40 of the Act an application may be made to the Tribunal for review of a decision made under s 39. The Act does not provide for review by the Tribunal of a decision made under s 15 or s 37 of the Act.

   Consideration

8. On 25 July 2019 the respondent denied the claim for an advance made by the applicant. That decision was made under s 15 of the Act. On 12 September 2019 the respondent on its own initiative reviewed its decision under s 37 affirming its earlier decision. Notice of that decision was given to the applicant who then immediately applied for a review of that decision by the Tribunal.

9. The issue for the Tribunal is whether it has jurisdiction to review a decision made under s 37 of the Act. Jurisdiction is conferred on the Tribunal by s 40 of the Act but only with respect to a decision made by the respondent under s 39. The Tribunal has no jurisdiction to review a decision made under s 37 of the Act and therefore it has no jurisdiction to review the decision made on 12 September 2019.

10. The effect of the Act is to require a person to exhaust the avenues available for internal review by the respondent before taking application to the Tribunal. This required the applicant to seek internal review under s 38 of the Act with respect to the decision made by the respondent on 12 September 2019. As at the date of the lodgement of the application for review with the Tribunal there had been no application by the applicant under s 38 and therefore no decision under s 39 was capable of review by the Tribunal.

11. I note that since lodging this application the applicant has sought an internal review decision under s 38 and has received a decision on 4 October 2019 made under s 39 affirming the earlier decision. That decision is reviewable by the Tribunal but it requires a fresh application to be made to the Tribunal citing the 4 October 2019 decision as the reviewable decision.

    Decision

12. I am satisfied that the decision of the respondent made on 12 September 2019 under s 37 of the Act is not reviewable by the Tribunal and consequently I dismiss the application for review of that decision pursuant to s 42A(4) of the AAT Act.

I certify that the preceding   twelve (12) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

..................[sgnd]..................................

Administrative Assistant Legal

Dated:  11 October 2019  

Date of hearing:   11 October 2019

Applicant:  In person        

Respondent’s Representative:           Mr L. Holcombe, HWL Ebsworth Lawyers