PRLT and National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 549
•9 May 2025
PRLT and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 549 (9 May 2025)
Applicant/s: PRLT
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2020/0198
Tribunal:Senior Member K Bean
Place:Sydney
Date:9 May 2025
Interlocutory Decision: The Tribunal’s jurisdiction in this matter is limited to the period 22 January 2021 to 4 May 2021.
........................[SGD]................................................
Senior Member K Bean
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – practice and procedure – Tribunal’s jurisdiction – impact of 11 separate s42D remittal decisions made by the Tribunal over 4 years – Application of Klewer v NDIA to the circumstances – whether s 103(2) of the NDIS Act applies to decisions made before it took effect – statutory interpretation – Tribunal’s jurisdiction limited to short past period.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)National Disability Insurance Scheme Act 2013 (Cth)
Cases
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192; (2020) 282 FCR 1
EMJ18 v Secretary, Department of Home Affairs [2024] FCAFC 87
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16
Klewer v National Disability Insurance Agency [2023] FCA 630
Klewer v National Disability Insurance Agency [2025] ARTA 155
Pavlakis v National Disability Insurance Agency [2023] AATA 2485Statement of Reasons
INTRODUCTION
This application has been on foot since 2020 and has a very complicated history. Perhaps surprisingly given the length of time the matter has been before the Tribunal, the only issue currently before me is the extent of the Tribunal’s jurisdiction.
The Applicant is a 32-year-old woman who became a participant in the National Disability Insurance Scheme (NDIS) in 2019. She was granted access to the Scheme on the basis of impairments stemming from Generalised Anxiety Disorder and Major Depressive Disorder.
A hearing directed to the question of jurisdiction was held on 3 December 2024. During my deliberations following that hearing, additional issues arose which I considered the parties should have an opportunity to address. Accordingly, a Directions Hearing took place on 17 December 2024 at which there was significant substantive discussion of these issues. The Respondent subsequently also provided detailed written submissions dated 20 January 2025 together with a witness statement of Mr David Smith also dated 20 January 2025. The Applicant’s legal representative, Mr Hallman, requested an extended period to respond to these submissions given the complexity of the issues involved and was granted until 17 February 2025. In the event a written submission was provided on behalf of the Applicant on 17 February 2025 simply indicating that she wholly agreed with the Respondent’s submissions.
Before addressing the issues relating to jurisdiction more directly, I will first outline the relevant aspects of the history of the matter, which will explain how the jurisdiction issues have arisen. I should also acknowledge that in October 2024 the Administrative Appeals Tribunal (AAT) was replaced by the Administrative Review Tribunal (ART) and matters which were before the AAT are now before the ART.[1] However, that change has not affected the issues in this matter.
[1] Administrative Review Tribunal Act 2024 (Cth). By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
RELEVANT HISTORY
Most relevantly for present purposes, during these proceedings, the application was remitted to the Respondent pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) a total of 11 times, resulting in 11 fresh reviewable decisions each covering a different time period. This has given rise to significant complications with the matter, with implications for the Tribunal’s jurisdiction.
Given its centrality to this issue, I should set out the terms of s 42D of the AAT Act, which provided as follows:
42D Power to remit matters to decision‑maker for further consideration
(1) At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2) If a decision is so remitted to a person, the person may reconsider the decision and may:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
Note: For time limits, see subsection (5).
(3) If the person varies the decision:
(a) the application is taken to be an application for review of the decision as varied; and
(b) the person who made the application may either:
(i) proceed with the application for review of the decision as varied; or
(ii) withdraw the application.
(4) If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision; and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision; or
(ii) withdraw the application.
Time limits
(5) The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:
(a) if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision—that period;
(b) in any other case—the period of 28 days beginning on the day on which the decision was remitted to the person.
(6) The Tribunal may, on the application of the person, extend the period applicable under subsection (5).
(7) If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
(8) If the person affirms the decision, the proceeding resumes.
The history of remittals in the matter commenced in April 2020 when a s 42D remittal order was made by the Tribunal remitting the decision under review to the Respondent for reconsideration. The decision under review was a decision of 19 December 2019 which varied the statement of participant supports (SOPS) in the Applicant’s previous NDIS plan.
As a result of the remittal order of 27 April 2020, a fresh participant plan document was issued by the Agency, with a start date of 1 May 2020 and a review date of 30 October 2020. Two subsequent remittal orders were made on 12 August 2020 and 21 January 2021, resulting in plan documents dated 18 August 2020 and 22 January 2021 respectively.
However, the outcome of the Tribunal’s fourth remittal order of 19 April 2021 was different. In the case of that order, no decision was made until 5 May 2021, even though the order specified that a decision was to be made by 22 April 2021. The Respondent acknowledges that, given the terms of s 42D, this creates an issue as to whether the decision under review was deemed to be affirmed, pursuant to s 42D(7). In the event, the same situation transpired with respect to the subsequent remittal orders of 3 November 2021 and 27 January 2022, resulting in plan documents dated 25 November 2022 and 17 March 2022, respectively.
The Respondent contends that, if the result of the required timeframe in the remittal order of 19 April 2021 not being complied with is that the decision under review was automatically affirmed, then the Tribunal’s jurisdiction will effectively be interrupted and curtailed at that point. This is because in that event, the Agency concedes that the plan document of 5 May 2021 should be construed as a fresh NDIS plan. Further if that document is construed in that way, s 37 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) has the effect of bringing the previous plan to an end from the date of the new plan. As there is no application to the Tribunal for review of that new plan, this would have the consequence that the Tribunal’s jurisdiction would be limited to reviewing the statement of participant supports (SOPS) in existence between 19 December 2019 and 4 May 2021 (noting that the Tribunal relevantly has jurisdiction over a decision to approve a SOPS, not the whole of an NDIS plan).[2]
[2] Section 99, NDIS Act.
The Respondent has also proposed a remedy for this situation which would give the Tribunal jurisdiction over all relevant SOPS. The Respondent contends that, if the Applicant was to lodge an application with the Tribunal seeking review of the SOPS in one of her previous plans, for example that of 5 May 2021, s 103(2) of the NDIS Act would then operate to give the Tribunal jurisdiction over all the previous plans, and the substantive matter could proceed on that basis. Accordingly, one of the issues for me is whether in fact s 103(2) has that effect.
Well after the hearing and in fact after all written submissions had been received, a new issue also emerged. That issue concerns the effect of the Federal Court decision in Klewer v National Disability Insurance Agency [2023] FCA 630 in which her Honour Justice Raper considered the effect of s 42D of the AAT Act.
In its submissions with respect to jurisdiction, the Respondent contended that her Honour’s relevant comments and conclusions were obiter dicta and not binding on the Tribunal, both for that reason and because the Court was exercising its original rather than appellate jurisdiction.[3] The Respondent further submitted that her Honour’s analysis was incorrect, and the Tribunal should adopt the alternative analysis put forward by Senior Member Buxton in Pavlakis v National Disability Insurance Agency [2023] AATA 2485.
[3] Respondent’s Further Submissions on Jurisdiction, 20 January 2025, at [77].
This issue was not especially controversial at the time of the hearing and was not the focus of the hearing or the parties’ submissions. However, in February this year, Deputy President O’Donovan handed down a decision in the remitted Klewer matter in which he questioned the appropriateness, and lawfulness, of the Tribunal departing from Justice Raper’s conclusions as to the effect of s 42D in the context of the NDIS Act.[4] In my view, it is also important that I carefully consider this issue in light of DP O’Donovan’s decision.
[4] Klewer and National Disability Insurance Agency [2025] ARTA 155.
Given its importance to the outcome, I also considered it necessary for the parties to have an opportunity to address this issue before I finalised my decision. Accordingly, on 17 March 2025 the parties were advised that I would consider any further written submissions with respect to this question (as well as a relevant decision of Senior Member French relating to the effect of s s103(2) of the NDIS Act)[5] which were received by 31 March before handing down my decision.
[5] PTJR and CEO, National Disability Insurance Agency [2025] ARTA 196.
On 4 April 2025, a further written submission was received by the Respondent which I will address in the context of the relevant issues. No further submissions were received on behalf of the Applicant.
ISSUES
In my view, this history requires me to address and determine the following issues:
(a)Should I defer to the analysis of Justice Raper in Klewer as to the effect of s 42D of the AAT Act on the Tribunal’s jurisdiction following remittal of a decision under the NDIS Act?
(b)If so, what flows from that for the Tribunal’s jurisdiction in this matter?
(c)If the Tribunal’s jurisdiction does not extend to all the relevant SOPS, what would need to occur for the Tribunal to have jurisdiction with respect to later SOPS?
I will address each of these issues in turn.
SHOULD I FOLLOW THE ANALYSIS OF JUSTICE RAPER IN KLEWER?
Before addressing this issue, I should first identify the aspects of her Honour’s reasoning which are most relevant here. I note the following paragraphs of her Honour’s decision formed part of her reasons for dismissing ground three of the application before her:
[194] The effect of remittal under s 42D of the AAT Act, and a subsequent decision by a respondent decision-maker (such as the NDIA), is that “the application is taken to be an application for review of the decision as varied” (s 42D(3)(a) of the AAT Act) or “of the new decision” (s 42D (4)(a) of the AAT Act).
[195] I do not accept that s 42D was not engaged in this case. I accept the submission of the NDIA that the effect of the multiple remittals and subsequent plans, referred to above, demonstrate that s 42D was engaged in this case – particularly on 31 May 2021 when the Tribunal made the final order under s 42D prior to the hearing of this matter ... Therefore, the consequence of the remittals was that the “matter before the Tribunal” was not the “NDIS plan for the period 31 May 2018 to 31 May 2019” but, rather, as the Tribunal observed, the supports still “in contention” under the extant plan at the time of its decision.
[196] As a consequence of the operation of s 42D(4)(a) of the AAT Act, the application for review before the Tribunal was taken to be an application for review of the statement of participant supports contained in that statement of participant supports approved on 7 June 2021 ... The application was therefore no longer an application for review in relation to the superseded plan. If, alternatively, the new plan is a variation of the previous plan, then s 42D (3)(a) would operate with a similar effect...
[202]...s 33(2)(c) requires an NDIS plan to include “the date by which, or the circumstances in which, the Agency must review the plan”. Given the review is part of a plan, upon remittal (under s 42D) the NDIA had the power to change the review date of the plan. Also upon remittal, s 37(1) of the NDIS Act has the separate effect of automatically creating a new start date for a plan. The approval of a statement of participant supports was remitted under s 42D. The review date is part of the statement of participant supports. Therefore, by virtue of s 42D, Mr Klewer’s application is then taken to be an application for review as varied.
As noted by DP O’Donovan, “Her Honour was satisfied that the effect of the various remittals was that a new plan commencing on 7 June 2021 with a review date of 7 June 2022 was now the subject of review by the AAT”.[6] As to whether her Honour’s conclusions were “binding” on him in the context of the remitted matter, I note DP O’Donovan observed as follows:
[30] Both parties take the view that the conclusions reached by her Honour were not correct. They both urge me to treat the remittals under section 42D as resulting in newly approved Statements, but not in an entirely new plan. The consequence is that I have jurisdiction to approve Statements that include funding for reasonable and necessary supports from 31 May 2018, which is the date the original plan commenced.
[31] The respondent contends that the statements made by her Honour, extracted at paragraph 28 of these reasons, are obiter dicta and are n-binding. Consequently I am entitled to take the approach adopted in Pavlakis and can consider including supports in the Statement on and from 31 May 2018.
[32] Despite the views expressed by the respondent, I am not satisfied that the result in this matter is determined by asking whether her Honour’s remarks can be classified as obiter dicta or not. The concepts of ratio decidendi and obiter dicta are essential to determining the binding nature of a precedent within a court hierarchy. The Tribunal (like the AAT before it) sits outside that hierarchy. The relationship between a Federal tribunal and the Federal Court is governed by the acts of Parliament that establish the relevant tribunal. It is clear from the structure of the ART Act (which reflects the distribution of powers within the Federal constitution), that the Tribunal has no power to authoritatively determine what the law is. To the extent that the Tribunal expresses a view on a question of law for the purposes of deciding an application, it is subject to correction by the Federal Court.
[33] There is a clear division of responsibilities discernible in both the AAT Act and the ART Act – the Tribunal is, in almost all circumstances, the authoritative determiner of fact, and (if relevant) the entity responsible for exercising any statutory discretion. The Federal Court on the other hand is the conclusive determiner of questions of law which may arise in the course of determining a review.
[34] Given this arrangement of responsibilities, I am satisfied that it would not be appropriate for me to depart from the clearly expressed views of the Federal Court on what is undoubtedly a question of law.
[35] I say this in circumstances where I am not merely considering how to apply a decision of the Court in a similar context. I am being asked to determine exactly the question that was addressed by the Federal Court in the same matter.
[6] At [29].
DP O’Donovan also noted the Federal Court had previously expressed displeasure when statutory office holders had failed to implement the law as determined by the Court.[7] He went on to conclude as follows:
While strictly speaking, the Tribunal is not exercising executive power under section 61 of the Constitution, as its powers are derived from a conferral by the Parliament, his Honour’s point is still instructive as to the approach that the Tribunal should take to such issues. It would show a distinct lack of respect for the respective tasks that the Parliament has assigned to the Tribunal and to the Federal Court to simply ignore the considered decision of the Federal Court on a legal question vital to the resolution of this particular case.
Consequently, in circumstances where a question of law which arises in these proceedings has been considered and resolved by the Federal Court, I should treat the question as settled for the purposes of these proceedings and apply the facts to the law as determined by the Court. Consequently, I cannot in these proceedings include in any Statement I approve, supports which were provided to the applicant prior to 7 June 2021.
[7] Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16.
After careful consideration, I have concluded I find DP O’Donovan’s approach to this issue persuasive. I acknowledge there was an additional factor at play for him in that he was deciding whether to follow conclusions reached by the Federal Court in the same matter. However, in my view the reasons he has advanced for giving respect and deference to conclusions of the Federal Court on questions of law have considerable force in the context of different matters raising the same issues.
I note the Respondent’s submission before me that Justice Raper’s conclusions are not binding because they were made in the context of an application for judicial review of a Tribunal decision rather than an “appeal”. However, I am not persuaded that in this context anything turns on that distinction. Whether in the context of a judicial review application or an “appeal”, what matters here is that the Federal Court has made a determination on a question of law relevant to the issue currently before me. For the reasons explained by DP O’Donovan, I am not persuaded it is properly open to me to apply the law in a manner which is inconsistent with the analysis and conclusions of the Court.
For completeness, I note the decision of DP O’Donovan itself is now subject to an application to the Federal Court for judicial review.
The next issue which arises therefore is what effect her Honour’s analysis has in the circumstances of this matter.
WHAT IS THE EFFECT OF JUSTICE RAPER’S ANALYSIS HERE?
I note the practical effect of her Honour’s analysis, put in simplistic terms, is that the decision resulting from the remittal becomes the decision under review before the Tribunal. In addition, her Honour concluded that the decision made pursuant to the remittal constituted a new plan pursuant to s 37(1) of the NDIS Act, with a new start date. One consequence of this analysis is that upon a fresh SOPS coming into effect pursuant to a s 42D remittal, the Tribunal effectively loses jurisdiction over the period covered by the SOPS which was the subject of the original application to the Tribunal (or any later periods covered by fresh SOPS made pursuant to earlier remittals).
To give effect to her Honour’s analysis therefore, it is necessary to identify the current or last remittal decision. That task is complicated here by the fact that, as I have alluded to, there were many remittal decisions, some of which were made outside the timeframe required by s 42D.
As canvassed above, the 5 May 2021 decision was made after the timeframe required by the applicable remittal order. The Respondent has properly acknowledged that, given the terms of s 42D, this raises an issue as to whether the decision under review was in fact deemed to be affirmed.
While the contrary could be argued, I consider on balance that the timeframe imposed by s 42D is mandatory. I have therefore concluded that, in the absence of a remittal decision made within the required timeframe, the fourth remittal order had no consequence and the decision then under review was affirmed. That decision was the decision of 22 January 2021 which amended the plan review date to 21 February 2021.
However, the analysis flowing from her Honour’s reasoning does not necessarily end there. While the 5 May 2021 decision did not become a decision in the review, the remittal order of 19 April 2021 was not the last remittal order. The final remittal order made in this matter was made on 6 March 2024, and resulted in a decision of 8 March 2024. I have therefore considered whether, on her Honour’s analysis, the SOPS resulting from this final remittal in fact became the decision under review, and the Tribunal has no jurisdiction with respect to any earlier period.
However, that approach would result in a situation whereby the Tribunal’s jurisdiction, having commenced with the period covered by the plan the subject of the application for review (21 May 2019 – 20 May 2020), evolved and changed with each valid remittal decision, then ‘leap-frogged’ over the plan of 5 May 2021, even though, pursuant to s 37 of the Act, that plan brought the previous plan to an end.
This was not the situation her Honour was addressing in Klewer and it is difficult to apply her Honour’s reasoning to this different factual situation. However, it would be a very surprising outcome if, as a consequence of a series of s 42D remittals, the Tribunal’s jurisdiction could as it were “jump over” subsequent decisions not themselves the subject of applications for review.
This situation also raises the question of what in fact is remitted pursuant to s 42D. This provision empowered the Tribunal to remit “the decision”, clearly meaning the reviewable decision the subject of the application for review. While Klewer stands for the proposition that a remittal decision may result in the Tribunal’s jurisdiction moving to a later but immediately subsequent period, I am doubtful this could be extrapolated to cover a situation in which the ‘chain’ of decisions made pursuant to s 42D is interrupted by decisions not before the Tribunal.
I consider the better view to be that, even noting the reasoning in Klewer, the decision of 5 May 2021 which ended the previous plan also had the effect of bringing the Tribunal’s jurisdiction to an end in a temporal sense. After that time, s 42D was only effective to remit “the decision”, being the valid remittal decision of 22 January 2021. To the extent subsequent decisions were purportedly made pursuant to s 42D relating to later periods, in my view they were ultra vires the s 42D orders and ineffective to enlarge the Tribunal’s jurisdiction.
It would seem to follow that, applying her Honour’s analysis here leads to a conclusion that the Tribunal’s jurisdiction in this matter is limited to the period 22 January 2021 - 4 May 2021. I acknowledge this is a surprising outcome. However it appears to be the consequence of her Honour’s conclusions in Klewer, which I am obliged to follow and apply.
WHAT WOULD NEED TO OCCUR FOR THE TRIBUNAL TO ACQUIRE JURISDICTION OVER LATER PERIODS?
As I have noted, the Respondent has proposed a way forward which, if adopted by the Applicant, would give the Tribunal jurisdiction over all the Applicant’s relevant SOPS.
As noted above, the Respondent has suggested that if the Applicant were to seek internal review and then review by the Tribunal of one of her subsequent SOPS, then s 103(2) of the NDIS Act would be effective to automatically join all of her SOPSs to this review such that the Tribunal would have jurisdiction over the issue of what supports should be provided to the Applicant for the whole of the period from December 2019 to the present and ongoing.
The Respondent’s submissions of 20 January 2025 address this issue in considerable detail and have been of great assistance.
Section 103(2) relevantly provides as follows:
(2) If:
(a) an application is made to the Administrative Review Tribunal for review of a decision made by a reviewer under subsection 100(6); and
(b) the decision relates to a statement of participant supports in a participant’s plan; and
(c) before a decision on the review is made and despite subsection 31(1) of the Administrative Review Tribunal Act 2024:
(i) the CEO varies the plan under subsection 47A(1) of this Act and the variation is a change to that statement; or
(ii) a new plan for the participant comes into effect under section 37 of this Act;
then:
(d) if subparagraph (c)(i) applies—the application is also taken to be an application for review of the decision to make the variation covered by that subparagraph; or
(e) if subparagraph (c)(ii) applies—the application is also taken to be an application for review of the decision to approve the statement of participant supports in the new plan.
The Respondent’s submissions note that references to prospectivity in a legislative provision may arise in different contexts, including in relation to the operation of the provision itself, and in relation to the decisions the section applies to. An issue arises with respect to s 103(2) as to whether it applies only to decisions made after the application to the Tribunal was filed, or whether it also includes decisions made under the NDIS Act made prior to the application to the Tribunal. The Respondent contended that although the provision itself was intended to operate only from its date of effect (1 July 2022), it was also intended to operate with respect to decisions made prior to the relevant application to the Tribunal.
The Respondent has observed in their submissions that, subject to the Applicant making an application to the Tribunal for review of a reviewable decision in due course as they have suggested is open, it appears uncontroversial that subsections (a) and (b) of s 103(2) would be made out. The Respondent went on to note:
“Subsection (c) is also clear that, of all decisions that might be made by the CEO, only those which come before the Tribunal makes a decision on review would trigger the consequences outlined in subsections (d) or (e). But there is nothing which deals expressly with the question of the earliest decision that subsection (c) could apply to. That is something which can only be addressed by inference or implication.
The Respondent contends that there is simply no words within the section which would, expressly or impliedly, restrict the operation of the section to only those decisions made after an application for review to the Tribunal is made. Had Parliament intended to place such a limitation on the available decisions to which section 103(2) could apply, it was open to Parliament to do that.
It could, for example, have simply included the words “after the application is made, but” to the start of subsection (c), so that it now read (insertion in underline):
After the application is made, but before a decision on the review is made …
Of course, it must also be accepted that the section does not expressly account for, and confer jurisdiction on the Tribunal in respect of, decisions made prior to the application for review. That is, it is a matter which is only capable of being decided by implication.“[8]
[8] Respondent’s Further Submissions on Jurisdiction dated 20 January 2025, at [8]-[12].
With respect to the construction of section 103 of the NDIS Act generally, and the use of the Explanatory Memorandum to assist in its interpretation, the Respondent drew my attention to the following relevant principles (derived from EMJ18 v Secretary, Department of Home Affairs [2024] FCAFC 87 at [45]-[46]):
(a)in ascribing meaning to text, regard must be had from the outset to the context and purpose of the provision, including considering legitimate secondary material: see also Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (Consolidated Media Holdings);
(b)it is not necessary that there be ambiguity in the statutory text before it becomes permissible to have regard to context and legitimate secondary material such as a second reading speech or an Explanatory Memorandum in ascribing meaning to the language: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192; (2020) 282 FCR 1 at [4]–[5];
(c)nonetheless, whilst a Court construing a statute must consider the context in which a provision was enacted and may have regard in so doing to extrinsic materials, those materials are relevant only insofar as they shed light on the text itself: Consolidated Media Holdings at [39].[9]
[9] Respondent’s Further Submissions at [13].
In that context, the Respondent contended it is permissible to have regard to the Explanatory Memorandum in construing the meaning of section 103 of the NDIS Act; so too is it permissible to have regard to the 2019 Tune Review, which informed the amendment and is expressly referred to in the memorandum. The Respondent noted that:
“the Tune Review made a number of recommendations which drove towards improving participant experience and interactions with the NDIS and its administering Agency. Recommendation 23 in particular reflected difficulties arising for NDIS participants in the AAT, following decisions such as Re Williamson and National Disability Insurance Agency [2019] AATA 2944, whereby new plans created by the Agency had the effect of rendering the Tribunal unable to deal with supports beyond the date of the reviewed plan.”[10]
[10] Respondent’s Further Submissions at [15].
The Respondent relied on the following parts of the Tune Review:
9.27 The AAT only has jurisdiction to consider the reviewable decision made at the time of lodgement of the application for appeal. The AAT does not have jurisdiction to consider any subsequent decision that the NDIA may have made in relation to the person with disability, including changes to their plan or requests that may have been made by the person with disability. As a consequence, the AAT’s decision can quickly become obsolete if the hearing takes longer than expected.
9.28 For example, while the participant is waiting for the AAT decision, they may have a scheduled plan review, which creates a new plan. Alternatively, an internal review decision may be made after the lodgement of the application for appeal. Under these circumstances, the AAT’s decision will only take into account the plan at the time the appeal was lodged with the AATA and not any subsequent plan or decision. Understandably, this is creating administrative red tape and frustrations for both participants and the NDIA.
[…]
9.32 These steps ae primarily procedural or jurisdictional but would be expected to reduce the number of unnecessary appeals and ensure that review processes are focused on the participant and facilitated in a way that reduces administrative red tape and frustrations for participants, the NDIA and the AAT.
Recommendation 23: The NDIS Act is amended to clarify the AAT’s jurisdiction, including the power for a plan to be amended while a matter is before the AAT. [11]
[11] Commonwealth, David Tune AO PSM, Review of the National Disability Insurance Scheme Act 2013 (Final Report, December 2019), <>
The Respondent contended:
“That passage reflects the considerable confusion, distraction, and frustration that was regularly experienced prior to the insertion of legislative amendments to clarify the jurisdiction of the Tribunal. The explanatory memorandum makes clear Parliament’s intent to address that mischief, noting in particular that the inclusion of amendments to those sections was intended to address recommendation 23 of the Tune Review.”[12]
[12] Respondent’s Further Submissions at [17].
The Respondent contended that the construction to be preferred was that which would best address the mischief which Parliament contemplated. They further contended:
“In particular, and as the Respondent submitted orally on 25 September 2024, the Tribunal’s proposed reading would entrench and continue the confusion, distraction and frustration that Parliament was trying to solve.”[13]
[13] Respondent’s Further Submissions at [19].
The Respondent submitted this was “laid bare” by the following, hypothetical, example chronologies, in which the only difference between the two is the date on which the person lodged a request for review by the Tribunal:[14]
[14] Respondent’s Further Submissions at [20].
Event Participant A Participant B Decision made to approve a statement of supports under section 33(2) 1 February 2024 1 February 2024 Internal review requested 1 March 2024 1 March 2024 Internal review decision made and notified, affirming decision under review 1 May 2024 1 May 2024 New decision to approve a statement of participant supports under section 33(2) or to vary the plan under section 47A 15 May 2024 15 May 2024 Request for review lodged with the Administrative Review Tribunal 10 May 2024 24 May 2024 28 day period to seek ART review expires 29 May 2024 29 May 2024 The Respondent contended that on the Tribunal’s proposed construction of s 103(2) (that it only applied to decisions made after the Tribunal application), only Participant A would benefit from s 103(2) and this is unlikely to have been intended. The Respondent also noted that this undesirable consequence would not be limited to matters in which an application to the Tribunal was lodged before 1 July 2022. It would prevent any applicant from challenging a decision made prior to their application, other than by making a further application to the Tribunal with respect to that decision (following any applicable internal review process).
However, what is not acknowledged by the Respondent’s submissions is that this would leave NDIS applicants in precisely the same position as other applicants to the AAT/ART, who almost without exception are required to lodge an application to the Tribunal in respect of any decision they seek to have reviewed. Arguably, the insertion of s 103(2) into the NDIS Act is properly regarded as a special dispensation to NDIS applicants, which takes account of the iterative/continuous nature of decision making under the Act and is unusual among Commonwealth Acts in this respect. The question is how far this dispensation was intended to reach and whether it was intended to embrace all subsequent plan decisions, whether made before or after the application to the Tribunal was lodged.
In my view, the main purpose of the introduction of s 103(2) was to ensure that decisions made during the Tribunal review, and which operated to change the decision under review, were automatically incorporated into the Tribunal’s jurisdiction. The necessity for this provision is obvious given the Tribunal could otherwise find itself reviewing an obsolete or partially obsolete decision, while a participant was left without a right of review by the Tribunal of the decision affecting their current entitlements. This situation is in some ways analogous to a scenario in which the decision under review is altered or replaced by a subsequent decision rendering the decision under review obsolete. With respect to other types of decisions, the AAT & ART Acts have always contained provisions designed to guard against or address the possibility of this occurrence.[15] Arguably the nature of the NDIS legislative framework, which provides for sequential decisions each addressing discrete successive temporal periods, posed new and more acute challenges for review by the Tribunal than most other legislative regimes. Those challenges have now been addressed by s 103(2), which at the very least allows for the automatic joinder of fresh decisions relating to a participant’s plan while the application is on foot.
[15] Section 31, Administrative Review Tribunal Act 2024 (Cth), Section 26, Administrative Appeals Tribunal Act 1975 (Cth); see also ss 62 and 67 of the Safety, Rehabilitation and Compensation Act 1988.
The position with respect to decisions made before the application to the Tribunal but not the subject of the Tribunal application appears to me more complex. In practical terms, as the Respondent has pointed out, this situation is most likely to arise in a situation where a fresh primary decision is made just before an application to the Tribunal is lodged with respect to an earlier internal review decision. On one view of things, a participant in that situation has a clear choice to make before lodging the application, either to defer making the application and instead seek internal review of the new decision or proceed with lodging an application for review of the internal review decision notwithstanding the fresh decision, which may to a large extent overtake the decision under review.
On the Respondent’s interpretation, a participant in this situation would have an additional incentive to lodge their application because in doing so they receive a windfall benefit. By lodging an application at that point rather than waiting for the internal review, they gain the advantage over other applicants of being able to seek review by the Tribunal of the recent primary decision as well as the internal review decision. On the alternative interpretation, the participant could still apply for review by the Tribunal of the internal review decision if they wished to, but they would be limited to seeking internal review of the fresh primary decision, and potentially joining a further Tribunal application to their existing one with respect to that internal review decision once received. That would put them in no different position than most applicants who have received both a reviewable decision and a primary decision, both bearing on the same or related subject matter.
Indeed, the Respondent’s interpretation would benefit any applicant who had received an internal review decision followed by a subsequent primary decision and were within time to lodge an application to the Tribunal, or able to obtain an extension of time. By lodging an application to the Tribunal with respect to the internal review decision, they would obtain the additional benefit of having the Tribunal also review the recent primary decision as well as the internal review decision. As I have mentioned, most Tribunal applicants are not in that position. Ordinarily, the integrity of the merits review structure is maintained, and applicants must have an internal review decision before coming to the Tribunal.
Ultimately however, while these practical considerations are relevant, they are not determinative. In my view, it is clear on a plain reading of s 103(2) that it is intended to apply only in circumstances where:
(a)an application has been made to the Tribunal for review of a decision relating to a SOPS; and
(b)before a decision is made with respect to that application, the SOPS is varied or a new plan comes into effect.
Further the terms of the Explanatory Memorandum and the relevant parts of the Tune Review all support that interpretation. I note the Tune Review referred to circumstances in which a plan review occurs “while the participant is waiting for the AAT decision” and refers to the fact the AAT only had jurisdiction to consider “the reviewable decision made at the time of lodgement of the application for appeal” rather than any “subsequent decision”.
The relevant part of the Explanatory Memorandum stated as follows:
“This item implements Recommendation 23 of the Tune Review that the Act be amended to clarify the Tribunal’s jurisdiction, including the power for a plan to be amended while a matter is before the AAT. The item inserts new subsection 103(2), which applies where an application is made to the AAT for review of a decision made by a reviewer relating to a statement of participant supports in a participant’s plan. If, before a decision on the review is made, the CEO varies the plan and the variation is a change to the statement of supports, then the application is also taken to be an application for review of the decision to make a variation.
If, before a decision on review is made, a new plan for the participant comes onto effect, then the application is also taken to be an application for review of the decision to approve the statement of participant supports in the new plan.”[16] (Emphasis added)[16] National Disability Insurance Scheme Amendment (Participant Services and other Measures) Bill 2021, Explanatory Memorandum, Page 26.
In my view, the language of both the Tune Review and the Explanatory Memorandum strongly suggest that the amendment was only intended to apply to changes to a SOPS made “while” an application to the Tribunal was on foot. I consider the mischief to which the amendment was directed was the situation in which a further decision is made with respect to a participant’s SOPS while their Tribunal application is underway. It was not intended to catch primary decisions made before an application to the Tribunal is lodged.
Having regard to my observations above, that is hardly surprising. As a general proposition, the integrity of the merits review system depends on limiting review by the Tribunal to decisions which have already been subject to internal review. Section 103(2) creates a very rare exception to that general rule and in my view is intended to have a narrow and clearly defined operation. The interpretation urged on me by the Respondent would result in quite an anomalous situation in which those in possession of an internal review decision followed closely by a further primary decision have access to a “fast-track” to the Tribunal through by-passing internal review. While this may be justified where a further decision is made while a review is on foot, in my view it is not intended to have a wider operation which would create even greater inconsistency between the NDIS jurisdiction and other jurisdictions of the Tribunal. It would also be surprising in my view if the legislature had intended to create an incentive for applicants to make potentially unnecessary applications to the Tribunal with respect to internal review decisions which have been overtaken, or to widen the circumstances in which the Tribunal was required to review primary decisions to incorporate primary decisions made prior to lodgement of an application to the Tribunal rather than while an application is on foot.
For those reasons, on my reading of it, s 103(2) is only intended to operate prospectively. In other words, where an application for review is lodged with the Tribunal and after that application is lodged, the participant’s plan is varied or a new plan comes into effect, the varied or new SOPS becomes part of the application before the Tribunal. I do not accept the Respondent’s contention that, in the context of the Applicant applying for review of a SOPS in one of her past plans, s 103(2) would operate to automatically add all her other past SOPS to her application.
It follows that in my view, for the Tribunal to have jurisdiction over any of the Applicant’s SOPS for the period after 5 May 2021, it would be necessary for her to seek internal review of those SOPS (where possible), and then apply to the Tribunal for review of the relevant internal review decision/s. This is a highly regrettable outcome, but one which in my view flows inevitably from the application of the statutory framework to the orders and decisions made in this matter.
CONCLUSION
Doing the best I can to follow the conclusions of Justice Raper in Klewer and apply them to the complex situation which has developed, I have concluded the Tribunal’s jurisdiction is currently limited to reviewing the SOPS of 22 January 2021 resulting from the remittal of 21 January 2021, which was replaced by a new plan on 5 May 2021. I have also concluded that the Tribunal’s jurisdiction cannot be expanded via s 103(2) of the NDIS Act as proposed by the Respondent.
DECISION
The Tribunal’s jurisdiction in this matter is limited to the period 22 January 2021 to 4 May 2021.
1
10
0