Schumack v Secretary, Department of Health and Ageing

[2004] FCA 1634

FEDERAL COURT OF AUSTRALIA

Schumack v Secretary, Department of Health & Ageing [2004] FCA 1634

PETER JAMES SCHUMACK V SECRETARY, DEPARTMENT OF HEALTH AND AGEING

A 29 OF 2004

MADGWICK J
24 NOVEMBER 2004
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 29 OF 2004

BETWEEN:	PETER JAMES SCHUMACK APPLICANT
AND:	DEPARTMENT OF HEALTH AND AGEING RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	24 NOVEMBER 2004
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        No order as to costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 29 OF 2004

BETWEEN:	PETER JAMES SCHUMACK APPLICANT
AND:	DEPARTMENT OF HEALTH AND AGEING RESPONDENT

JUDGE:	MADGWICK J
DATE:	24 NOVEMBER 2004
PLACE:	CANBERRA

REASONS FOR JUDGMENT

MADGWICK J:

1. The applicant has purported to appeal to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). That section, as is well known, provides for an ‘appeal’ to this Court on a question of law from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) in a proceeding before it. In this case, the Tribunal determined that it had no power to review a decision which the applicant had asked the Tribunal to review.

2. That decision, it appears, was a decision of an officer of the Department of Health not to provide statistical information about the male to female ratio of 17 applicants for a position in the service of that department, at a level known as APS6.  The applicant had been one of the applicants for that position. 

3. The applicant, unfortunately, has been unemployed for a number of years and, despite assiduously applying for many positions for which he believes himself to be well qualified, has had no success, often it seems not even being asked to an interview.  The applicant had formed a belief, or at least a suspicion, that there was a discriminatory culture against men operating in the Department of Health and perhaps elsewhere in the Australian Public Service and he sought the information with a view to trying to ascertain and demonstrate whether there had been some sexual discrimination against him in relation to the job in question.

4. The Tribunal, by its Registrar, notified the applicant that his application appeared not to fall within the jurisdiction of the Tribunal and invited him to demonstrate that the Tribunal had the power to review the decision. The applicant, in the view of the Tribunal, failed to do this and, on 4 August 2004, the Registrar notified the applicant of a determination of a Tribunal member that his application had been dismissed under s 42A(4) of the AAT Act. That provision allows for the dismissal of an application without proceeding to review the decision sought to be reviewed, where a person is unable to show, after due notification, that the decision is reviewable by the Tribunal.

5. The applicant’s notice of appeal in this Court says:

   ‘The questions of law raised on appeal are: 

   (a)Employment discrimination both direct and indirect, external application for job promotion, APS6 level; 

   (b)Employment age discrimination at age 50; 

   (c)Employment sex discrimination as a male; 

   (d)Right to be considered in isolation as an external applicant for promotion to APS Level 6 based upon (a), (b) and (c) above; 

   (e)Access to statistical employment data; 

   (f)Defamation of an Australian citizen as an external applicant and potential merit for promotion to APS Level 6 and long term career in the Department of Health; 

   (g)Liability against a Department and to pay compensation/damages and court costs.

   The orders sought include:

   (a)The Federal Court to quash the decision by the AAT.  As this is an emerging trend in the APS. 

   (b)The Federal Court make judgments upon raised questions of law. 

   (c)The Federal Court spearhead new policy change upon recruitment practices conducted by the Department of Health and Ageing.

   (d)The Federal Court award compensation and damages –

   …

   (e)The Department of Health and Ageing pay all legal costs. 

   (f)The Department of Health and Ageing surrender all statistical data concerning the 17 job applications for an advertised APS Level 6, upon both sex and age structure relationships.’

6. Thus, it is clear that the applicant has in mind that there may have been an illegal practice of failure to treat fairly applications for positions by ‘outside applicants’ as distinct from serving officers and employees, and that matters of age discrimination might also be involved in his plight.  This is confirmed by a lengthy statement of grounds which is also contained in the notice of appeal. 

7. In oral submissions, the applicant explained that he has been unable to obtain adequate legal aid, has had difficulty with more than one solicitor and has done his best to inform himself from internet sources, as he puts it, ‘researching both American and Australian law’.  He suggested his application to the Court was by way of a ‘scattergun’ approach in the hope that one shot might find its target.

8. It is a pity, if it be the case, that legal aid, at least to investigate and clearly advise a person in the applicant’s position, is not more readily available.  Nevertheless, I have to deal with the matter as it appears before me. 

9. The AAT Act deals with the powers, duties, procedures and constitution of the Tribunal. The structure of that Act is not to set up the Tribunal as a body with complete and over-arching jurisdiction as to all decisions of an administrative character made in the Australian Public Service. The Act recognises in terms that the powers of the Tribunal to review decisions are to be found in other Acts and, unless there is an Act which provides that an application for a review may be made to the Tribunal in respect of a certain decision, then the AAT Act does not give the Tribunal any jurisdiction in relation to that decision.

10. The applicant suggested that the Freedom of Information Act 1982 (Cth) (‘the FOI Act’) gives the Tribunal jurisdiction to review adverse decisions made to an applicant, and that is correct. However, it does not appear that the applicant ever made an application for information of the kind and in the way contemplated by the FOI Act, nor that there has been a decision under that Act to withhold information from him. Moreover, his application to the Tribunal did not itself assert that he was relying on any right of review given by the FOI Act.

11. In the circumstances, it seems to me that the Tribunal’s decision as to its jurisdiction was correct and is not attended by any error of law.  In the circumstances, no appeal lies to this Court.  The applicant’s application must be dismissed. No application for costs was made.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            13 December 2004

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 November 2004
Date of Judgment:	24 November 2004