PANAGA PTY LTD and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 753

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 753

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3876

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PANAGA PTY LTD

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  M J Carstairs, Senior Member

Date15 September 2009

PlaceBrisbane

Decision

For reasons given orally at the hearing, the Tribunal has no jurisdiction to review the cancellation decision. The filing fee lodged on 18 August 2009 will be refunded.

.....................[Sgd]..................

Senior Member

CATCHWORDS

FAMILY ASSISTANCE – cancellation of approval to child care service – whether internal review required before an application can be made to Tribunal – respondent gave defective notice of review rights – Tribunal lacks jurisdiction.

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 108, 109A, 144, 200(1)(e)

Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 27B, 33(1)

REASONS FOR DECISION

15 September 2009 M J Carstairs, Senior Member

1.      Mr Peter Jockel is the executive officer of Panaga Pty Ltd, which operates Kindy Land Pre-School and Child Care Centre, Kedron, Brisbane (“Kindy Land”).  Kindy Land held an approval for family assistance law purposes.  This approval meant that it was authorised to provide fee reductions for child care provided. 

2. However the respondent cancelled the approval, taking action available under s 200(1)(e) of the A New Tax System (Family Assistance) (Administration) Act 1999 (“the Act”).  Mr Jockel lodged an application for this Tribunal to review that decision.  It is not necessary to go into the grounds for this decision, as the competence of the application itself is challenged on the basis that there has been no internal review of the cancellation decision.   

3.      This is a question going to the Tribunal’s jurisdiction to hear the matter.  At the telephone hearing on 15 September 2009, I gave my decision that the matter cannot be reviewed by this Tribunal without a prior internal review.  The provisions in the legislation that lead to that outcome are complex. It is appropriate therefore to provide reasons in writing, to more fully explain to Mr Jockel why his application to the Tribunal was premature.

BACKGROUND

4.      The respondent made the cancellation decision and notified Mr Jockel of it by letter dated 24 July 2009.  The respondent, incorrectly as it turns out, stated in that letter that Mr Jockel could apply for review of the cancellation decision:

§ to the respondent, under s 109A(1) of the Act; and also, if he chose,

§ to the Administrative Appeals Tribunal, under s 144(1)(c) of the Act.

In either case, the respondent wrote, Mr Jockel had 28 days to do so.  Mr Jockel duly followed the second option and lodged his application with the Tribunal on 18 August 2009—comfortably within the 28 day period prescribed by the respondent’s notice .

5. The respondent then resisted Mr Jockel’s application, asserting that the Tribunal lacked jurisdiction to review the decision in the absence of a prior internal review, a review required by s 109A of the Act.

6. The review rights provided under the Act depend on the nature of the decision in question. Here, the decision under review concerns the approval (and withdrawal of approval) of child care services. Child care services are provided by a range of care providers such as long day care, family day care, after school care, etc, as referred to in Part 8 of the Act.

REVIEW RIGHTS WITH RESPECT TO CHILD CARE SERVICES

7. As with all questions of review rights and matters of jurisdiction that flow from these, one must start with what the legislation provides. A convenient starting point is s 25(1) of the Administrative Appeals Tribunal Act 1975, which states that an enactment may provide for applications to be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. The enactment so providing in this matter is the Act, at s 144.

8. The Act deals with review rights generally, including Tribunal review, in Part 5.

9. Cancellation of Kindy Land’s approval was a decision of an officer under the family assistance law (namely s 200(1)(e) of the Act). Therefore, the decision is of the kind listed in s 144(1)(c) of the Act. The Act is clear in its requirement that such a decision must undergo internal review before a further application for review can be made to the Tribunal. Firstly, s 108(1) states that the original decision must undergo internal review under s 109A of the Act (the exceptions set out in s 108(2) of the Act do not apply). Secondly, under s 144(1A) of the Act, application for review can only be made to the Tribunal if internal review under s 109A has already taken place.

10. Thus, when s 109A(1) of the Act reads: “[a] person affected by a decision …. that, under section 108, must be reviewed under this section, may apply to the Secretary for review of the decision”, the use of the word “may” is facultative (or permissive); but properly understood s 109A is obligatory if an application to the Tribunal is to be made. Read in context, ss 108, 109A and 144 of the Act provide for a scheme of review rights that must be followed before a person has a valid application to this Tribunal.

11. This becomes even more evident when it is appreciated that provision is made under s 144(1C) of the Act for certain decisions to not require internal review. These are limited to decisions made personally by the Secretary or by another agency head. Mr Jockel’s is not such a case.

12. Mr Jockel nevertheless submitted that the respondent’s letter (see above) referring to the availability of two review processes was correct. He submitted that the Act does not accord any particular priority to the sequence of review processes, and in fact offers a choice. He relied on other provisions, including s 25 of the Administrative Appeals Tribunal Act as facilitating his application to the Tribunal. He also noted that s 33(1) of that Act requires the Tribunal to conduct proceedings with as little formality and as much expedition as possible. In that regard, he said that it was appropriate to have his matter heard—especially as the delay that the misinformation about review rights has occasioned has had a substantial adverse effect on his business operations, requiring a remedy.

13. No doubt Mr Jockel has suffered in that way. However, the Tribunal cannot assert a jurisdiction that it does not have under the Act. No discretion exists to waive the requirement set out in s 144(1A) of the Act for the original decision to first undergo internal review. For the reasons that I have set out, this matter cannot yet be reviewed here.

14.     Mr Jockel asked that, at the very least, the respondent address the matter of the misleading information about review rights provided in its letter. Mr Maclean, for the respondent, agreed that the inadequate and misleading notice was regrettable. He undertook to address this matter appropriately so that the mistake is not replicated in the future. 

15. I would only observe in that regard that on 30 November 1994, the then Attorney-General issued a “Code of Practice for Notification of Reviewable Decisions and Rights of Review” pursuant to s 27B of the Administrative Appeals Tribunal Act, setting out what Commonwealth authorities should refer to when notifying persons of their review rights. That code (a legislative instrument) can be accessed at The respondent should refer to this code in reviewing the adequacy of its current notices.

DECISION

16.     The Tribunal has no jurisdiction to review the cancellation decision. The filing fee lodged on 18 August 2009 will be refunded.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.

Signed: .............................[Sgd]...............................................
  Mátyás Kochárdy, Associate

Date of Hearing  15 September 2009
Date of Decision  15 September 2009
Date of Written Reasons          30 September 2009
Applicant represented by Mr Peter Jockel, executive officer                  
Solicitor for the Respondent     Mr Robert Maclean