Sullivan and Temporary Agency

[2008] AATA 853

Administrative Appeals Tribunal

ORAL DECISION AND REASONS FOR DECISION [2008] AATA 853

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3351

GENERAL ADMINISTRATIVE DIVISION		)
Re		DONALD SULLIVAN

Applicant

And TEMPORARY AGENCY

Respondent

ORAL DECISION

Tribunal Ms Robin Hunt, Senior Member

Date23 September 2008

PlaceSydney

Decision For the reasons given orally at the hearing of this matter, the tribunal has determined that it does not have power to review the decision referred to in the application for review.

...................[Sgd]....................

Ms Robin Hunt
  Senior Member

CATCHWORDS

PROCEDURE – AAT jurisdiction to review – no reviewable decision made – no internal review process explored – no power to review determination applicant wishes to have reviewed – no jurisdiction.

Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 37, 99

REASONS FOR DECISION

23 September 2008 Ms Robin Hunt, Senior Member   

introduction

1.      Mr Sullivan sought review of a decision not to alter his service discharge record. He wrote to the Chief of Air Force, on 27 March 2008, seeking amendment to the record of reasons for his discharge from the RAAF in 1987. Mr Sullivan sought a change from administrative discharge to medical discharge. On 12 June 2008, Mr Sullivan received a letter from the Director General Personnel – Air Force declining to alter his discharge status.

2.      Mr Sullivan based his application for review by the tribunal on the belief that the Chief of Air Force was a delegate of the relevant Authority established under the Defence Force Retirement and Death Benefits Act 1973 (‘the DFRDB Act’) and that review was therefore available.

consideration

3. Mr Sullivan claimed that his request for alteration of the discharge record was an action available under section 37 of the DFRDB Act. Section 37 does not, however, enable the making of a request for a decision to alter a discharge record. What the section provides is that a Service Chief may inform the Authority of the grounds of retirement. The decision which rejected Mr Sullivan’s request to alter the record is not the same as an action taken to inform the Authority of grounds of retirement. Although the tribunal is empowered to review certain decisions of the Authority or a delegate of the Authority pursuant to section 99 of the DFRDB Act, any such decision must be made under the Act. Accordingly, the present decision, not being one which the Service Chief made under section 37 or any other provision of the DFRDB Act is not a decision which gives rise to any right of review for Mr Sullivan before this tribunal.

4.      It may be that Mr Sullivan’s wish to alter his service record could be pursued under another legislative provision. Mr Sullivan complained that the determination of the Service Chief did not disclose under which provision his request was considered and rejected. Further correspondence with the Authority drawing attention to this failure may bring to light whether there is an appropriate provision under which Mr Sullivan may pursue his objective.

5. In addition, Mr Sullivan produced no evidence of any request for internal review of the Service Chief’s decision to reject his application. Internal review of the determination of 12 June 2008 may make Mr Sullivan’s position clearer. Subsection 99(2) of the DFRDB Act provides that a person who is affected by a decision of the Authority and is dissatisfied with the decision may, by notice in writing given to the Authority, within a period of 30 days after the date on which the decision first comes to the notice of the person, or within such further period as the Authority allows, request the Authority to reconsider the decision. Subsection 99(4) states that upon receipt of the request, the Authority shall reconsider the decision and may either confirm the decision or vary the decision in such manner as it thinks fit. Subsection 99(6) allows for applications to be made to the Administrative Appeals Tribunal for review of decisions of the Authority, being decisions that have been confirmed or varied under subsection 99(4).

6.       The tribunal reviews decisions of government and agencies when empowered to do so. It is empowered to review certain decisions of the Repatriation Commission and the Veterans’ Review Board as well as some of the Authority. I am unable, however, to find any review provision which covers the action Mr Sullivan wishes to pursue before the tribunal. Consequently, I am left to find that the tribunal does not have jurisdiction to review the decision made by the Chief of Air Force not to alter Mr Sullivan’s discharge record.

decision

7.      For the reasons given orally at the hearing of this matter, the tribunal has determined that it does not have power to review the decision referred to in the application for review.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: .........................[Sgd]............................
  Jennifer Wong, Associate

Date/s of Hearing  23 September 2008
Date of Decision  23 September 2008
Solicitor for the Applicant          Self-represented