SBZQ and National Disability Insurance Agency

The Administrative Appeals Tribunal (AAT) considered a dispute between SBZQ, the applicant, and the National Disability Insurance Agency (NDIA), the respondent. The core of the dispute concerned the validity of a review application lodged with the Tribunal on behalf of SBZQ, a child participant in the National Disability Insurance Scheme (NDIS). SBZQ had been placed in the care of Ms Pedrotti, her foster mother, and the Secretary of the Department of Families, Fairness and Housing had been appointed as SBZQ's legal guardian. The NDIA and the Secretary argued that the review application was a nullity because it was lodged by an advocate at the direction of Ms Pedrotti, rather than by the Secretary as the legal guardian.

The Tribunal was required to determine whether the review application had been validly lodged, and consequently, whether the Tribunal had jurisdiction to hear the matter. Specifically, the Tribunal had to consider whether the lodgement of a review application under the AAT Act constituted a "thing to be done by or in relation to a child" as contemplated by the NDIS Act, and whether the failure of the legal guardian to lodge the application personally or direct its lodgement rendered the application void. The Tribunal also had to consider the potential impact of finding the application invalid on SBZQ's substantive right to seek review.

The Tribunal reasoned that while the Secretary was SBZQ's legal guardian, the absence of meaningful contact between the Secretary and Ms Pedrotti, and the Respondent's apparent lack of engagement in ensuring SBZQ's representation by an authorised person, contributed to the procedural issue. The Tribunal viewed the defect as procedural or administrative, noting that SBZQ had review rights. Crucially, the Tribunal observed that the Secretary had been made aware of the application and had had the opportunity to take steps to correct the administrative error or otherwise participate in the proceedings. The Tribunal applied section 27(1) of the AAT Act, which permits applications to be made by or on behalf of any person whose interests are affected by a decision, and considered the overarching objective of the Tribunal to provide a fair, just, economical, informal, and quick mechanism of review.

The Tribunal concluded that it had jurisdiction to determine the review application. It found that the application, though lodged in a manner that did not strictly comply with the expectation that the legal guardian would initiate it, was not a nullity. The Tribunal indicated that the application could be validated retrospectively, and that it possessed the jurisdiction to proceed with the merits review of SBZQ's decision.