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

In O'Brian and Secretary, Attorney-General's Department, Deputy President Britten-Jones considered an application to dismiss for lack of jurisdiction. The applicant sought review of a decision made by the respondent under section 37 of the Fair Entitlements Guarantee Act 2012 (Cth). The respondent had initially denied the applicant's claim under section 15 of the Act, and subsequently reviewed this decision under section 37, affirming the original denial. The applicant then applied to the Tribunal for a review of the section 37 decision.

The central legal issue before the Tribunal was whether it possessed the jurisdiction to review a decision made under section 37 of the Fair Entitlements Guarantee Act 2012. The Tribunal was required to determine the scope of its review powers as conferred by the Act.

The Tribunal reasoned that jurisdiction to review decisions is conferred by section 40 of the Act, which specifically permits review of decisions made under section 39. The Act does not provide for the Tribunal to review decisions made under section 15 or section 37. The Tribunal noted that the legislative scheme requires individuals to exhaust internal review avenues before approaching the Tribunal. This would have involved the applicant seeking internal review under section 38, leading to a decision under section 39, which is then reviewable. As no such internal review under section 38 had been sought prior to the application to the Tribunal, there was no decision under section 39 capable of review. Although the applicant had since obtained a section 39 decision, this required a fresh application to the Tribunal. Consequently, the Tribunal found it had no jurisdiction to review the section 37 decision.

The application for review of the decision made on 12 September 2019 under section 37 of the Act was dismissed for lack of jurisdiction.