Phillips and Secretary, Department of Defence

The Administrative Appeals Tribunal (AAT) considered an application by Mr Phillips seeking review of a decision by a delegate of the Chief Medical Officer of Defence Force Recruiting Headquarters. This decision affirmed an earlier refusal of Mr Phillips' application to join the Australian Defence Force (ADF) on the grounds that he was "Class 4, Unfit for Military Service". The Secretary, Department of Defence, was the respondent.

The primary legal issue before the Tribunal was whether it possessed the statutory jurisdiction to review the decision to refuse Mr Phillips' enlistment. Specifically, the Tribunal was required to determine if the decision in question was one that the AAT was empowered to review under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

The Tribunal, agreeing with the respondent, reasoned that the power to refuse enlistment or appointment to the ADF is governed by Regulation 12 of the Defence Regulation 2016 (Cth), which requires consideration of whether a person is "fit and proper". The Tribunal noted that section 25(1) of the AAT Act mandates that the enabling legislation must specify decisions as being subject to AAT review. The respondent argued, and the Tribunal accepted, that Regulation 12 does not confer such review power, contrasting it with other provisions like Regulation 78 which explicitly grant review powers. The Tribunal also independently reviewed its published list of reviewable decisions and found no category encompassing the decision under consideration. Consequently, the Tribunal concluded that the decision was not a reviewable decision.

The Tribunal dismissed the application under section 42A(4) of the AAT Act on the basis that it lacked the authority to review the decision.