Scully and Secretary, Department of Employment

[2016] AATA 842

Scully and Secretary, Department of Employment [2016] AATA 842 (4 October 2016)

Division	GENERAL DIVISION
File Number(s)	2016/4096
Re	Martin Scully
APPLICANT
And	Secretary, Department of Employment
RESPONDENT

DECISION

Tribunal	Professor R Deutsch, Deputy President
Date	4 October 2016
Date of written reasons	26 October 2016
Place	Sydney

The Tribunal decides that it does not have jurisdiction to consider the application for review of the Respondent’s decision dated 6 February 2016.

........................[sgd]................................................

Professor R Deutsch, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – interlocutory hearing – jurisdiction question – whether a decision of the Secretary to refuse a reconsideration request is reviewable – non reviewable decision – tribunal does not have jurisdiction to consider the application for review

LEGISLATION

Fair Entitlements GuaranteeAct 2012, s 38, s 40

Taxation Administration Act 1953, s 14ZX

REASONS FOR DECISION

Professor R Deutsch, Deputy President

26 October 2016

1. Mr Scully, the Applicant, lodged an application with this Tribunal for review of a decision of the Secretary, Department of Employment dated 6 February 2016. That decision was a refusal to reconsider the decision dated 9 September 2014 in relation to the Applicant’s Fair Entitlements Guarantee advance.

2. The Applicant requested a reconsideration on 28 January 2016, well over 28 days after the date of notice of the decision. Section 38 of the Fair Entitlement Guarantee Act 2012 (the Act) sets out the requirements for requesting a reconsideration:

   1A person may apply to the Secretary for review of:

   (a)a decision whether the person is eligible for an advance; or

   (b)a decision on the amount of an advance the person is eligible for.

   2The application must be made within 28 days after the date of the notice of the decision or such longer time as the Secretary allows.

3. The Secretary did not allow the Applicant’s late application pursuant to s 38(2).

4. On 4 October 2016 the parties, Mr Scully self-represented and the Secretary represented by Mr Holcombe appearing by telephone, appeared before the Tribunal at an interlocutory hearing to address the jurisdiction issue in this matter. These are the written reasons of my oral decision given on that day.

5. The difficulty I have which I think I have already articulated to the parties at hearing is that the legislation in this particular circumstance is fairly clear. Section 40 of the Act makes it abundantly clear that the review for the Administrative Appeals Tribunal can only be in respect of two different types of matters.  One is a decision by the Secretary of whether the person was eligible for an advance and the other is a decision by the Secretary on the amount of the advance.

6. This matter does not raise either of those types of decisions because this is a decision specifically about time and particularly about the time under section 38 and subsections (1) and (2).  Subsection (2) in particular refers to the application needing to be made within 28 days after the date of the notice of the decision.  In this particular instance, the Secretary has decided not to allow a longer time.  That is not a matter which is capable of review before this Tribunal.  In reaching this conclusion I note that:

   (a)in an unpublished decision before this Tribunal which was brought to my attention by the respondent, Deputy President Melick came to the same conclusion; and  

   (b)in other statutory contexts where time is a reviewable matter there is a specific provision allowing for such review: see, for example, s 14ZX of the Taxation Administration Act 1953, in particular subsection 4:

   Commissioner to consider applications for extension of time

   1After considering the request, the Commissioner must decide whether to agree to it or refuse it.

   2The Commissioner must give the person written notice of the Commissioner’s decision.

   3If the Commissioner decides to agree to the request, then, for the purposes of this Part, the objection is taken to have been lodged with the Commissioner within the required period.

   4If the Commissioner decides to refuse the request, the person may apply to the Tribunal for review of the decision.

   DECISION

7. Accordingly the Tribunal does not have jurisdiction to consider the application for review of the Respondent’s decision dated 6 February 2016.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President

.........................[sgd]...............................................

Associate

Dated 26 October 2016

Date(s) of hearing	4 October 2016
Applicant	In person
Solicitors for the Respondent	Mr L Holcombe, HWL Ebsworth Lawyers