Robert Kann and Decision Maker
[2014] AATA 73
•14 February 2014
[2014] AATA 73
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6595
Re
Robert Kann
APPLICANT
And
Decision Maker
RESPONDENT
Decision
Tribunal Mr S. Webb, Member
Date 14 February 2014 Date of written reasons 18 February 2014 Place Canberra No jurisdiction - the application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975.
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Mr S. Webb, Member
PRACTICE & PROCEDURE – jurisdiction – Defence service terms and conditions - rent allowance determination – Defence redress of grievance procedure – no jurisdiction
Administrative Appeals Tribunal Act 1975, s 25, 70
Defence Act 1903, s 58B
Public Service Act 1999, s 24
Administrative Appeals Tribunal Regulations 1976, r 19
Defence Determination 2005/15
Defence Determination 2011/16
REASONS FOR DECISION
Mr S. Webb, Member
18 February 2014
Robert Kann is a lieutenant in the Royal Australian Navy. His family is located in Queensland. He is posted to Canberra. Under Defence Determination 2005/15 as amended by Defence Determination 2011/16 (the Determination), Mr Kann is entitled to a rent allowance paid by the Commonwealth. He is in dispute with Defence about a determination concerning the amount of the rent allowance that is payable. He sought review of the determination under the Redress of Grievance procedures, without success. The matter was finalised by a decision of the Chief of the Defence Force on 5 August 2013. Unhappy with this result Mr Kann applied to the Tribunal for review.
The issue to be decided, presently, is whether the Tribunal has jurisdiction to review the rent allowance decision that is the subject of Mr Kann’s application.
Mr Kann provided lengthy written submissions which he explained at the hearing. I adjourned the hearing at first instance so that Mr Kann could obtain legal advice. He made further written and oral submissions at the resumed hearing.
Essentially, he raises three propositions –
(a)The Administrative Appeals Tribunal Regulations 1976 (the Regulations) prescribe fees for applications of various kinds, including no fee in respect of an application for review of a determination under s 58B of the Defence Act1903 (Defence Act). Positive provisions of this kind in a schedule to the Administrative Appeals Tribunal Act 1975 (the AAT Act) may over ride provisions in the body of the Act, such as s 25. In Mr Kann’s submission, it follows that the Tribunal has jurisdiction to review decisions under s 58B, including the rent allowance decision that is the subject of his application.
(b)The Tribunal website lists decisions under s 58B of the Defence Act as reviewable. Mr Kann says that this confirms the Tribunal has jurisdiction.
(c)A determination under s 58B of the Defence Act may incorporate, by reference, elements of any other determination under this section, as well as determinations under s 24 of the Public Service Act 1999. Even though Mr Kann has not “traced a reference cross that gives definitive authority for AAT review of my concerns using that approach”[1], he asserts that the Tribunal is established to conduct quasi-judicial reviews of administrative decisions by the Commonwealth. He maintains that this purpose is reflected in s 25 of the AAT Act, which provides that an enactment may provide that applications may be made to the Tribunal, but the Tribunal has power to review any decision in respect of which application is made to it under any enactment. Mr Kann says that this is sufficient jurisdictional foundation for the Tribunal to conduct a merits review of the decision that is the subject of his application.
[1] Applicant submission, 5 February 2014, page 1.
For reasons I gave orally at the hearing, the propositions advanced by Mr Kann fail, and the Tribunal does not have jurisdiction to review the decision he contests.
As to Mr Kann’s first proposition, the Regulations are not a schedule to the AAT Act. The prescription of regulations is governed by the Act. The designation ‘regulations’ is not simply “a matter of drafter’s word choice”[2]. The Regulations are made under s 70 of the Act and they are to be construed in a manner that is consistent with the Act.
[2] Applicant’s written submissions, 5 February 2014, page 1.
The reference to s 58B of the Defence Act in Schedule 3 of the Regulations is simply for the purpose of prescribing a fee, namely that no fee is payable, where an application is made in respect of a determination under that section. It does not follow, and it cannot be inferred, that every determination under s 58B is reviewable by the Tribunal.
Under s 25 of the AAT Act, the Tribunal’s power to review a decision is subject to an application under an enactment – the Tribunal does not exercise power at large:
25 Tribunal may review certain decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
(3) Where an enactment makes provision in accordance with subsection (1), that enactment:
(a)shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)may specify conditions subject to which applications may be made.
…
(4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
…
The word ‘enactment’ is defined under s 3(1) to include an instrument made under an Act.
In its terms, the Defence Act does not make provision for application to be made to the Tribunal for review of a determination under s 58B of that Act. Section 58B provides for the Minister to make determinations of various kinds. It is necessary to consider the terms of each determination, being an instrument made under the Act, to ascertain whether or not provision is made for review by the Tribunal.
The Determination does not provide, generally, for review by the Tribunal of decisions within its terms. There is express provision made under clause 11.2.25 of the 2005 Determination for review by the Tribunal of a decision relating to payment of severe injury adjustment or additional death benefit. But this does not apply generally to other kinds of decisions made under the Determination.
The disputed decision about Mr Kann’s rent allowance was made under Chapter 7 of the Determination. This Chapter does not provide for review by the Tribunal of decisions within its terms.
The construction of the Regulations and the AAT Act pressed by Mr Kann is ill-conceived and it cannot be accepted. His first proposition fails because the Determination and s 58B of the Defence Act do not confer jurisdiction on the Tribunal to review a decision in respect of rent allowance under Chapter 7 of the Determination.
As to Mr Kann’s second proposition, the reference to s 58B of the Defence Act on the Tribunal’s website is simply a reflection of the Regulations. It does not assist Mr Kann’s case. Even if the entry purported jurisdiction of the kind Mr Kann seeks, it would not be binding or effective without a proper legislative foundation, and no such foundation exists.
Mr Kann’s third proposition lacks merit. As I have said, the Tribunal does not exercise power at large and its jurisdiction is conferred by enactment. Mr Kann has failed to establish that the Tribunal has jurisdiction to review the decision that is the subject of his application.
I am satisfied that the decision is not reviewable by the Tribunal and that it is appropriate to dismiss Mr Kann’s application under s 42A(4) of the AAT Act.
For these reasons, Mr Kann’s application is dismissed.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
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Associate
Dated 18 February 2014
Dates of hearing 22 January 2014, 14 February 2014 Date final submissions received 14 February 2014 Applicant In person
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