SRBP and Tax Practitioners Board
[2015] AATA 302
•6 May 2015
[2015] AATA 302
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/5366
Re
SRBP
APPLICANT
And
Tax Practitioners Board
RESPONDENT
DECISION
Tribunal Duncan Kerr, President of the AAT
Date 6 May 2015 Place Hobart (in chambers) The Tribunal remain as constituted for the hearing of the substantive application.
........................[sgd].............................................
Duncan Kerr, President of the AAT
CATCHWORDS
PRACTICE AND PROCEDURE – application for reconstitution of Tribunal under s 21A of Administrative Appeals Tribunal Act 1975 (Cth) – President’s consideration of submissions - no sufficient basis for reconstitution – direction that Tribunal remain as constituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 21A
CASES
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
SRBP and Tax Practitioners Board [2015] AATA 292
Andelman v Secretary FHCSI (2011) 213 FCR 345; [2011] FCA 299
Andelman v Administrative Appeals Tribunal [2011] FCA 815
Mellor and Australian Postal Commission [2010] AATA 288
Nikjoo and Minister for Immigration and Border Protection [2013] AATA 921Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing (2012) 125 ALD 588; [2012] AATA 113
REASONS FOR DECISION
Duncan Kerr, President of the AAT
6 May 2015
BACKGROUND
This is an application by the Respondent seeking the reconstitution of the Tribunal pursuant to s 21A of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act). The substantive matter in which it arose is a review of a decision to cancel the Applicant’s registration as a Tax Agent. The Tribunal was constituted to hear that review by Senior Member O’Loughlin.
On 16 April 2015 the Australian Government Solicitor (AGS), acting for the Respondent, wrote to the District Registrar in Melbourne. The AGS’s letter stated:
The Respondent’s view is that in all the circumstances it would be prudent for this application to review to be reallocated to another Tribunal member for determination. The Respondent respectfully submits that would not be appropriate, at least in the sense of a conflict of interest adversely colouring the perceived impartiality the Tribunal, for the deciding Tribunal member to be acting on instructions from the Applicant’s solicitors in a continuing proceeding at the same time as adjudicating on a matter which the solicitors are acting for the Applicant.
Once the Tribunal is constituted, then subject to a not insignificant number of exceptions, but none of which are presently relevant, it is that Tribunal which becomes seized of the matter and it is to that Tribunal any request for a member to recuse his or herself or any application for the reconstitution of the Tribunal pursuant to s 21A of the Act must be made.
On 24 April 2015 the issues raised by the Respondent were considered by the Tribunal as constituted. The transcript of that proceeding suggests that the Respondent simultaneously pressed an application under subs 21A(1) of the Act and for Senior Member O’Loughlin to recuse himself pursuant to the conventional Ebner principles (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63).
At the conclusion of the hearing Senior Member O’Loughlin gave short oral reasons for not recusing himself. The Respondent requested the Tribunal to provide written reasons and it has done so (see SRBP and Tax Practitioners Board [2015] AATA 292).
As he was obliged to, Senior Member O’Loughlin has since provided me with copies of all relevant correspondence and submissions relating to the Respondent’s request which was made pursuant to s 21A of the Act.
CONSIDERATION
The heading of s 21A of the Act is ‘Reconstitution of Tribunal at the request of a party’.
Subject to certain exceptions not presently relevant, subs 21A(1) of the Act confers a right on a party to apply at any time for the Tribunal to be reconstituted for the purpose of a proceeding.
If such an application is made, the Tribunal as constituted must notify the President of the application and give the President particulars referred to in subs 21A(2) of the Act.
A first reading might suggest that this confers on any party an unconfined right to request the President to change the membership of the Tribunal for any reason and, subject to the general tenor of the Act, to confer on the President an unconfined power to take whatever factors he or she thinks fit to take into account in determining such an application.
However such a reading would not be correct. The President’s power under s 21A of the Act to direct the reconstitution of the Tribunal is confined to circumstances where he or she “considers that the matters to which the proceeding relates are of such public importance” as to justify the reconstitution (subs 21A(3) of the Act). Section 21A of the Act is therefore not engaged unless there is some basis upon which the President might conclude that the matters to which the proceedings relate are of such public importance.
This is well settled: Andelman v Secretary FHCSI (2011) 213 FCR 345; [2011] FCA 299; Andelman v Administrative Appeals Tribunal [2011] FCA 815; Mellor and Australian Postal Commission [2010] AATA 288, Nikjoo and Minister for Immigration and Border Protection [2013] AATA 921.
As Senior Member Britton correctly explained in Nikjoo [2010] AATA at [19] the power is ordinarily not engaged when a party makes a recusal application.
Senior Member Britton’s reasoning is entirely consistent with Jagot J’s observations in Andelman v Secretary FHCSI 213 FCR at [30]:
Ordinarily, an application that a decision-maker disqualify himself or herself on the ground of bias (apprehended or actual) must be made in the first instance by the decision-maker in question. Section 21A is not a substitute for the ordinary common law position. The section has a limited operation. The touchstone of it (sic) operation is that the matters to which the proceeding relates be matters which the President might consider of such public importance as to justify the giving of a direction for reconstitution of the Tribunal. Accordingly, if a party requests reconstitution of the Tribunal merely on the ground of bias (actual or apprehended) then, in the ordinary course, the Tribunal would be entitled to treat that application as one based on the common law principles by which the Tribunal is bound and not as an application under s 21A of the AAT Act. Nothing in such an application, in the ordinary course, would engage the provisions of s 21A. This conclusion is consistent with the recent decision of Downes J in Kowalski and Repatriation Commission [2011] AATA 197.
I accept the possibility that a recusal application might involve questions of high public importance; if, for example, a party proposes to submit that the decision reached by the Tribunal as constituted by its former President, Downes J and Member Dr Schafer in Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing (2012) 125 ALD 588; [2012] AATA 113 was wrongly decided and should not be followed, that party might well be correct in contending that the question would then involve a matter of public importance justifying those submissions being determined by a tribunal including a presidential or judicial member.
However, that is not the present circumstance.
There is nothing in the Respondent’s submissions that were addressed to Senior Member O’Loughlin which rose higher than the Respondent bringing forward, entirely properly, some matters which, on entirely conventional grounds, it submitted warranted Senior Member O’Loughlin recusing himself.
While I accept that the submissions advanced by the Respondent would not have been made lightly, they were of a kind which tribunals as constituted regularly have to deal with. They did not involve anything of such public importance as to justify my reconstituting the Tribunal.
The Respondent’s submissions regarding recusal were carefully and thoroughly responded to by Senior Member O’Loughlin who appears to have addressed all the relevant case law and Tribunal decisions. It is unnecessary for me to express a view as to the correctness of the conclusions reached by the Tribunal. The s 21A power does not exist to allow the President to second guess a decision given by a member on an ordinary recusal application. The Respondent has the right, if so advised, to pursue further review in the Federal Court of Australia.
For the reasons set out above the Respondent’s request pursuant to s 21A of the Act misapprehends the nature of the power conferred on the President by that provision.
I therefore will direct Senior Member O’Loughlin to continue to constitute the Tribunal for the purpose of determining the substantive application for review before it.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Duncan Kerr, President of the AAT ...........................[sgd]............................................
Associate
Dated 6 May 2015
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