Pace and Secretary, Department of Employment

The Administrative Appeals Tribunal considered a claim made by Mr Pace for an advance under the Fair Entitlements Guarantee Act 2012 (Cth). The delegate of the Secretary of the Department of Employment had affirmed the original decision to refuse the claim, asserting that Mr Pace had not made an effective claim within the statutory timeframe. The Secretary argued that the Act imposes strict eligibility requirements for such claims, with no discretion to waive or amend them.

The Tribunal was required to determine whether the Secretary had received the necessary supporting documents within the 12-month period prescribed by section 14 of the Act. A further issue was whether the Tribunal possessed the discretion to extend this time limit for the receipt of documents. The legislative framework stipulated that an effective claim must be made in an approved form, accompanied by required documents, and lodged within 12 months of an insolvency event or the end of employment.

The Tribunal reasoned that section 14 of the Act sets out mandatory requirements for an effective claim, using the word "must" to indicate their binding nature. It found no express or implied power within the Act, or under other legislation, that would permit the Secretary or the Tribunal to depart from these requirements or extend the statutory time limit. The Tribunal's review powers under section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) do not create a separate source of discretion to relieve a claimant from the consequences of failing to meet the explicit terms of section 14.

The Tribunal affirmed the decision under review, concluding that Mr Pace had not made an effective claim within the prescribed 12-month period.