Tebbie and Decision Maker

[2021] AATA 1459

Tebbie and Decision Maker [2021] AATA 1459 (25 May 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0558

Re:Adham Tebbie

APPLICANT

AndDecision Maker

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:25 May 2021

Place:Sydney

The Tribunal does not have jurisdiction to review the decision made by the Australian Financial Complaints Authority.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – application for review of a decision by the Australian Financial Complaints Authority – decision in favour of financial firm – whether Tribunal has jurisdiction to review decision – whether decision was made by the Minister within meaning of section 1317B of Corporations Act – Tribunal does not have jurisdiction to review decision

LEGISLATION

Acts Interpretation Act 1901(Cth) s 34AA

Administrative Appeals Tribunal Act1975(Cth) s 25

Australian Securities and Investments Commission Act 2001 (Cth) ss 5, 9

Corporations Act 2001(Cth) ss 1041C, 1041F, 1050, 1051, 1051A, 1052A, 1052C, 1101J, 1317B

CASES

Sanderson and Decision Maker [2021] AATA 284

REASONS FOR DECISION

Senior Member A Poljak

25 May 2021

1. Mr Tebbie, the applicant, filed a complaint with the Australian Financial Complaints Authority (AFCA) about a financial firm’s conduct. Specifically, that the financial firm breached sections 1041C and 1041F of the Corporations Act 2001 (Cth) (the Corporations Act). In a determination dated 7 January 2021, the AFCA found in favour of the financial firm (decision).

2. The applicant has sought review of the decision in this Tribunal. These proceedings concern whether the Tribunal has jurisdiction to review the decision.

   APPLICANT’S SUBMISSIONS

3. The applicant filed extensive written submissions on the question of jurisdiction prior to hearing and provided additional oral submissions at the interlocutory hearing. After the interlocutory hearing, the applicant provided further written submissions as well as a written summary of his oral submissions. Prior to publication of the decision on jurisdiction, the applicant requested a further opportunity to address a recent decision of the Tribunal; Sanderson and Decision Maker [2021] AATA 284. The publication of the decision was postponed, and the applicant was granted leave to provide further written submissions. In making my decision I have carefully considered all the material filed by the applicant as well as oral submissions made at hearing.

4. Summarising some salient points as to the question of jurisdiction, the applicant contends that the Tribunal has jurisdiction to review the decision and contends that notwithstanding AFCA’s independence in its operations, the government is accountable for its conduct and it is to be implied that AFCA is required to act as would a responsible government or minister in dealing with such matters. He states in his written submissions:

   I am of the view that the AAT, in accordance with Section 1317B of the Corporations Act 2001 (Cth) (Corp Act) may review a decision made under this Act by a Minister. Section 1317B provides:

   (1) Subject to this Part, applications may be made to the Tribunal for review of a decision made under this Act by:

   (a) the Minister; or

   (b) ASIC; or …

   The Minister for Revenue and Financial Services authorised the establishment of the external resolution scheme (AFCA) in accordance with Section 1050 of the Corp Act, also, the Minister appointed the Chair and Directors of the scheme in accordance with Section 1051 of the Corp Act. The authorisation of the scheme is dependent upon satisfying mandatory requirements outlined in Section 1051 of the Corp Act. AFCA’s Government Appointed Board is tasked with the duty to commission the conducting of independent reviews of the scheme's operations and procedures. Therefore, appointment is a form of conferring exercisable executive powers to the appointee, hence, a decision made by any person for the time being acting in, or performing any of the duties of, that office or appointment may be reviewed by the AAT. According to subsection 1051 (4)(b), making determinations relating to such complaints, is a duty bestowed upon the decision-maker in carrying out their duties for AFCA.

5. The applicant further contends that AFCA is a delegate of the Minister as pursuant to section 1050 of the Corporations Act the Minister was conferred the power to impose a duty on AFCA to operate in accordance with the mandatory requirements outlined in sections 1051 and 1051A of the Corporations Act. He contends that section 34AA of the Acts Interpretation Act 1901 (Cth) provides that delegation of power is not to be construed as limited to delegating the conferred power, duty or function to a specific person but shall be construed as including a power to any person performing the duties of specified position or office.

   CONSIDERATION & DECISION

6. The Tribunal does not have a general power to review decisions: it may only review decisions in relation to which jurisdiction has been conferred on it by an enactment; section 25 of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act).

7. Section 1317B of the Corporations Act provides that the Tribunal may review decisions made by, relevantly, the Minister and ASIC.

8. The AFCA is authorised by the Minister under Chapter 7, Part 7.10A, section 1050 of the Corporations Act. It is a non-government, external dispute resolution service which provides free and independent help with financial disputes. AFCA has an obligation to comply with mandatory requirements and general considerations contained in sections 1051 and 1051A. AFCA can issue decisions that are binding on financial firms but not on complainants (paragraph 1051(4)(e)). There are two divisions of AFCA: the superannuation division and the general division.

9. Section 1101J of the Corporations Act provides that the Minister may delegate all or any of the Minister’s powers under Chapter 7 of the Corporations Act to ASIC; or a member of ASIC (within the meaning of section 9 of the Australian Securities and Investments Commission Act 2001); or; a staff member of ASIC who is a senior staff member (within the meaning given by subsection 5(1) of that Act). There is no provision for the Minister to delegate all or any of his powers under Chapter 7 to AFCA.

10. Under Chapter 7, ASIC has an oversight role in relation to AFCA. ASIC may issue general directions or, by legislative instrument, issue to AFCA regulatory requirements relating to compliance with the mandatory requirements for the AFCA scheme under section 1051; or any of the general considerations for the AFCA scheme under section 1051A (sections 1052A and 1052C). ASIC has no role in individual complaints handling and does not intervene in the decision-making processes of AFCA.

11. A decision of AFCA is not a decision of the Minister within the meaning of paragraph 1317B(1)(a) of the Corporations Act nor is it a decision of ASIC within the meaning of paragraph 1317B(1)(b). There is no enactment that enables a party aggrieved by a decision of AFCA to apply to this Tribunal for review of the decision. The Tribunal does not have jurisdiction to review the decision.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 25 May 2021

Date of hearing:	17 March 2021
Date final submissions received:	17 May 2021
Applicant:	Self-represented