SEOUD and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

DECISION AND REASONS FOR DECISION [2011] AATA 640
ADMINISTRATIVE APPEALS TRIBUNAL
2011/3530
GENERAL ADMINISTRATIVE DIVISION
Re: ALBERTA SEOUD
Applicant
And: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION

Tribunal:                   Deputy President S A Forgie
Place:  Melbourne
Date:  13 September 2011
Decision:The Tribunal decides to extend the time within which the applicant may make an application for review of a decision of the Social Security Appeals Tribunal dated 8 June 2011 to 30 August 2011 being the date the applicant lodged her application for review.

S A Forgie
Deputy President

CATCHWORDS – extension of time application – application and fee required for application to be made - whether application fee required – AAT website states no fee payable in respect of applications for review of decisions under social security law – inconsistent with Item 9A of Schedule 3 of the Administrative Appeals Tribunal Regulations 1976 – erroneous reference to s 23(15) of the Social Security Act 1991 – whether Tribunal can read Regulations as if correct reference to s 23(17) appears – clarity of the law a feature of the rule of law - application to extend time granted.
Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1
Re DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377; (2010) 115 ALD 566
Re Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577
Re Eggu and Minister for Immigration and Citizenship [2010] AATA 1003; (2010) 54 AAR 32
Re Jonsson and Marine Council (No 2) [1990] AATA 192; (1990) 12 AAR 323
Re Lawrie and Secretary, Department of Family and Community Services (1998) 54 ALD 483
Acts Interpretation Act 1901 s 33(3)
Administrative Appeals Tribunal Act 1975 s 29(7)
Social Security Act 1991 s 23(1), 23(15), 23(17)
Social Security (Administration) Act 1999
Social Security (International Agreements) Act 1999 s 4
Administrative Appeals Tribunal Regulations 1976 Sch 3
Administrative Appeals Tribunal Amendment Regulations (No 1) 2001
Administrative Appeals Tribunal Amendment Regulations (No 1) 2005
Administrative Appeals Tribunal Amendment Regulations (No 1) 2010
Administrative Appeals Tribunal Amendment Regulations (No 2) 2010
Drafting Direction No 4.4 Statute law revision amendments – Office of Parliamentary Counsel
John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press
DC Pearce and RS Geddes, 2011, Statutory Interpretation in Australia, 7^th edition, LexisNexis Butterworths
REASONS FOR DECISION
Mrs Alberta Seoud has applied for an extension of time in which to lodge an application for review of a decision made by the Social Security Appeals Tribunal (SSAT) rejecting a claim for a pension she had made under the Social Security Act 1991 (SS Act). The SSAT made its decision on 8 June 2011 and, together with an application to extend the time within which to make it, Mrs Seoud lodged her application for review of the decision on 30 August 2011. The Registry sent a copy of her application to the Department of Families, Housing, Community Services and Indigenous Affairs (Department) asking whether it opposed Mrs Seoud’s application or not. It has advised that it has no objection to my extending the time. Having regard to s 29(7) of the Administrative Appeals Tribunal Act 1975 (AAT Act) and to the principles that I set out in Re DHLD and Executive Director, Social Security Appeals Tribunal,[1] I decided to extend the time in which Mrs Seoud might lodge her application.

[1] [2010] AATA 377; (2010) 115 ALD 566 at [37]- [45]; 579-583

I then had to decide on the date to which I was extending that time and that depended on whether she was required to pay a fee. If she was, the first date on which she had both lodged her application and paid the fee would be the date I should decide upon.[2] If she was not, the date to which I would extend time would be the date on which she lodged her application i.e. 30 August 2011. The Tribunal’s website suggests that Ms Seoud does not have to pay a fee because a decision under the
[2] See my reasons in Kennedy and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 102 regarding the criteria that must be satisfied before a person can be regarded as having made an application to the Tribunal.
SS Act is a decision made under an Act or enactment listed in Schedule 3 of the Administrative Appeals Tribunal Regulations 1976 (Regulations). The relevant passage is:
“Information about application fees
Application fees
When you apply to the Administrative Appeals Tribunal (AAT) for review of some kinds of decisions, there is no application fee. For the review of other decisions, a fee must be paid.
If a fee is payable, the full application fee is $777. In certain circumstances, this fee can be reduced to $100.
If your application will be dealt with in the Small Taxation Claims Tribunal, the application fee is $77. This fee cannot be reduced.
Your application cannot proceed until you pay the application fee.
If you have paid a full application fee and the application is resolved in your favour, most of it will be refunded. There is no refund if you paid the reduced application fee or if your application was dealt with in the Small Taxation Claims Tribunal.”
A careful person using the Tribunal’s website will be well aware that the word “Disclaimer” appears at the foot of the Home page of the website and every page thereafter including that page headed “Information about application fees”. The opening paragraph of that Disclaimer reads:
“This website is provided as a general information service. The Commonwealth of Australia accepts no responsibility for the accuracy or completeness of the material contained on the site. We recommend that you exercise your own skill and care, and seek professional advice if necessary, before relying on any such material.”
Following the advice in the Disclaimer, I clicked on the hyperlink in the “Information about application fees” indicated by the words “no application fee”. I was directed to the passage of the text headed “When do you not have to pay an application fee?”, which reads:
“In certain circumstances, you do not have to pay an application fee.
1.No fee is payable if the decision to be reviewed is listed in Schedule 3 to the Administrative Appeals Tribunal Regulations 1976 (see list below). This includes decisions about Commonwealth workers' compensation, family assistance and social security payments and veterans' entitlements.
2.No fee is payable if the decision was made under the Freedom of Information Act 1982 in relation to a document which relates to a decision under Schedule 3 to the Administrative Appeals Tribunal Regulations 1976.”
Clicking on the hyperlink marked by the words “see list below” took me to a list of decisions. The relevant passage from that list, which includes its
heading, is:
“Decisions which do NOT attract an application fee under Schedule 3 of the Administrative Appeals Tribunal Regulations 1976
Decisions under the following Acts or enactments:
·     …
·     Social Security Act 1991, Social Security (Administration) Act 1999; Social Security (International Agreements) Act 1999;
·     …”
Continuing to follow the advice in the Disclaimer, I looked for the Regulations, to which reference is made in this list. They are found by going to the “Law and practice” entry on the Tribunal’s website. That takes me to “Legislation” which, in turn, takes me to advice that “A consolidated copy of the Administrative Appeals Tribunal Act 1975 and the Administrative Appeals Tribunal Regulations 1976 are available at the ComLaw website.” I clicked on the hyperlink for Regulations and that took me to the Regulations at the ComLaw website. Once there, I read Schedule 3, to which reference had been made on the Tribunal’s website, to check that a decision under the SS Act was listed in it. If it was, the Tribunal’s advice on its website that I have reproduced at [4] above was that no fee would be payable in respect of the application Mrs Seoud had lodged.
Schedule 3 of the Regulations is headed “Prescribed decisions for the purposes of regulation 19 (regulation 19)”. It then lists 12 decisions or groups of decisions. The relevant entry in the context of this matter is that listed against Item 9A. It reads:
“A decision under the social security law within the meaning of subsection 23(15) of the Social Security Act 1991.”
When s 23(15) of the SS Act is found on ComLaw, it is immediately seen that it has nothing to do with what is meant by the expression “social security law”. Instead, it specifies those who are family members in relation to a person for the purposes of Part 2.11 of the SS Act and the Youth Allowance Rate Calculator in
s 1067G. Section 23(17), on the other hand, does refer to the social security law and its meaning when it provides:
“A reference in this Act to the social security law is a reference to this Act, the Administration Act and any other Act that is expressed to form part of the social security law.”
The “Administration Act” is a reference to the Social Security (Administration) Act 1999.[3] Although a little more difficult to find, a search of ComLaw reveals that the Social Security (International Agreements) Act 1999 “… forms part of the social security law.”[4]
[3] SS Act, s 23(1)
[4] Social Security (International Agreements) Act 1999, s 4
The careful would be applicant is now faced with a dilemma. On the one hand, the decisions made under Acts listed on the Tribunal’s website as not attracting an application fee include the three Acts that form part of the social security law as defined in s 23(17) of the Regulations. On the other, s 23(17) is not relevant to the identification of such decisions for Item 9A of Schedule 3 refers only to a decision made under the social security law within the meaning of s 23(15) of those Regulations.
On the face of it, it would seem that there has been a mistake made in drafting Schedule 3. When regard is had to the fact that s 23(15) does not attribute a meaning to “social security law” and to the Explanatory Statement accompanying the Administrative Appeals Tribunal Amendment Regulations (No 1) 2001 that introduced Item 9A into Schedule 3, it would seem that the reference should have been to
s 23(17) of the SS Act and not to s 23(15). As the Explanatory Statement said:
“Schedule 1, Item 3 inserts a new item 9A in Schedule 3 that specifies decisions made under the social security law as that term. [sic] is defined in the Social Security Act 1991.”
There may be some who say that the error is of no consequence. Presumably, they would make that comment on the basis that, where it is obvious that a simple mistake in the form of a drafting error has been made, the courts may read Item 9A as it would seem it was intended to do i.e. as a reference to s 23(17) and not to s 23(15) of the SS Act. A telephone call to the Tribunal will provide all the reassurance that is needed to anybody who has any query on the subject.
That does not necessarily help the careful would be applicant for there would be a number of conflicting thoughts in his or her mind. First, in view of the Disclaimer on the Tribunal’s website, why would it not apply equally to statements made orally? Second, on what authority is it said that the wording of Item 9A can be ignored? Is it not the case that legislation, and so presumably regulations, cannot be amended by a simple stroke of a pen or strike of a keyboard?[5] Can the Tribunal as well as a court characterise a regulatory provision as a mistake and substitute other words? Third, the concept of the rule of law will be known to any secondary school student who has attended Legal Studies classes. It is a fundamental proposition of the rule of law that underpins the system of government in Australia[6] that the rules or laws governing people’s behaviour and their rights and entitlements and corresponding duties and responsibilities are known to them and to everyone else or can be readily discovered by them.[7] With that in mind, the careful would be applicant would ponder the omission of any statement on the Tribunal’s website explaining why it attributes a meaning to one of the items in Schedule 3 in terms that are not found in Schedule 3 at all. Fourth, even if he or she is the beneficiary of the interpretation attributed to Schedule 3 in the Tribunal’s website in the sense that he or she is not required to pay an application fee in respect of a decision made under the SS Act, is that correct? He or she has no means of checking that it is right and so no means of being satisfied that someone will not challenge the validity of his or her application in the future. Fifth, the careful would be applicant would wonder whether the fact that Item 9A has been in its current form for a long time means that Item 9A really was intended to be read as it is written. That is particularly so when regard is had to the fact that the Regulations have been amended since it was made. If it was not intended to be read as it is written, surely the opportunity would have been taken to amend the error on one of the three occasions on which the Regulations have been amended since 2001.[8]
[5] “Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by‑laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.” (emphasis added): Acts Interpretation Act 1901, s 33(3).
[6] Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1; Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ; Latham CJ dissenting at 193 per Dixon J
[7] “… [T]he regular and impartial administration of public rules, becomes the rule of law when applied to the legal system.” John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press at 206. “… [T]he basic structure of society, is a public system of rules … A person taking part in an institution [society] knows what the rules demand of him and of the others. He also knows that the others know this and that they know that he knows this, and so on. … The publicity of the rules of an institution [society] insures that those engaged in it know what limitations on conduct to expect of one another and what kinds of action are permissible. There is a common basis for determining mutual expectations. …”: John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press at 48-49
[8] Administrative Appeals Tribunal Amendment Regulations (No 1) 2005 (No. 154 of 2005), Administrative Appeals Tribunal Amendment Regulations (No 1) 2010 (No. 151 of 2010) and Administrative Appeals Tribunal Amendment Regulations (No 2) 2010 (No. 241 of 2010)
These are not questions that can be easily answered from a search of the Internet using Google or some other search engine or from a search of past authorities (previously decided cases) on What does come up on a Google search is a reference to Drafting Direction No 4.4 prepared by the Commonwealth’s Parliamentary Counsel regarding the correction of errors in legislation. What does not appear is a similar document in relation to the correction of errors in regulations, which, as I understand matters, are not prepared by the Office of Parliamentary Counsel (OPC) but by the Office of Legislative Drafting (OLD). That is not a criticism. I simply note the fact that there appears to be a difference. Even if OLD had issued a similar drafting direction, the careful would be applicant would not be assisted. All that he or she would be able to ascertain was that the error could be corrected by amendment.
The careful would be applicant would not be able to find the case of
Re Lawrie and Secretary, Department of Family and Community Services,[9] and so discover that the Tribunal has encountered an error on at least one occasion in the past even though that was in an Act and not in regulations. Deputy President Barnett was faced with a section of the SS Act that should have referred to lump sum compensation amounts received “on or after 20 March 1997” but read, instead, “received before 20 March 1997”. He said:
“(15) A drafting or printing error has clearly occurred, and if the words are given their literal meaning it leads to an irrational and absurd result – leading to the frustration of the parliament’s clear intent. Mr MacIver quote ample authority for the proposition that, in circumstances where legislation, read literally, is unintelligible, and the meaning intended by parliament is perfectly clear, the courts may correct the error in expression. In the words of Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd (1981) 147 CLR 297 at 304;
35 ALR 151 at 156:
There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case.
(16) In this case the section is meaningless unless the tribunal ‘assumes a mistake and corrects it so as to accord with the obvious intention of the legislature’: per Muirhead J in Lindner v Wright (1976) 14 ALR 105 at 111 (SC(NT)). …”[10]
[9] (1998) 54 ALD 483
[10] (1998) 54 ALD 483 at 485-486. Nor would he or she be able to find the far more comprehensive statement of the law on the subject in DC Pearce and RS Geddes, 2011, Statutory Interpretation in Australia, 7^th edition, LexisNexis Butterworths at [2.28]
That passage does not entirely answer the question that might be raised regarding the Tribunal’s, as opposed to a court’s, power to correct an error. The passage assumes the power. It does not address the basis on which a tribunal, which is not a court and so cannot exercise judicial power, can presume to read into the text of legislation passed by Parliament words other than the words used by Parliament. Delegated legislation or legislative instruments, such as the Regulations in this case, are made by the Executive arm of government under the authority of legislation passed by Parliament and Parliament has the opportunity to scrutinise and disallow it. The reason lies in the general proposition that, unless modified by a particular statutory provision, the Tribunal must make the correct decision when reviewing a decision and, if more than one is correct, the preferable decision.[11] A decision will be correct if it is made according to the applicable law on findings of fact properly made on the evidence or material before the Tribunal. That means that the law must be identified and interpreted. Its meaning may be clear from its words. If it is not, then the general law has developed a number of rules of interpretation to assist and Parliament has passed the Acts Interpretation Act 1901. Those rules are no less available to administrators who must apply the law as to the courts which will finally determine its meaning. Unlike the courts, administrators and bodies such as the Tribunal do not determine the law but they must interpret it daily in order to apply it.[12] It is in this way that the Tribunal can decide that an error has been made in Schedule 3 of the Regulations and read it as it would seem that Parliament intended. If an administrator or the Tribunal makes an error in interpretation, it stands to be corrected by the courts which, as I have said, ultimately determine the law.
[11]Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J
[12] For an elaboration of my reasons see Re Jonsson and Marine Council (No 2) [1990] AATA 192; (1990) 12 AAR 323 at [81]-[96]; 335-341 and Re Eggu and Minister for Immigration and Citizenship [2010] AATA 1003; (2010) 54 AAR 32 at [25]-[28]; 40-41

There will be those who may question why I have taken the time to write these reasons. The answer lies in the rule of law, to which I have referred. The law must be accessible by everybody who is, or may be, affected by it. Unless there are strong public interest considerations to the contrary – and this is not a case in which they arise – the manner in which it is interpreted and applied must be equally accessible to all. Only in that way can a person know what the rules are, how they will be applied and why they are applied in that way. The “why” is as important as the “what” and the “how” for all three will illuminate whether the rules are being applied consistently or arbitrarily. As with any law, all three are relevant in enabling a person to determine how to act and whether to act at all because all three are relevant in predicting any response that may follow from others who are determining their response and behaviour in the same framework of rules. Until the error in Item 9A of Schedule 3 to the Regulations is corrected, these reasons may assist the careful would be applicant in understanding why the Tribunal’s website would seem to be at odds with the wording of Item 9A. A careful would be applicant should be able to find them on a search of and, perhaps, even by using Google or some other search engine to search the Internet.
I certify that the sixteen preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed:           .......................................................................
  Leah Berardi, Associate
Application for extension of time 30 August 2011
Date of Decision  13 September 2011
ApplicantMrs A Seoud
Solicitor for the Respondent         Mr M Hester
Centrelink – Program Litigation and Review

ADMINISTRATIVE APPEALS TRIBUNAL 2011/3530 GENERAL ADMINISTRATIVE DIVISION
Re:	ALBERTA SEOUD Applicant
And:	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established