Rayson and Repatriation Commission

[2008] AATA 1063

CATCHWORDS – VETERANS’ AFFAIRS – whether Tribunal has under power to delay consideration of the claim under s 19A(1) of the Veterans’ Entitlements Act 1986 – whether a power encompassed within the powers and discretions conferred on the Tribunal by s 43(1) of the Administrative Appeals Tribunal Act 1975 for the purpose of the review of the decision – not such a power.

PRACTICE AND PROCEDURE – whether applicant can obtain his own Medicare and PBS histories – whether prevented by secrecy provisions in the relevant legislation – not prevented.

PRACTICE AND PROCEDURE  - whether those secrecy provisions prevent the Tribunal from obtaining the applicant’s Medicare and PBS histories on summons – prevented from obtaining Medicare histories but not PBS histories.

Australia and New Zealand Banking Group Ltd v Nguyen [2002] VSC 69
Australian Securities and Investments Commission v Donald (2003) 136 FCR 7
Chief Executive Officer of Customs v John Martins Au [2004] NSWSC 854
Comcare v Burton (1998) 157 ALR 522
Commissioner of Taxation v Tang [2006] SASC 252
Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427
Deputy Commissioner of Taxation v Dick [2007] NSWCA 190
Drake v Minister for Immigration (1979) 24 ALR 577
Esber v Commonwealth of Australia and Another (1992) 174 CLR 430
Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Health Insurance Commission v Freeman (1998) 158 ALR 267
Hope v Threlfall (1854) 2 Eq Rep 307; 23 LJ Ch (NS) 631
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186
Norvill v Chapman (1995) 133 ALR 226
R v Moodie Ex parte Mithen (1977) 17 ALR 219
Re BHP Petroleum Pty Ltd and Minister for Resources (1993) 30 ALD 173
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347
Re Van Heteren and Repatriation Commission (2004) 40 AAR 7
Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32
Secretary, Department of Social Security v Riley (1987) 17 FCR 99
Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15

Administrative Appeals Tribunal Act 1975, ss 3(1), 25(1), 33(1) and (2A), 39(1), 40(1A), 42A(5), 43(1) and (2)
Health Insurance Act 1973, ss 3(1), 10(1) and (2), 19(6), 124W(1), 130(1) (2), (3), (3A) and(25)
Health Insurance Commission Act 1973, ss 4, 5(a), 6, 8L, 8P, 8U, Part IID
Health Insurance Commission Regulations 1975 r 3(2)(c)
Human Services Legislation Amendment Act 2005, s 3, Schedule 2, item 2
Medicare Australia Act 1973, ss 4
National Health Act 1953, ss 85(1) and (2), 86, 86B, 87, 99(8), 99AAA(2) and (8), 135A(1), (2), (3), (4), (5), (5C), (7) and (24)
Privacy Act 1988 ss 6(1), 13(a), 14, 16
Veterans’ Entitlements Act 1986, ss 13(1), 14, 19(1) and (2), 19A(1), (2), (3) and (4), 32(1), (2) and (3), 128(1) and (7)

DECISION AND REASONS FOR DECISION [2008] AATA 1063

ADMINISTRATIVE APPEALS TRIBUNAL     )

)       V2007/783
VETERANS’ APPEALS  DIVISION                  )

Re:STANLEY RAYSON

Applicant

And:REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  27 November 2008
Place:  Melbourne

Decision:                   The Tribunal:

1.decides that:

s 19A of the Veterans’ Entitlements Act 1986 does not confer powers or discretions that may be exercised by the Tribunal for the purpose of reviewing a decision within the meaning of s 43 of the Administrative Appeals Tribunal Act 1975; and

2.adjourns further consideration.

SA Forgie

Deputy President
REASONS FOR DECISION

Through his solicitors, the solicitors representing the Repatriation Commission (Commission) asked Mr Rayson to sign forms asking Medicare Australia to release his Medicare and Pharmaceutical Benefits Scheme histories (M&PBS histories) to the Tribunal, the Department of Veterans’ Affairs and to both his solicitors and those acting for the Commission. When he did not, the Commission asked the Tribunal to use a power to delay consideration of the claim under s 19A(1) of the Veterans’ Entitlements Act 1986 (VE Act). I have decided that the powers given to the Tribunal under s 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) do not encompass a power given under s 19A of the VE Act. While
s 43(1) gives the Tribunal all the powers and discretions conferred by the VE Act on the Commission for the purpose of reviewing a decision, powers of investigation and consideration of a claim are not given for that purpose.  Review of a decision does not encompass investigation and consideration of a claim made under the VE Act.

1. Mr Rayson declined to sign the forms arguing that the Commission could obtain the information using its powers under s 128 of the VE Act.  I have decided that the Commission could not use those powers in view of secrecy provisions in the National Health Act 1953 (NH Act) and the Health Insurance Act 1973 (HIA).  The Tribunal could summons the PBS histories relying on its power under s 40(1A) of the AAT Act but not the Medicare histories.  Mr Rayson could obtain the Medicare & PBS histories and there appear to be no limits on the use that he may make of them.  I have left open for further consideration the question whether the Tribunal should exercise its power to direct Mr Rayson to obtain those histories until the parties have had an opportunity to consider the matter further.

BACKGROUND

1. For the purposes of deciding the preliminary issue, I will set out the facts as I understand them to be.  They are drawn from the documents lodged under
   s 37 of the AAT Act (T documents).  I have also had regard to the statement in the submissions lodged on Mr Rayson’s behalf that the facts are those set out in the Commission’s submissions dated 27 August 2008.[1] 

   
   

   [1] Submissions lodge by facsimile on behalf of Mr Rayson on 15 September 2008

1. Mr Rayson served for two periods in the Royal Australian Navy.  The first was from 14 May 1951 to 14 May 1957 and the second from 10 June 1959 to

   
   

   8 June 1965.  He had three periods of eligible war service within the meaning of s 7(1)(a) of the VE Act on the basis that he was rendering operational service.  They occurred while he was serving on the ships in the places and at the times specified below:

Ship	Period	Place
HMAS Tobruk	3 June 1953 to 12 February 1954	Korea
HMAS Qiberon	23 June 1960 to 8 July 1960 15 July 1960 to 31 July 1960	Far East Strategic Reserve Far East Strategic Reserve
HMAS Queensborough	24 March 1961 to 17 April 1961 22 April 1961 to 14 May 1961 24 June 1961 to 6 July 1961	Far East Strategic Reserve Far East Strategic Reserve Far East Strategic Reserve

1. On 29 March 2006, Mr Rayson lodged a claim with the Repatriation Commission (Commission) for a disability pension.[2]  Mr Rayson listed anxiety/depression and nightmares as the disability for which he was claiming a disability pension.[3]  He listed anxiety, depression and nightmares as the signs and symptoms of that disability.  Mr Rayson’s medical practitioner, Dr Hadkins, was asked to fill in the column next to the disability and symptoms.  Next to anxiety, depression and nightmares, Dr Hadkins wrote “? PTSD” and next to the signs and symptoms recorded by Mr Rayson, he wrote “not diagnosed”.[4] 

   [2] T documents, 34-44

   [3] T documents, 36

   [4] T documents, 36

1. The conditions for which Mr Rayson is seeking a disability pension have been more clearly identified since he made his application.  They are depressive disorder and post traumatic stress disorder (PTSD).  Mr Rayson claims that the conditions are attributable to one or more of the following incidents that he describes as:

   an incident in which his ship was illuminated by a star shell fired from an American warship (star shell incident);

   an incident in which he was locked in a refrigerator as a practical joke; and

   an incident in which his ship travelled close to the Russian port of Vladivostok and which was quite frightening.

2. On 3 May 2006, a delegate of the Commission decided that “the appropriate medical diagnosis for the claim is depressive disorder”.[5]  The delegate then wrote:

   “I have determined depressive disorder using Statement of Principles, Instrument number 58 of 1998, which sets out the factors known to contribute to this condition.

   I am satisfied that none of the factors contained in the Statement of Principles apply in Mr Rayson’s case.

   The factors involve:

   Chronic pain; experiencing a severe psychological stressor; having been a prisoner of war; inability to obtain appropriate clinical management for depressive disorder; major illness or injury; or suffering from a clinically significant psychiatric condition.

   ‘severe psychological stressor’ means …

   Psychiatrist, Dr D’Ortenzio’s did not report any event experienced by Mr Rayson on operational service that meets the above definition.  Also, the Statement of Principles requires that if any pscychological stressor occurred, it must occur within 2 years of the onset of depressive disorder.  Mr Rayson’s depression did not onset until the last 18 months to 2 years.

   I have considered all relevant evidence and am satisfied beyond reasonable doubt that depressive disorder is not related to Mr Rayson’s operational service.”[6]

   [5] T documents, 58

   [6] T documents, 59

1. Mr Rayson applied to the Veterans’ Review Board (VRB) for review of the Commission’s decision.  The VRB was reasonably satisfied that he suffered from a depressive disorder and that the date of its clinical onset was somewhere between 2004 and 2005.  Factor 5(b) of the relevant Statement of Principle (SoP) requires that Mr Rayson must have been “experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder”.  In view of its finding as to the date of the clinical onset of Mr Rayson’s depressive disorder, the VRB decided that he had not met that requirement.  The VRB concluded its reasons for decision by stating:

   “For completeness, and in light of the material before it, the Board carefully examined the remaining factors set out in the Statement of Principles, however, finds nothing that is raised by the evidence in this case.  The Board is therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3).  It follows that the Board is satisfied beyond reasonable doubt, for the purpose of subsection 120(1), that there is no sufficient ground for determining that the veteran’s depressive disorder was war-caused.  In these circumstance [sic], the Board is required to affirm the decision under review.”[7]

   [7] T documents, vii-viii

1. The VRB made its decision on 14 November 2006 and conveyed it to Mr Rayson in a letter dated 20 November 2006.  Mr Rayson lodged an application in this Tribunal for review of the VRB’s decision.  He did so on 15 March 2007, which was outside the time allowed under s 29(2) of the AAT Act as modified by s 176(4) of the the VE Act but the Tribunal later extended the time within which he could do so to that date.

1. On 17 June 2008, an officer of the Commission telephoned Mr Rayson’s solicitors to ask for his consent to his M&PBS histories being released to it. It referred to ss 130(3)(c) of the Health Insurance Act 1973 and 135A of the National Health Act 1953.  The Commission explained to Mr Rayson’s solicitors its reasons for wanting access to the M&PBS histories in the following terms:

   “9.1     there were very few references to depressive symptoms in the Applicant’s available medical records until shortly before his pension claim was lodged;

   9.2the relevant statements of principles for depressive disorders require clinical onset within a relatively short time of the Claimed Stressors;

   9.3more than 50 years have passed since the Star Shell Incident;

   9.4the Applicant has been recorded as suffering from memory loss; and

   9.5in that context, the Applicant’s Medicare and PBS histories may be the best available means of constructing a longitudinal picture of the Applicant’s psychiatric history over time, or at least since 1984 when Medicare began to keep records.”[8]

   [8] Commission’s submissions regarding release of applicant’s Medicare and PBS histories.  The Applicant agreed that the relevant facts were set out in the Commission’s submissions: submissions on the subject on behalf of Mr Rayson at 1.

1. Following the conversation, the Commission wrote to Mr Rayson’s solicitors enclosing two partially completed release forms for Mr Rayson to complete and sign.  It also enclosed a covering letter to Medicare Australia asking it to release the M&PBS histories to the Tribunal, the Department of Veterans’ Affairs and the parties’ legal representatives.  The Commission also asked Mr Rayson’s solicitors for a copy of any documents provided to Medicare Australia so that it could follow the matter and limit any delay in their processing.

1. Mr Rayson’s solicitors did not respond to the letter in writing or at the conference held on 4 July 2008.  At the conference held on 12 August 2008, they indicated that Mr Rayson was not willing to authorise the release of his M&PBS histories.  The matter was listed for resolution at a telephone directions hearing on
   2 October 2008 and both parties provided written submissions before that date. 
   Madden made her submissions on behalf of the Commission as did Mr De Marchi but he then protested that a telephone directions hearing was not an appropriate venue for deciding the matter.  The hearing was resumed face to face on 24 October 2008.

   
   
   Ms

LEGISLATIVE BACKGROUND

Health Insurance Commission and Medicare Australia

1. The HIA provides for, among other matters, payments by way of Medical Benefits and Payments for Hospital Services and for other purposes.[9]  It provides for the payment of medicare benefits in respect of medical expenses that are incurred in respect of a professional service rendered in Australia to an eligible person.[10]  The medicare benefit is calculated according to s 10(2) of the HIA and an “eligible person” includes an Australian resident.[11]  Part II of the HIA makes provision for the circumstances in which the medicare benefit is payable and those in which it is not.  One of those in which it is not payable is set out in s 19(6):

   “A medicare benefit is not payable in respect of a professional service unless the person by or on behalf of whom the professional service was rendered, or an employee of that person, has recorded on an account, or on the receipt, for fees in respect of the service or, if an assignment has been made, or an agreement has been entered into, in accordance with section 20A, in relation to the medicare benefit in respect of the service, on the form of the assignment or agreement, as the case may be, such particulars as are prescribed in relation to professional services generally or in relation to a class of professional services in which that professional service is included.”

   [9] HIA, Long Title

   [10] HIA, s 10(1)

   [11] HIA, s 3(1)

1. The Health Insurance Commission (Commission) was established by
   s 4 of the Health Insurance Commission Act 1973 (HIC Act).  Its functions included its medicare functions which are conferred by or under the HIA.[12]  Among its powers were its investigative powers which it might use in connection with an investigation that it was conducting in performing its functions.[13]  It had powers to obtain information[14] and to conduct searches.[15]  As from 1 October 2005, the HIC Act has been amended and renamed as the Medicare Australia Act 1973 (MA Act)[16] and Medicare Australia has replaced the Commission.[17]  The functions and powers of Medicare Australia are the same as those of the Commission.

   
   

   [12] HIC Act, ss 5(a) and 6

   [13] HIC Act, s 8L and see Part IID, Division 1 generally

   [14] HIC Act, s 8P and see Part IID, Division 2 generally

   [15] HIC Act, s 8U and see Part IID, Division 3-6 generally

   [16] MA Act, s 4

   [17]Human Services Legislation Amendment Act 2005, s 3, Schedule 2, item 2

1. Section 130, which is found in Part VII of the HIA, requires officers to observe secrecy.  An “officer” is “… a person performing duties, or exercising powers or functions, under or in relation to this Act or the Medicare Australia Act 1973.”[18]  In general terms, s 130(1) provides that:

   “A person shall not, directly or indirectly, except in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act or for the purpose of enabling a person to perform functions under the Medicare Australia Act 1973, the Dental Benefits Act 2008 or the medical indemnity legislation, and while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate to any person, any information with respect to the affairs of another person acquired by him or her in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act.”

   [18] HIA, s 130(25)

1. Section 130(2) provides specifically for the situation in which an officer might be asked to give a court any information:

   “A person who is, or has been, an officer shall not, except for the purposes of this Act, be required:

   (a)to produce in court any document that has come into his or her possession or under his or her control in the performance of his or her duties or functions under this Act; or

   (b)to divulge or communicate to a court any matter or thing that has come under his or her notice in the performance of any such duties or functions.”

1. Neither s 130 nor Part VII of the HIA contains an expanded definition of the word “court”.  I note that the word is given an expanded definition in

   
   

   s 124W(1) of the HIA when it provides that, in Part VC:

   “court includes a tribunal, authority or person having power to require the production of documents or the answering of questions.”

Part VC is concerned with encouraging efficient quality assurance activities in connection with the provision of certain health services.  For the purpose of achieving that object, Part VC prohibits the disclosure of information that became known solely as a result of those activities or the production to a court of a document that was brought into existence solely for the purposes of those activities.

1. Other provisions of s 130 provide for circumstances in which information may be divulged.  One such provision is found in s 130(3), which provides:

   “Notwithstanding anything contained in the preceding provisions of this section, the Secretary or the Medicare Australia CEO may:

   (a)if the Minister certifies, by instrument in writing, that it is necessary in the public interest that any information acquired by an officer in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act, should be divulged, divulge that information to such person as the Minister directs; or

   (c)divulge any such information to a person who, in the opinion of the Minister, is expressly or impliedly authorized by the person to whom the information relates to obtain it.”

1. Section 130(3A) is another example.  It provides:

   “Notwithstanding anything contained in the preceding provisions of this section, the Secretary or the Medicare Australia CEO may divulge any information acquired by an officer in the performance of duties, or in the exercise of powers or functions, under this Act to an authority or person if:

   (a)the authority or person is a prescribed authority or person for the purposes of this subsection; and

   (b)the information is information of a kind that may, in accordance with the regulations, be provided to the authority or person.”

National Health Act 1953

1. Part VII of the NH Act makes provision for the benefits provided by the Commonwealth in respect of certain drugs and medicinal preparations.[19]  The benefits are known as pharmaceutical benefits.  Those certain drugs and medicinal preparations are those declared by the Minister to be of such a kind or to belong to a class that is declared to be so.[20]  Subject to Part VII, a person is entitled to receive pharmaceutical benefits if an eligible person within the meaning of the MA Act and is receiving treatment by a medical practitioner or dental treatment by a participating dental practitioner.[21]  The practical effect of the provisions is that the eligible person pays the approved supplier of the pharmaceutical benefit no more than the charge provided by s 87 of the NH Act in respect of that benefit.  The approved supplier also receives payment from the Commonwealth. 

   [19] NH Act, s 85(1)

   [20] NH Act, s 85(2)(a)

   [21] NH Act, s 86

1. An approved supplier may request the person who presents a prescription to provide a medicare number applicable to the person to whom the prescription relates.[22]  Except in certain circumstances prescribed in s 99(8), an approved supplier, who is an approved pharmacist or an approved medical practitioner, is not entitled to be paid by the Commonwealth for the supply of a pharmaceutical unless there is ultimately provided to Medicare Australia a medicare number or a special number applicable to the person to whom the prescription relates or that corresponds with a medicare number that is held in the records of Medicare Australia as a number applicable to the person.[23]  Any approved supplier who wants to be paid by the Commonwealth in relation to the supply of a pharmaceutical benefit must make a claim for payment to the Secretary in accordance with rules made by the Minister under s 99AAA(8)(a).[24]

   [22] NH Act, s 86B(1)

   [23] NH Act, s 99(7)

   [24] NH Act, s 99AAA(2)

1. Section 135A sets out the obligations imposed on officers to observe secrecy.  The general duty is set out in s 135A(1) and provides that:

   “A person shall not, directly or indirectly, except in the performance of duties, or in the exercise of powers or functions, under this Act or for the purpose of enabling a person to perform functions under the Medicare Australia Act 1973 or the medical indemnity legislation, and while the person is, or after the person ceases to be, an officer, divulge or communicate to any person, any information with respect to the affairs of a third person acquired by the first-mentioned person in the performance of duties, or in the exercise of powers or functions under this Act.”

1. The restrictions imposed by s 135A(1) are qualified elsewhere in the section.  Statistical information, for example, may be published by the Australian Statistician provided they do not identify a particular person or organisation.[25]  If the Minister certifies that disclosure of the information is necessary in the public interest, the Secretary may divulge it.[26]  The Secretary may also:

   “divulge any such information to a person who, in the opinion of the Minister, is expressly or impliedly authorized by the person to whom the information relates to obtain it.”[27]

   [25] NH Act, ss 135A(5)

   [26] NH Act, s 135A(3)(a)

   [27] NH Act, s 135A(3)(c)

1. Section 135A(2) qualifies the restrictions imposed by s 135A(1) in so far as a court is concerned by providing:

   “Where the third person mentioned in subsection (1) is a party to an action or proceeding before a court, nothing in that subsection precludes the disclosure to the court of information with respect to the affairs of the third person.”

The word “court” is defined in s 135A(24) to:

“… include… any tribunal, authority or person having power to require the production of documents or the answering of questions.”

1. Section 135A(3) provides that the Secretary may divulge information to certain persons if the Minister has certified that disclosure is either necessary in the public interest or the information is of a kind that may be given to a prescribed authority or prescribed person.[28]  Section 135A(4) provides that:

   “An authority or person to whom information is divulged under subsection (3), and any person under the control of that authority or person, shall, in respect of that information, be subject to the same obligations and liabilities under subsection (1) as if the authority or the person, as the case may be, were a person performing duties under this Act and had acquired the information in the performance of those duties.”

   [28] NH Act, s 135A(3)

1. Section 135A(5C) of the NH Act provides, in part, that:

   “This section does not prohibit:

   (a)the provision to a person of a document that was provided to the Secretary by the person in relation to a claim for a pharmaceutical benefit; or

   (b)the divulging or communicating to a person of information relating to the person; or

   (c)…”

1. A further qualification to the general duty contained in s 135A(1) is found in s 135A(7).  It provides in part that:

   “Notwithstanding anything contained in subsection (1), where the Minister, by instrument in writing, certifies that it is desirable for such of the following purposes as the Minister specifies in the certificate, that is to say:

   …

   (b)the administration of an Act administered by the Minister for Veterans’ Affairs;

   …

   that information of a kind referred to in the certificate, being information acquired by an officer in the performance of duties, or in the exercise of powers or functions, under this Act, should be divulged, the Secretary may divulge information of that kind:

   …

   (h)if the certificate specifies a purpose of the kind referred to in paragraph (b) – to the Secretary to the Department of Veterans’ Affairs;

   …”

Privacy Act 1988

1. Section 13(a) of the Privacy Act 1988 (Privacy Act) provides that:

   “For the purposes of this Act, an act or practice is an interference with the privacy of an individual if the act or practice:

   (a)in the case of an act or practice engaged in by an agency … - breaches an Information Privacy Principle in relation to personal information that relates to the individual.”

Section 16 imposes an obligation upon agencies by providing that:

“An agency shall not do an act, or engage in a practice, that breaches an Information Privacy Principle.”[29]

[29] Privacy Act, s 16

1. There are 11 Information Privacy Principles (IPPs) and they are set out in s 14 of the Privacy Act. Some of the IPPs are concerned with the solicitation of personal information and others with the storage of that information and the retention of records. Principle 11 provides that:

   “1.      A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:

   (a)the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;

   (b)the individual concerned has consented to the disclosure;

   (c)the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person;

   (d)the disclosure is required or authorised by or under law; or

   (e)the disclosure is reasonably necessary for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.”[30]

   [30] Privacy Act, s 14, Principle 11.1

1. Among the persons and bodies encompassed within the word “agency” for the purpose of the Privacy Act is:

   “a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being:

   (i)an incorporated company, society or association; or

   (ii)an organisation within the meaning of the Conciliation and Arbitration Act 1904 or a branch of such an organisation; …”.[31]

Medicare Australia is a body established for a public purpose under the MA Act and comes within the definition of a “body”.

[31] Privacy Act, s 6(1)(c)

1. The expression “personal information”:

   “… means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”[32]

[32] Privacy Act,s s 6(1)

Veterans’ Entitlements Act 1986

1. The Veterans’ Entitlements Act 1986 (VE Act) provides for the payment of pensions and other benefits to veterans and certain other persons as well as for their medical and other treatment.[33]  Part II provides for pensions other than service pensions for veterans and their dependants.  Section 13(1) is relevant in

   [33] VE Act, Long Title

   
   Mr Rayson

   ’s circumstances.  It provides:

   “Where:

   (a)       …

   (b)a veteran is incapacitated from a war-caused injury or a war-caused disease;

   the Commonwealth is, subject to this Act, liable to pay:

   (c)…

   (d)in the case of the incapacity of the veteran – pension by way of compensation to the veteran;

   in accordance with this Act.”[34]

   [34] VE Act, s 13(1)

1. Section 14 provides for the way in which a veteran claims a pension and s 16 lists those who may make that claim. Section 17(1) requires the Secretary of the Department of Veterans’ Affairs (DVA Secretary) to investigate the claim. Once the investigation has been completed, the Secretary must submit the claim to the Commission for its consideration and determination. That is done under s 17(2). Under s 17(3), the DVA Secretary must also submit any evidence furnished by the claimant in connection with the claim together with any documents that are under the Department’s control, are relevant to the claim and have been obtained in the course of the investigation of the claim.

1. Section 18(1) provides that:

   “It is the duty of the Commission in considering a claim or application submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application.”

1. Where a claim has been submitted to the Commission under s 17(2),

the Commission shall, in so far as it is relevant in this case:

“(a)     consider all matters that, in the Commission’s opinion, are relevant to the claim or application; and

(b)subject to this section, determine the claim as provided by subsection (3);

(c)…

(d)…”[35]

[35] VE Act, s 19(1)

1. The obligation is expressed in general terms.  Without limiting them,

   
   

   s 19(2) provides that:

   “… the matters that the Commission may consider include:

   (a)the evidence and documents that were submitted with the claim or application in accordance with subsection 17(3);

   (b)any evidence subsequently submitted to the Commission in relation to the claim or application; and

   (c)any evidence, documents or other material furnished to the Commission under section 32.”

1. The reference to s 32 is a reference to the Commission’s power to take evidence “for the purposes of its consideration of a claim submitted to it in accordance with subsection 17(2) …”.  The powers that it is given under s 32 include a power to:

   “request:

   (i)in the case of consideration of a claim – the claimant or the Secretary; or

   (ii)…”

   to furnish to the Commission material believed to be under his or her control and relevant to the determination of the claim …”[36]

The Commission may not use this power to summon the claimant “to appear before the Commission to give evidence or to produce documents”.[37]  If a claimant requests an opportunity to discuss the claim, the Commission may comply with the request if it considers the request reasonable.[38]

[36] VE Act, s 32(1)(c)

[37] VE Act, s 32(2)

[38] VE Act, s 32(3)

1. Section 19A(1) provides, in so far as it is relevant in this case, for the situation in which a claimant,[39] who is a veteran:

   “… has refused or failed:

   (i)to consent to the release to the Secretary, or to the Commission, of information concerning a veteran for the purpose of the investigation or consideration of the claim; or

   (ii)to comply with a request under paragraph 32(1)(c) to furnish material to the Commission:

   the Commission may, if it is of the opinion that the medical examination, information or material is likely to affect the decision it will make in respect of the claim, defer further consideration of the claim until the veteran has undergone the medical examination, or the claimant has consented to the release of the information or furnished the material, as the case may be, and, if it does so, the Commission shall serve on the claimant a notice, in writing, informing the claimant that the claim has been so deferred.”[40]

   [39] A claimant includes a person who has made a claim under s 14 of the VE Act: VE Act, s 19A(4)

   [40] VE Act, s 19A(1)(b)

1. Section 19A(3) provides that:

   “If, at the expiration of 6 months after a claimant has been informed under subsection (1) that a claim has been deferred by reason that the claimant has refused or failed to consent to the release of the information or to furnish the material:

   (a)the claimant has not consented to the release of the information; or

   (b)the claimant has not furnished the material or satisfied the Commission that the material is not in the claimant’s possession or under the claimant’s control;

   as the case may be, the claim shall, by force of this subsection, be deemed to have been refused.”

1. Section 128(1) of the VE Act sets out the DVA Secretary’s general powers to obtain information:

   “The Secretary may, for the purposes of this Act, by notice in writing given to a person (including a person employed in or in connection with a Department of the Government of the Commonwealth, of a State or of a Territory or by any authority of the Commonwealth or of a State or Territory), require the person:

   (a)to:

   (i)provide the Department, or an officer specified in the notice, with such information as the Secretary requires; or

   (ii)produce to the Department, or to an officer so specified, any

documents in the custody or under the control of the person;

within the period (not being less than 14 days after the notice is given) and in the manner specified in the notice; or

(b)to appear before an officer specified in the notice at such reasonable time (not being a time earlier than 14 days after the notice is given) and place as are specified in the notice to answer questions.”

1. Section 128(7) qualifies the DVA Secretary’s power by providing:

   “This section does not require a person to furnish information, produce a document or give evidence to the extent that, in doing so, the person would contravene a law of the Commonwealth (not being a law of a Territory).”

Administrative Appeals Tribunal Act 1975

1. Section 43(1) of the AAT Act provides that:

   “For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

   (a)affirming the decision under review;

   (b)varying the decision under review; or

   (c)setting aside the decision under review and:

   (i)making a decision in substitution for the decision so set aside; or

   (ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”

THE SUBMISSIONS

1. On behalf of the Commission, Ms Madden submitted that the Tribunal is entitled to exercise the discretion conferred by s 19A of the VE Act. She did so by referring first to s 43 of the AAT Act, which provides that, for the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision. As the discretion conferred by s 19A could be exercised by the Commission, the Tribunal may exercise it. That discretion is not limited to the investigative stage of the proceedings. It is not directed to the manner in which the Commission will consider a claim but to whether the Commission is required to discharge the duty imposed on it by s 19. The duty under s 19 is to determine a claim made in accordance with s 14 of the VE Act. In Repatriation Commission v Yates,[41] the Federal Court decided that the Tribunal could exercise the power conferred by s 19 generally and by s 19(2)(a) in particular.  Ms Madden went on to submit that ss 19 and 19A are both to be found in Division 3 of Part II of the VE Act and should not be treated differently.

   [41] (1997) 46 ALD 487

1. The Tribunal should be no less favourably placed than the Commission, Ms Madden continued. It would be less favourably placed were it not to have the powers under s 19A as it would have to determine the claim even though it did not have all the relevant material before it. That would be contrary to the principle that the Tribunal stands in the shoes of the decision-maker. Were the Tribunal not to have the powers of the decision-maker, the effectiveness of s 19A would be undermined as any decision by the Commission would be of limited effect. Ms Madden developed her argument and supported it by reference to authorities.[42]

   [42] Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88; Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; Australian Securities and Investments Commission v Donald (2003) 136 FCR 7; Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; Re BHP Petroleum Pty Ltd and Minister for Resources (1993) 30 ALD 173; Fletcher v Commissioner of Taxation (1988) 19 FCR 442; and Re Van Heteren and Repatriation Commission (2004) 40 AAR 7

1. Mr De Marchi did not address this issue in his written submissions and, other than stating that the Tribunal could not exercise the power under s 19A, did not develop an argument to support the proposition. In his written submissions, Mr De Marchi drew a distinction between a refusal to undergo a medical examination referred to in s 19A(1)(a) and to refuse to consent to the release to the Secretary or Commission of information. He drew that distinction to distinguish the facts in this case from those considered by the Tribunal in Re Van Heteren and Repatriation Commission.[43]  He also distinguished the facts in light of there being another avenue available to the Secretary and the Commission to obtain the information.  That avenue was, he submitted, s 128.

   [43] (2004) 40 AAR 7 per Deputy President Jarvis

1. Mr De Marchi also submitted that:

   “… Furthermore, even without the information, the Tribunal still has the benefit of the reports from the experts as well as the benefit of the examination and cross examination of each of them if required, plus that of the Applicant’s.  The fact that there is a divergence of opinion by the experts does not raise any special or unusual dilemma for the Tribunal.  The Tribunal must always consider and scrutinize the evidence put before it carefully.

   Given that the Commission has a statutory avenue to obtain the information and that it has failed to do so, the Applicant respectfully submits to the Tribunal that it should not exercise its discretion to defer consideration of the claim.”[44] 

   [44] Applicant’s written submissions at [10]-[11]

CONSIDERATION

1. Mr De Marchi submitted that the Secretary should have relied on s 128 of the VE Act to require Medicare Australia to provide the M&PBS histories sought in this case.  He did not explain how this could be so in light of the qualification in
   s 128(7) that a person is not required to furnish information, produce a document or give evidence to that to do so would contravene a law of the Commonwealth.  As the M&PBS histories are the subject of different Acts, I have looked at each separately but have concluded that neither of those Acts would permit disclosure of the information to the Secretary without contravening their provisions. 

   
   

Can the Secretary rely on s 128 of the VE Act to obtain PBS histories from Medicare Australia?

1. I have started with the PBS histories to which the NH Act applies.             The effect of s 128(7) of the VE Act is that I must consider whether the Secretary’s furnishing information to the DVA Secretary or his Department or an officer of it would contravene a law of the Commonwealth.  The word “contravene” means “… to break or disobey (a law or rule, etc).…”.[45]  Having examined s 135A of the NH Act, which regulates the disclosure of information acquired in the performance of duties and exercise of powers in relation to the provision of pharmaceutical benefits, I do not think that the PBS histories relating to Mr Rayson could be disclosed to the DVA Secretary without contravening s 135A. 

   [45] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

1. The general duty to observe secrecy is found in s 135A(1) of the NH Act.  In essence, that duty is imposed on a person not to divulge or communicate any information about the affairs of a third person acquired in the performance of duties or in the exercise of powers or functions except in the performance of duties or the exercise of functions under the NH Act and certain other legislation in that provision.  That other legislation does not include the VE Act or the AAT Act.  I have touched upon the functions and powers of Medicare Australia earlier in these reasons.  In light of those functions and powers, the maintenance and compilation of records relating to those for whom pharmaceutical benefits were paid, to whom they were paid, the amount paid and the services in respect of which they were paid are essential tasks that Medicare Australia’s officers must perform.  Therefore, information of the sort contained in PBS histories comes within s 135A(1) and is protected from disclosure to the extent provided by s 135A generally.

1. The duties and functions under the NH Act and the other legislation specified in s 135A(1) does not require the divulgence or communication of information about the affairs of a third person to the DVA Secretary.  They are pieces of legislation separate from the VE Act in their purpose and terms and in the functions and powers they confer.  There is no evidence that the Secretary has issued an instrument in writing under s 135A(3) authorising information to be disclosed to the DVA Secretary or that the Secretary has certified that disclosure may be made to him under s 135A(7).

1. Having had regard to these provisions and to s 135A generally, I do not think that the Secretary could disclose the PBS histories relating to Mr Rayson to the DVA Secretary without contravening that section.  In light of s 128(7) of the VE Act, therefore, the Secretary would not be obliged to comply with any notice given by the DVA Secretary requiring their production.

Can the Secretary rely on s 128 of the VE Act to obtain Medicare histories from Medicare Australia?

1. The starting point in answering this question is again s 128(7) of the VE Act.  Medicare Australia can only be required to comply with a notice given it by the DVA Secretary under s 128 if to do so would not contravene a law of the Commonwealth.  That requires a consideration of the HIA and, in particular, of s 130.  Again, the functions and powers conferred on Medicare Australia by the HIA require the maintenance and compilation of records relating to those for whom medicare benefits have been paid, to whom they were paid, the amount paid and the services in respect of which they were paid are essential activities.  Therefore, information of the sort contained in the Medicare histories comes within s 130(1) and is protected from disclosure to the extent provided by s 130 generally.

1. The duties required of a person in performing functions and exercising powers under the HIA do not require him or her to have regard to matters to be decided under the VE Act.  They are focused solely on matters for which the HIA makes provision e.g. the payment of medical benefits.  By way of contrast, the DVA Secretary’s duties in performing functions and exercising powers under the VE Act are directed to an entirely different purpose such as the payment of pensions and benefits to veterans and certain other persons.  The duties are different and so it cannot be said that disclosure of information gained under one Act could be said to be in the performance of duties or in the exercise of powers or functions under the other.  As the effect of s 130(1) is that information gained in the performance of duties or in the exercise of powers or functions under the HIA cannot be communicated for a purpose other than the performance of duties or in the exercise of powers or functions under the HIA, an officer of Medicare Australia could not comply with a request by the DVA Secretary made for the purposes of the VE Act.

1. There are exceptions but, on the material I have and the searches I have made, I do not consider that a request by the DVA Secretary for information under
   s 128 of the VE Act comes within any of them.  As far as I can ascertain, the DVA Secretary is not a prescribed person for the purposes of s 130(3A) of the HIA.  It follows that neither the Secretary nor the CEO of Medicare Australia may rely on that provision to justify disclosure of information were they to receive a request from the DVA Secretary under s 128 of the VE Act.  Furthermore, there is no evidence of any certification by the Minister of the sort contemplated by s 130(3) permitting information to be disclosed to the DVA Secretary. 

   
   

Can the Tribunal or the applicant obtain PBS histories from Medicare Australia?

1. My conclusion regarding the Secretary’s powers does not mean that the PBS histories may not be made available to the Tribunal.  Proceedings in the Tribunal relating to the review of a decision made under the VE Act may be caught up in the qualification in s 135A(2) of the NH Act when the PBS history that is sought is the PBS history of the individual seeking review of a decision of the Commission.  If a person were to divulge or communicate information to a court about the affairs of a third person, who is a party to an action or proceeding before that court, that divulgence or communication will be neither a breach nor a contravention of the obligation in s 135A(1).

1. My conclusion follows in part from the fact that the Tribunal is taken to be a “court” for the purposes of s 135A(2).  It is taken to be a “court” because it has the power to require the production of documents or the answering of questions and that fact takes it within the expanded definition of a “court” given by s 135A(24) of the NH Act.[46]  The Tribunal’s powers in that regard are found in s 40(1A) of the AAT Act.  My conclusion also follows in part from the fact that a person who applies for review of a decision of the Commission is a “party” to a “proceeding” before the Tribunal as required by the qualification found in s 135A(2) of the NH Act.  Using the ordinary meanings of “party” and “proceeding”, that person is one “… of the individuals … involved in a … lawsuit”[47] being a “legal case”[48], and so an “action”, or involved in a “legal action”[49], and so in a “proceeding” before the Tribunal.  The action or proceeding was commenced when Mr Rayson lodged his application for review in the Tribunal.[50]

   [46] See [17] above

   [47] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

   [48] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

   [49] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

   [50] As it turns out, that application is also a “proceeding” within the meaning of s 3(1) of the AAT Act but the meaning in the AAT Act does not determine the meaning to be given to the word in the NH Act.

1. I note that s 135A(2) precludes disclosure “to the court” from the obligation in s 135A(1) to maintain confidentiality but makes no reference to whether there are any limits upon the court’s use of the information it may be given.  Both a court and this Tribunal have obligations to conduct their proceedings in accordance with the rules of procedural fairness and, although other considerations may qualify the statement, generally means that they must ensure that the parties to the proceeding see or know all of the information to which they will have regard in reaching a decision.  The obligation imposed on the Tribunal by s 39(1) of the AAT Act is one form of statutory expression of the obligation imposed by the general law.  It provides that, subject to any orders made to the contrary under the Tribunal’s powers:

   “… the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”

1. How does an obligation of this sort accord with the statement on the face of s 135A(2) that disclosure is “to the court” and no mention is made of the parties?  Having regard to the whole of s 135A, the qualification in s 135A(2) is wide enough to permit the court, and so this Tribunal, to disclose the information to the parties to the action or proceeding and to others for the purposes of that action or proceeding.  An important factor in my reaching this conclusion lies in the express provision in s 135A(4) limiting further disclosure of information disclosed under
   s 135A(3) and the absence of any similar provision with regard to information disclosed under s 135A(2).  The absence of such a provision suggests that such a limit was never intended.  Its absence would be consistent with the requirements of the general law to accord procedural fairness and so, with the requirement that, unless there is sound reason not to do so, all information is disclosed to the parties.  Its absence would also be consistent with the fact that the information disclosed must necessarily relate to one of the parties to a particular action or proceeding.  Given that disclosure is to the court, it must be relevant to the issues in dispute between the parties or the issues to be decided.  A court will not require or receive material that does not have at least the appearance of relevance to a particular proceeding.  That means that the action or proceeding must already be on foot.  Section 135A(2) could not be relied upon with respect to an action or a proceeding that might be brought in a court at some time in the future.

   
   

1. If disclosure is to be made to the Tribunal, it may be that Medicare Australia may do so after being asked by the DVA Secretary or the Commission to disclose it to the Tribunal.  It may, however, be more comfortable if the Tribunal were requested to use its powers under s 40(1A) of the AAT Act issue a summons for production of the PBS histories.

1. Quite apart from the summons procedure, it remains open to
   to choose to ask Medicare Australia for the PBS histories himself.  Section 135A(5C)(b) specifically provides that the Secretary is not prohibited from providing information to a person if the information relates to that person.                            

   
   Mr Rayson

Can the Tribunal or the applicant obtain Medicare histories from Medicare Australia?

1. Unlike the National Health Act, the HIA does not contain a provision permitting disclosure to a body such as a court when the information is in relation to the affairs of one of the parties to an action or proceeding in that body. What it does contain is a provision limiting the extent to which an officer is required to produce any document or divulge any information. That is found in s 130(2). The limits imposed by s 130(2) are circumscribed by reference to “the purposes of the Act” so that disclosure may only be made to the court for those purposes. 

1. The HIA does not provide that, when the word “court” is used in s 130(2), its meaning extends to include a tribunal, authority or person having power to require the production of documents or the answering of questions.  On its ordinary meaning, it cannot be read as doing so and that becomes even clearer when regard is had to the provision to that effect in s 124W(1) of the HIA.  As Parliament has chosen to extend the meaning of “court” in one context, it cannot be read as having that extended meaning in another.

1. The absence of any mention of a tribunal in the secrecy provisions of

   
   

   s 130 raises the question of the relationship between the secrecy provisions of s 130 of the HIA and the Tribunal’s summons power in s 40(1A) of the AAT Act.  A question of this sort arose in Commissioner of Taxation v Tang.[51] The trial judge had ordered the production of documents sought in a subpoena after ruling that they fell outside the secrecy provisions in s 16(3) of the Income Tax Assessment Act 1936 (ITAA). Section 16(3) provides that:

   “An officer shall not be required to produce in court any return, assessment or notice of assessment, or to divulge or communicate to any Court any matter or thing coming under his notice in the performance of his duties as an officer, except when it is necessary to do so for the purpose of carrying into effect the provisions of this Act or of any previous law of the Commonwealth relating to Income Tax.”

On appeal, Perry J decided that that the documents did come within s 16(3) as they had been “disclosed or obtained under the provisions of the ITAA”.  Having decided that the documents came within the scope of the secrecy provision, Perry J decided that the trial judge had been in error in requiring their production.

[51] [2006] SASC 252

1. The same reasoning should be applied to s 130.  Once it is decided that a secrecy provision applies to and prevents the disclosure of the information sought, that secrecy provision cannot be overridden by a general power to summons of the sort given to the Tribunal by s 40(1A) of the AAT Act.  This follows from the application of principles such as those expressed in the maxim of statutory interpretation, generalia specialibus non derogant, which applies when two provisions cannot be mutually accommodated. 

1. The application of this principle is illustrated by Deputy Commissioner of Taxation v Dick[52] in which the Court of Appeal (NSW) considered whether the powers given to the Court under s 1318 of the Corporations Act 2001 to relieve a person of liability with respect to actual or prospective claims made in civil proceedings extend to granting relief to a company director rendered liable for a penalty in relation to PAYG amounts withheld from the company’s employees but not remitted to the Commissioner for Taxation under the provisions of Divisions 8 and 9 of Part VI of the ITAA.  Santow JA said:

   [52] [2007] NSWCA 190 per Spigelman CJ, Santow and Basten JJA

   “115    In Ferdinands [v Commissioner for Public Employment (2006) 225 CLR 130], there were, as here, two enactments of the same legislature.  That gave rise to a general presumption to which I have earlier referred:

   ‘… in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.’ 

   per Gaudron J in Saraswati v the Queen [(1991) 172 CLR 1] at 17. 

116     That presumption of mutual accommodation is however rebuttable if the process of statutory construction reveals express or implied contradiction between the two enactments. 

…

120     As in Ferdinands, I consider that the difficulty in reconciling the two sets of legislative provisions is determinative of the construction question.  Their contrariety displaces that the general presumption of mutual accommodation.  This construction is reinforced by what I shall call for convenience “the Anthony Hordern principle”.  It was enunciated by Gavan Duffy CJ and Dixon J in these terms in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7:

‘when the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it should be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.’

121     While the Anthony Hordern principle refers to the two sets of provisions as being ‘in the same instrument’, I draw on the principle by analogy to determine whether two enactments of the same legislature are capable of mutual accommodation, or whether the general presumption to that effect is rebutted. 

122     The Anthony Hordern principle has been frequently applied in subsequent cases; for example in John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 434; Saraswati v R  at 23-24; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; David Grant & Co Pty Ltd (Receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 276; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 213 and Switz Pty Limited v Glowbind Pty Ltd (2000) 48 NSWLR 661 at 677.  It is reflected more generally in the maxim generalia specialibus non derogant.”[53] 

[53] Although Simpson J did not explain the inter-relationship between the subpoena powers of the Supreme Court of New South Wales and s 130 of the HIA, his decision to set aside a subpoena in so far as it required the production of documents in breach of s 130 would appear to be based on a similar premis.

1. In this case, Parliament has expressly turned its mind to the extent to which it wants information gathered in the course of carrying out the functions and powers conferred by the HIA.  As Pagone J said in Australia and New Zealand Banking Group Ltd v Nguyen[54] in the context of s 151 of the Casino Control Act 1991 (Vic):

   “… Secrecy provisions like those found in s 151 reflect an important and fundamental public policy. The policy seeks to balance (a) the importance of the free flow of information to those authorised to receive it, or empowered to require it, with (b) the secrecy and confidentiality of that information being maintained. Indeed, the latter may be seen as facilitating the former because it is the certainty of the secrecy that encourages the supply of full and accurate information. …”[55]

   [54] [2002] VSC 69

   [55] [2002] VSC 69 at [21]

1. The upshot is that the Tribunal may not use its summons powers under s 40(1A) of the AAT Act to obtain Mr Rayson’s Medicare histories from Medicare Australia.  That does not mean that Mr Rayson may not ask Medicare Australia for his own Medicare histories.  Section 130(4A)(b) specifically provides that an officer is not prohibited from divulging or communicating to a person information relating to that person.  He has but to ask.

Can the Commission obtain the M&PBS histories from Medicare Australia?

1. Section 32(1) of the VE Act gives the Commission the power to summon a person to give evidence and to produce documents.  Therefore, it is regarded as a “court” for the purposes of s 135A(2) of the NH Act as it comes within the expanded meaning given to that term by s 135A(24) of the NH Act.[56]  Were it to exercise its power under s 32(1)(a) of the VE Act to issue a summons to Medicare Australia for production of the PBS histories, the outcome would be the same as if the Tribunal had exercised its summons power under s 40(1A).  The Commission’s consideration of a claim is a “proceeding” in the sense used in s 135A(2) of the NH Act and Mr Rayson is a party to that proceeding.  Therefore, the secrecy provision in s 135A(1) would not come into play.  Assuming that the summons was properly issued by the Tribunal, Medicare Australia would have to comply with it.

   [56] See [24] above

1. Were the Commission to summons the Medicare histories, it would be in the same position as the Tribunal and for the same reasons.  The provisions of s 130 of the HIA would not permit officers of Medicare Australia to disclose Mr Rayson’s Medicare histories to it.

The effect of any consent given by Mr Rayson to Medicare Australia to release the M&PBS histories to the Tribunal and the DVA Secretary: the application of general law principles

1. Taking first the PBS histories, Mr Rayson’s consent does not affect their disclosure to the Tribunal as Medicare Australia may already do so in light of
   s 135A(2) of the NH Act.  Section 135A does not permit their disclosure to the DVA Secretary for the reasons I have already given.

   
   

1. If I look only to general law principles, it appears that any consent Mr Rayson gave to Medicare Australia’s releasing the PBS histories relating to him cannot overcome the obligation imposed on officers of Medicare Australia by s 135A.  That obligation does not permit them to disclose the PBS histories to the DVA Secretary.  Although not on precisely the same point, the principles that underpin my conclusion that Mr Rayson’s consent would be irrelevant are those underpinning the conclusion that the parties to a proceeding in the Tribunal cannot determine or extend its jurisdiction by consent.  In the case of the latter, it was said by Bowen CJ, in Kuswardana v Minister for Immigration and Ethnic Affairs:[57]

   “         The case before this court is not merely one of the parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded.  Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties’ submissions. …”[58]

   [57] (1981) 35 ALR 186 per Bowen CJ, Fox and Deane JJ

   [58] (1981) 35 ALR 186 at 195 per Bowen CJ and see also R v Moodie Ex parte Mithen (1977) 17 ALR 219 per Stephen, Murphy and Aickin JJ

1. In the case of the PBS histories, Parliament has determined the information whose disclosure it wishes to regulate and fixed the boundaries within which it may be disclosed.  Those boundaries cannot be altered by anyone other than Parliament.  In particular, they cannot be altered by the person to whom the information relates.  Therefore, although it is clear that an officer can disclose information such as PBS histories to a person such as Mr Rayson under
   s 135A(5C)(b), that person cannot authorise Medicare Australia to give it to another such as the DVA Secretary.  The person to whom the information relates may choose to give it to another such as the DVA Secretary but that is a different matter.  There is nothing in s 135A(5C)(b) limiting further disclosure.  That is in contrast to disclosure under s 135A(2) for further disclosure is limited by the terms of s 135A(3).  Disclosure by the Tribunal and the DVA Secretary would be limited to that disclosure required by the nature of the proceeding before the Tribunal.

   
   

1. Again looking solely on general law principles, that brings me to the Medicare histories.  This time disclosure to the Tribunal and to the DVA Secretary are in the same position.  Section 130 of the HIA does not permit disclosure of the Medicare histories to either although it does permit disclosure to the person to whom they relate.  For the reasons I have given in relation to the PBS histories, Mr Rayson’s consent to their disclosure could not overcome the obligation imposed by s 130 on Medicare Australia not to do so.  If Mr Rayson were to seek and obtain the information as he may, there is nothing in s 130 that prevents him from disclosing it to the Tribunal and the DVA Secretary.  As with the PBS histories, disclosure by the Tribunal and the DVA Secretary would be limited to that disclosure required by the nature of the proceeding before the Tribunal.

The effect of any consent given by Mr Rayson to Medicare Australia to release the M&PBS histories to the Tribunal and the DVA Secretary: are the IPPs relevant?

1. The IPPs do not affect my conclusion.  In particular, IPP 11 provides that a record-keeper shall not disclose personal information to a person, body or agency other than the individual concerned unless disclosure comes within one or other of the circumstances specified in that Principle.  One of those circumstances, specified in IPP 11(d), is that disclosure is required or authorised under the law.  In the circumstances in which I have found that the M&PBS histories may be disclosed to the Tribunal, that disclosure is required or authorised by the NH Act.

1. I note that IPP 11(b) provides for disclosure of personal information where the individual concerned with that personal information has consented to the disclosure.  How does that obligation rest with the obligations imposed on Medicare Australia under the NH Act and the HIA?  The answer lies in the application of principles of the sort referred to by Santow JA in Deputy Commissioner of Taxation v Dick.[59]  The IPPs are principles of general application whereas the provisions of s 130 of the HIA and s 135A of the NH Act are provisions directed to disclosure in specific circumstances.  They reflect Parliament’s view of the balance between the importance of the free flow of information to Medicare Australia and the interests of those who would seek it.  The former is achieved by receiving and storing it in an environment of secrecy and confidentiality and the latter by strictly regulating those to whom it is disclosed.  The specific provisions must prevail over the general and that means that IPP 11(b) has no bearing on the disclosure of information protected by s 130 of the HIA and s 135A of the NH Act.

   [59] See [65] above

Section 43(1) of the AAT Act: what is meant by “reviewing a decision”?

1. I have set out s 43(1) of the AAT Act above.[60]  It prescribes the Tribunal’s powers “For the purpose of reviewing a decision …”.  Before I look at the ambit of the Tribunal’s powers, I will look at what is meant by “reviewing a decision”.  It is not defined in the AAT Act.

   [60] See [42] above

1. When used as a verb, as it is in s 43(1), the ordinary meanings of the word “review” include:

   “… 1 to see or view something again. 2 to examine or go over something, especially critically or formally. 3 to look back on and examine (events in the past). … 7 law to re-examine (a case). …”[61]

   [61] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

1. The task of review given to the Tribunal has often been described as requiring it to stand in the shoes of the decision-maker.  As the majority of the High Court said in Esber v Commonwealth of Australia and Another:[62]

   “The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision (16).^[[63]]  In Drake, Bowen CJ and Deane J said of the Tribunal (16):^[[64]]

   ‘The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’”[65]

   [62] (1992) 174 CLR 430

   [63] Drake v Minister for Immigration (1979) 24 ALR 577 at 589

   [64] Drake v Minister for Immigration (1979) 24 ALR 577 at 589

   [65] (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ, Brennan J dissenting

1. The task of deciding whether the decision is the correct or preferable decision on the material before the Tribunal is described as “merits review”.  Merits review requires the Tribunal to look not only to whether the law has been correctly applied but to whether the decision is correct in light of that law and on the basis of all of the relevant material.  If a range of decisions would be correct and not merely one, merits review requires that the Tribunal select the decision that is preferable in light of the relevant principles to be gleaned from the legislative framework.

The Tribunal’s powers and discretions under s 43(1) of the AAT Act: the Federal Court authorities

1. Section 43(1) sets out the Tribunal’s powers and discretion for the purpose of reviewing a decision as well as its obligation to make a decision[66] in writing.  In so far as its powers and discretions are concerned, there are two elements that must be satisfied before the Tribunal may exercise powers or discretions.  The first is that they be “conferred by any relevant enactment on the person who made the decision” and the second that the Tribunal exercise those powers only for “the purpose of reviewing a decision”.  Provided these two matters are kept in mind,

   
   

   s 43(1) is not to be construed narrowly.  This is clear from the reasons for decision of Davies J in Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) when he said:[67]

   “Mr Morris submitted that the word ‘may’ in s 43 of the Administrative Appeals Tribunal Act imports an element of discretion so as to authorize the Tribunal to limit its function as it sees fit. But the provision ‘For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision …’ is not concerned to confer upon the Tribunal authority to limit its function but rather to confer upon it an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision-making power upon which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision.”[68]

   [66] Section 43(1) refers only to the “decision” and is to be distinguished from the “reasons … for its decision” referred to in s 43(2), which is also described in s 43AA as the “statement of reasons for the decision” or the “statement of reasons”.

   [67] (1981) 3 ALD 88 per Davies J

   [68] (1981) 3 ALD 88 at 92

1. There is an emphasis in this passage upon the second of the two elements that I consider must be satisfied before the Tribunal may exercise its powers under s 43(1) of the AAT Act i.e. that the Tribunal exercise those powers only for “the purpose of reviewing a decision”.  This aspect was also emphasised by Brennan J in one of the earliest decisions of the Tribunal: Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales)[69] in examining s 43(1).  His Honour said:

   “ The Tribunal is not a primary administrator. It is not the original repository of powers and discretions under an enactment. When it makes an order under s 43(1) to take effect under the ‘relevant enactment’, the grant to the Tribunal of the original repository’s powers and discretions makes its order effective under the enactment. Not all of the orders for which s 43 provides are orders which draw upon the original grant of powers and discretions. A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal’s order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.”[70]

   [69] (1978) 1 ALD 167

   [70] (1978) 1 ALD 167 at 175-176

1. In Secretary, Department of Social Security v Hodgson,[71] Hill J considered whether the Tribunal could exercise the power to waive a debt incurred under the Social Security Act 1991 (SS Act) when reviewing a decision to recover that debt.  Neither the decision-maker nor the Social Security Appeals Tribunal had considered waiver.  Hill J decided that the power to recover a debt and the power to waive it are not coextensive powers.  There is no obligation upon a decision-maker to consider waiver when considering whether to recover a debt.[72]  It did not follow from that, however, that the Tribunal was precluded from exercising the power to waive the debt.  His Honour said:

   “… It empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision-maker provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is not necessary or permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the decision-maker’s powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review.

   Of course there must be an association between the power to be exercised by the Tribunal and the decision under review, but that association is to be found in the restriction of the grant of power in s 43(1) to the purpose of the Tribunal’s review.  The test is one of relevance rather than dependence.  Where the exercise of a power or discretion is relevant to the making of the decision under review then, if requested, the Tribunal may exercise the discretion. …Where its jurisdiction is enlivened by an application to review an administrative decision it exists to do again, within the limits of the review, that which the decision-maker was entrusted to do. …”[73]

   [71] (1992) 37 FCR 32

   [72] (1992) 37 FCR 32 at 39

   [73] (1992) 37 FCR 32 at 39-40

1. As did Brennan J in Brian Lawlor, this passage from the reasons of Hill J in Hodgson emphasise the second element of s 43(1) i.e. that for “the purpose of reviewing a decision” the Tribunal may exercise the powers and discretions of the person who made the decision.  This is an emphasis that also found expression in the judgment of Finn J in Comcare v Burton.[74]  In that case, Comcare had accepted liability to pay Ms Lees compensation for a work-related injury under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).  It then refused to pay taxi fares for her to travel to treating specialist for treatment.  After the decision was affirmed within Comcare, Ms Lees applied to the Tribunal for its review.  During the course of the proceedings, she also asked the Tribunal to consider whether she was entitled to compensation for permanent impairment.  The Tribunal decided that it had jurisdiction on the basis that, once it had jurisdiction in relation to one issue under the SRC Act, it had jurisdiction in relation to all.

   [74] (1998) 157 ALR 522

1. In rejecting this conclusion and finding that the Tribunal did not have jurisdiction to consider Ms Lees’ claim for permanent impairment, Finn J said:

   “… [I]n relation to s 43(1) of the AAT Act, that provision (as with, for example, s 23 of the Federal Court of Australia Act 1976 (Cth) as it applies to this court) confers power on the tribunal in relation to matters in which it has jurisdiction. It is not itself a source of jurisdiction. Furthermore the s 43(1) conferral is subject to the limitation that it is ‘for the purpose of reviewing a decision’: for the effect of this limitation see, generally, Secretary, Department of Social Security v Hodgson (at [40] FCR 40).  In similar vein … I would add likewise that ss 69(a) and 72(a) of the SRC Act cannot be used to extend the review jurisdiction of the tribunal: Owens v Repatriation Commission [(1995) 59 FCR 93] at 101).  Those provisions stipulate how Comcare must act.  They have no bearing on when the tribunal has jurisdiction to act.”[75]

   [75] (1998) 157 ALR 522 at 528. Section 69(a) provides that Comcare is “to make determinations accurately and quickly in relation to claims and requests made to Comcare under this [SRC] Act.” In doing so, s 72(a) provides it “shall be guided by equity, good conscience and the substantial merits of the case, without regard to the technicalities”.  See also generally Secretary, Department of Social Security v Riley (1987) 17 FCR 99 (Northrop, Sheppard and Jenkinson JJ), Australian Securities and Investments Commission v Donald (2003) 136 FCR 7 (Gray, Kenny and Downes JJ) and Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427 (Finn , Emmett and Edmonds JJ).

1. The provisions of the SRC Act that did have some bearing on the decision to be reviewed by the Tribunal were ss 60, 62 and 64.  Section 62 provides for reconsideration of determinations and for the person who made the initial determination to make a decision affirming or revoking it or varying it as thought appropriate.[76]  Section 60 defines a number of terms.  In particular, it provides that a “reviewable decision” means, together with another, a decision made under s 62.  In essence, s 64 provides that an application may be made to the Tribunal for review of a reviewable decision made by one or other of the authorities specified in s 64(1).  Section 64 is to be read with s 25(1) of the AAT Act, which provides in part that:

   “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)…”

   [76] SRC Act, s 62(5)

1. In Comcare v Burton, Finn J had regard to both s 25 and s 64:

   “… [I]n relation to SRC Act appeals the tribunal’s jurisdiction is limited in two ways.  (1) By virtue of s 25 of the AAT Act and s 64 of the SRC Act its province is limited to reviewing what under the SRC Act is a ‘reviewable decision’.  (2) To be constituted such a decision under the SRC Act, the process of determination and reconsideration must have been engaged in – and then only in respect of those sections of the statute that can give rise to a ‘determination’: SRC Act ss 60, 62.  Both forms of limitation, but particularly the latter, necessitate that it be ascertained what is the particular ‘reviewable decision’ that the tribunal is to review: Secretary, Department of Social Security v Riley (at FCR 105).  The process of reviewing that decision is to occur in the setting of the question(s) that gave rise to the decision.  And while in that process the tribunal can exercise its s 43(1) powers, but it is nonetheless obliged to answer the same question(s) as was (were) before the reconsideration decision-maker: Hospital Benefit Fund of Western Australia v Minister for Health, Housing and Community Services (at FCR 234 [(1992) 39 FCR 225; 111 ALR 1 at ).”[77]

   [77] (1998) 157 ALR 522 at 528

1. It follows from these cases that the first step in working out the powers and discretions available under s 43(1) is to identify the decision under review.  Once that is done, thought must be given to what is meant by reviewing a decision for the powers and discretion conferred by s 43(1) are those “for the purpose of reviewing a decision”.  In view of the ordinary meanings of the word “review” and the authorities stating that the Tribunal’s task is to determine the correct or preferable decision, they must be those powers and discretions available for re-examining the decision or going over the decision again.  They must be powers and discretions that are relevant in answering the question that was answered by the decision-maker whose decision is being reviewed.  They must be powers that the Tribunal is permitted to exercise on review. 

1. Therefore, in Hodgson, the power to waive the debt was relevant in answering the question whether the overpayment of unemployment benefits paid to Mr Hodgson should be recovered.  It was a power available to both the decision-maker and the Tribunal.  In Australian Securities and Investments Commission v Donald, the power to accept an enforceable undertaking under s 93AA of the Australian Securities and Investments Commission Act 1989 was among the powers available to both the Commission and the Tribunal when deciding whether Mr Donald should have been banned under ss 829 and 830 of the Corporations Law from acting as a representative of a dealer or investment adviser on the ground he had contravened a securities law.  By way of contrast, the Commissioner of Taxation has the power to remit the General Interest Charge imposed under Part IIA of the Taxation Administration Act 1953 but the Tribunal does not.[78]

The Tribunal’s powers and discretions under s 43(1) of the AAT Act: do they include procedural powers?

[78] Taxation Administration Act 1953, s 8AAG

1. The Commission’s decision was to refuse Mr Rayson’s claim for a pension in respect of incapacity from depressive disorder.  It was affirmed by the VRB and so is the operative decision.  The Tribunal is generally concerned with the operative decision.  That follows from the principles explored by the Tribunal in
   Re Gee and Director-General of Social Services[79] when it said:

   “… It is a necessary inference from the Administrative Appeals Tribunal Act that the function of the Tribunal is to review on the merits decisions which affect a person’s interest. See per Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68, and Smithers J in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 23. It is inconsistent with the tenor of the Act that the Tribunal should concern itself not with an operative decision which affects a person’s rights but merely with a decision which has simply affirmed or varied the operative decision. Moreover,… the Tribunal would not be able effectively to use the power conferred by s 43 of the Act to set aside the decision under review and to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. …”[80]

These principles were approved by the Full Court of the Federal Court in Yolbir v Administrative Appeals Tribunal and Anor.[81] 

[79] (1981) 3 ALD 132; 58 FLR 347 (Davies J, President, and Messrs Cusack and Prowse, Members)

[80] (1981) 3 ALD 132; 58 FLR 347 at 141; 357 cited with approval in Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 at 248-249; 10; 17-18

[81] (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 (Davies, Burchett and O’Connor JJ)

1. The decision under review is the decision to refuse Mr Rayson’s claim for a pension in respect of incapacity for depressive disorder.  The questions that the Commission asked and answered in reaching that decision were:

   what, on the balance of probabilities, was the condition (be it injury or disease) from which Mr Rayson suffers;

   what were the periods of Mr Rayson’s operational service;

   is there a reasonable hypothesis connecting that condition with a period of Mr Rayson’s operational service having regard to ss 120(1) and (3) of the VE Act;

   if so and within the meaning of s 120(3) of the VE Act, is the Commission satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition was a war-caused injury or war-caused disease.

2. As these were the questions that must be asked and answered by the Commission in making the decision, they are the questions that must be asked and answered by the Tribunal in going over the Commission’s decision again and so in reviewing that decision.  Therefore, the powers and discretions that the Commission had in asking and answering them become the powers and discretions of the Tribunal.  as they are relevant to the review of that decision.

1. On one view, review could be thought to include gathering information or conducting investigations to gather more information relevant to determining the answers to the relevant questions and so to the decision under review.  Having regard to the structure of the AAT Act generally and to the words that Parliament has chosen to express the powers and discretions in s 43(1) and those under provisions such as
   ss 33(1) and 40(1A), I do not think that it does. 

   
   

1. First, the ordinary meanings of the word “review” in s 43(1) are, to my mind, more suggestive of a re-examination of events already ascertained than to gathering knowledge or information about events known or as yet unknown.  This suggestion gains support from an examination of a provision such as s 40(1A).  It provides that “for the purposes of a hearing of the proceeding” a person may be summoned to appear before the Tribunal to give evidence or produce books and the like or both.  The word “proceeding” is given a wide meaning by s 3(1) of the AAT Act but it includes “an application to the Tribunal for review of a decision”.[82]  Therefore, the summons power may be used for the purposes of a hearing of an application for review of a decision. 

   [82] AAT Act, s 3(1)(a)

1. What is a “hearing”?  Does it necessarily result in a review of the decision of the sort contemplated by s 43(1).  I think not.  The ordinary meanings of the word “hearing” suggest that it may include both listening to the evidence and making a decision.  They include that of “to listen to and judge (a case).”[83]  Black’s Law Dictionary[84] contains a definition with a slightly different emphasis:

   “Proceeding of relative formality (though generally less formal than a trial), generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and parties proceeded against have right to be heard, and is much the same as a trial and may terminate in final order. …”

   [83] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

   [84] 5^th edition, 1979, West Publishing Co

1. The termination in a final order on the merits of the issue under consideration is not mandatory in this definition and nor was it in Hope v Threlfall.[85]  In that case, Turner LJ found that the word “hearing” had been used in its general sense rather than its technical sense.  Turner LJ examined the expression “upon the hearing”, which he understood “… means whenever a cause is heard.”[86]  This was a meaning adopted by Shaw J in Chief Executive Officer of Customs v John Martins Au[87] in considering, among other matters, what was meant by the word “hearing” in

   
   

   s 80 of the Justices Act 1992 (NSW).  After hearing what each party had to say and the witnesses and evidence, s 80 required a Justice to consider and determine the whole matter or dismiss the information or complaint as the case might require.  The prosecutor in the case had withdrawn a charge and the magistrate had marked the papers “withdrawn, dismissed” after hearing.  Without explanation, the prosecutor then sought to make the same allegations in fresh proceedings in the same court; the Local Court (NSW).  Shaw J said:

   “… [T]he question is whether there was a ‘hearing’ within s 80 of the Justices Act 1902 (NSW). There was certainly not a hearing on the merits, because the procedural course taken was by consent. Nonetheless, it seems to me that there was a hearing. The parties appeared with their legal representatives and they put to the court what they desired to do and the fact that no witnesses were called is legally irrelevant.

   16       The substance of the matter is that there was a hearing.  The transcript records that each party said what they wanted to say before the magistrate.  It was in those circumstances that the initiating process, the information, was dismissed in accordance with s 80 …”.[88]

   [85] (1854) 2 Eq Rep 307; 23 LJ Ch (NS) 631

   [86] (1854) 2 Eq Rep 307 at 307

   [87] [2004] NSWSC 854

   [88] [2004] NSWSC 854 at [15]-[16]

1. Returning to s 40(1A) of the AAT Act, the practical outcome of the exercise of the power it confers is to gather together the documentary and human sources of evidence.  That evidence may be relevant in the Tribunal’s reviewing a decision but it may also be the case that the Tribunal never has the opportunity to do that.  The processes of the Tribunal are directed to resolving applications without its hearing applications if it is possible to do so by means of alternative dispute resolution procedures or through more informal means.  While the application remains on foot, however, there remains an expectation that the Tribunal will review the decision if the application for its review is not otherwise resolved.  There is an expectation that there will be an occasion for the parties to produce all of the evidence that they can properly produce and to say all that they want to say.  In view of the separation of the power to gather in s 40(1A) from the power to review in s 43(1) and the clear difference in the expression of the purpose for which the powers are conferred, it seems to me that the powers are conferred for separate purposes.  One does not encompass the other even though in reviewing a decision the Tribunal may refer to evidence gathered using the power under s 40(1A). 

1. Unlike, s 40(1A), s 33(1) of the AAT Act does not confer a power “for the purposes of a hearing of a proceeding”.  Instead it confers power on the Tribunal “in a proceeding” when it states:

   “In a proceeding before the Tribunal:

   …

   (c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”

Section 33 provides for specific types of directions that the Tribunal may give but does so while preserving the breadth of s 33(1).  By way of example, s 33(2A)(a) provides that:

“Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the

Tribunal may:

(a)require any person who is a party to the proceeding to provide further information in relation to the proceeding; …

…”

1. The word “proceeding” is given a very broad and extended meaning in s 3(1). Not every “proceeding” requires the Tribunal to review a decision. It may, for example, require it to consider an application for a costs certificate under s 10A of the Federal Proceedings (Costs) Act 1981[89] or an incidental application made in the course of or in connection with an application.[90]  Neither requires the Tribunal to review a decision.

   [89] AAT Act, s 3(1)(d)

   [90] AAT Act, s 3(1)(h)

1. Sections 33(1) and 40(1A) are but two examples of the powers conferred on the Tribunal.  They are illustrative of the distinction that Parliament has drawn between procedural powers and the power to review that is the subject of
   s 43(1).  In view of that distinction, I am of the view that the powers and discretions given to the Tribunal under s 43(1) for the purpose of reviewing a decision do not encompass powers of a procedural sort.

   
   

Section 19A of the VE Act: does it confer a power and discretion for the purpose of reviewing a decision?

1. On its face, s 19A of the VE Act confers powers on the Commission. Provided they come within the description of being powers for the purpose of reviewing a decision, they are powers that may equally be exercised by the Tribunal standing in the shoes of the Commission. That is the effect of s 43(1) in light of the Federal Court authorities to which I have referred. In my view, though, they are not powers for the purpose of making of a decision whether making it in the first instance or in reviewing it. Instead, they are powers for the purpose of investigating or considering a claim. Neither purpose carries with it the notion of deciding and I will explain why I have reached that conclusion.

1. The ordinary meaning of “investigate” is to “… carry out a thorough, detailed and often official inquiry into, or examination of, something or someone. …”.[91] In the context of r 3(2)(c) of the Health Insurance Commission Regulations 1975,[92] Merkel J, with whom von Doussa and Carr JJ agreed, said that “… the word bears its ordinary meaning, being the act or process of searching or inquiring in order to ascertain facts …”.[93]  That would seem to be the meaning the word “investigate” is intended to have in s 19A(1). There is no suggestion of deciding the facts or of reaching a concluded view on a matter to which they are relevant.

   [91] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

   [92] Renamed the Medicare Australia Regulations 1975

   [93] Health Insurance Commission v Freeman (1998) 158 ALR 267 at 272

1. The word “consider” also lacks the quality of reaching a decision.  Its ordinary meanings include:

   “… 1 to go over something in one’s mind. 2 to look at someone or something thoughtfully. 3 to call to mind for comparison, etc. 4 to assess with regard to employing, using, etc  consider someone for a job. 5 to contemplate doing something. 6 to regard as something specified.  He considered Neil to be his best friend. 7 to think; to have as one’s opinion. 8 to take into account; to make allowances for. …”[94]

   [94] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

1. Although a consideration may result in a decision of some sort, a decision is not an essential element of the ordinary meanings of the word “consider”. It was not an essential element when the Full Court of the Federal Court considered whether the Minister for Aboriginal and Torres Strait Islander Affairs had considered the representations received from interested persons as required by s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.  As Black CJ said:

   “         The meaning of ‘consider’ used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, 2^nd ed, as ‘to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of’.  Consideration of a document such as a representation or a submission … involves an active intellectual process directed at that representation or submission.”[95]

   [95] Norvill v Chapman (1995) 133 ALR 226 at 238

1. When regard is had to s 19, it becomes clear that the words “investigate” and “consider” have been used in s 19A(1) in their ordinary meanings. Section 19(1) expressly separates the Commission’s obligation imposed by s 19(1)(a) to “consider” all matters from its obligations imposed under ss 19(1)(a)-(d) to “determine” a claim or application as the case may be.  The process provided by s 17 also separates the “investigation” by the Secretary from the process of “consideration and determination” by the Commission.  The separation of the consideration from the determination of the claim or application is also apparent in the way in which s 18 sets out the Commission’s duties in relation to pensions.  Section 18(1) provides:

   “It is the duty of the Commission in considering a claim or application submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application.”

Even though s 18(1) provides for determination of matters relevant to the determination of the claim or the application as part of the consideration, there remains a separation of their determination as part of the consideration from the final determination of the claim or the application.

1. Having regard to these matters, I have reached the view that the powers and discretions conferred by the VE Act on the Commission for the purpose of making a decision do not include those in s 19A of that legislation. Therefore, this Tribunal does not have those powers and discretions by virtue of s 43(1) of the AAT Act.[96]

   [96] I note that this conclusion is inconsistent with the assumption made by Deputy President Jarvis in Re Van Heteren and Repatriation Commission (2004) 40 AAR 7 that the Tribunal has power under s 19A of the VE Act. He expressed that power in terms of being a power “to defer further consideration of the claim until the applicant had undergone the examinations” (at [25]).  On my analysis of the provisions of the VE Act and the AAT Act, the Tribunal is not considering a claim but re-examining a decision made after a claim has been considered.  The two processes are separate and their separation is recognised both in the VE Act and in the AAT Act.

The practical consequences of my conclusion

1. Ms Madden submitted that the Tribunal would be less favourably placed than the Commission were it not to have the powers under s 19A. I do not agree. The Tribunal has its own powers to obtain relevant material. I have already referred to the summons power under s 40(1A) of the AAT Act in relation to the PBS histories. It also has the power under s 33 and, in particular, that under s 33(2A)(a) of the AAT Act. That latter power enables it to place the burden of obtaining information on one party or the other. On its face, it is not limited by the extent to which the Tribunal could obtain the same information were it to issue a summons under s 40(1A). If a person who is an applicant were to fail to comply with a direction made under s 33(2A)(a) within a reasonable time, arguably the Tribunal could look to its power in s 42A(5) to dismiss the person’s application without proceeding to review the decision.

1. I do not propose to consider further the precise extent of the powers under s 33 in the context of this case for the parties may wish to make submissions on that issue.  For that purpose, I will adjourn further consideration of the issues raised by the directions hearing.

1. For the reasons I have given, I:

   1.decide that:

   s 19A of the Veterans’ Entitlements Act 1986 does not confer powers or discretions that may be exercised by the Tribunal for the purpose of reviewing a decision within the meaning of s 43 of the Administrative Appeals Tribunal Act 1975; and

   2.adjourn further consideration.

   I certify that the one hundred and eight preceding paragraphs are a true copy of the reasons for the decision herein of
   Deputy President S A Forgie,

Signed:           .......................................................................
  Kate Conners  Associate

Dates of Hearing  2 and 24 October 2008

Date of Decision  27 November 2008

Solicitor for the Applicant            Mr D De Marchi

De Marchi & Associates
Barristers and Solicitors

Solicitor for the Respondent         Ms C Madden
  Australian Government Solicitor