Walkcom and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 833

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 833

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2334

GENERAL ADMINISTRATIVE DIVISION		)
Re		COLIN WALKCOM

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date18 September 2008

PlaceBrisbane

Decision The Tribunal directs that the application for review be dismissed on the grounds that the Tribunal does not have jurisdiction.

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

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Application for Review – Tribunal’s power to review decisions – whether Tribunal has jurisdiction to review application – decision in order to be reviewable must be made under an enactment – Tribunal does not have jurisdiction – application for review to be dismissed.

Administrative Appeals Tribunal Act 1975 s 25(4)

Farmer v Secretary, Department of Social Security (1993) 31 ALD 262; [1993] AATA 143

Nisha and Department of Family and Community Services (2003) 74 ALD 172; [2003] AATA 378

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; (1990) 94 ALR 11

Pegasus Leasing Ltd and Anor v Federal Commissioner of Taxation (1991) 104 ALR 442

Martinsen v Secretary, Department of Family & Community Services (2004) 80 ALD 598; [2004] FCA 297

REASONS FOR DECISION

18 September 2008 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      In 2001 Mr Colin Walkom was injured in an accident at work for which he received compensation. Centrelink have advised Mr Walkom that should he apply for Centrelink payments in the future that he would have a compensation preclusion period from 1 August 2007 to 27 April 2010. I have to consider whether I have jurisdiction to determine the application of Mr Walkom who has yet to make a claim for a compensation affected payment.

COMPENSATION PAYMENTS

2.      On 4 September 2001 Mr Walkom suffered an injury whilst he was at work.  Mr Walker has received two payments of compensation from his employer, Pasminco Limited. On 20 June 2003 Mr Walkom received a payment of $50,000 which, according to Centrelink records, did not contain any component for economic loss. On 10 July 2007 Mr Walkom later received another payment of $160,000.  This latter payment was made pursuant to a settlement pursuant to a deed of release between Mr Walkom and his employer, Pasminco Limited. The two payments total $210,000. Some $80,000 of this compensation has been apportioned as being for economic loss.

BACKGROUND

3.      By a letter of 1 August 2007, Centrelink informed Mr Walkom that if he applied for social security payments in the future, Centrelink calculated a preclusion period which starts from 1 August 2007 and ends on 27 April 2010.

4.      By a letter dated 16 October 2007, which was received by Centrelink on     2 November 2007, Mr Walkom sought a review of the decision by an authorised review officer. On 21 November 2007 that officer wrote to the applicant to advise that a review had been undertaken and the appeal of Mr Walkom had been unsuccessful.

5.      On 22 February 2008 Mr Walkom lodged an appeal to the Social Security Appeals Tribunal. On 23 April 2008 that Tribunal decided that it had no jurisdiction to decide the matter because Mr Walkom had not made a claim for a compensation affected payment.

6.      On 23 May 2008, Mr Walkom made an application to this Tribunal for a review of the decision of the Social Security Appeals Tribunal.

ISSUE FOR CONSIDERATION

7.      I must determine whether this Tribunal has jurisdiction to consider the application of Mr Walkom.

CONSIDERATION

8.      At the outset I mention that I must determine whether I have jurisdiction to determine the application of Mr Walkom. It is settled that the finding by the Social Security Appeals Tribunal that it lacks jurisdiction to review a matter does not, in itself, preclude this Tribunal from entering into a review[1].

[1] Farmer v Secretary, Department of Social Security (1993) 31 ALD 262 at 271; [1993] AATA 143 at par [29] per Johnston DP. See also Nisha and Department of Family and Community Services (2003) 74 ALD 172 at 177-179; [2003] AATA 378 at pars [7] – [16].

9.      This Tribunal has power to review any “decision” in which application is made to it under any enactment[2]. The issue that I have to determine is whether, the letter of 1 August 2007 to Mr Walkom is evidence of a “decision” which I have power to review. 

[2] Administrative Appeals Tribunal Act 1975, s 25(4).

10.     I have already mentioned that the letter informed Mr Walkom that if he applied for social security payments in the future, Centrelink would calculate a preclusion period which starts on 1 August 2007 and ends on 27 April 2010.

11.     In considering whether a decision is a reviewable, I am bound by the decisions of the High Court of Australia and the Federal Court of Australia which have held that a “decision”, in order to be reviewable, must be made under an enactment. In Australian Broadcasting Tribunal v Bond[3] Mason CJ emphasised that “… a reviewable "decision" is one for which provision is made by or under a statute.”

[3] (1990) 170 CLR 321 per Mason CJ at 337; (1990) 94 ALR 11 at 23.

12.     In Pegasus Leasing Ltd and Anor v Federal Commissioner of Taxation[4] O’Loughlin J concluded that an informative letter which was sent to a syndicate by the Commissioner of Taxation, which discussed the tax treatment of certain payments, was not a decision which was reviewable. O’Loughlin J had considered whether there was any statutory obligation which required the Commissioner to issue the letter. In ruling that the letter was not a “decision”, His Honour had regard to the fact that the letter was not issued pursuant to any legislation.

[4] (1991) 104 ALR 442 per O’Loughlin J at 447.

13.     In Martinsen v Secretary, Department of Family & Community Services[5] the applicant sought a review of the correctness of calculation of his allowable study period but did not seek a review of a decision in respect of his eligibility for Austudy.  Spender J remarked[6] “What is or is not the particular allowable study period for Mr Martinsen at any particular time is not a decision made under an enactment”.

[5] (2004) 80 ALD 598; [2004] FCA 297.

[6] Martinsen v Secretary, Department of Family & Community Services (2004) 80 ALD 598 at 600-601; [2004] FCA 297 at [10].

14.     I have examined the letter of 1 August 2007 and consider that there is no statutory obligation on Centrelink to issue the letter. In the circumstances there is no “decision” that I have jurisdiction to review.

ORDER  

15.     The Tribunal directs that the application for review be dismissed on the grounds that the Tribunal does not have jurisdiction.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed:         ...............................[Sgd]..............................................
  Elizabeth Young, Research Associate

Hearing on the Papers              18 September 2008