Phillips and Secretary, Department of Defence

[2023] AATA 43

Phillips and Secretary, Department of Defence [2023] AATA 43 (11 January 2023)

Division:GENERAL DIVISION

File Number:          2022/10199

Re:Kallum Andrew Phillips

APPLICANT

AndSecretary, Department of Defence

RESPONDENT

Decision

Tribunal:Senior Member K. Parker

Date:11 January 2023

Place:Melbourne

The Tribunal dismisses this application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) without proceeding to review the Decision, on the basis that the decision is not reviewable.

.............................[SGD]...........................................

Senior Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – Applicant seeking review of decision by a delegate of the Chief Medical Officer, Defence Force Recruiting Headquarters, to affirm an earlier decision made to refuse an application by the Applicant to join the Australian Defence Force on the basis that he remains “Class 4, Unfit for Military Service” – Tribunal satisfied the decision is not a reviewable decision – application dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Defence Act 1903 (Cth)

Defence Regulation 2016 (Cth)

Secondary Materials

List of reviewable decisions as at 31 May 2019 (RTF) (aat.gov.au)

REASONS FOR DECISION

Senior Member K. Parker

11 January 2023

1. On 11 December 2022, the Applicant sought review by the Administrative Appeals Tribunal (Tribunal) of a decision (attached to the Application for Review form) made on 1 December 2022 by a delegate of the Chief Medical Officer, Defence Force Recruiting (CMO), to affirm an earlier decision made to refuse the re-entry of the Applicant to the Australian Defence Force (ADF), on the basis that he remains “Class 4, Unfit for Military Service” (Decision).

2. The Registry of the Tribunal wrote to the Applicant on 14 December 2022 inviting the Applicant to respond to a concern raised about whether the Tribunal had jurisdiction to review the Decision. The Applicant was advised that the Tribunal was unable to identify a provision of the Defence Act 1903 (Cth) that provides that he may seek review by the Tribunal in relation to the Decision. The Applicant did not respond to this correspondence.

3. The Registry referred this matter to the Tribunal on 6 January 2023 and an interlocutory hearing by telephone took place on 11 January 2023. Mr Ben Keenan from Sparke Helmore appeared for the Respondent at this hearing.

4. In a letter to the parties before the hearing, the parties were asked to identify a statutory provision conferring power on the Tribunal to review the Decision. The Registry of the Tribunal also sent to the parties a link to a document published on the Tribunal’s website entitled “List of reviewable decisions as at 31 May 2019” (List of Reviewable Decisions), to assist them to identify a relevant statutory provision.

5. The Applicant did not attend the interlocutory hearing on 11 January 2023 and did not inform the Tribunal of his intention not to appear.

6. At the hearing, Mr Keenan, on behalf of the Respondent, contends that the Applicant is seeking a review of either the Respondent’s decision to reject his application to join the ADF, or the decision of the CMO upholding that decision. Mr Keenan contends that the power to refuse to enlist or appoint a person to the ADF is governed by Regulation 12 of the Defence Regulation 2016 (Cth). Mr Keenan draws attention in particular to Regulation 12(3), which requires consideration, before a person is appointed or enlisted, of whether a person is a “fit and proper” person to perform duties as such an officer or enlisted member.  

7. Mr Keenan rightly contends that s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) sets out the Tribunal’s jurisdiction to review a decision. Subsection 25(1) requires the enactment under which the decision in question is made to identify the decision as one which is subject to review by the Tribunal. Mr Keenan argues that a proper reading of Regulation 12 reveals there is no power given to the Tribunal to review these types of decisions. By contrast, Mr Keenan referred to Regulation 78 of the Defence Regulation 2016 (Cth) as an example of a provision which confers a power on the Tribunal to review the decisions referred to in that Regulation.

8. The Tribunal agrees with Mr Keenan. Further, the Tribunal has, itself, as an additional measure, reviewed the List of Reviewable Decisions and was unable to identify a decision in this List of the kind the Applicant seeks to have reviewed by the Tribunal in this matter.

9. Accordingly, the Tribunal is satisfied that the Decision is not a reviewable decision that the Tribunal has the authority to review under s 25(1) of the AAT Act.

10. On this basis, the Tribunal dismisses this application under s 42A(4) of the AAT Act without proceeding to review the decision, because the Decision is not reviewable.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

.............................[SGD]...........................................

Associate

Dated: 11 January 2023

Date of hearing:

Appearance for Applicant:

Appearance for Respondent:

11 January 2023

No appearance.

Mr Ben Keenan, Sparke Helmore