Tait and Department of Family and Community Services
[2001] AATA 700
•31 July 2001
REASONS FOR DECISION [2001] AATA 700
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos Q2001/576;
GENERAL ADMINISTRATIVE DIVISION ) Q2001/590
Re WILLIAM PETER TAIT
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
REASON FOR DECISION
Tribunal Mr K L Beddoe, (Senior Member)
Date31 July 2001
PlaceBrisbane
CATCHWORDS
SOCIAL SECURITY – jurisdiction – whether there is a reviewable decision – whether a stay order may issue
Social Security (Administration) Act 1999 s 141, 142, 144, 181
REQUEST FOR WRITTEN REASONS FOR DECISION
31 July 2001 Mr K L Beddoe, (Senior Member)
The applicant appealed to the Social Security Appeals Tribunal ("the SSAT") in a letter dated 6 June 2001, against a decision of Centrelink not to issue an immediate payment of Newstart Allowance to the applicant. By letter dated 15 June 2001 (B22461) the Registrar of the SSAT advised the applicant that until the decision had been reviewed by an Authorised Review Officer ("ARO") the SSAT could not review the decision. The Registrar also advised that the applicant's request had been sent to Centrelink and was being treated as a request for review.
The applicant applied to this Tribunal by letter dated 29 June 2001 for review of that decision (application number Q2001/576).
By letter dated 6 July 2001, the applicant sought a stay order by this Tribunal of a decision by the respondent, advised to the applicant in a letter dated 29 June 2001, to apply a penalty to the applicant's Newstart allowance for alleged breaches by the applicant (application number Q2001/590). The applicant had applied to the SSAT for a review of that decision on 4 June 2001. Again by letter dated 15 June 2001 (B22406) the Registrar of the SSAT advised the applicant that until the decision had been reviewed by an ARO the SSAT could not review the decision. The Registrar advised that this request had also been sent to Centrelink and was being treated as a request for review
At the telephone directions hearing of these matters in this Tribunal on 13 July 2001, the applicant represented himself and Mr Foster represented the respondent.
Sub-section 41(2) of the Administrative Appeals Act 1975 ("the Act") states:
"The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review."
I am a senior member authorised in terms of section 41(7) of the Act to exercise the powers and perform the functions of a presidential member.
Upon hearing both parties, the Tribunal directed that the Tribunal has no jurisdiction in these matters and that the applications be removed from the list of matters awaiting hearing in the Tribunal.
By letter dated 13 July 2001, and received in this Tribunal on 17 July 2001, the applicant sought written reasons for this Tribunal's decision.
At the telephone directions hearing, the applicant submitted that he believed that the Tribunal had authority to review a decision made by Centrelink. The applicant also submitted that despite there being no review by the SSAT, the AAT could make an interim decision because of the denial of natural justice based on section 141 of the Social Security (Administration) Act 1999 ("the Administration Act"). That section requires the SSAT to :
"…pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick."
The applicant submitted that as his matter was not specifically mentioned in section 144 of the Administration Act his matter was not reviewable by the SSAT. He also submitted that section 142 of the Administration Act merely allows the SSAT to review a decision by an ARO.
The applicant stated that he had applied for review by an ARO of Centrelink's decisions on 30 May 2001 and for a review by the SSAT but had not yet received a reply.
The applicant submitted that the review process of the respondent was not fair as the fact that the internal review was by an ARO, and the external review was by the SSAT, indicated bias. The applicant also contended that it was not fair that the ARO had not replied to his correspondence for six weeks.
In support of his argument of "unfairness", the applicant contended that payment of his Newstart allowance was not made on 28 May 2001 as he had expected. This was the subject of his first and second appeals. The respondent replied that the applicant had been paid his allowance on the 29 May 2001 and that fact was agreed.
Further the applicant contended that with regards to the alleged breach by him (the subject of his third and fourth appeal), the respondent should first advise of an alleged breach in writing before withholding payments.
The respondent submitted that section 181 of the Administration Act limits the jurisdiction of this Tribunal. That section states:
"The AAT may only review a decision that has been reviewed by the SSAT".
The respondent read the section to the applicant. The respondent also submitted that an ARO must make a decision before the SSAT can look at it.
The Tribunal explained that if a party was not satisfied with a decision made by Centrelink, a review must first be sought from Centrelink. The Tribunal further explained that if the party was not satisfied with the response, they could then seek a decision by an Authorised Officer ("AO"). If the party remained unsatisfied, the party could then seek a review by the SSAT. The Tribunal could only then consider the matter after a decision by the SSAT.
The applicant contended that the Registrar of the SSAT had not accepted his appeal to the SSAT.
On the evidence presented the Tribunal is not satisfied that a decision has been reviewed by the SSAT. The Tribunal considers that Parliament's intention, as set out in section 181 of the Administration Act, is that the Tribunal has no jurisdiction in a matter unless a decision has been reviewed by the SSAT. The Tribunal is therefore satisfied that it has no jurisdiction to review the matters before it.
In addition, the Tribunal finds that a stay order under section 41(2) of the Act can only be made where there is a proceeding before the Tribunal. As the Tribunal has no jurisdiction in these matters, there can be no proceeding before the Tribunal and no basis for section 41 of the Act to have any operation.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of MR K L Beddoe, (Senior Member)
Signed: .....................................................................................
AssociateDate of Hearing 13 July 2001
Date of Decision 13 July 2001
Request for written reasons 17 July 2001
Applicant In person
For the Respondent Mr Foster, Departmental Advocate
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