WA Bright Kids Family Day Care Pty Ltd and Secretary, Department of Education and Training (General) - [2018] AATA 1312

WA Bright Kids Family Day Care Pty Ltd and Secretary, Department of Education and Training (General) [2018] AATA 1312 (18 May 2018)
Division:GENERAL DIVISION
File Number: 2018/0764
Re:WA Bright Kids Family Day Care Pty Ltd
APPLICANT

AndSecretary, Department of Education and Training
RESPONDENT

DECISION
Tribunal:Deputy President S Boyle
Date:18 May 2018
Place:Perth

The Tribunal dismisses the Secretary’s application for the substantive application to be dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
.......[sgd].................................................................
Deputy President S Boyle
CATCHWORDS
JURISDICTION – application for dismissal of substantive application – whether jurisdiction to consider the decision to cancel the Applicant’s approval as a child care service provider – rules of statutory interpretation – ejusdem generis – expressio unius est exclusio alterius – kinds of decision – decisions of the kind mentioned – Tribunal has jurisdiction
LEGISLATION
Acts Interpretation Act 1901 (Cth) – s 15AD
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1), s 42A(4)
A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) – s 65EAAAA(1)(b), s 108, s 109A, s 138, s 138(1), s 138(4), s 200(1)(h), s 200(1)(i), s 200(3A), s 200(3B), s 200(3C), s 202(4A), s 210(1), s 216SQ(1), s 219Q, s 219QA,(2), s 219QC, s 219QD
Corporations Act 2001 (Cth) – s 601AH(5)
Family and Community Services Legislation Amendment Act 2003
Freedom of Information Act 1982 (Cth) – s 16, s 55, s 55(1)
Tribunals Amalgamation Bill 2014
CASES
Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; [2012] HCA 19
Beckwith v R (1976) 135 CLR 569; (1976) 12 ALR 333
Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; (1979) 2 ALD 1
Commonwealth v Baume (1905) 2 CLR 405
Commonwealth v Verwayen (1990) 170 CLR 394
Edgington v Fitzmaurice (1885) 29 Ch D 459
Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230; [2001] FCA 1296
Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179
Greene v R (1949) 79 CLR 353
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 627
Meehan v Jones (1982) 149 CLR 571
Nikolaidais v Legal Services Commissioners [2007] NSWCA 130
Re Bienstein and Commonwealth Ombudsman (2003) 38 AAR 270; [2003] AATA 1197
Re Kerford and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 148
Riley v Commonwealth (1985) 159 CLR 1
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
SECONDARY MATERIALS
Acts Interpretation Amendment Bill 2011 (Cth) Explanatory Memorandum
Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014)
Tribunals Amalgamation Bill 2014 (Cth) Explanatory Memorandum
REASONS FOR DECISION
Deputy President S Boyle
18 May 2018
THE APPLICATION

This is an application by the Respondent to dismiss the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis that the Administrative Appeals Tribunal (Tribunal) does not have jurisdiction to review the decision.
Background
The substantive application submitted to the Tribunal by the Applicant on 16 February 2018 seeks the review of a decision of an authorised review officer of the Respondent (the decision) made on 24 January 2018 to affirm the decision of a delegate of the Respondent to cancel the Applicant’s approval as a child care service provider under s 202(4A) of the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) (the FAA Act).
The delegate’s decision to cancel the Applicant’s approval as a child care service provider was based on the fact that the Applicant was deregistered as a company on 18 September 2017. It is accepted by the Respondent ([25] of the Reasons for Review Decision dated 24 January 2018) that the registration of the Applicant was reinstated by the Australian Securities and Investments Commission pursuant to s 601AH(5) of the Corporations Act 2001 (Cth) (the Corporations Act) on 9 January 2018.
The Respondent recognised that where a company is reinstated under s 601AH(5) of the Corporations Act, that section provides that the company “…is taken to have continued in existence as if it had not been deregistered.” ([27] of the Reasons for Review Decision).
The Respondent, however, found ([28] of the Reasons for Review Decision) that the operation of s 601AH(5) of the Corporations Act “does not mean that the company [Applicant] had legal capacity to act between the deregistration and the reinstatement” and that the “directors only regain office from the date of the reinstatement (not retrospectively)” and that “[a]s directors have the power to manage company affairs, it is impossible for the company to have legally acted during this time” (i.e. the period between deregistration and reinstatement).
The Respondent therefore found that in the period between deregistration and reinstatement of the company, notwithstanding the provisions of s 601AH(5) of the Corporations Act, the Respondent “cannot be taken to have operated the services” ([30] of the Reasons for Review Decision) thereby triggering the mandatory cancellation of the approved child care service’s approval under s 202(4A) of the FAA Act. The Respondent therefore affirmed the delegate’s decision.
THE LEGISLATION
Section 138 of the FAA Act relevantly provides:
138 Applications for AAT single review
Decisions of Secretary or authorised review officer
(1)If:
(a)a decision of the kind mentioned in subsection (4) has been reviewed under section 109A; and
(b)the decision has been affirmed, varied or set aside and substituted by the Secretary or authorised review officer under subsection 109A(2);
applications may be made to the AAT for review (AAT single review) of the decision of the Secretary or an authorised review officer.
(2)…
(3)…
Kinds of decisions
(4)For the purposes of subsections (1) and (3), the following are the kinds of decisions:
(a)a decision under section 195 not to approve a child care service for the purposes of the family assistance law or to approve the service from a particular day;
(b)a decision under subsection 199(2) to impose another condition for the continued approval of an approved child care service;
(c)a decision under subsection 200(1) to do one or more of the things mentioned in paragraphs (a) to (h) of that subsection in relation to an approved child care service;
(d)a decision under subsection 200(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(e)a decision under subsection 201A(1) to suspend the approval of an approved child care service from a particular day;
(f)a decision under subsection 201A(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(g)a decision under subsection 202(2) not to cancel an approved child care service's approval;
(h)a decision under subsection 202(3) to cancel an approved child care service's approval;
(i)a decision under subsection 202(4) to cancel an approved child care service's approval, but only if the service made submissions under paragraph 203(1)(e) in relation to the cancellation;
(j)a decision under paragraph 205(3)(a) not to exempt a specified child care service from a specified eligibility rule;
(k)a decision under section 207 to:
(i)refuse to allocate any child care places to an approved child care service; or
(ii)refuse to allocate the number of child care places an approved child care service has applied for under that section;
unless the decision is based on guidelines of the Minister of the kind mentioned in paragraph 206(c);
(l)a decision under section 207A to reduce the number of child care places allocated to an approved child care service;
(m)a decision under subsection 210(1) not to approve an individual as a registered carer for the purposes of the family assistance law;
(n)a decision under subsection 212(1) as to when the approval of an applicant as a registered carer is taken to have come into force;
(o)a decision under subsection 212(3) as to when the approval of an applicant as a registered carer is taken not to have been in force;
(p)a decision under subsection 213(2) to impose another condition for the continued approval of an individual as a registered carer;
(q)a decision under subsection 214(1) to do one or more of the things mentioned in paragraphs (a) to (d) of that subsection in relation to a registered carer;
(r)a decision under subsection 216(3) to cancel a registered carer's approval;
(s)a decision under subsection 219TSQ(1) to suspend an approved child care service's approval;
(t)a decision under subsection 219TSQ(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(u)a decision under subsection 57(1) of the Family Assistance Act.
Section 109A of the FAA Act relevantly provides:
109A Review of certain decisions may be initiated by applicant
(1)A person affected by a decision (the original decision):
(a)that is not a care percentage decision; and
(b)that, under section 108, must be reviewed under this section;
may apply to the Secretary for review of the original decision.
Section 108 of the FAA Act relevantly provides:
Decisions that may and may not be reviewed under section 109A
(1)A decision of any officer under the family assistance law must be reviewed on application under section 109A unless an exception set out in subsection (2) applies to the decision.
None of the exceptions set out in subsection (2) applies in the present case.
Subsection 202(4A) of the FAA Act provides:
The Secretary must cancel an approved child care service's approval if the service ceases to be operated by the person on whose application the approval was granted.
Subsection 25(1) of the AAT Act provides:
25 Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Subsection 42A(4) of the AAT Act provides:
(4)The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
Section 15AD of the Acts Interpretation Act 1901 (Cth) (AI Act) provides:
If an Act includes an example of the operation of a provision:
(a)the example is not exhaustive; and
(b)the example may extend the operation of the provision
THE ISSUE
The sole issue for determination in the present case is whether the Tribunal has jurisdiction under s 138 of the FAA Act to review the decision.
THE PARTIES’ SUBMISSIONS
Submissions were received from the parties as follows:
(a)for the Applicant by letters from Butcher Paull & Calder dated 27 March 2018 and 13 April 2018; and
(b)for the Respondent by letters from the Principal Government Lawyer on behalf of the Respondent dated 6 March 2018 and 13 April 2018.
The Applicant’s submissions
The Applicant submits that:
(a)Section 138 of the FAA Act refers to “a decision of the kind mentioned in subsection (4)”.
(b)Subsection 202(4A) of the FAA Act is not one of the sections expressly identified in subsection 138(4) of the FAA Act.
(c)Legislation must be construed by reference to its text, context and purpose (Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; [2012] HCA 19 at [27]).
(d)Subsection 138(4) of the FAA Act provides examples of kinds of decisions that may be the subject of AAT Single Review. The kinds of decisions that may be subject to such review are not limited to those specific provisions but rather to a class of the kinds of decisions from those examples.
(e)A decision may fall under an enactment and be reviewable notwithstanding that the enactment does not expressly provide for review but does so impliedly. In support of that proposition the Applicant refers to Re Kerford and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2009) 107 ALD 638; [2009] AATA 148 (Kerford) at [32]-[36].
(f)Subsection 138(4) of the FAA Act specifies 21 kinds of decisions made under specific provisions. All but one of those decisions is made under Part 8 of the FAA Act. The decisions generally relate to approval, suspension, cancellation or revocation of a child care service’s or registered carer’s approval.
(g)The decisions made under the provisions identified in s 138(4) and s 202(4A) of the FAA Act fall under Part 8 and relate generally to the status of child care service’s approval.
(h)It would be against public policy for there to be no redress for a person aggrieved by a decision under s 202(4A) of the FAA Act.
(i)The Tribunal has jurisdiction because:
(i)subsection 138(4) of the FAA Act implicitly authorises the review based on the connection between the text of the statute and the decision sought to be reviewed; and
(ii)the decision under s 202(4A) of the FAA Act is “of the kind” of the decisions identified in s 138(4) of the FAA Act.
In its submissions from 27 March 2018 the Applicant also referred the Tribunal to s 15AD of the AI Act but did not provide any further explanation as to its application.
Respondent’s submissions
The Respondent submits that:
(a)The Tribunal does not have general power to review decisions made under Commonwealth legislation but may only review a decision if an Act, regulation or other legislative instrument “specifically give[s] the power to do so” (Re Bienstein and Commonwealth Ombudsman (2003) 38 AAR 270; [2003] AATA 1197 (Bienstein)).
(b)Subsection 138(4) lists 22 decisions that may be reviewed but decisions under s 202(4) of the FAA Act are not included.
(c)The words “kinds of decisions” in s 138(4) of the FAA Act do not denote similar or analogous decisions to those listed. Those words are intended to clarify and limit the operation of s 138(1) of the FAA Act. The key purpose of the provision is to limit applications to specific decisions made under Part 8 in view of the fact that decisions made under Part 8 are expressly excluded from first review under s 111(2)(f) of the FAA Act. If all Part 8 decisions were to be reviewable, s 138 of the FAA Act would have used the same formulation as used in the exemption in s 111 of the FAA Act.
(d)Section 15AD of the AI Act does not apply as s 138(4) of the FAA Act does not refer to the decisions in that subsection as containing “examples” only. “The list is a specific and detailed set of only those provisions in Part 8 under for (sic) which decisions made may be reviewed by the Tribunal” (Respondent’s submissions dated 13 April 2018, paragraph 2 under heading “Whether ss 138(4)(a)-(u) are examples”).
(e)The use of the word “kind” does not automatically give free licence to disregard what follows or interpret and apply it non-specifically. Section 15AD of AI Act is not to be interpreted as automatically requiring the expansion of the operation of a provision (Respondent’s submissions dated 13 April 2018, paragraph 2 under the heading “Expanding the Tribunal’s jurisdiction”).
(f)Subsection 138(4) of the FAA Act contains a list of 22 reviewable decisions, it does not provide categories of decisions nor refer to types of decisions but details specific decisions made under the FAA Act. The list is of specific provisions contained predominantly in Part 8 and a few selected provisions elsewhere in the FAA Act that relate to child care providers. The provision is clearly intended as a list of limited and exclusive reviewable decisions and is not intended merely as illustrative of a class of broadly described decisions.
(g)Decisions under s 202(4A) of the FAA Act are, in any event, distinguishable from the decisions under the sections mentioned in s 138(4) of the FAA Act. Subsection 202(4A) of the FAA Act requires the Secretary to cancel a service’s approval if the service ceases to be operated by the person on whose application the approval was granted. Reference is made to the Explanatory Memorandum to the bill for the Family and Community Services Legislation Amendment Act 2003 by which s 202(4A) of the FAA Act was added.
(h)Subsection 202(4A) of the FAA Act is different to the other sections mentioned in s 138(4) of the FAA Act because there is no discretionary element. It would therefore be inconsistent with the operation of the FAA Act and the merits review process for s 202(4A) to be considered a decision “of the kind” of the decisions listed in s 138(4) of the FAA Act.
(i)Subsection 202(4A) of the FAA Act does not allow for exceptions, it is a mandatory decision based on undisputed facts. There would be no utility in reviewing such a decision on the merits.
(j)The phrase “kinds of decisions” was used in s 138(4) of the FAA Act to account for the Lawlor principle (Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; (1979) 2 ALD 1 at [4]) that is giving those “…whose interests are affected by an administrative decision an effective appeal, free of technicalities against that decision on questions of fact and of law”. More specifically the Respondent submits that that phrase allows for those decisions to be reviewed “whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong” (Respondent’s submissions dated 13 April 2018 at [3] under heading “Defining ‘Kinds of decision’”).
CONSIDERATION
The issue for consideration hinges on the meaning of the words “a decision of the kind mentioned in subsection (4)” in s 138(1)(a) of the FAA Act and the meaning of the words “kinds of decisions” in s 138(4) of the FAA Act.
Neither party was able to refer the Tribunal to any judicial consideration of the scope of s 138(4) of the FAA Act, and whether a decision to cancel a service’s approval pursuant to s 202(4A) of the FAA Act came within its operation. Similarly, neither party referred to any case in which the phrases “decision of the kind” or “kinds of decisions”, in legislation, have been considered. The Tribunal was likewise unable to find any cases in which these issues have been considered. Accordingly, the Tribunal is left to determine the issue by the application of the accepted rules of legislative interpretation.
Stated simply, the Applicant’s position is that the effect of the words “kinds of decision” in s 138(4) of the FAA Act expands the decisions that can be reviewed by the Tribunal under s 138(4) of the FAA Act beyond those that are specifically identified in s 138(4) of the FAA Act. The Applicant’s argument is that a decision under s 202(4A) of the FAA Act to cancel a service’s approval is a decision of the kind of the decisions made under the sections specifically mentioned in s 138(4) of the FAA Act.
As noted above, the Applicant cites the decision of Deputy President Forgie in Kerford. That decision, as the Applicant notes, analyses the concept of implicit authorisation. In that case, however, what the Tribunal was looking at was the satisfaction of the requirement of s 25(4) of the AAT Act (now repealed) which provided that the “…Tribunal has power to review any decision in respect of which application is made to it under any enactment” read in conjunction with s 25(1) of the AAT Act which provides that: “An enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment…”.

The particular issue that the Tribunal was considering in Kerford was whether an enactment authorised or permitted the application to the Tribunal and, more particularly, whether the decision in question was a decision “made under” an enactment (at [33]-[34]). That consideration involved a review of whether there was a “‘sufficient connection’ between the text of the statute in question and the decision sought to be reviewed” (at [34]) citing the principle enunciated in Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230; [2001] FCA 1296).
The issue in the present case is not whether the decision sought to be reviewed was one made under, or using the language of s 25(1) of the AAT Act: “made in the exercise of powers conferred by an enactment”, but rather whether the provision of the relevant Act providing for review by the Tribunal encompasses the decision in question. There is no doubt that in the present case the decision in question was made under, or in the exercise of a power conferred by the FAA Act. The only issue is whether the decision comes within the scope of s 138(4) of the FAA Act.
The Respondent cites the Tribunal’s decision in Bienstein wherein Deputy President Forgie at [25] said:
As can be seen from the provisions of ss 55 and 56, they set out with specificity the decisions that may be reviewed by the Tribunal. They do not give a general right to have any decision, however described, reviewed by the Tribunal. It follows that, if the Tribunal is to have the power to review a decision made by an agency in relation to a request, it must be a decision of the sort specified in one of those two sections. A decision under s 16 is not such a decision. It follows that the Tribunal does not have power to review that decision.
Again, however, that decision is not of assistance in the present case. In Bienstein the Tribunal was considering whether a decision by the Ombudsman to transfer a Freedom of Information request to another agency under s 16 of the Freedom of Information Act 1982 (Cth) (FOI Act), in that case the Australian Federal Police (AFP), on the basis that the AFP had the document sought in its possession or the subject matter of the request more closely connected to the functions of the AFP, was a decision that was reviewable by the Tribunal under s 55 of the FOI Act. Subsection 55(1) of the FOI Act (as it then was) set out the decisions that could be reviewed by the Tribunal. It did so, in some cases, by identifying sections of the FOI Act, but also by description of the decision as follows:
... an application may be made to the Administrative Appeals Tribunal for review of:
(a) a decision refusing to grant access to a document in accordance with a request; or
(aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
(ab) a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
(b) a decision to defer the provision of access to a document; or
(c) a decision refusing to allow a further period for making an application under subsection 54(1) for a review of a decision; or
(d) a decision under section 29 relating to imposition of a charge or the amount of a charge; or
(e) a decision under section 30A relating to remission of an application fee; or
(f) a decision to grant access to a document only to a qualified person under subsection 41(3); or
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h) ...
Clearly a decision under s 16 of the FOI Act to transfer a request to another agency did not, either by reference to a section specified in s 55(1) of the FOI Act or by description of the decision, fall into any of the categories of decisions identified in s 55(1)(a)–(h) of the FOI Act. It was on that basis at [25] that Deputy President Forgie found that “[i]t follows that the Tribunal does not have power to review that decision”.
The issue in the present case is different. In Bienstein the decisions which were subject to review by the Tribunal were clearly identified in s 55(1) of the FOI Act. Unfortunately that is not the case with the FAA Act which identifies “kinds of decisions” as being subject to review by the Tribunal. The issue is whether a decision under s 202(4A) is “of the kind mentioned in subsection (4)” (s 138(1) of the FAA Act). The fact that s 138(4) of the FAA Act identifies the “kinds of decisions” by reference to sections of the FAA Act does not change the effect of the words “kinds of decisions” or “decisions of the kind mentioned”, it merely informs the nature of the enquiry that must be undertaken. That relevant exercise is to identify what kinds of decisions are made under the sections mentioned in s 138(4) and to then determine whether there are decisions of that kind or those kinds that might be made under other provisions of the FAA Act.
The Tribunal does not accept the Respondent’s proposition (Heading 2 of Respondent’s submissions dated 13 April 2018) that “…the words ‘kinds of decisions’ in context does not denote similar or analogous decisions to those listed. Those words are intended, in context, to clarify and limit the operation of subsection 138(1)”. That, in the Tribunal’s view, is precisely what the words “decision of the kind mentioned” and “kinds of decisions” are doing. They are defining the scope of decisions that are subject to review by description of kinds of decisions which are defined by reference to the kinds of decisions made under the sections that are identified in s 138(4) of the FAA Act.
The submissions made by both parties relating to the effect of s 15AD of the AI Act, in the Tribunal’s view, take the enquiry down the wrong path. The identification of provisions in s 138(4) of the FAA Act is not a use of “examples” in the context in which that term is used in the AI Act. The Respondent cites paragraph 103 of the Explanatory Memorandum of the AI Act which relevantly states:
If Parliament has enacted an example in a Commonwealth Act, this shows an intention that the example should be covered whether or not it strictly falls within the scope of the provision. However, the amended provision will state that the example ‘may extend the operation of the provision’ so that a Court can assess whether this is in fact appropriate when interpreting a particular provision that includes an example.
(Original Emphasis)
However, paragraph 102 of the Explanatory Memorandum of the AI Act is, in the Tribunal’s view, also relevant in understanding the effect of s 15AD of the AI Act. That provides:
Section 15AD provides that examples in Commonwealth Acts are not exhaustive and if an example in a Commonwealth Act ‘is inconsistent with the provision, the provision prevails’. The paragraph about examples not being exhaustive is being retained (paragraph 15AD(a)), but paragraph 15AD(b) is being amended so that instead of inconsistent examples being overridden by the provision, examples will be specified as not exhaustive and also capable of extending the operation of provisions.
The Explanatory Memorandum makes clear that what s 15AD of the AI Act is dealing with is the inclusion in legislation of examples of the operation of a provision. That provision, however, has effect and operation independently and is not reliant on the example for its operation and scope. The identification of sections in s 138(4) of the FAA Act, however, is not the use of examples contemplated by s 15AD of the AI Act. The AI Act is referring to “...examples of the operation of a provision”. That is not what s 138(4) of the FAA Act is doing. That section is defining the scope of the decisions that can be reviewed under s 138(1) by identifying, by reference to sections of the Act, the kinds of decisions covered.
A more useful exercise would be to look at s 138 of the FAA Act in the context of the ejusdem generis rule. While that principle is more commonly used in looking at the extent to which general matters are constrained by reference to specific matters, the same principle can apply in reverse, namely the general being defined by the specific. The difference between the two situations is the starting point. In the former, a general power given under legislation would be read down if the general empowering words are followed by more specific words. In the latter situation the specific words define a broader general power. The example provided in Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) (Pearce and Geddes) at paragraph 4.25 is illustrative of the application of the ejusdem generis rule in the present case:
A drafter may well not wish to spell out at length all the kinds of things or types of conduct to which an Act may apply. He or she may rest on the assumption that, having indicated the main specific matters or conduct within a broad category to which it is to apply, any general works will be read down to embrace only things or conduct falling within that category. So in specifying the animals that may be carried on a ferry, the drafter may refer to ‘horses, cows, sheep and other animals’. It would be regarded as an improper reading of the Act if it were suggested that a tiger fell within the words ‘other animals’. This is the classic example of the ejusdem generis rule – the general words are limited to apply only to animals of the same kind as those specifically mentioned. It is another way of saying that the words derive meaning from the context in which they appear.
Contrast the position, however, if, in an Act to prohibit fights between animals, the prohibition applies to ‘bears, pigs, bulls, dogs, cocks, quail and other animals’. The drafter here is obviously anxious to prohibit all such contests and ‘other animals’ is included to avoid listing the whole of the animal kingdom. Again, context indicates this to be the case, but also the animals specifically mentioned do not fall within any particular category. The very name of the rule indicates the necessity to establish a genus before it can be applied and the courts have made it clear that this will be their first inquiry: R v Regos (1947) 74 CLR 613; Cody v J H Nelson Pty Ltd (1947) 74 CLR 629; see further 4.28.
Using the above analysis, the mention of the specific provisions in s 138(4) of the FAA Act, in the context of s 138(1), is “establishing the genus” of the decisions that are subject to review under s 138(1) of the FAA Act.
The Tribunal also has difficulty in accepting the Respondent’s construction that the right to review decisions under s 138(1) of the FAA Act is limited to decisions made under the provisions of the FAA Act specifically identified in s 138(4) because such a construction would render the words “kinds of decisions” or “decisions of the kind mentioned” meaningless. The construction contended by the Respondent would result in the words in s 138(1)(a) of the FAA Act “…a decision of the kind mentioned in subsection (4)” being read as “a decision under a provision specified in subsection (4)”. Similarly the Respondent’s construction would have the words “For the purposes of subsection (1)…the following are the kinds of decisions” in subsection (4) read as “For the purposes of subsection (1)… the following are the provisions”. If that is what the legislature had intended, then they would have used words to that effect. While simple and clear language to that effect could have been used by the legislature, they chose not to use that language but instead chose to use the language that appears in s 138 of the FAA Act. Effect must be given to the language used.
The construction contended by the Respondent is contrary to the general principle that words in legislation must be given meaning and effect. As the courts have pointed out, they are not at liberty to treat any word or sentence as superfluous or meaningless; Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ; Beckwith v R (1976) 135 CLR 569 at 574; 12 ALR 333 at 337 per Gibbs J; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 627 at 679. More recently this principle has been cited with approval in the cases of Nikolaidais v Legal Services Commissioners [2007] NSWCA 130 at [172]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [39]; (2010) 241 CLR 252; and Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179 at [27].
The Respondent also points to the other sections of the FAA Act omitted from the list of provisions in s 138(4) to support the contention that the omission of s 202(4A) is indicative of an intention that decisions under that section are not to be subject to review under s 138(1) of the FAA Act. The provisions that the Respondent identifies as being omitted are subsections 200(1)(i), 200(3A), 200(3B) and 200(3C) of the FAA Act. The most likely reason for not including subsections 200(3A), 200(3B) and 200(3C) is that they relate to a decision by the Secretary to revoke a suspension of a payment. If a decision is made under those subsections to revoke a suspension of payment of entitlements the recipient of the entitlements is not going to seek a review of the decision. The only party that would be adversely affected by such a decision would be the Secretary. Obviously the Secretary would not seek to review her own decision.
The non-inclusion of s 200(1)(i) of the FAA Act is more difficult to explain. On the face of it the type and effect of a decision under subsections 219QC or 219QD (to which s 200(1)(i) refers) do not appear to be materially different to the type and effect of a decision under subsections 219Q or 219QA(2) of the FAA Act (to which s 200(1)(h) refers). Perhaps the only difference is that for subsections 219QC and 219QD of the FAA Act to apply, an election by “the individual”, as distinct from the service, has to have been made under s 65EAAAA(1)(b) of the FAA Act. Under s 65EAAAA(1)(b) an individual may elect to have a child care rebate paid in a particular way. Accordingly a decision under subsections 219QC or 219QD of the FAA Act may impact more than just the service, unlike a decision under subsections 219Q or 219QA(2) of the FAA Act which impact only the service.
The Tribunal also notes that the courts have traditionally treated the expressio unius est exclusio alterius (also referred to as the inclusio unius est exclusio alterius) principle with some caution. As is noted by Pearce and Geddes at paragraph 4.34:
Because of these problems with respect to its use, the expressio unius est exclusio alterius approach is applied by the courts with extreme caution. When it is followed, it is used more often as a bolster to predetermined interpretation rather than as a rule that produces a result in itself: see for example, the High Court in Carr v Finance Corporation of Australia Ltd (No 2)(1982) 150 CLR139 at 150; 42 ALR 29 at 37 and Riley v Commonwealth (1985) 159 CLR 1 at 12; 62 ALR 497 at 505.
The Respondent also argues that s 138(4) of the FAA Act was included in the amendments effected by the Tribunals Amalgamation Bill 2014 and that the Explanatory Memorandum to that Bill indicated that the effect of the amendments would be to preserve the status quo. The Tribunal agrees that the general thrust of paragraphs 1527 and 1528 of the Explanatory Memorandum was that “the existing policy with respect to review of decisions under section 138 would remain unchanged” (paragraph 1528), however, the Tribunal also notes that the language of s 138 is different to that of the previous s 144 of the FAA Act which dealt with single reviews by the Tribunal. Section 144(1A)(a) of the former legislation, like s 138(1) of the current form of the Act, referred to “a decision of the kind mentioned in subsection (1)”, however, subsection (1) of the prior legislation was as follows:
(1)Each of the following is a decision in relation to which an application may be made under subsection (1A) or (1C)…
(Emphasis Added)
That wording is to be compared to the wording of s 138(4) which is less prescriptive:
(4)For the purposes of subsection (1) and (3), the following are the kinds of decisions”…
(Emphasis Added)
On the basis of the above the Tribunal disagrees with the Respondent’s argument summarised in [17] (a) to (f) above. The scope of decisions covered by s 138(1) of the FAA Act which are reviewable by the Tribunal is not limited to decisions made under the provisions specifically identified in s 138(4) of the FAA Act.
That therefore brings us to the next consideration, that being the one identified by the Respondent in his submissions referred to at subparagraphs [17] (h) and (i) above, namely, if it is the case that the right to review is not limited to decisions under the sections specifically identified in s 138(4) of the FAA Act, is a decision under s 202(4A) of the kind of decisions identified in s 138(4)?
The Respondent submits that a decision under s 202(4A) of the FAA Act is distinguishable from the decisions made under the provisions identified in s 138(4). The Respondent’s submissions, under the heading “Distinguishing s 202(4A) from the other ‘kinds of decisions’” identify the difference as follows:
It is also important to emphasise subsection 202(4A) is a mandatory obligation to cancel when a factual precondition is met, being that the service is no longer operated by the original applicant for approval. This is in contrast to the decisions listed under s 138(4) which all have a discretionary limb or element that must be considered in the making of the decision.
The characterisation of s 202(4A) of the FAA Act as being the only provision imposing a mandatory cancellation obligation on the Secretary is not correct. Subsections 202(3) and 202(4) of the FAA Act are both mandatory. Under both of those provisions the Secretary must cancel the service’s approval if the relevant factual circumstance exists. The fact that the relevant circumstance triggering that obligation to cancel is a state of mind as to the existence of facts or a legal position does not detract from the mandatory nature of the provision. As was noted in Edgington v Fitzmaurice (1885) 29 Ch D 459 by Bowen LJ: “the state of a man’s mind is as much a fact as the state of his digestion” (subsequently referred to by the High Court in Greene v R (1949) 79 CLR 353; Meehan v Jones (1982) 149 CLR 571; and Commonwealth v Verwayen (1990) 170 CLR 394). The same consideration applies to ss 210(1) and 216(3) of the FAA Act, which are also referred to in s 138(4), both of which are expressed in mandatory terms.
If one were to consider the phrase “decisions of the kind” as also referring to the consequences of the decision as well as the mechanics involved in making the decision, then, certainly as far as the affected service is concerned, cancellation of approval under s 202(4A) of the FAA Act has the same consequence as cancellation under any of the provisions specifically identified in s 138(4) of the FAA Act. In that sense a decision to cancel approval under 202(4A) of the FAA Act is of the kind of the other decisions identified in s 138(4) of the FAA Act.
DECISION
For the reasons set out above, the Tribunal is of the view that a decision by the Secretary under s 202(4A) of the FAA Act is a decision “of the kind mentioned in subsection (4)” and that, the Tribunal does have jurisdiction under s 138(1) of the FAA Act to review the decision by the Secretary to cancel the Applicant’s approval under s 202(4A) of the FAA Act.
Accordingly, the Tribunal dismisses the Respondent’s application for the substantive application to be dismissed under s 42A(4) of the AAT Act.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle

....[sgd]....................................................................
Associate
Dated: 18 May 2018

Date of hearing: 6 April 2018

Representative for the Applicant: Mr Robert Butcher

Solicitors for the Applicant: Butcher Paull & Calder

Representative for the Respondent: Ms Sheridan Keller

Date of hearing:	6 April 2018
Representative for the Applicant:	Mr Robert Butcher
Solicitors for the Applicant:	Butcher Paull & Calder
Representative for the Respondent:	Ms Sheridan Keller