Peter Tually and Secretary, Department of Social Services
[2015] AATA 354
•22 May 2015
[2015] AATA 354
Division General Administrative Division File Number
2014/5828
Re
Peter Tually
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 22 May 2015 Place Perth The Tribunal does not have jurisdiction in respect of the application for review lodged by the applicant on 7 November 2014.
............................[sgd]............................................
S D Hotop
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – application to Social Security Appeals Tribunal (SSAT) for review of decision of authorised review officer – decision of delegate of Principal Member of SSAT dismissing application for review – dismissal power conferred on Principal Member not on SSAT – decision dismissing application for review not made by SSAT – decision of delegate of Principal Member dismissing application for review not reviewable by Administrative Appeals Tribunal (AAT) – AAT does not have jurisdiction in respect of application for review of decision of delegate of Principal Member of SSAT
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 3(1) and s 25(1), (4)
Social Security (Administration) Act 1999 (Cth), s 3(1), s 139, s 141, s 142(1), s 144, s 149(1), s 151(1), s 155, s 171, s 173, s 175, s 179, s 181, Schedule 1, cl 1(1), Schedule 3, cl 1, 2, 10, 12, 20
CASES
Byrne & Graham (SSAT Appeal) [2010] FMCAfam 1116
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Manchester & Manchester (SSAT Appeal) [2011] FMCAfam 1215
R v Moodie; Ex parte Mithen (1977) 17 ALR 219Simon v Social Securities [sic] Appeals Tribunal [2011] FMCA 857
REASONS FOR DECISION
Deputy President S D Hotop
22 May 2015
Background
The following background appears from the Tribunal Registry file in this matter.
On 7 November 2014 Peter Tually (“the applicant”) lodged with the Tribunal a completed “Application for Review of Decision” form whereby he applied to the Tribunal for review of a decision of a delegate of the Principal Member of the Social Security Appeals Tribunal (“SSAT”), dated 10 October 2014, a copy of which was enclosed with that form.
The decision of the delegate of the Principal Member of the SSAT, dated 10 October 2014, of which the applicant sought review by the Tribunal, is in the following terms:
“ DECISION
The application is dismissed pursuant to paragraph 171(1)(a) of the Social Security (Administration) Act.”
By letter dated 11 November 2014 an officer in the Perth Registry of the Tribunal wrote to the applicant acknowledging receipt of his application for review, querying whether the Tribunal had jurisdiction to review the relevant decision, and inviting the applicant to show cause if he maintained that the Tribunal did have jurisdiction to review that decision.
The applicant responded to that letter by email, sent on 27 November 2014, in the following terms:
“ Thank you for your letter dated 11 November 2014.
I note your finding that the AAT is unable to review the decision of the SSAT because there is no Commonwealth law which permits such a review. With respect, I disagree with that finding as section 179(1) of the Social Security (Administration) Act 1999 (Act) provides that the AAT has the power to review any decision which has been reviewed by the SSAT and which the SSAT has affirmed, varied or set aside.
Whilst the greater part of the SSAT’s reasons for decision is devoted to explaining why the SSAT did not believe it had jurisdiction to hear the application before it, at paragraphs 45 to 54 of the reasons for decision the SSAT does in fact review the decision of the Authorised Review Office [sic] and effectively affirms that decision. This review and affirmation of the decision before it enlivens section 179(1) of the Act, which in turn triggers section 25 of the Administrative Appeals Tribunal Act 1975, empowering the AAT to review the decision I have referred to it.”
On 12 December 2014 the Tribunal made directions requiring the parties to file and serve written submissions “in relation to the question of whether the Tribunal has jurisdiction in this matter”. Such written submissions were subsequently filed and served by the parties in accordance with those directions.
In the meantime, however, by email sent on 19 December 2014, the applicant had written to the Tribunal as follows:
“ The Respondent has drawn to my attention an avenue for review of the SSAT’s decision under section 171(5) of the Social Security (Administration) Act 1999. In light of this advice from the Respondent, I intend to make a request to the Principal Member that he review the decision of the SSAT pursuant to section 171(5).
In the circumstances it appears to me that there are two options for dealing with the application currently before the AAT:
1)The application be stayed pending a response from the Principal Member, with the existing orders vacated and the hearing adjourned sine die with liberty to apply to bring the matter back on if the response is negative.
2) The application is withdrawn.
The Respondent has indicated that it considers the second option to be more appropriate and while I agree that this would be the case if the Principal Member agrees to review the SSAT’s decision, I am concerned that if the Principal Member refuses to review the matter under section 171(5), I would then be required to lodge a fresh yet identical application to that currently before you. Accordingly, my view is that the most appropriate way forward may be a combination of the options, with option 1 put into effect on the understanding that if the Principal Member agrees to review the decision of the SSAT pursuant to section 171(5), I will withdraw the current application. I would be grateful for the AAT’s guidance in this respect.”
At a directions hearing held on 13 January 2015 the applicant confirmed that he proposed to make a request to the Principal Member of the SSAT that his application to the SSAT be reinstated under s 171(5) of the Social Security (Administration) Act 1999 (Cth) but that he did not wish to withdraw his present application to the Tribunal.
On 24 March 2015 the applicant filed with the Tribunal, and served on the respondent, a copy of a letter from the SSAT Registry, dated 20 March 2015, informing him that a delegate of the Principal Member had decided not to reinstate his application for review, together with a copy of the delegate’s statement of reasons for that decision.
At a directions hearing held on 31 March 2015 the Tribunal made directions requiring the parties to file and serve supplementary written submissions “in relation to the issue of the Tribunal’s jurisdiction in this matter”. Such supplementary written submissions were subsequently filed and served by the parties in accordance with those directions.
An interlocutory hearing was held by the Tribunal on 12 May 2015. The parties informed the Tribunal that they did not wish to add to the written submissions previously filed by them in this matter.
The Decision of the Delegate of the Principal Member of the SSAT dated 10 October 2014
The terms of that decision are set out in paragraph 3 above. In the statement of reasons for that decision the delegate set out the background, and the issue for determination, as follows:
“ BACKGROUND
1.Mr Peter Tually is the son and executor of the estate of Mr David Tually who died on 26 January 2014. On 10 June 2014, Mr Peter Tually applied to the SSAT for review of a decision made by an authorised review officer (ARO) on 24 May 2014 about the start date for his father’s age pension because that decision ‘did not address the specific issue that had been requested to be reviewed (ie the defective administration of a Centrelink official)’.
2.Pursuant to the General Power of Attorney for his father, Mr Tually had completed two forms for ‘Review of a decision’:
On 7 January 2014, he asked for review of the decision made on 24 October 2013 on a claim for compensation for defective administration; and
On 7 February 2014, he asked for review of the department’s ‘failure to make a decision in relation to age pension claim lodged on June [sic] 2012’.
3.The ARO reviewed ‘the decision made on 14 June 2013 to grant the claim for Age Pension from 26 May 2013’. The ARO’s letter puts it that ‘Mr Tually considers that the late Mr David Tually completed [a] claim form for Age Pension and any related documents in March 2011’.
4.The ARO found that there were ‘special circumstances’ for the purposes of subsection 13(3A) of the Social Security (Administration) Act 1999 (the Administration Act), due to evidence that Mr David Tually had been in and out of intensive care since February 2013, and varied the start date for the grant of age pension to him from 26 May 2013 to 8 March 2013.
5.The SSAT does not have jurisdiction to review a decision on a claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration which was set up under or in connection with the Financial Management and Accountability Act 1997.
6.It would appear that Mr Tually is aggrieved in relation to more than one perceived act or omission by Centrelink, but the Tribunal can only review decisions which have been internally reviewed. Mr Tually’s application can be taken to be in relation to the decision of the ARO described above. However, a preliminary question arises as to whether the executor of a deceased estate has a statutory right to seek review by the SSAT of a decision about the deceased’s social security payment.
7.On 5 August 2014, I conducted a hearing about the preliminary issue at which Mr Tually and his wife made submissions, and later made written submissions with leave.
ISSUE: As executor of his father’s deceased estate, is Mr Tually a person whose interests are affected by the decision as to the date from which age pension was paid to his father?”
The delegate considered that issue in depth and ultimately determined that Mr Tually was not “a person whose interests are affected by” the decision as to the date from which age pension was payable to his father. The delegate’s statement of reasons then concluded as follows:
“ Dismissal of application
42.Generally, if a person affected by the decision under the social security law applies to the Secretary for review, the review must be completed. However, the Principal Member of the SSAT can dismiss an application for review for various reasons. One of those reasons is that ‘the decision is not reviewable under this Division’ (which is Division 4 of Part 4 of the Administration Act). It is not only a decision listed in section 144 (in Division 3 of Part 4) which is not reviewable by the SSAT but also any decision of which review is sought by a person whose interests are not affected by the decision, and any decision in respect of which jurisdiction is not expressly conferred on the SSAT (such as a decision under the Scheme for Compensation for Detriment caused by Defective Administration).
43.Until the current version of sections 171 and 172 of the Administration Act were inserted in 2012, the Principal Member’s power to dismiss an application for review was limited (in essence) to a situation in which the person who made the application for review did not intend to proceed. However, this limited dismissal power did not (and could not) enlarge the SSAT’s jurisdiction. Where, prior to the 2012 amendments, the SSAT did not have jurisdiction to review a decision for any reason, the SSAT simply made a decision that it had no power to conduct the review.
44.… I have concluded that Mr Tually is not a person whose interests are affected by the decision as to the start date of his father’s age pension and therefore the SSAT does not have jurisdiction to review the decision.
In the alternative
45.Even if I am incorrect in this conclusion, I consider that the application for review must fail.
46.It is apparent from the records of the Department of Human Services (the Department) that application was made by Mr David Tually on 1 November 2012 for what is known as Residential Aged Care Assessment (RCA). The form in use at that time was titled Residential aged care fee income assessment (identified as SA316) and comprised 8 pages. The form stated that assessment of a person’s income is ‘passed on to the Department of Health and Ageing to help them calculate [the person’s] residential aged care fees’.
47.On 4 January 2013, the Department’s records show that Mr David Tually’s RCA application was rejected on the basis that his means were not disclosed. A new form was completed on 23 March 2013 and lodged on 27 March 2013.
48.The Secretary has not recorded [sic] of Mr David Tually making any application other than for an RCA, before 5 June 2013 (when the Department received the claim completed by him on behalf of his father). In the application for review lodged on 7 February 2014, Mr Tually asserted that an age pension claim was lodged on 13 June 2012. However, according to the ARO’s decision, Mr Tually asserted that his father completed a claim for age pension in March 2011 and a Departmental officer attended the rehabilitation centre in March 2011 and took the paperwork.
49.Regardless of the confusion of dates, Mr Tually’s essential position is that his father handed a completed claim for age pension in the approved form to an officer of Centrelink on a date more than a year before Centrelink recorded receipt of the claim referred to above. Subsection 16(4) of the Administration Act permits lodgement of a claim by delivery to an officer approved for that purpose. However, even if Mr Tually were now able to establish the fact of such lodgement in 2011 or 2012, the absence of any determination on the claim so established would trigger a force-of-law refusal of the claim under subsection 39(1) of the Administration Act.
50.In addition, in relation to the claim which Centrelink received on 5 June 2013, the basis on which the pension was granted from 8 March 2013 is obscure.
51.For the purposes of the social security law, subsection 13(1) of the Administration Act deems the day on which the Department is contacted ‘in relation to a claim for a social security payment’ to be the date of claim (and therefore the start date) if the claim was made within 14 days after the date of contact. As Mr Tually contacted the Department on behalf of his father in relation to a claim for age pension on 20 May 2013 but the claim was not lodged until 5 June 2013, subsection 13(1) could not apply.
52.The other subsections of section 13 provide, in limited and specific circumstances, a power to backdate a start date to a date up to 13 weeks prior to the date of lodgement of the claim. However, in each such case, the power only permits the backdating to a day on which:
The Department is contacted by or on behalf of a person in relation to a claim for a social security payment, other than crisis payment or special employment advance. (my emphasis)
53.There is no evidence before me that there was any contact of that nature on 8 March 2013. The first contact considered by Centrelink to be of that nature, and acknowledged in writing as such, took place on 20 May 2013.
54.Accordingly, had I concluded that Mr Tually’s interests were affected by the decision, it would appear unlikely that his application for review could have resulted in a more favourable outcome for him.
DECISION
In the exercise of power delegated to me by the Principal Member, I dismiss Mr Tually’s application for review pursuant to paragraph 171(1)(a) of the Administration Act.” (footnotes omitted) (original emphasis)
The Decision of the Delegate of the Principal Member of the SSAT Refusing the Applicant’s Request for Reinstatement of his Application for Review
The delegate’s statement of reasons for that decision, dated 20 March 2015, states as follows:
“ Refusal of request for reinstatement by delegate of the SSAT Principal Member
1.In this matter, Mr Tually requests reinstatement in circumstances where another delegate of the SSAT Principal Member, Senior Member Harvey, has decided that he was not a person whose interests were affected by an authorised review officer’s decision (that age pension for Mr David Tually be paid from 8 March 2013 and not any earlier). Accordingly, by decision dated 10 October 2014, SM Harvey dismissed Mr Tually’s application for review pursuant to paragraph 171(1)(a) of the Social Security (Administration) Act 1999 (the Act). In my view, it is not appropriate to reinstate Mr Tually’s application for review. My reasons follow.
History of proceedings
2.Mr David Tually died on 26 January 2014. By decision dated 24 May 2014, an authorised review officer varied the start date for the grant of Mr David Tually’s age pension from 26 May 2013 to 8 March 2013.
3.On 10 June 2014, Mr Tually applied to the SSAT for review of this decision.
4.By decision dated 10 October 2014, SM Harvey decided that Mr Tually was not a person whose interests were affected by the authorised review officer’s decision and therefore dismissed his application for review under paragraph 171(1)(a) of the Act.
5.Mr Tually then applied to the Administrative Appeals Tribunal for review of SM Harvey’s decision. In the course of those proceedings, the possibility of requesting reinstatement of the SSAT application under subsection 171(3) of the Act was made known to Mr Tually.
6.On 27 January 2015, Mr Tually requested reinstatement. His written request sets out relevant circumstances and asks for an extension of time within which to seek reinstatement. A copy of the Secretary’s submissions before the AAT on issues of standing and jurisdiction was also provided.
Consideration
7.It is useful to observe that the power to dismiss an application for review under paragraph 171(1)(a) of the Act resides in the Principal Member of the SSAT. SM Harvey had been delegated by the Principal Member to exercise that power: see clause 20 of Schedule 3 to the Act.
8.It follows that SM Harvey’s dismissal decision was not a decision of the SSAT, but one made as delegate of the Principal Member. This position is akin to situations which have arisen in the SSAT’s child support jurisdiction where certain powers, including the power to dismiss, vest in the SSAT Principal Member rather than the SSAT itself. That this is a substantive distinction, directly affecting relevant appeal rights, has been confirmed by the Federal Magistrates Court (as it then was): see Manchester & Manchester (SSAT Appeal) [2011] FMCAfam 1215.
9.Given the dismissal decision was made by a delegate of the Principal Member, and not by the SSAT, a right of review by the AAT was not available, since paragraph 179(1)(a) of the Act was not satisfied. The appropriate right of appeal was by way of an Administrative Decisions (Judicial Review) Act 1997 [sic] application.
10.Unfortunately, the notice dated 14 October 2014, sent by the Tribunal when the dismissal decision was finalised, incorrectly advised that AAT review was available. It was entirely understandable that Mr Tually would act on this advice and apply to the AAT.
11.Ordinarily, a party has 28 days from notification of dismissal to request reinstatement: subsection 171(3) of the Act. However, there is power to allow a longer period ‘in special circumstances’: paragraph 171(3)(b). In the circumstances here, I accept that there are special circumstances which justify allowing Mr Tually a longer period than 28 days within which to seek reinstatement.
12.The power to reinstate requires satisfaction that it is ‘appropriate to do so’ [subsection 171(4)] or that the dismissal was ‘in error’ [subsection 171(5)]. Mr Tually relies on both grounds. In particular, he relies on the Secretary’s submissions before the AAT.
13.In my assessment, the Secretary’s submissions are of little assistance. They wrongly characterise the dismissal decision as having been made by the SSAT. They do not appear to substantively engage with the critical issue as to whether the executor of a deceased estate is a person whose interests are affected by a decision about the start date of the deceased’s age pension. In this respect, I am not persuaded that decisions made in different statutory contexts are of any assistance in considering the proper position under the Act.
14.I take the view that the right to seek SSAT review in this case was personal to Mr David Tually and was not transmissible to his estate on his death. Given SM Harvey’s considered reasons for concluding Mr Tually was not a person whose interests were affected by the authorised review officer’s decision, there is little utility in my traversing this ground again. I consider the dismissal decision was correctly made. Accordingly, I am not persuaded there is any proper basis upon which to reinstate.
15.Further, even if I entertained some reservation about the matter, I doubt it would be appropriate for me to reinstate simply on that basis. The power to reinstate also resides in the Principal Member and is open to a delegate of the Principal Member to exercise. However, the practical position posed by Mr Tually’s reinstatement request is akin to me, as a Principal Member delegate, sitting in judgment of SM Harvey’s dismissal decision (ie another delegate’s decision). Given the context, I do not see that as likely to be a proper course. In any event, since I agree with the dismissal decision, this concern is merely hypothetical.
16.Another matter I take into account does not turn on the issue of Mr Tually’s right to bring the substantive application. Even assuming the SSAT had jurisdiction, it seems difficult to be satisfied there are any practical prospects of success, in the absence of good evidence of an age pension claim having been lodged with Centrelink before 8 March 2013. On the present state of the material, it seems unlikely that such evidence can be produced. In fact, there would be a real prospect the primary decision to pay age pension from 26 May 2013 could be restored.
17.For the reasons given, I have decided that this is not an appropriate case in which to reinstate under subsection 171(4) of the Act. Accordingly, I refuse Mr Tually’s request for reinstatement.”
The Issue
The issue for the Tribunal’s determination at this interlocutory stage of the proceeding is whether the Tribunal has jurisdiction to review the decision of the delegate of the Principal Member of the SSAT, dated 10 October 2014 (referred to in paragraphs 3 and 12 above).
The Statutory Framework
Administrative Appeals Tribunal Act 1975 (Cth)
The Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) relevantly provides:
“ 3 Interpretation
(1) In this Act, unless the contrary intention appears:
…
enactment means:
(a) an Act;
(b)an Ordinance of a Territory other than the Northern Territory, the Australian Capital Territory or Norfolk Island; or
(c)an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance;
and includes an enactment as amended by another enactment.
…
Tribunal:
(a)means the Administrative Appeals Tribunal established by this Act; and
(b)in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; and
(c)includes a member, or an officer of the Tribunal, exercising powers of the Tribunal.
…”
“ 25 Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…
Tribunal’s power to review decisions
(4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
…”
Social Security (Administration) Act 1999 (Cth)
The relevant provisions of the Social Security (Administration Act 1999 (Cth) (“SS (Administration) Act”) are as follows.
Section 3(1) provides:
“ Unless a contrary intention appears, an expression that is defined in Schedule 1 has in this Act the meaning given in that Schedule.”
The “Dictionary” in Schedule 1 includes (in clause 1(1)) the following relevant definitions:
“ AAT means the Administrative Appeals Tribunal.”
“ Principal Member means the Principal Member of the SSAT.
Note: Schedule 3 deals with the constitution and membership of the SSAT.”
“ SSAT means the Social Security Appeals Tribunal.
Note: Schedule 3 deals with the constitution and membership of the SSAT.”
Section 139(1) provides that the SSAT, which was continued in existence by the Social Security Act 1991 (Cth), “is further continued in existence by this Act”. Section 139(2) states that provisions relating to (inter alia) the “constitution and membership” and the “organisation of the business” of the SSAT are to be found in Schedule 3.
Schedule 3, “Constitution and Membership of the Social Security Appeals Tribunal”, includes the following relevant provisions:
“ Part 1—Membership of the SSAT
1 Composition of the SSAT
The SSAT consists of the following members:
(a) a Principal Member; and
(aa) such number of Deputy Principal Members as are appointed in accordance with this Act; and
(b) such number of Senior Members as are appointed in accordance with this Act; and
(ba) such number of Assistant Senior Members as are appointed in accordance with this Act; and
(c) such number of other members as are appointed in accordance with this Act.
2The Principal Member
(1) The Principal Member is responsible for the overall operation and administration of the SSAT.
(2) The Principal Member is to:
(a)monitor the operations of the SSAT; and
(b)take reasonable steps to ensure that decisions of the SSAT are consistent; and
(c)take reasonable steps to ensure that the SSAT efficiently and effectively performs its functions.
(3) The Principal Member may give directions:
(a)for the purpose of increasing the efficiency of the operations of the SSAT; and
(b)as to the arrangement of the business of the SSAT.
…
Part 2—Organisation of the business of the SSAT
10Constitution of SSAT for each hearing
(1) Subject to clause 11, the Principal Member may give directions as to the member who is, or members who are, to constitute the SSAT for the purposes of:
(a)a particular review; or
(b)reviews of a particular kind.
…
(3)For the purposes of a review, the SSAT is to be constituted by the member or members ascertained in accordance with the directions given under subclause (1).
…
12 Reconstitution of SSAT if member unavailable to complete review
(1) This clause applies if:
(a)the hearing of a review of a decision has been commenced or completed by the SSAT; and
(b)before a decision on the review has been made by the SSAT, a member (the unavailable member) who constitutes, or is one of the members who constitute, the SSAT for the purposes of the review has:
(i) ceased to be a member; or
(ii) for any reason, ceased to be available for the purposes of the review; or
(iii) been directed by the Principal Member not to continue to take part in the review.
(1AA)The Principal Member must not give a direction under subparagraph (1)(b)(iii) unless the Principal Member:
(a)is satisfied, having regard to the objective of conducting reviews in a manner that is fair, just, economical, informal and quick, that the direction is in the interests of justice; and
(b)has consulted the member concerned.
Single member Tribunal
(1A)If the unavailable member constituted the SSAT for the purposes of the review, the Principal Member must:
(a)give a direction reconstituting the SSAT for the purposes of the review; and
(b)either:
(i)direct that the hearing and determination, or the determination, of the review must be completed by the SSAT as so reconstituted; or
(ii)direct that the review must be reheard by the SSAT as so reconstituted.
Multiple member Tribunal
(1B)If the unavailable member was one of the members who constituted the SSAT for the purposes of the review:
(a)if the Principal Member does not give a direction reconstituting the SSAT for the purposes of the review—the hearing and determination, or the determination, of the review must be completed by the SSAT constituted by the remaining member or members; or
(b)if the Principal Member does give a direction reconstituting the SSAT for the purposes of the review—the review must be reheard by the SSAT as so reconstituted.
SSAT may have regard to record of previous review
(2)If the SSAT is reconstituted in accordance with this clause, the SSAT may, for the purposes of the review, have regard to any record of:
(a)the hearing of the review before the SSAT as previously constituted (including a record of any evidence taken); and
(b)any directions hearings convened by the Principal Member with the parties to the review.
Reconstituted Tribunal must continue review
(3)The SSAT as reconstituted in accordance with a direction under this clause must continue the review.
…
Part 3—Administrative matters
20 Delegation by the Principal Member
The Principal Member may, in writing, delegate to a member of the SSAT, or a member of the staff of the SSAT, all or any of the powers and functions of the Principal Member under this Act, the family assistance law, the Paid Parental Leave Act 2010, the Student Assistance Act 1973, the Employment Services Act 1994, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.
…”
Part 4 deals with review of decisions under the “social security law” (which, pursuant to s 3(3), includes the Social Security Act 1991 (Cth) and the SS (Administration) Act).
Division 2 of Part 4 deals with “internal review” of decisions and includes s 135(1) which, in the event of an application by a person for review of a decision, requires (inter alia) an “authorised review officer” to review the decision and either “affirm the decision”, or “vary the decision”, or “set the decision aside and substitute a new decision”.
Division 3 of Part 4 is headed “Review by the Social Security Appeals Tribunal”. Section 141 provides:
“(1) In carrying out its functions under this Act, the SSAT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)That objective must also be pursued by the Principal Member in performing or exercising his or her functions and powers under this Act.
Section 142(1) provides:
“ (1) Subject to section 144, if:
(a)a decision has been reviewed by the Secretary, the Chief Executive Centrelink or an authorised review officer under section 126 or 135; and
(b)the decision has been affirmed, varied or set aside;
a person whose interests are affected by the decision of the Secretary, the Chief Executive Centrelink or the authorised review officer may apply to the SSAT for review of that decision.”
Section 144, which is headed “Non-reviewable decisions”, lists various categories of decisions which “the SSAT cannot review”. None of those categories of decisions is relevant in this case. Section 149(1) provides:
“ If a person applies to the SSAT for review of a decision (other than a decision referred to in subsection (5)), the SSAT must:
(a)affirm the decision; or
(b)vary the decision; or
(c)set the decision aside and:
(i)substitute a new decision; or
(ii)send the matter back to the Secretary or the Chief Executive Centrelink, as the case requires, for reconsideration in accordance with any directions or recommendations of the SSAT.”
Section 151(1) provides:
“ Subject to subsection (2), the SSAT may, for the purpose of reviewing a decision under the social security law, exercise all the powers and discretions that are conferred by the social security law on the Secretary.”
Section 155 provides:
“(1) If an officer varies a decision after an application has been made to the SSAT for review of the decision but before determination of the review, the application for review is to be treated as if it were an application for review of the decision as varied.
(2)If an officer sets a decision aside and substitutes a new decision after an application has been made to the SSAT for review of the original decision but before the determination of the review, the application for review is to be treated as if it were an application for review of the new decision.
(3)If:
(a)a person applies to the SSAT for review of a decision; and
(b)before determination of the review, an officer varies the decision or sets it aside and substitutes a new decision;
the person may:
(c)proceed with the application for review of the decision as varied or the new decision; or
(d)request the Principal Member to dismiss the application under section 171; or
(e)notify, under section 172, the SSAT that the application is discontinued or withdrawn.”
Division 4, which is headed “Procedures for review by the SSAT”, contains provisions which authorise “the Principal Member” to take various actions regarding procedural matters prior to the hearing of a review by the SSAT, including:
· fixing the day, time and place for the hearing and providing written notice thereof to the parties (s 159);
· convening directions hearings with the parties and giving directions about the making of submissions, the provision of evidence, and the giving of information, to the SSAT (s 166A);
· giving directions “as to the persons who may be present at any hearing of a review” (s 168).
Subdivision D (“Other procedural matters”) of Division 4 includes the following relevant provisions:
“ 171 Dismissal of application for review by SSAT
(1)The Principal Member may, on the request of a party or on his or her own initiative, dismiss an application for review of a decision if:
(a)the decision is not reviewable under this Division; or
(b)the application is frivolous or vexatious; or
(c)all of the parties consent; or
(d)the Principal Member is satisfied:
(i)after having communicated with each party; or
(ii)after having made reasonable attempts to communicate with each party and having failed to do so;
or a combination of both, that none of the parties intend to proceed with the application; or
(e) all of the parties fail to attend the hearing.
(2)The Principal Member may dismiss an application under paragraph (1)(b) only if:
(a)one of the following applies:
(i)the Principal Member has received and considered submissions from the applicant for review;
(ii)the Principal Member has otherwise communicated with the applicant in relation to the grounds of the application;
(iii)the Principal Member has made reasonable attempts to communicate with the applicant in relation to the grounds of the application and has failed to do so; and
(b)all of the parties (other than the applicant) consent to the dismissal.
(3)If the Principal Member dismisses an application under subsection (1) (other than under paragraph (1)(b)), a party to the review may:
(a)within 28 days after receiving notification that the application has been dismissed; or
(b)within such longer period as the Principal Member, in special circumstances, allows;
request that the Principal Member reinstate the application.
(4)If the Principal Member considers it appropriate to do so, he or she may reinstate the application and give such directions as he or she considers appropriate in the circumstances.
(5)If it appears to the Principal Member that an application has been dismissed under subsection (1) in error, he or she may, on the request of a party to the review or on his or her own initiative, reinstate the application and give such directions as he or she considers appropriate in the circumstances.
(6)This section does not apply in relation to a party if the party is the Secretary or the Chief Executive Centrelink.”
“173 Presiding member at SSAT hearing
If the SSAT is constituted by 2 or more members for the purposes of the review of a decision, the Principal Member must designate one of those members as the member who is to preside at the hearing of the review.”
“ 175 Directions as to procedure for hearings
(1) The Principal Member:
(a)may give general directions as to the procedure to be followed by the SSAT in connection with the review of decisions under the social security law; and
(b)may give directions as to the procedure to be followed by the SSAT in connection with a particular review.
(2)A direction under subsection (1) must not be inconsistent with any provision of the social security law.
(3)A direction under paragraph (1)(b) may be given before or after the hearing of the particular review has commenced.
(4)The presiding member of the SSAT as constituted for the purposes of a particular review may give directions as to the procedure to be followed on the hearing of the review.
(5)A direction under subsection (4) must not be inconsistent with:
(a)any provision of the social security law; or
…
(d)a direction under subsection (1) of this section.
(6)A direction under subsection (4) may be given before or after the hearing of the particular review has commenced.”
Division 5, which is headed “Review by the Administrative Appeals Tribunal”, includes s 179 which relevantly provides:
“ 179 Review of decisions by AAT
(1) If:
(a) a decision has been reviewed by the SSAT; and
(b) the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.
(2)For the purposes of subsection (1), the decision made by the SSAT is taken to be:
(a)where the SSAT affirms a decision—that decision as affirmed; and
(b)where the SSAT varies a decision—that decision as varied; and
(c)where the SSAT sets a decision aside and substitutes a new decision—the new decision; and
(d)where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT—the directions or recommendations of the SSAT.
…”
Section 181 provides:
“ The AAT may only review a decision that has been reviewed by the SSAT.”
The Submissions
The respondent
The written submissions filed by the Secretary, Department of Social Services (“the respondent”) on 22 December 2014 state as follows:
“ Background Facts
1.Mr Peter Tually is the son and executor of the estate of Mr David Tually.
2.On 10 June 2014, Mr Peter Tually applied to the Social Security Appeals Tribunal (SSAT) for review of a decision by an Authorised Review Officer (ARO) on 24 May 2014 about the start date of his father’s age pension payment.
3.On 10 October 2014, the SSAT dismissed Mr Tually’s application pursuant to paragraph 171(1) (a) of the Social Security Administration [sic] Act 1999 (SSA Act) on the basis that Mr Tually’s interests were not affected by the decision of the Secretary and accordingly the decision of the ARO was not reviewable.
4.On 7 November 2014, Mr Tually applied to the Administrative Appeals Tribunal (AAT) for review. In the Application for Review of Decision, Mr Tually stated that his reasons for applying were that the SSAT ‘erred in law by finding that the executor of a deceased estate does not have the right to seek review of the SSAT of a decision about the deceased’s social security payment’; and that the SSAT took irrelevant matters into account, and ‘refused to take into consideration family provision legislation and judicial interpretation of that legislation’.
5.On 11 November 2014, the AAT contacted the Applicant, asking him to explain why he considers the AAT to have jurisdiction to review this matter.
6.On 27 November 2014, Mr Tually provided an email submission to the AAT stating:
[a]t paragraphs 45 to 54 of the reasons for the decision the SSAT does in fact review the decision of the Authorised Review Office [sic] and effectively affirms that decision. This review and affirmation of the decision before it enlivens section 179(1) of the Act, which in turn triggers section 25 of the Administrative Appeals Tribunal Act 1975, empowering the AAT to review the decision…
Issues
1.Whether the Tribunal has jurisdiction to review an application where a delegate of the Principal Member of the SSAT has dismissed the application pursuant to paragraph 171(1)(a) of the SSA Act; and
2.As a corollary of issue 1, what is the effect of the fact that dismissal of the application was made by a delegate of the Principal Member; and
3.Whether Mr Tually was a person whose interests are affected by the decision of the Secretary within the meaning of section 142 of the SSA Act.
Relevant law
4.Section 142 of the SSA Act provides that:
(1) Subject to section 144, if:
(a) a decision has been reviewed by the Secretary, the Chief Executive Centrelink or an authorised review officer under section 126 or 135; and
(b) the decision has been affirmed, varied or set aside;
a person whose interests are affected by the decision of the Secretary, the Chief Executive Centrelink or the authorised review officer may apply to the SSAT for review of that decision.
5.Section 171(1)(a) of the SSA Act specifies that the Principal Member may, on request of a party or on his or her own initiative, dismiss an application for review of a decision if, among other things, ‘the decision is not reviewable under this Division’. Section 144 of the SSA Act contains a list of non-reviewable decisions.
6.Section 179 of the SSA Act provides that:
(1) If:
(a) a decision has been reviewed by the SSAT; and
(b) the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.
(2) For the purposes of subsection (1), the decision made by the SSAT is taken to be:
(a) where the SSAT affirms a decision—that decision as affirmed; and
(b) where the SSAT varies a decision—that decision as varied; and
(c) where the SSAT sets a decision aside and substitutes a new decision—the new decision; and
(d) where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT—the directions or recommendations of the SSAT.
7.Section 31 of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that:
Where it is necessary for the purposes of this Act to decide whether interests of a person are affected by the decision, that matter shall be decided by the Tribunal and if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.
Submissions
Does the Tribunal have jurisdiction to review an application where the matter had been dismissed by a delegate of the Principal Member of the SSAT pursuant to section 171 of the SSA Act?
8.The Secretary submits that the Tribunal in this instance is not precluded from determining for itself whether it has jurisdiction to review this matter, despite the dismissal of the matter by the SSAT.
9.In Ward v Nicholls (1998) 16 ALD 353, the Federal Court noted at [361], in relation to a finding of no jurisdiction by the Veterans’ Review Board that:
it would be a very odd situation if … the Veterans Review Board erroneously found that it had no jurisdiction and the Administrative Appeals Tribunal – which is set up by statute to review the merits [sic] decisions of that Board – was then precluded from considering for itself whether the Board in fact had jurisdiction and if so, what decision it should have made.
10.The finding in Ward was cited with approval in Crompton v Repatriation Commission [1993] FCA 468. Commenting on the ability of the Tribunal to re-determine issues of jurisdiction despite the finding of no jurisdiction by an intermediate body, the Federal Court stated, at [20] that:
In administrative proceedings, having the power to determine and re-determine questions of jurisdiction is essential to the process of determining questions of law and fact. The Board is a body of limited jurisdiction which is incapable of binding subsequent administrative bodies on questions of jurisdiction. The applicant’s proposition that a board or tribunal’s finding on the question of its own jurisdiction must stand unassailed until overturned by a court or [sic] competent jurisdiction cannot be accepted.
11.In the context of the social security law, in Robert Farmer and Secretary, Department of Social Security [1993] AATA 143, the Tribunal recognised that ‘a finding of no jurisdiction on the part of an intermediate tribunal like the SSAT does not bind this Tribunal when determining for itself, whether it has jurisdiction to review a matter’.
12.Similarly in Mueller and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1455, where the SSAT erroneously declined to determine the matter on jurisdictional grounds because it considered there was no reviewable decision, the AAT found that it could determine issues of jurisdiction for itself despite the SSAT’s jurisdictional finding. This conclusion stemmed from section 31 of the AAT Act, which empowers the Tribunal to determine whether a person has interests which are affected by the decision under review. The AAT observed that while the legislation does not specify whether the term ‘decision’ includes only the decision of the intermediate tribunal or also the decision of the original decision-maker, a broad interpretation of the term here is warranted given Parliamentary intention to empower the Tribunal to arrive at the correct or preferable decision in a relatively summary and inexpensive manner (see also Nisha and Department of Family and Community Services [2003] AATA 378; Brambrick and Secretary, Department of Employment and Workplace Relations and Anor [2007] AATA 1739).
13.In light of the authorities above, the Secretary contends although the SSAT, as the intermediate body, has declined to review the matter on the basis Mr Tually was not a person affected by the Secretary’s decision, the AAT is nonetheless able to determine whether Mr Tually was a person affected by the decision for itself. The alternative view that the AAT has no jurisdiction to determine this matter because it was dismissed under section 171(1)(a) of the SSA Act would mean that a jurisdictional finding by the SSAT has the effect of foreclosing the AAT’s jurisdiction, and leaving an applicant with only the option of judicial review. The Secretary contends that this would not facilitate the Tribunal’s objective as stated under section 2A of the AAT Act.
What is the effect of the fact that the dismissal was made by a delegate of the Principal Member of the SSAT?
14.The Secretary acknowledges that there may be a view that a decision made by the Principal Member of the SSAT or a delegate of the Principal Member could not be considered to be a decision of the SSAT, and therefore a decision that is reviewable by the AAT.
15 In Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215, the Federal Magistrates Court found that a decision of the Principal Member to remove a party to a review proceeding before the SSAT is not a decision of the SSAT as contemplated by section 110B of the Child Support (Registration and Collection) Act 1988 (Registration and Collection Act). This was on the basis that the power to remove a party under the Registration and Collection Act was conferred specifically on the Principal Member and not on the SSAT more generally (see also Simon v Social Security Appeals Tribunal [2011] FMCA 857).
16.The Secretary submits that the cases above can be distinguished from the present situation as they relate specifically to the context of child support legislation and the right of appeal from decisions of the SSAT to a court under section 110B of the Registration and Collection Act.
17.The alternative view – that a dismissal by the Principal Member under section 171 of the SSA Act is not a decision of the SSAT reviewable by the AAT – would mean that no dismissal by the SSAT would ever be reviewable by the AAT. This is not consistent with prior case law as discussed in paragraphs [9]-[13] of these submissions.
18.Moreover, in the event that the SSAT found no standing (in that the applicant was not affected by the decision), the power given to the Presiding Member hearing the matter, as delegate of the Principal Member, was not enlivened. The dismissal power contained in section 171 of the SSA Act is activated in matters where proper applications have been made. Where there is no standing, or no authorised review officer decision, there can be no application for review made under section 142 of the SSA Act. In those cases the SSAT should determine it has no jurisdiction and decline to consider the application. This is common practice where the SSAT declines to consider matters that have not been reviewed by an authorised review officer.
19.It is only where there has been a valid application, and the preconditions contained in section 171 of the SSA Act are met (for example, if the decision is not reviewable by virtue of section 144), that the dismissal power is activated. The decision that is the subject of this application is not a decision of the kind listed in section 144 of the SSA Act. That the Presiding Member hearing the matter erred in exercising his power should not determine this matter in light of the authorities above. In substance, the decision is the same.
20.Accordingly, the Secretary submits that the AAT is able to determine whether Mr Tually is a person whose interest are affected by the decision of the Secretary.
Is Mr Tually a person affected by the decision of the Secretary?
21.In Allan v Transurban City Link Ltd (2001) 208 CLR 167, the High Court stated that the issue of whether a person is a person affected by a decision should be decided by having regard primarily to the legislation under which the decision was made.
22.In Re Loschiavo and Secretary, Department of Housing and Construction (1980) 2 ALD 757, the Tribunal found that a personal representative of a deceased applicant, in the context of a home savings grant, was a person affected by the decision to refuse to make the grant.
23.The Secretary submits that Mr Tually’s interest is affected by the decision of the Secretary as the estate of David Tually stands to benefit financially if the decision in relation to the start day of David Tually’s age pension payment is set aside on review. Mr Tually, as the executor of the estate, is the proper person to pursue this application.
Did the SSAT in the alternative affirm the ARO’s decision?
24.The Secretary notes that Mr Tually’s submission dated 27 November 2014 stated that he considered the SSAT to have effectively affirmed the ARO’s decision in paragraphs 45-54 of its decision.
25.Paragraphs 45-54 of the SSAT’s decision was titled ‘In the alternative’, and briefly discusses the merits of Mr Tually’s case if the Presiding Member did consider Mr Tually to be a person affected by the decision in this matter. At paragraph 54, the Presiding Member stated that ‘had I concluded that Mr Tually’s interests were affected by the decision, it would appear unlikely that his application could have resulted in a more favourable outcome for him’. On the first page of the decision and in the last paragraph of the decision, the Presiding Member clearly states that the Application is dismissed pursuant to paragraph 171(1)(a) of the SSA Act.
26.Accordingly, the Secretary submits that the [sic] paragraphs 45-54 were stated in the alternative and for the sake of completeness only. The clear intention and language of SSAT’s decision on 10 October 2014 was to dismiss the application under section 171(1)(a). As the Secretary has already indicated that we consider the AAT to have jurisdiction in this matter, it is not necessary in this instance to construct [sic] the SSAT’s decision as an affirmation.
Conclusion
27.The Secretary contends that as the SSAT has incorrectly dismissed the matter under section 171(1)(a) issue of Mr Tually’s standing to seek review [sic], Mr Tually should not be denied the right to seek further review by the AAT.” (original emphasis)
The applicant
The written submissions filed by the applicant on 5 January 2015 state as follows:
“1 The Applicant supports the submissions filed by the Respondent and wishes to make the following additional submissions.
2It is beyond question that the Principal Member is a member of the Social Security Administration [sic] Tribunal (SSAT). This is apparent from numerous provisions of the Social Security (Administration) Act 1999 (SSAA), the most notable amongst which are the definition of “Principal Member”, section 157 [sic] and clause 1 of Schedule 3 Part 1. The natural corollary to the fact of the Principal Member being a member of the SSAT is that a decision of the Principal Member cannot be said to be anything other than a decision of the SSAT.
3Section 20 of the SSAA empowers the Principal Member to delegate any or all of the Principal Member’s functions under the SSAA to a member of the SSAT or a member of the staff of the SSAT. It would be a perverse outcome if the SSAT could close out review of a decision by a superior Tribunal simply by having a delegate of the Principal Member issue the decision.
4In any event, section 25(3A) of the Administrative Appeals Tribunal Act 1975 (AATA) provides that ‘Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment also applies in relation to decisions made in the exercise of that power: (a) by any person to whom that power has been delegated …’ This makes it clear that the Administrative Appeals Tribunal (AAT) was intended to have the power to review decisions made under a delegated authority.
5Section 179(1) of the SSAA makes provision for an application to the AAT for review of an SSAT decision where the SSAT has reviewed a decision and has affirmed, varied or set it aside. A narrow reading of this section would appear to exclude from the AAT’s jurisdiction review of a decision made by the SSAT under section 171 of the SSAA. However, giving a narrow reading to the section is unworkable and wrong for several reasons:
5.1 The language of section 179(1) has been drafted to reflect the language used in section 149(1) of the SSAA, which requires the SSAT to affirm, vary or set aside a decision where an application for review of that decision comes before it. Section 179(1) appears to have been drafted on the assumption that if an application comes before the SSAT, the SSAT will fulfil its obligation under section 149(1) and deliver a decision that satisfies the criteria listed in that section. This leaves a gap in the legislation where instead of complying with section 149(1), the SSAT uses section 171 to dismiss an application on the basis of jurisdiction. To interpret that gap as excluding such decisions from the AAT’s jurisdiction would have the effect of binding the AAT to such decisions, however obviously wrong. Where one of the statutory functions of the AAT is to review decisions of the SSAT, this cannot have been the intention of the legislators.
5.2 The AAT has previously accepted that despite the absence of any express provision to such effect in the SSAA, the AAT can review findings of no jurisdiction by the SSAT. In Re Conaghan v Secretary, Department of Family and Community Services [2005] AATA 548 the Tribunal stated (at [18]) that ‘The SSAT decision was not one that affirmed, varied or set aside and (sic) earlier decision, normally a necessary requirement before this Tribunal has jurisdiction to conduct a review: s179 of the Administration Act. Nevertheless the Tribunal accepts Mr Howard’s submission that Crompton v Repatriation Commission (1993) 30 ALD 45 is authority for the proposition that the Tribunal has power to review all aspects of a decision including matters of jurisdiction.’
5.3 In Re David Kerferd v Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2008] AATA 446 the Tribunal said (at [69]) ‘… If the Tribunal decides that the SSAT would have had jurisdiction to review that decision if it had chosen to do so, then it has jurisdiction even though the SSAT neither reviewed the decision nor exercised its powers to affirm or vary the decision or set it aside and substitute another. If it decides that the SSAT would not have had jurisdiction, it must decide that it also does not have jurisdiction for the scheme of the review provisions giving the Tribunal jurisdiction to review a particular decision depends upon Parliament’s having given the SSAT jurisdiction to review that decision… In looking for the particular power to review a decision, the fact that the SSAT has said that it does not have jurisdiction is irrelevant.’
6Accordingly, it is the position of the Applicant that the SSAT wrongly dismissed the matter under section 171 of the SSAA, that the SSAT did in fact have jurisdiction to determine the application and that the AAT has jurisdiction to hear and determine this application.”
The Supplementary Submissions
The applicant
The supplementary written submissions filed by the applicant on 20 April 2015 state as follows:
“1 The Applicant provides these submissions to address the decision of Deputy Principal Member Walsh dated 20 March 2015, specifically the relevance of the decision in Manchester & Manchester (SSAT Appeal) [2011] FMCAfam 1215.
2.The Secretary addressed this case in paragraphs 14 to 20 of its submissions dated 22 December 2014 and the Applicant refers to and endorses those submissions.
3.The Applicant considers that Manchester & Manchester is distinguishable from the current circumstances and should not be applied because that case turned on the power of the Principal Member to remove a party from proceedings in circumstances where the party had failed to comply with directions of the SSAT.
4.Quite differently, the current situation involves a decision of the delegate of the Principal Member (Senior Member Harvey) to dismiss an application before the SSAT for want of jurisdiction and to then, in the alternative, go on to affirm the decision under appeal. This situation is more akin to that in McCormack & McCormack & Another (SSAT Appeal) [2011] FMCAfam 963 because the decision in the alternative was made without having allowed the Applicant the opportunity to present his case.
5.The decision of Deputy Principal Member Walsh dated 20 March 2015 is infected by similar error as the Deputy Principal Member comments that ‘it seems unlikely that such evidence [of a claim having been lodged with Centrelink before 8 March 2013] can be produced’ in circumstances where the SSAT has never given the Applicant an opportunity to present evidence or speak to the available materials. The Deputy Principal Member also stated that the Secretary had failed to ‘substantively engage with the critical issue as to whether the executor of a deceased estate is a person whose interests are affected …’ when at no point has any member of the SSAT requested either party to address this issue.
5.[sic] The dismissal of the Applicant’s application by Senior Member Harvey effectively disposed of the proceedings before the SSAT by not only dismissing for want of jurisdiction but by going on to make a decision in the alternative to affirm the earlier decision. In such circumstances ‘to classify the decision as merely procedural denies reality’: McCormack at [56]
6.[sic] Though clearly not of legal force, it is illuminating that the SSAT’s website makes reference to the Principal Member as being a member of the Tribunal. For example: ‘The SSAT consists of its members who are appointed … on a full-time or part-time basis (with the exception of the Principal Member who must be appointed on a full-time basis)’ [ and ‘The Tribunal consists of a Principal Member, Deputy Principal Members, Senior Members and members.’ [ These references are consistent with the language of the Social Security (Administration) Act 1999 in particular the definition of ‘Principal Member’, section 157 [sic] and clause 1 of Schedule 3 Part 1 which make it clear that the Principal Member is a member of the SSAT. The same are also consistent with the submissions previously filed by the Secretary – the representative of the government department responsible for administering the Social Security (Administration) Act 1999 – which have encouraged the AAT to find that it does have jurisdiction to review a decision of the Principal Member.
7.[sic] Finally, and in any event, the Applicant respectfully submits that in light of the authorities of Ward v Nicholls and Crompton v Repatriation Commission the AAT should take a broad view of its powers of review pursuant to section 179(1) of the Social Security (Administration) Act 1999 and find that it is empowered to review the decision of Senior Member Harvey.”
The respondent
The supplementary written submissions filed by the respondent on 1 May 2015 state as follows:
“ Decision under review
1.A decision affirmed by an authorised review officer (ARO) on 24 May 2014 about the age pension start date for David Tually.
2.An application to review this decision by the applicant's son (Peter Tually) and executor was dismissed by the Principal Member of Social Security Appeals Tribunal (SSAT) on 10 October 2014 under the power contained in s 171 of the Social Security (Administration) Act 1999 (Administration Act).
The dismissal
3.The application was dismissed on the basis that the applicant's interests were not affected: s 142 of the Administration Act.
4.Section 171 of the Administration Act provides the power of dismissal on specified grounds including that the decision is not reviewable in Division 4. The grounds do not include a failure to satisfy s 142. No principle of statutory interpretation would enlarge the SSAT's dismissal power to include a failure to satisfy s 142 and inherent jurisdiction could not assist as the SSAT is not a superior court of unlimited jurisdiction: Grassby and R (1989) 168 CLR 1 at 16-17.
5.In those circumstances the decision to dismiss the application must be a nullity.
6.The SSAT if it held the view, and in the Secretary's contention incorrectly, that s 142 of the Administration Act was not satisfied then the correct course would have been to find absence of jurisdiction and the applicant advised accordingly.
7.The practical outcome is that the applicant has been excluded from the administrative review process due to a finding that jurisdiction was absent.
Standing
8.The Secretary notes and relies on the contentions contained in the earlier submission.
9.As indicated previously the Secretary contends that the SSAT incorrectly decided that the applicant, as the executor of an estate, was not a person whose interests are affected by the decision about David Tually’s age pension start date.
10.The Tribunal looks to interests ‘other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed.’ : Druett and SDFCS (2001) AATA 834 (4 October 2001).
11.The interest need not be pecuniary or of a specific legal nature: Druett and SDFCS (2001).
12.In Scott and SDSS (1996) AATA 784 (22 August 1996) the Tribunal said:
The interest affected need not be a legal interest but there must be some definable relevant interest. In Control Investments Pty Ltd and Australian Broadcasting Tribunal (1980) 3 ALD 74 Davies J (President) said at p 79:
‘In their context in ss 27 and 30, the words ‘interests are affected’ denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest, nor need the person seeking joinder establish legal ownership of the interest... However a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives – “real”, “genuine” and “direct” to describe the relationship required between the decision and the interest.’
In Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67, Brennan J, as he then was, (President) referred to the problems in limiting and defining precisely what interests of a person could be said to be ‘affected’. He said at p 70:
‘However a decision which affects interests of one person directly may affect the interests of other [sic] indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of legal interests by a decision should be regarded as too remote for the purposes of s 27(1).’
13.Against this background the Tribunal (and indeed the SSAT) has consistently found that a person administering the estate of a deceased social security recipient has standing.
14.Nothing turns, it is contended, on the nature of that decision: Estate of Emily Pitt and DSS [2014] AATA 575 (19 August 2014). There the Tribunal considered an application by the executors of Emily Pitt’s estate to review a decision to cancel her age pension. The SSAT allowed the application in part. The Tribunal affirmed the varied decision and Ms Pitt’s estate was paid arrears. Neither the SSAT nor the Tribunal were troubled by jurisdiction which rightfully was never raised by the Secretary.
15.In Estate of Thomas Biggins and SDFCS [2000] AATA 125 (22 February 2000) on the application of the estate of the social security recipient the Tribunal decided that there was an entitlement to arrears of payment for a period of nearly two years. Neither the SSAT nor the Tribunal were troubled by jurisdiction which rightfully was never raised by the Secretary.
16.In Murray (Estate of MJ Beaton) and SDFCS [2007] AATA 1286 (2 May 2007) the solicitors acting for the executor of the social security recipient’s estate asked for a review of a decision to recover from the estate a debt due to the Commonwealth of $13,198.04. The SSAT had previously affirmed the decision on the application of the solicitors. The Tribunal also affirmed the decision. Neither the SSAT nor the Tribunal were troubled by jurisdiction which rightfully was never raised by the Secretary.
17.It is the Secretary’s contention that s 142 of the Administration Act is satisfied.
Jurisdiction
18.The Secretary notes and relies on the contentions contained in the earlier submission.
19.It is the Secretary’s contention that the Tribunal has the power to review what, in effect, was a no jurisdiction finding of the SSAT. In the Secretary’s contention nothing turns on the Principal Member incorrectly dismissing the application. That dismissal, as contended, was a nullity.
20.In the Secretary’s contention it is settled law that the SSAT’s refusal to deal with an application does not deprive the Tribunal of jurisdiction to hear the matter: Crompton and Repatriation Commission (1993) 30 ALD 45.
21.In that decision the Full Federal Court said:
The applicant’s proposition that a board or tribunal’s finding on a question of its own jurisdiction, must stand assailed until overturned by a court of competent jurisdiction cannot be accepted.
In the present case, there is a right of appeal from the board on questions of law and fact, and it would indeed be “a lacuna” in administrative proceedings if questions of jurisdiction had always to be determined by court intervention. Where a board or tribunal determines a question of law during its proceedings, that question must be open to determination by a superior tribunal.
22. In Ward and Nicholls (1988) 16 ALD 353 Wilcox J said relevantly:
It would be a very odd situation if the position were as perceived by…, that is to say, if the … Veterans’ Review Board erroneously found that it had no jurisdiction, and the Administrative Appeals Tribunal – which is set up by statute to review on their merits decisions of that board – was then precluded from considering for itself whether that board had in fact jurisdiction, and if so what decision it should have made.
23. In Balihodzic and SDFHCSIA [2008] AATA 795 (8 September 2008) the Tribunal agreed with the SSAT that jurisdiction was absent but came to that conclusion on the basis that it had jurisdiction to reconsider the SSAT’s findings.
24.In Byrne and SDSS [1998] AATA 306 (5 May 1998) the Tribunal decided that it lacked jurisdiction, in circumstances where the SSAT decided it had no jurisdiction. The Tribunal decided its jurisdiction was not enlivened as the SSAT had not affirmed, set aside or varied a decision (s 1283(1) of the Social Security Act 1991 – the equivalent of s 171 [sic] of the Social Security (Administration) Act 1999). The subject ‘decision’ was of an administrative nature. No injustice was, it is contended, caused by the Tribunal’s no jurisdiction finding.
25.The same Tribunal member decided similarly in Tsolacis and SDFCS [2002] AATA 445 (4 June 2002) but in circumstances where the dismissal was in accordance with the legislation (unlike in the current matter).
26.These decisions are inconsistent with the Federal Court’s decision in Crompton and Repatriation Commission but also distinguishable on their facts from the matter now before the Tribunal.
27.Although a matter for the Tribunal it is the Secretary’s contention that it has jurisdiction to consider whether the SSAT was correct.
In the alternative – the decision was affirmed by the SSAT
28.The Secretary notes and relies on the contentions contained in the earlier submission.
29.In Druett and DFCS [2001] AATA 834 (4 October 2001) the Tribunal said that a finding of no jurisdiction could be viewed as the affirmation of the decision. The Tribunal said:
The Tribunal must also deal however, with the SSAT's determination that pursuant to section 142 of the Social Security (Administration) Act 1999, Mr Druett is not a person whose interests are affected by the decision to cancel Mrs Druett's Family Allowance. In making this decision, the SSAT did not proceed to review the cancellation decision and the practical implication of this is that the operative decision is affirmed. The weight of authority seems to support the view that if the SSAT finds it does not have jurisdiction to review a decision, such a decision by the SSAT can be classified as an affirmation of the primary or operative decision, meaning that the Tribunal does have jurisdiction to conduct a review: see Re McGregor and Secretary, Department of Social Security (W91/189, 29 May 1992); Re Anderson and Secretary, Department of Social Security [1992] AATA 282; (1993) 28 ALD 913; Collector of Customs NSW v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 2 ALD 1. The Tribunal notes that the opposite view was taken in obiter in a decision of the Full Federal Court, Walker v Secretary, Department of Social Security (No 2) (1997) 75 FCR 493.
Conclusion
30.A proper application of the law would allow the Tribunal to determine whether or not the SSAT’s no jurisdiction finding was correct and if it was not then proceed to a merits review of the substantive decision.
31.The Secretary notes that the SSAT is a component in the administrative review continuum, exercising administrative powers, and with the objective of providing a mechanism of review that is fair, just, economical, informal and quick: s 141 Administration Act.
32.Section 2A of the Administrative Appeals Tribunal Act 1975 contains a similar exhortation. The High Court in Minister for Immigration and Multicultural Affairs and Eshetu (1999) 197 CLR 611 said that such a provision (in relation to the Refugee Review Tribunal) was:
Intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.
33.Not only would a finding of jurisdiction be consistent with the law but it would facilitate the right to challenge government decisions.
34.In the event that the Tribunal decides that it may review the SSAT’s finding of no jurisdiction the Secretary would contend that it was wrong. The weight of the authorities (and policy considerations) would support the contention that the applicant is a person affected by the decision and is entitled to ask for a merits review of the decision.” (footnotes omitted) (original emphasis)
Consideration
Both parties have submitted that the Tribunal does have jurisdiction to review the abovementioned decision of the delegate of the Principal Member of the SSAT dated 10 October 2014.
The Tribunal does not have a general jurisdiction to review Commonwealth administrative decisions; it only has jurisdiction to review a decision where that jurisdiction is conferred upon it by legislation: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. That being the case, the Tribunal must itself be satisfied that it has jurisdiction to review a particular decision before it proceeds to review that decision and must not proceed to do so merely on the basis that the parties have consented to that course: R v Moodie; Ex parte Mithen (1977) 17 ALR 219.
Having regard to the relevant provisions of the SS (Administration) Act and having considered the parties’ submissions, the Tribunal has, notwithstanding those submissions, come to the conclusion that it does not have jurisdiction to review the abovementioned decision of the delegate of the Principal Member of the SSAT dated 10 October 2014. The Tribunal has so concluded for the following reasons.
Pursuant to s 25(1),(4) of the AAT Act and s 179(1) of the SS (Administration) Act, the Tribunal has jurisdiction to review a “decision of the SSAT” only in the following circumstances:
·“a decision has been reviewed by the SSAT”;
·“the decision has been affirmed, varied or set aside by the SSAT”; and
·an application has been made to the Tribunal under s 179(1) of the SS (Administration) Act “for review of the decision of the SSAT”.
It is apparent from the structure of Part 4 of the SS (Administration) Act that certain functions and powers are conferred on “the SSAT” by various provisions in Division 3 (and, to a lesser extent, in Division 4 and Schedule 3), and that certain functions and powers are conferred on “the Principal Member” by various provisions in Division 4 and Schedule 3. That division of powers and functions between “the SSAT” and “the Principal Member” is recognised in s 141 which provides (in subs (1)) that “the SSAT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick” in “carrying out its functions under this Act”, and provides (in subs (2)) that the objective described in subs (1) “must also be pursued by the Principal Member in performing or exercising his or her functions and powers under this Act”.
Although “the Principal Member” is a member of “the SSAT”, the abovementioned express conferral of certain functions and powers on “the SSAT” and the express conferral of certain other functions and powers on “the Principal Member” evinces, in the Tribunal’s opinion, a clear legislative intent that the functions and powers which are expressly conferred on “the Principal Member” are to be performed and exercised by “the Principal Member” in that capacity, and not by “the SSAT”.
By s 171(1) of the SS (Administration) Act, the power to dismiss an application to the SSAT for review of a decision is conferred on “the Principal Member”, not on “the SSAT”, and, accordingly, that power can validly be exercised only by the Principal Member (or his or her delegate pursuant to clause 20 of Schedule 3 to the SS (Administration) Act), and not by the SSAT.
The relevant function of “the SSAT”, under Division 3 of Part 4 of the SS (Administration) Act, is, upon application by “a person whose interests are affected by the decision” in question (typically, a decision of an authorised review officer under s 135), to “review” that decision and either affirm it, or vary it, or set it aside and substitute a new decision or “send the matter back to the Secretary or the Chief Executive Centrelink … for reconsideration …” (ss 142, 149). A dismissal, under s 171(1), of an application to the SSAT for review of a decision does not involve a “review” of that decision by “the SSAT”. Indeed, a dismissal by “the Principal Member” under s 171(1) precludes either the commencement or the completion of a “review” of the relevant decision by “the SSAT”. See, for example, s 155(3) of the SS (Administration) Act which provides:
“ If:
(a) a person applies to the SSAT for review of a decision; and
(b)before determination of the review, an officer varies the decision or sets it aside and substitutes a new decision;
the person may:
(c)proceed with the application for review of the decision as varied or the new decision; or
(d)request the Principal Member to dismiss the application under section 171; or
(e)notify, under section 172, the SSAT that the application is discontinued or withdrawn.”
The abovementioned submissions of the respondent and of the applicant are predicated on the proposition that “the Principal Member” is to be treated as “the SSAT”, and that a decision of “the Principal Member” under s 171(1) is to be treated as a decision of “the SSAT”. For the reasons discussed in paragraphs 34–37 above, those submissions are, in the Tribunal’s respectful opinion, fundamentally flawed.
In their written submissions the parties seek to rely on certain decisions of the Federal Court of Australia and of the Tribunal in support of their contention that the Tribunal has jurisdiction in the present proceeding: see paras 9–13 of the respondent’s submissions and paras 20–23 of the respondent’s supplementary submissions (set out in, respectively, paragraphs 26 and 29 above), and para 5 of the applicant’s submissions (set out in paragraph 27 above). In the Tribunal’s opinion, however, each of those cases is distinguishable from the present case. In each of those cases, it was held that a decision of an intermediate tribunal (the SSAT or the Veterans’ Review Board), to which an application for review of a decision had been made, that it lacked jurisdiction to review the relevant decision was nevertheless reviewable by the Tribunal. In the present case, by contrast, there is not a decision of “the SSAT” that it lacked jurisdiction or a decision of “the SSAT” under s 149(1) of the SS (Administration) Act; instead, there is a decision of a delegate of “the Principal Member”, expressly made under s 171(1)(a) of that Act, which does not fall within the terms of s 179(1) of that Act and which, accordingly, is not reviewable by the Tribunal.
The Tribunal notes the decisions of the Federal Magistrates Court of Australia in Manchester & Manchester (SSAT Appeal) [2011] FMCAfam 1215 and Simon v Social Securities [sic] Appeals Tribunal [2011] FMCA 857 which the respondent’s submissions sought to distinguish from the present case on the basis that “they relate specifically to the context of child support legislation and the right of appeal from decisions of the SSAT to a court under section 110B of the Child Support (Registration and Collection) Act 1988”. The applicant’s submissions sought to distinguish Manchester “because that case turned on the power of the Principal Member to remove a party from proceedings in circumstances where the party had failed to comply with directions of the SSAT”.
In the Tribunal’s opinion, however, the structure of Part VIIA of the Child Support (Registration and Collection) Act 1988 is analogous to the structure of Part 4 of the SS (Administration) Act, and the analysis of the Federal Magistrates Court in Manchester and Simon, and in Byrne & Graham (SSAT Appeal) [2010] FMCAfam 1116, of the provisions in Part VIIA of the former Act – in particular, provisions which confer powers on “the SSAT Principal Member” (as distinct from “the SSAT”), including s 100(1) which confers on “the SSAT Principal Member” the power to dismiss an application for review in terms similar to those of s 171(1) of the SS (Administration) Act – is applicable to the corresponding provisions in Part 4 of the SS (Administration) Act. That analysis supports the proposition that a decision by “the Principal Member” under s 171(1) of the SS (Administration) Act to dismiss an application to the SSAT for review of a decision is not a decision of “the SSAT”. The Tribunal respectfully adopts that analysis in the present case.
The relevant decision in the present case is, in terms, a decision of a delegate of the Principal Member to dismiss an application for review “pursuant to paragraph 171(1)(a) of the Social Security (Administration) Act”. Although the Principal Member (in paras 45–54 of the Reasons for Decision) discussed, “in the alternative”, the merits of the applicant’s application for review and concluded:
“ … it would appear unlikely that his application for review could have resulted in a more favourable outcome for him”
that discussion did not, in the Tribunal’s opinion, affect that nature and character of the delegate’s decision as expressly described by the delegate, namely, a decision to “dismiss [the applicant’s] application for review pursuant to paragraph 171(1)(a) of the Administration Act”. So much was acknowledged in para 26 of the respondent’s written submissions set out in paragraph 26 above.
Both parties have submitted that the delegate’s conclusion that the applicant is not “a person whose interests are affected by the decision of the … authorised review officer”, within the meaning of s 142(1) of the SS (Administration) Act, was incorrect. The respondent has gone further and submitted that s 171(1) of the SS (Administration) Act does not authorise the dismissal of an application for review on the ground of “a failure to satisfy s 142” and that, accordingly, the delegate’s decision to dismiss the applicant’s application for review under s 171(1) on the ground that he is not “a person whose interests are affected by the decision of the … authorised review officer” was ultra vires and a nullity.
Although there may be some force in those submissions, they are not to the point for present purposes. The critical issue for present purposes is not whether the delegate’s decision of 10 October 2014 was wrong or unlawful, but, rather, whether it was a decision of “the SSAT”, on review of the authorised review officer’s decision, under s 149(1) of the SS (Administration) Act which is, in turn, reviewable by the Tribunal under s 179(1) of that Act. For the reasons discussed above, the Tribunal has concluded that that decision was a decision of a delegate of “the Principal Member” (in purported exercise of the power conferred on “the Principal Member” by s 171(1)(a) of the SS (Administration) Act), not a decision of “the SSAT” under s 149(1) of that Act and, therefore, not a decision of “the SSAT” which is reviewable by the Tribunal under s 179(1) of that Act.
Section 171 of the SS (Administration) Act itself provides a process for (in effect) a reconsideration of a decision to dismiss an application for review under subs (1) of that section, namely, the right of a party to the review, pursuant to subs (3), to “request that the Principal Member reinstate the application”, and the discretionary power conferred on “the Principal Member”, by subs (4), to “reinstate the application” if “the Principal Member considers it appropriate to do so”, and, by subs (5), if “it appears to the Principal Member that an application has been dismissed under subsection (1) in error”, to “reinstate [that] application”. As previously indicated, the applicant did make an application under s 171(3) for reinstatement of his application for review in January 2015 but that application was refused by the Deputy Principal Member of the SSAT, as delegate of the Principal Member, on 20 March 2015 (see paragraph 13 above). No other provision is made by the SS (Administration) Act for administrative review of a decision of “the Principal Member” to dismiss an application for review under s 171(1) of that Act. The Tribunal notes, however, the reference in para 9 of the delegate’s statement of reasons for the abovementioned decision of 20 March 2015 (set out in paragraph 13 above) to the availability of an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
Conclusion
The legislature has (in s 179(1) of the SS (Administration) Act) provided for an application to be made to the Tribunal for review of a decision of “the SSAT” where “the SSAT” has reviewed a decision and affirmed, varied or set aside that decision. The legislature, however, has not seen fit to provide for an application to be made to the Tribunal for review of a decision of “the Principal Member of the SSAT” dismissing an application to the SSAT for review of a decision (including, relevantly, a decision of “the Principal Member” made under s 171(1) of the SS (Administration) Act). In the latter case, the legislature has, instead, made provision for the making of a request to “the Principal Member” for reinstatement of the application for review.
The decision, of which the applicant has applied to the Tribunal for review, is a decision of a delegate of “the Principal Member”, purportedly made under s 171(1)(a) of the SS (Administration) Act, dismissing his application to the SSAT for review of a decision of an authorised review officer. That decision does not purport to be, and is not, either in form or in substance, a decision of “the SSAT” made under s 149(1) of the SS (Administration) Act. That decision, accordingly, does not fall within the terms of s 179(1) of the SS (Administration) Act and it, therefore, cannot validly be the subject of an application to the Tribunal for review.
Decision
For the above reasons, the Tribunal decides that it does not have jurisdiction in respect of the application for review lodged by the applicant on 7 November 2014.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ................[sgd D Brodie].........................................
Administrative Assistant
Dated 22 May 2015
Date of interlocutory hearing 12 May 2015 Applicant In person Representative of the Respondent Mr T Aviram
Senior Government Lawyer
Department of Human Services
0
22
0