Warren Stenhouse and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 57
•19 January 2012
[2012] AATA 57
Division General Administrative Division File Number(s)
2011/5197
Re
Warren Stenhouse
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 19 January 2012 Place Brisbane The Tribunal dismisses the application for review
..................................[Sgd]...............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – youth allowance – unsatisfactory reasons – dismissal of frivolous and vexatious proceedings
PRACTICE AND PROCEDURE - role of the tribunal – administrative justice – distinction between merits review and judicial review – outcome versus process – correct or preferable decision – no power to award damages or compensation – waste of public resources – mechanism of review that is fair, just, economical, informal and quick
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 2A, 42B(1)(a) and 43
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
REASONS FOR DECISION
Senior Member Bernard J McCabe
2 February 2012
The Secretary of the Department of Education, Employment and Workplace relations decided to suspend Mr Warren Stenhouse’s Youth Allowance on and from 7 February 2011. The allowance was subsequently cancelled because the Secretary says information had not been provided as requested. After a lengthy and apparently torturous process of review, the Secretary agreed that the applicant’s Youth Allowance payments should be restored from the date they were suspended. Mr Stenhouse was back-paid the entire amount he would have received if his allowance had not been cancelled.
The applicant’s father, Mr Stenhouse Snr, has taken up his son’s case. He was not satisfied with the reasons the respondent gave for restoring the payments. He said the payments should never have been suspended in the first place. Notwithstanding that the payments had already been reinstated (complete with payment of arrears), he took the matter to the Social Security Appeals Tribunal (“the SSAT”). In its decision of 7 November 2011, the SSAT affirmed the favourable decision to reinstate the applicant’s payments on and from the date they were suspended in February 2011.
Mr Stenhouse wants this Tribunal to reconsider the case. But the respondent says there is no point continuing with the review because the applicant has already succeeded in his quest to have his payments restored. On that basis, the respondent has asked that the application be dismissed pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975. That provision empowers the Tribunal to dismiss proceedings that are “frivolous or vexatious”.
The expression “frivolous or vexatious” is often misunderstood. In one sense, the words are unfortunate: an applicant might suppose the Tribunal is not taking his or her complaint seriously if it is described as being “frivolous”. That word has a particular meaning when it is used in the Act. It means the application is futile or pointless, most obviously because the Tribunal is not able to assist the applicant in a meaningful way. To understand why that might be so, it is helpful to appreciate the role of the Tribunal.
THE ROLE OF THE TRIBUNAL
The Commonwealth has established an elaborate system of administrative justice. There is good reason to believe the various parts of that system have resulted in better decision-making. Parts of the system have been used as a model in other countries precisely because they have been shown to be a success in this country. The Administrative Appeals Tribunal is an integral part of the system. Other agencies and organisations play a role, including the Federal Court, the Ombudsman, the Information Commissioner and, in social security cases, the SSAT and Centrelink’s own process of internal review. Each of these bodies has a particular function, and they are equipped with the resources, procedures and powers appropriate to their work.
This Tribunal is tasked with the function of conducting an independent merits’ review of administrative decisions. Not just any decision, mind you: only those decisions which are declared to be reviewable by an enactment. Currently, over 400 different enactments identify reviewable decisions. When the Tribunal commences a review, it focuses on achieving the “correct or preferable decision”: see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J. While the Tribunal is expected to give reasons for its decision in each case, it is not usually concerned with the reasons (or the decision-making process) of the decision-maker whose work it reviews. That is one of the important distinctions between merits review and judicial review undertaken by a court. A court focuses on the decision-making process and can set aside a decision where it detects legal or procedural error that taints the outcome. The Tribunal, in contrast, can – for the most part – ignore mistakes that may have been made by the primary decision-maker because the Tribunal is focused on getting its own decision right. The Tribunal does not generally need to get into complaints about maladministration or neglect or bias on the part of the original decision-maker. Our job as Tribunal members is to step into the shoes of the original decision-maker and conduct the process with a view to reaching the correct or preferable outcome.
This conception of the Tribunal’s role is ultimately derived from the words of the AAT Act. Section 43 sets out the powers of the Tribunal on review. The relevant sub-section reads:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
A close reading of the words of the section confirms the Tribunal is focused on getting the right outcome. It can only affirm, vary or set aside a decision; it is not empowered to inquire generally into the process undertaken by a primary decision-maker except insofar as it sheds light on what the correct or preferable decision might be in the case at hand. The Tribunal’s deliberative processes are in any event not well-suited to a more general sort of inquiry. It is certainly not intended that the Tribunal should adopt the role of a roving royal commission that roots out bad decision-making practices in isolation from the decisions which result.
That is not to say an individual’s complaints about the decision-making process (as opposed to the outcome) cannot be answered. A person who is dissatisfied with the way he or she has been treated has a number of options. He or she might approach the Ombudsman, for example. Our system of administrative justice anticipates that complaints about negligence or maladministration or corruption or bias will be handled by specialists in agencies with appropriate resources and powers.
SHOULD THE APPLICANT’S PROCEEDINGS BE DISMISSED?
And so to the decision under review in this case. Mr Stenhouse Snr confirmed that he was not dissatisfied with the decision under review. He does not want it changed. It seems everyone agrees that the correct or preferable decision has already been made and implemented. I saw nothing in the reasoning of the SSAT or in the other material on the file or in the submissions made by the parties that called the outcome into question. It follows there is nothing more I can do for Mr Stenhouse. I said as much to Mr Stenhouse at the hearing of the respondent’s application.
Mr Stenhouse Snr was not satisfied with that. He wants to call into question the reasons given by the various decision-makers involved in the case. He says they made errors of fact that led to mishandling of his son’s case. He wants to expose what he says is negligence and maladministration and cover-ups within Centrelink. He says his son should be compensated for the hardship occasioned by a decision-making process that went wrong. He argues it would be unjust to prevent him from ventilating his complaints at a Tribunal hearing.
I pointed out there were other agencies and avenues of inquiry that were better suited to dealing with his complaints. I explained the Tribunal had no power to award damages or pay compensation of any kind in a case like this. I said he was asking the Tribunal to undertake a task for which it was not designed. I added it would be a waste of valuable public resources to attempt to explore his various complaints in a Tribunal hearing when the correct or preferable decision had already been made and implemented. He was unconvinced.
I decided at the hearing of the application that the proceedings ought to be dismissed pursuant to s 42B(1)(a) on the basis that they are frivolous. The Tribunal is unable to make any order that will have a practical effect. The applicant’s position will not be improved if I put the parties to the expense and inconvenience of conducting a hearing. It is pointless to do so in the circumstances. Mr Stenhouse Snr expressed his dissatisfaction with the ruling, but there is nothing harsh or unreasonable about requiring that he raise his complaints with the proper authorities rather than waste the time and resources of the Tribunal on an inquiry which it is ill-equipped to undertake. He requested written reasons for my decision, as is his right.
Section 2A of the AAT Act says the Tribunal is required to provide “a mechanism of review that is fair, just, economical, informal and quick”. None of those competing demands will be served by allowing these proceedings to continue. The proceedings must be dismissed, for the reasons I have explained.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
...........................[Sgd].............................................
Associate
Dated 2 February 2012
Date of hearing 19 January 2012 Applicant In person Advocate for the Applicant Mr Stenhouse (Senior) Advocate for the Respondent Mr R McQuinlan
11
2
0