Williamson and National Disability Insurance Agency - [2019] AATA 2944

Williamson and National Disability Insurance Agency [2019] AATA 2944 (20 August 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2018/7653
Re:Amanda Williamson
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date:20 August 2019
Place:Melbourne

The Tribunal decides to adjourn further consideration so that the parties may consider how they wish to proceed.

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

S A FORGIE
Deputy President

Catchwords

PRACTICE AND PROCEDURE – request for decision to be made under s 42C(3) of the Administrative Appeals Tribunal Act 1975 (AAT Act) – where review date in plan has passed – where ongoing funding of supports needed while application for review before Tribunal – whether respondent has power to vary decision made under s 33(2) of National Disability Insurance Scheme Act 2013 – whether ss 26, 34D(1) and (3), 42C(1) and (3) or 42D of the AAT Act appropriate vehicles – s 42D or new plan entirely appropriate vehicles – further consideration adjourned

Legislation

Acts Interpretation Act 1901
Administrative Appeals Tribunal Act 1975
Corporations Act 2001
Financial Management and Accountability Act 1997
National Disability Insurance Agency Act 2013
Safety, Rehabilitation and Compensation Act 1988
Tribunals Amalgamation Act 2015

Cases

AlexandraPrivate Geriatric Hospital Pty Ltd v Blewett [1984] FCA 223; (1984) 2 FCR 368; 56 ALR 265
Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; (2013) 305 ALR 534; (2013) 61 AAR 509
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24;
66 ALR 299
Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; (2005) 145 FCR 542; 88 ALD 115
Minister for Indigenous Affairs v MJD Foundation Limited [2017] FCAFC 37
Pfeiffer v Stevens [2001] HCA 71; (2001) 209 CLR 57; 185 ALR 183; 121 LGERA 233
Re De Courcy Brown and Comcare [1997] AATA 528
Re Gee and Director General of Social Services (1981) 3 ALD 132
Re Higginbotham and Repatriation Commission [1994] AATA 458; (1994) 35 ALD 179
Re Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119; 39 AAR 387
Re Rebeiro and Comcare [1996] AATA 364
Re Rose and Comcare [2005] AATA 349
Re SHGH and National Disability Insurance Agency [2018] AATA 674
Re The Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682 (2013) 138 ALD 409; 92 ATR 730; 61 AAR 215
Rosillo v Telstra Corporation Limited [2003] FCA 1628; (2003) 77 ALD 396; 38 AAR 243
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; 267 ALR 204; 115 ALD 493

Secondary Materials
Chambers 21st Century Dictionary, 1999, reprinted 2004

Revised Explanatory Memorandum to the Administrative Appeals Tribunal Amendment Bill 1992

REASONS FOR DECISION

Deputy President SA Forgie

When a person becomes a participant in the National Disability Insurance Scheme (NDIS), the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) must facilitate the preparation of the participant’s plan. The plan is made under Division 2 of Part 2 of Chapter 3 of the National Disability Insurance Scheme Act 2013 (NDIS Act) and comes into effect under s 37 of that legislation.[1] That means that it comes into effect when the CEO has received the participant’s statement of goals and aspirations and approved the statement of participant supports.[2] It ceases to be in effect at the earlier of the following times: when it is replaced by another plan under Division 4; or when the participant ceases to be a participant in the NDIS. A participant may ask the CEO to review the decision to approve the statement of participant supports.[3] If asked to do so, the CEO must cause the decision to be reviewed by a reviewer, who must, under s 100(6) make a decision confirming the reviewable decision, varying it or setting it aside and substituting a new decision. The reviewer must make that decision as soon as is reasonably practicable. Once a reviewer has made a decision under s 100(6), an application may be made to the Tribunal for review under s 103.
[1] NDIS Act; s 9
[2] NDIS Act; s 37
[3] NDIS Act; s 99(1); Item 4 and s 100(2). The “decision-maker” is the CEO in the case of a statement of participant supports: NDIS Act; s 99(1); Item 4, Column 3. The decision to approve the statement of participant supports in the participant’s plan is a reviewable decision: NDIS Act; s 99(1); Item 4, Column 1.

In this case, a reviewer made a decision under s 100(6) on 3 December 2018 to confirm a decision made by a delegate of the CEO on 21 June 2018 to approve a statement of participant supports included in Ms Williamson’s plan. The parties have reached an agreement to ensure that Ms Williamson has access to ongoing funding while this proceeding continues. They have agree that this should be achieved by continuing the funding provided to her in her statement of participant supports for a further six month period after the review date provided for in her participant’s plan has passed. The date of the review would also be extended by a period of six months. On 11 July 2019, the parties lodged an agreement and asked the Tribunal to make a decision in accordance with s 42C(3) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

I was concerned whether I had power to make a decision in the terms agreed upon by the parties while also leaving, as the parties wanted, all of the issues raised by the statement of participant supports subject to review on the substantive hearing. Some Tribunals have decided that effect can be given to the parties’ wishes by means of s 26 of the AAT Act and others have considered ss 42C(1) and (3) and 42D of the AAT Act as appropriate vehicles. Therefore, I raised my concerns with the parties. They agreed that this case is an appropriate case in which to consider these issues.

Informed by the parties’ submissions, I have concluded that there are only two ways in which effect can be given to their agreement. They are set out in subparagraphs (1) and (4) below. I would favour that under (4) because it would lead to a more efficient implementation of any agreement between the participant and the Agency and enable the participant to have access to supports in a more seamless fashion when the period covered by the statement of participant supports approved under s 33(2) of the NDIS Act is at an end. I respectfully suggest that it would be in the parties’ interests and those of the Tribunal if provision were made in the NDIS Act for the purposes of s 26(1)(a) of the AAT Act. That provision would expressly authorise the CEO to alter the statement of participant supports even though an application has been made to the Tribunal under s 103 of the NDIS Act for review of the decision made by a reviewer under s 100(6) in respect of the CEO’s decision under s 33(2).[4]
[4] I suggest that any such provision not take the form of s 101 of the NDIS Act because it is not drafted in terms wide enough to cover all of the situations in which the decision-maker may wish to vary a reviewable decision. For the reasons I give at [24]–[27] below, the CEO does not have power to vary a reviewable decision made under s 33(2). That same reasoning would not apply to, say, a reviewable decision made under s 190 of the NDIS Act not to write off a debt. It is arguable that the CEO could vary the original decision and that a provision drafted in terms consistent with s 101 would be wide enough to permit alteration of the decision under review in the Tribunal.

In summary, the conclusions I have come to are:
(1)Participant’s access to supports after review date has passed
(a)A participant may have access to supports approved in a statement of participant supports after the review date has passed and provided the supports or funds in the nature of supports remain.
(i)The plan remains in effect until it is replaced under Division 4 of Part 2 of Chapter 3 of the NDIS Act.
(b)If the Agency reviews the participant’s plan, which includes the participant’s statement of goals and aspirations and the statement of participant supports approved by the CEO, it may make a new plan. That new plan replaces the earlier plan and may cover the same period or a subsequent period not covered by the earlier plan.
(i)The making of the new participant’s plan means that the earlier plan is no longer in effect and any supports will be provided under the new plan during its term. Continuity of supports is ensured.
∙The Tribunal will continue to hear any application made to it for review of the earlier plan for it may have an effect on the supports to which a participant was entitled in an earlier time.
·If the Tribunal were to decide that the participant had been entitled to a greater level of supports in that earlier period and had self-funded them at that higher level, the Agency would reimburse that difference.
(ii)The participant (or another directly affected by the decision) may request review of the CEO’s approval under s 33(2) of that statement of supports included in the new plan by a reviewer under s 100(6) of the NDIS Act. On receiving the reviewer’s decision, a participant (or another affected by the decision) may make an application for review of the decision to approve the statement of participant supports.
(iii)If the Tribunal has not resolved the first application when the second application is made, it may well hear the two together.

(2)Section 26 of the AAT Act
(a)If the parties have authority to consent to alterations to the decision that is under review and, if the Tribunal also consents to those alterations:
(i)the decision under review is altered so that, in the absence of, or within the parameters of, any order under s 41 of the AAT Act, it may be implemented in that altered form; and
(ii)the Tribunal reviews the decision as altered and, for that purpose, exercises all the relevant powers and discretions conferred by the enactment under which the decision under review was made and makes a decision of the sort set out in s 43(1) of the AAT Act;

(b)If the parties, or one of them, does not have authority to consent to an alteration, s 26 cannot be relied upon to alter the decision under review.
(i)The CEO does not have power to alter the statement of participant supports approved under s 33(2) of the NDIS Act because it is part of the participant’s plan and the participant’s plan cannot be varied after it comes into effect.
(ii)This may not be the outcome for all reviewable decisions made under the NDIS Act.

(3)Sections 34D(1) and (3) and sections 42C(1) and (3)
(a)The parties may agree on the terms of a decision of the Tribunal in the proceeding. If they do so and if they meet the requirements of ss 34D(1) or 42C(1) and if it appears to it to be appropriate to do so, the Tribunal may make a decision in those terms without holding a hearing.
(i)What is appropriate will require a consideration of whether the decision:
·appears to be lawful when regard is had to the legislation under which the decision is made;
·if a discretionary decision, it appears on its face to be within a range of decisions that could be made on the material that the Tribunal does have; and
·neither party appears to be acting under duress.

(b)If the Tribunal decides to make the decision, it does so under s 43 of the AAT Act and not under ss 34D(2) or (3) or 42C(2) or (3), as the case may be but acts in accordance with them.
(i)Sections ss 34D(2) and (3) or 42C(2) and (3) merely set the circumstances in which the Tribunal may exercise the powers it is given by s 43 of the AAT Act for the purpose of reviewing a decision.
·The decision is a final decision in each instance.

(ii)A decision made in accordance with ss 34D(2) or 42C(2) is a final decision in relation to all of the issues raised in the proceeding.
(iii)Sections 34D(3) and 42C(3) are also final decisions but only in relation to a part of the proceeding or a matter arising out of a proceeding.
·The Tribunal cannot give effect to the terms of the agreement until it has made its final decision under s 43 of the AAT Act.

(4)Section 42D
(a)On remittal of the decision to the Agency for reconsideration, the Tribunal cannot direct that the Agency make any particular decision.
(b)This does not prevent the Tribunal from remitting the decision made under s 100(6) to the Agency having received an indication from it that it would be minded to make a decision consistent with the terms agreed upon with the participant.
(i)That agreement may address changes in the statement of participant supports including an extension of the date of review.

(c)Reconsideration under s 42D is authorised by that provision under the AAT Act and not by the review process provided for in s 100(6) of the NDIS Act. Therefore, I am not aware of any legislative provision that would be an impediment to the Agency’s making that decision within a day or so when it had already agreed upon its terms with the participant.
(d)The parties can then proceed with a review of the new decision as the participant’s application for review is taken to be an application for review of the new decision.

THE SUBMISSIONS

Both parties made detailed submissions on the issues. Both addressed the structure of the scheme of the NDIS Act and the need to examine the language chosen by Parliament and its intention having regard to the context and purpose of the legislation.

The submissions on Ms Williamson’s behalf did not favour s 42C(3) of the AAT Act as the appropriate mechanism to ensure ongoing access to reasonable and necessary supports while the application is before the Tribunal. Until the Tribunal makes a decision in the proceeding under s 43, no effect can be given to any partial agreement. Section 42C(5) cannot be relied on to vary any decision made in accordance with s 42C(3) until after the Tribunal has made its final decision on review under s 43 of the AAT Act. Ms Williamson’s preferred approach is to engage s 26 of the AAT Act to alter the statement of participant supports and to extend the review date.

In summary, the Agency takes the view that, if the Tribunal gives effect to an agreement in the proceeding by making a decision under s 42C(3), it may immediately take steps to implement the agreement. The Agency does not favour an approach under s 26 of the AAT Act as the provisions of s 37(2) of the NDIS Act cast considerable doubt over whether the Agency may agree to an alteration of the statement of participant supports previously approved under s 33(2). A new plan could be made, the Agency submitted but that would make the current review proceedings of the original plan unnecessary. That would be so because the statement of participant supports in the original plan would no longer be in effect. In so far as s 42D is concerned, the Agency submitted that it could provide an avenue to achieve the outcome sought by the parties. It would allow variation of the decision under review. The only reservation expressed by the Agency would be the time taken to reconsider the decision.

PAYMENT OF SUPPORTS BY THE AGENCY AFTER THE REVIEW DATE HAS PASSED

The first issue concerns a situation in which the date by which, or circumstances in which, the Agency must review the participant’s plan under Division 4 of Part 2 of the NDIS Act has passed but funds remain in the plan unspent. At [29] to [30] below, I set out my reasons for coming to the view that the date by which, or the circumstances in which, the Agency must review a participant’s plan is part of the statement of participant’s supports. I also set out my reasons for coming to the view that, even if that date, or those circumstances, have passed, the participant’s plan, and so the statement of participant supports, remains in effect until it has been replaced by another plan under Division 4 of Part 2 of Chapter 3 of the NDIS Act or the participant ceases to become a participant. This is the effect of s 37(3).

It follows that, if there are any funds remaining unspent after the review date has passed, a participant should be able to have access to them for purposes set out in the statement of participant supports. The plan is ongoing.

In reaching my view, I note the practical difficulties raised by the Agency. One is that, to access funding for supports by way of the participant portal, it is necessary to change the review date in the NDIA’s computerised system. The system does not generally allow for a participant to have access to funding after the review date has passed although the Agency continues to process requests to have access to funding it has received before that date. The reason why the Agency has set up its system in this way stems from its concern that a change in the review date would mean that it had decided to replace the plan.
I do not see the matter in this way. Establishing a system that allows access to funding after review date is recognition of the continuation of the plan until it is replaced. An administrative step that allows that access cannot be interpreted in some way as a decision by the Agency to change the date of review. It is simply a recognition of the fact that, under the NDIS Act, the participant’s plan remains in effect. While funds remain in that plan and the plan has not been replaced, the participant should be able to have access to them.

Once the Agency has made another plan and replaced the earlier plan, payments will be made under that later plan from the date it comes into effect. That will be so even if the participant has made an application for review of the decision made by a reviewer under s 100(6) in relation to the CEO’s approval of the statement of participant supports made under s 33(2). The earlier plan will no longer be in effect but it may still be the subject of review in relation to the statement of participant supports. If the participant wishes to make a further application to the Tribunal for review of a decision made by a reviewer under s 100(6) and his or her application in relation to the earlier decision has not yet been resolved, the two will run side by side.

RIGHT TO APPLY TO THE TRIBUNAL FOR REVIEW OF A DECISION

The AAT Act does not itself provide that a person may make an application to the Tribunal for review of a decision. Instead, it provides for other enactments to do so. Section 25(1) states:
“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.”

Where an enactment makes provision in accordance with s 25(1), that enactment:
“(a) shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)may specify conditions subject to which applications may be made.”[5]
[5] AAT Act; s 25(3) Where an enactment makes provision in accordance with s 25(1) for the making of applications for the review of decisions made by a person in the exercise of a power conferred on that person, that provision applies also in relation to decisions made in the exercise of that power by any person to whom the power has been delegated, by the person acting in or performing the duties of the holder of a particular office or appointment if the provision describes the decision-maker in that way or by any other person lawfully authorised to exercise that power: AAT Act; s 25(3A).

Section 29 of the AAT Act sets out the manner in which a person may make an application to the Tribunal and the time within which he or she may do so. The provisions of s 29 may be modified by the enactment making provision for applications to be made to the Tribunal. So too may other provisions of the AAT Act be modified. Section 25(6) provides that:
“If an enactment provides for applications to the Tribunal:
(a)that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 29AB, 29AC, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and
(b)those sections and subsections have effect subject to any provisions so included.”

In Re The Trustee for the Confidential Trust and Commissioner of Taxation,[6] I considered whether an enactment providing for applications to be made to the Tribunal could also add to, exclude or modify the operation of provisions of the AAT Act to which no reference was made in s 25(6). That case concerned s 14ZZB(1)(a) of the Taxation Administration Act 1953 (TAA), which provided that s 41 – and not simply s 41(1) – and ss 28 and 44A did not apply in relation to a reviewable objection decision i.e. an objection decision that is not an ineligible income tax remission decision[7] an in relation to which an application for review could be made to the Tribunal. Section 25(6) had not made any reference to those particular provisions. For reasons I will not repeat here,[8] I decided in Re The Trustee for the Confidential Trust and Commissioner of Taxation that Parliament had decided to exclude the operation of the whole of s 41 of the AAT Act in relation to those applications made to the Tribunal for review of reviewable objection decisions. They turn on an analysis of the particular provisions of the AAT Act and those of the TAA and that approach would, I respectfully suggest, be applicable if the same issue were to arise in relation to another enactment that makes provision for applications to be made to the Tribunal.
[6] [2013] AATA 682 (2013) 138 ALD 409; 92 ATR 730; 61 AAR 215
[7] TAA; s 14ZQ
[8] [2013] AATA 682 (2013) 138 ALD 409; 92 ATR 730; 61 AAR 215 at [14]-[28]; 413-418; 735-739; 219-224
MAKING AN APPLICATION TO THE TRIBUNAL FOR REVIEW OF A DECISION UNDER THE NDIS ACT
As provided for in s 25(1) of the AAT Act, s 103 of the NDIS Act provides:
“Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note:Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.”

A decision made under s 100(6) is a decision made by a reviewer confirming the reviewable decision, varying that reviewable decision or setting aside the reviewable decision and substituting a new decision. Section 101 provides for variation of a reviewable decision before the reviewer has completed the review under s 100(6). That section provides:
“If:
(a)a request is made for review of a reviewable decision; and
(b)before a decision on the review is made, the reviewable decision is varied;
the request for review is taken to be for review of the reviewable decision as varied.”

A “reviewable decision” is a decision identified in ss 99(1) or (2) of the NDIS Act.[9] Thirty three decisions are identified in s 99(1) as reviewable decisions while provision is made in s 99(2) for the National Disability Insurance Scheme rules to provide that a decision made under a specified provision is a reviewable decision and to specify the decision-maker in respect of that reviewable decision. In relation to eight decisions made under Part 3A and specified as reviewable decisions in s 99(1), the decision-maker is the Commissioner of the NDIS Quality and Safeguards Commission established by s 181A of the NDIS Act.[10] Part 3A relates to the registration and regulation of NDIS providers. The decision-maker in the relation to the remaining 25 reviewable decisions is the CEO. One of those is a decision made under s 33(2).
[9] NDIS Act; s 9
[10] NDIS Act; s 9

Item

Column 1

Reviewable decision

Column 2

Provision under which the reviewable decision is made

Column 3

Decision-maker

4

a decision to approve the statement of participant supports in a participant’s plan

subsection 33(2)

CEO

Item	Column 1 Reviewable decision	Column 2 Provision under which the reviewable decision is made	Column 3 Decision-maker
4	a decision to approve the statement of participant supports in a participant’s plan	subsection 33(2)	CEO

DOES THE NDIS ACT PERMIT THE CEO TO VARY A REVIEWABLE DECISION MADE UNDER SECTION 33(2)?

Section 33(2) of the NDIS Act provides that:
“A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.”

Sections 33(3) to (7) make provision for particular aspects of the statement of participant supports. Sections 33(1) and (8) are concerned with the other statement that must be included in a participant’s plan i.e. the participant’s statement of goals and aspirations.

Returning to the statement of participant supports, I note that it must specify, among other matters, the date by which, or the circumstances in which, the Agency must review the plan under Division 4 of Part 2 of Chapter 3 of the NDIS Act. Section 48(5) provides that:
“The CEO must conduct a review of a participant’s plan before the plan’s review date and in the circumstances, if any, specified in the plan.”

Section 37(2) does not permit the CEO to vary a participant’s plan once it has come into effect. The section provides:
“A participant’s plan cannot be varied after it comes into effect, but can be replaced under Division 4.
Note:Under Division 4, a participant may request a review of his or her plan at any time and may revise the participant’s statement of goals and aspirations at any time, which results in the replacement of the plan.”

The CEO cannot choose to vary a participant’s plan by varying a statement of participant supports without proper authority, for doing so would require expenditure of public money in its implementation. Expenditure of public money must be accounted for by the CEO under the Financial Management and Accountability Act 1997. In the case of the NDIS, it would have to be accounted for under the NDIS Act and any subordinate legislation made under it. In view of the clear restriction imposed by s 37(2), it could not be accounted for.

In practical terms, replacement of the plan means that the CEO has approved a new participant’s plan and not a variation of the previously existing plan. Replacement of the plan does not mean that the replaced plan is of no relevance. If the CEO’s decision under s 33(2) to approve the statement of participant supports has been reviewed under s 100(6) of the NDIS Act and an application made to the Tribunal for review of the decision under s 100(6), that application remains on foot. The fact that a new plan with a new statement of supports has been made does not replace the decision under s 100(6) that is the subject of the review. The operative decision is the statement of supports as originally made. If the Tribunal were to decide that the supports provided in the statement of participant supports should have been approved at a higher level, the Agency will look to whether the participant has incurred expenses in providing those supports in the period covered by the earlier plan. If he or she has done so, it has the power to reimburse those additional expenses. It is important that the participant retains receipts of those expenses.

Again in practical terms, the decision to approve the statement of participant supports in that new participant’s plan is made under s 33(2). That decision would be a reviewable decision by virtue of Item 4 of s 99(1) of the NDIS Act and give a participant the same right to request the CEO to review the decision and ultimately apply to the Tribunal as he or she had in relation to the CEO’s decision to approve the statement of participant supports in the previous participant’s plan. Once a decision has been made by a reviewer under s 100(6), a participant may make an application to the Tribunal for its review.

If a participant’s application seeking review of the earlier decision were still on foot when he or she made an application seeking review of the later decision, the Tribunal would seek the parties’ views as to whether the applications should be joined so that they may be heard together on the basis that they will require consideration and resolution of similar issues. Joinder does not merge the decisions under review. They remain separate as do the statements of participant supports to which they relate and so the participant’s plans of which the statements are a part.

Before leaving this section of my reasons, I note that, in the submissions made on its behalf, the Agency has referred to decisions made by variously constituted Tribunals in which reference is made to an “expired plan” or to a participant’s plan’s “expiring” when the date or circumstances for review have passed. None of the decisions referred to analysed the point or gave any reasons as to why the CEO’s failure to conduct a review as required led to the participant’s plan’s having expired. On looking further into the matter, it seems to me that the use of the word “expire” or some form of it is not appropriate. It is not a word that is used in the NDIS Act and should be avoided for that reason. More importantly, a failure by the CEO to perform a statutory duty under s 48(5) does not mean that the participant’s plan is of no effect of that it ceases to be in effect. On the contrary, it seems to me that s 37 makes it clear that it does not. Under that section, a participant’s plan comes into effect when the CEO has received the participant’s statement of goals and aspirations and has approved the statement of participant supports.[11] Section 37(3) establishes when it ceases to be in effect:
“A participant’s plan ceases to be in effect at the earlier of the following times:
(a)when it is replaced by another plan under Division 4;
(b)when the participant ceases to be a participant.”

In reaching this conclusion, I am in agreement with that reached by Deputy President Constance in Re SHGH and National Disability Insurance Agency[12] (SHGH).

[11] NDIS Act; s 37(1)

[12] [2018] AATA 674 at [20]

Where I respectfully do not agree with Deputy President Constance in SHGH arises in the context of the review date. In that case, he said:
“… I came to the conclusion that an agreement to alter the review date should be recorded as a notation to the Tribunal’s consent rather than as part of the terms of the consent. My reason for this change is that, consistently with the reasoning I have set out above, the review date of the plan is not part of the reviewable decision. The reviewable decision relates only to the reasonable and necessary supports.”[13]
[13] [2018] AATA 674 at [31]

The reviewable decision specified in Item 4 of s 99(1) of the NDIS Act is “a decision to approve the statement of participant supports in a participant’s plan” and the decision is made under s 33(2) by the CEO. A participant’s plan must include a statement of participant supports prepared with the participant and approved by the CEO. That statement of participant supports must specify the five matters set out in s 33(2). The second of those, specified in s 33(2)(b), relates to the reasonable and necessary supports that will be funder under the NDIS. They are an integral part of the statement of participant supports but so too are the other four. The third of those, specified in s 33(2)(c), is the date by which, or the circumstances in which, the Agency must review the plan under Division 4 of Part 2 of Chapter 3. It is clear that the specification of the review date is clearly one part of the statement of participant supports. The CEO’s decision approves the whole of the statement of supports and all that it comprises and not simply one aspect of it, being the reasonable and necessary supports that will be funded by the NDIS. Therefore, when the Tribunal reviews the decision made by the CEO to approve a statement of participant supports under s 33(2), it may be engaged in reviewing each of the five matters that must be specified in it. In many cases, all of them may not be in dispute but they may be.

WHAT ARE THE TRIBUNAL’S POWERS WHEN REVIEWING A REVIEWABLE DECISION MADE UNDER SECTION 33(2) OF THE NDIS ACT?

In this section of my reasons, I will sketch the Tribunal’s powers and obligations in reviewing a decision in respect of which an application has been made to it. This will set the framework for my consideration of whether the decision under review may be changed before the Tribunal exercises its powers and performs its duties. In doing so, I will make particular reference to the review of a reviewable decision made by the CEO under s 33(2) of the NDIS Act.

General outline of the Tribunal’s powers and obligations in reviewing a decision

An application that is made to the Tribunal as provided for in s 103 of the NDIS Act is a “proceeding” for the purposes of the AAT Act.[14] The powers that the Tribunal has for the purposes of reviewing a decision and what it is required to do is the subject of s 43 of the AAT Act. Of central importance is s 43(1) when it provides:
“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.”
[14] Paragraph (a) of the definition of “proceeding” in s 3(1) of the AAT Act.

It is apparent from its own terms that s 43 must be read with the enactment conferring powers and discretions on the person who made the decision. Unless that enactment provides otherwise, the Tribunal has no greater powers or discretions than the decision-maker. That means that s 43 and the relevant enactment must be read side by side so that the Tribunal may make the decision that is correct both in law and on the evidence or, if there is more than one decision that is correct, the decision that is preferable having regard to the subject matter of the enactment as well as its underlying object and policy.[15]

[15] AlexandraPrivate Geriatric Hospital Pty Ltd v Blewett [1984] FCA 223; (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309 per Mason J with whom Gibbs CJ and Dawson J agreed. See also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409; Bowen CJ, Smithers and Deane JJ at 589; 68, 419 per Bowen CJ and Deane J and see also at 599; 77; 429-430 per Smithers J

Subject to ss 35 and 36D, s 43(2) requires the Tribunal to give reasons, either orally or in writing, “for its decision”. When the Tribunal chooses to give its reasons in writing “for its decision” or has been requested to do so under s 43(2A), s 43(2B) provides that those reasons must “… include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” The reference to “its decision” is consistent with the words of s 43(1) that the Tribunal “shall make a decision” doing one or other of the three things set out in the subsection.

Does the reference to “a decision” (emphasis added) mean that the Tribunal may make only one decision or may it make a decision about one aspect raised by the review of a decision and adjourn further consideration of the remaining aspects? That latter course might be taken if, for example, the Tribunal could not make a final decision because the parties needed to produce further evidence or give further consideration to their positions in light of, for example, the Tribunals’ view of the interpretation of the applicable law. Furthermore, does s 43(1) permit the Tribunal to make a decision that is comprised of different elements so that one element may affirm one aspect or part of the decision, vary another and set aside and remit other aspects or parts for reconsideration? In practice, the Tribunal does each of these things frequently. For the reasons I am about to give, I think that the Tribunal’s practice is consistent with the power it has been given provided that, when it has made a decision on each aspect or part of the decision that must be reviewed, it has exhausted its powers and has no further role to play.

The Acts Interpretation Act 1901 (AI Act) sets out general principles that apply to all Commonwealth Acts and any instruments made under them unless those Acts and instruments indicate that the general principles are not applicable. Part 7 of the AI Act sets out rules about exercising powers and performing duties under Commonwealth legislation. Of particular relevance in this case is s 33(1), which provides:
“Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as the occasion requires.”

It must be read in the context of s 2(2), which qualifies the general application of the AI Act:
“However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.”

In Minister for Indigenous Affairs v MJD Foundation Limited,[16] there were two questions. The first was whether s 33(1) of the AI Act empowered an incoming Minister to revoke the decision of a former Minister. Assuming that it did, the second issue was whether the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act) evinced a contrary intention within the meaning of s 2(2) of the AI Act. Mortimer J, with whom Perry J agreed, analysed a number of authorities. Her Honour concluded that a contrary intention was evinced by the scheme in the Land Act. That was enough to determine the appeal but she also concluded that:
“… the scope of s 33(1) does not extend to a general implication of an additional power to reverse or undo an exercise of power, whether by revoking a decision made in the exercise of a power or otherwise.”[17]
[16] [2017] FCAFC 37; Perram, Mortimer and Perry JJ
[17] [2017] FCAFC 37 at [100]

Later in her reasons, Mortimer J said of s 33(1):
“… Consideration of the history and purpose of s 33(1) suggests its operation should be confined to an implication that, subject to the presence of a contrary intention, powers may be exercised and functions performed on more than one occasion, in relation to different individuals and circumstances. Whether the implication extends to the repeated exercise of the same power or performance of the same function in relation to the same person or subject matter will ultimately depend on the particular statutory context, and the nature of the particular power or function concerned.”[18]
As to the location of that contrary intention, she agreed with the statement made by Lander J in Minister for Immigration and Multicultural and Indigenous Affairs v Watson:[19]
“…The contrary intention may appear not only in the particular legislative provision which creates the power but also in the Act as a whole: Pfeiffer v Stevens [2001] HCA 71; (2001) 209 CLR 57 per Gleeson CJ and Hayne J at [20] and McHugh J at [56].”[20]

To use the words of McHugh J in Pfeiffer v Stevens:
“ An intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself. …”[21]

[18] [2017] FCAFC 37 at [254]

[19] [2005] FCAFC 181; (2005) 145 FCR 542; 88 ALD 115; Dowsett, Hely and Lander JJ

[20] [2005] FCAFC 181; (2005) 145 FCR 542; 88 ALD 115 at [118]; 560; 133. cited at [2017] FCAFC 37 at [101]

[21] [2001] HCA 71; (2001) 209 CLR 57; 185 ALR 183; 121 LGERA 233 at [56]; 73; 195; 247

I now turn to applying these principles to s 43 of the AAT Act. I have already mentioned that s 43(1) is framed in terms of the Tribunal’s making “a decision” (emphasis added) for the purposes of reviewing a decision. Sections 34D(1) and (3) and 42C(1) and (3), to which I am about to give consideration, clearly contemplate that a decision made by the Tribunal may be the subject of an agreement between the parties. The broad power given to the Tribunal by s 33 to conduct its own procedures and the particular power given by s 33(2A) to require any party to the proceeding to provide further information in relation to that proceeding are consistent with my finding that the Tribunal need not make a final decision on every aspect of a proceeding at a single time. Having determined its view of the law, for example, or certain critical factual issues, it may adjourn further consideration to allow the parties to produce further evidence or to consider their own positions before deciding whether to continue or even reach a negotiated agreement on the outstanding matters. In the context of the AAT Act, the power given to the Tribunal is given under s 43 is consistent with the principle expressed in s 33(1) of the AI Act to the effect that the power may be exercised from time to time as the occasion requires.

What is the role of sections 34D and 42C of the AAT Act?

The interpretation of ss 34D and 42C is also relevant in providing the context in which the power given to the Tribunal under s 43 must be interpreted. Those sections contemplate that the parties may reach an agreement as to the terms of a decision of the Tribunal in a proceeding or in relation to “a part of the proceeding” or “a matter arising out of the proceeding”.[22] I will focus on a consideration of s 42C for s 34D is drafted in very similar terms with the same outcome. The only difference between the two is that s 34D applies when agreement is reached between the parties in the course of an alternative dispute resolution process.
[22] AAT Act; ss 34D(1) and 42C(1)

A. Section 42C: scope of s 42C(1)

Section 42C(1) provides:
“(1) If, at any stage of a proceeding for a review of a decision:
(a)agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be acceptable to the parties (other than an agreement reached in the course of an alternative dispute resolution process under Division 3); and
(b)the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c)the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.”
The word “may” is a word that is used in legislation either to confer power, discretionary power or both.[23] In the context of s 42C(1), it is used to confer power to act in accordance with either ss 42C(2) or (3). At the same time, the Tribunal is given discretion whether to act at all for it may act in accordance with whichever of ss 42C(2) and (3) is relevant “if it appears to it to be appropriate to do so”.[24] I will come back to ss 42C(2) and (3) because I do not get to them unless the criteria specified in what is the gateway provision that is s 42C(1) has been met.
[23] Sections 42C(1), (2) and (3) were enacted before s 33(2A) of the AI Act. Therefore, s 33(2A) does not apply in their interpretation.
[24] Section 42C(4) of the AAT Act qualifies the operation of ss 42C(2) and (3) in the context of an administrative assessment of child support in accordance with Part 6A of the Child Support (Assessment) Act 1989 but that qualification is not relevant in this case.

In providing that “the Tribunal may make a decision” (emphasis added), Parliament is underlining the discretionary nature of the power it has been given. Section 42C(1) has provided that it may only make a decision “if it appears to it to be appropriate to do so”. By way of contrast, there are occasions elsewhere in the AAT Act in which Parliament has directed the Tribunal to act in a certain way. Section 35(1), for example, provides that “Subject to this section, the hearing of a proceeding before the Tribunal must be in public.” (emphasis added) In considering whether to give directions modifying that position, “the Tribunal is to take as the basis of its consideration” (emphasis added) matters set out in s 35(5). The Tribunal “must” hear evidence and submission in its Security Division in the order specified in ss 39A(12) to (16).

Section 42C does not specify any parameters within which the discretion is to be exercised. In Re Liu and Comcare[25] (Liu), the Tribunal noted that:
“The introductory phrase ‘may’ confers a discretion, but one which must be exercised responsibly. The two part test requires the Tribunal to be satisfied both of the lawfulness of the proposed decision and also of its propriety.”[26]
[25] [2004] AATA 617; (2004) 79 ALD 119; 39 AAR 387; Downes J, President, Deputy President Handley and Senior Member Allen
[26] [2004] AATA 617; (2004) 79 ALD 119; 39 AAR 387 at [9]

In that case, the Tribunal amended the decision that the parties had agreed upon by deleting references to the date at which Comcare’s liability had ceased and a statement that Comcare’s liability to pay compensation under the provisions of the Safety, Rehabilitation and Compensation Act 1988 had ceased from a particular date. In so far as it applied to future claims, a decision could not lawfully be made in those terms.[27] The Tribunal otherwise accepted the terms of the decision agreed upon by the parties and made a decision accordingly.
[27] Rosillo v Telstra Corporation Limited [2003] FCA 1628; (2003) 77 ALD 396; 38 AAR 243; Madgwick J

The Tribunal’s rejection of those parts of the agreement that went beyond its power is consistent with the limits on its power to make a decision that is “correct” i.e. correct according to law. This is one part of the oft repeated words of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs:[28]
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferableone on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferableone on the material before the Tribunal. ...”[29]
[28] (1979) 46 FLR 409; (1979) 24 ALR 577; 2 ALD 60; Bowen CJ, Smithers and Deane JJ
[29] (1979) 46 FLR 409; (1979) 24 ALR 577; 2 ALD 60 at 589; 419; 68

When that task is broken down, it is a task to reach a decision that is the correct or preferabledecision i.e. the decision that is correct according to the law and on the evidence and, where more than one decision meets that description, the decision that is preferable having regard to the limits imposed by the legislation under which the decision is made and the facts of the case.

To what extent is the Tribunal to consider the whole of this task if the parties have reached an agreement? The Tribunal in Liu would seem to have thought that it does not have to do so beyond considering the lawfulness of the proposed decision and its propriety i.e. “appropriateness to the purpose or circumstances”.[30] That is language that is more consistent with the power given by s 42C(1) to act in accordance with either ss 42C(2) or (3) “if it appears to it to be appropriate to do so”. It is language consistent with the power given in s 42C(2) to make a decision in accordance with the terms of a decision as agreed without holding a hearing of the proceeding or without completing a hearing. In other words, if the decision appears to be lawful when regard is had to the legislation under which the decision is made and appears on its face to be within a range of decisions that could be made on the material that the Tribunal does have and neither party appears to be acting under duress, the Tribunal may think that it is appropriate to make a decision in the terms agreed upon.

[30] Chambers 21st Century Dictionary (1999, reprinted 2004) (Chambers)

I suggest that the Tribunal is not required to go further to make an absolute determination as to what it might have considered is the correct or preferable decision. In most cases, it will not be in a position to do so for it will not have held a hearing or will not have completed it. On the face of s 42C(1), that approach would seem to be consistent with Parliament’s limiting the Tribunal’s power to those circumstances where “it appears to be appropriate to do so”. Unlike s 43(1), it is not being asked to exercise all of the powers and discretions conferred by the relevant enactment on the decision-maker who made the decision and make a decision. What it is being asked to do is to decide if it is satisfied that a decision in the terms agreed upon, or consistent with those terms, would be within its powers. That supports an interpretation that the Tribunal need only be satisfied that the decision would be within the range of decisions that would be the correct or preferable decision.

My interpretation is consistent with the explanation given in the Explanatory Memorandum to the Administrative Appeals Tribunal Amendment Bill 1992, that became the Administrative Appeals Tribunal Amendment Act 1993,[31] when dealing with the new s 42C that would replace the old s 34(2). The Explanatory Memorandum went on to state that:
“ Unlike old subsection 34(2) this section provides the Tribunal with a discretion to decline to make a decision in accordance with the terms of the agreement. In making a decision the Tribunal, in effect, stands in the shoes of the decision maker. It is inconsistent with the role of the Tribunal to require it to make a decision adopting the terms of the agreement between the parties where it considers that, in the circumstances of the case, the agreement would not result in the correct of preferable decision being made.”[32]
[31] Act No. 31 of 1993
[32] Explanatory Memorandum to the Administrative Appeals Tribunal Amendment Bill 1992 at [63]

On one reading, this passage might suggest that my view of the proper interpretation of s 42C(1) is incorrect but I do not think that it is. I do not think that it does for four reasons. The first is based on the fact that, as I have said above, the Tribunal is not required to hold a hearing or, if a hearing has commenced, complete that hearing. The Tribunal is unlikely to be apprised of the issues and evidence and in a position to make what it considers to be a correct or preferable decision as it would be after completing a hearing of the proceeding.

My second reason is based on the exhortation in ss 2A(b), (c) and (d) of the AAT Act that:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)       is accessible; and
(b)       is fair, just, economical, informal and quick; and
(c)       is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.”

To require the Tribunal to come to a definitive view about what the correct or preferable decision might be, as opposed to whether the decision agreed upon falls within a range of correct or preferable decisions, without holding a hearing of the proceeding or without completing a hearing is inconsistent with the objectives set out in s 2A. It is also inconsistent with the notions underpinning the Tribunal’s alternative dispute processes that encourage parties to negotiate and to reach agreement. Encouragement of the parties to resolve their own differences is one way in which public trust and confidence is promoted.

If, contrary to my view, the words of the Explanatory Memorandum do suggest that the Tribunal make the correct or preferable decision and not simply a decision that is within the range of decisions that could be regarded as correct or preferable, I would respectfully suggest that they go beyond those chosen by Parliament when enacting s 42C. I am bound to look to the words that Parliament has chosen to ascertain the meaning of a statutory provision and I cannot change their meaning by reference to extrinsic material. This was explained by the majority in Saeed v Minister for Immigration and Citizenship:[33]
“ As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative ‘intention’ is to be ascertained, ‘what is involved is the “intention manifested” by the legislation.’ … Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
In Re Bolton; Ex Parte Beane … the question was whether a statutory provision concerned with ‘visiting forces’ applied to deserters from the armed forces of the United States. Mason CJ, Wilson and Dawson JJ said …:
‘[T]he second reading speech of the Minister ... quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.’…
Regard was had by the Full Court in this case to what was said in Re Bolton; Ex Parte Beane. … As was pointed out in Catlow v Accident Compensation Commission … it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction.”[34]
[33] [2010] HCA 23; (2010) 241 CLR 252; 267 ALR 204; 115 ALD 493; French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ
[34] [2010] HCA 23; (2010) 241 CLR 252; 267 ALR 204; 115 ALD 493 at [31]-[33]; 264-265; 213-214; 501-502 per French CJ, Gummow, Hayne, Crennan and Kiefel JJ (citations omitted)

My fourth reason lies in s 42C(5),[35] which was inserted in the AAT Act by the Tribunals Amalgamation Act 2015 (TA Act).[36] It does not apply to a decision made on child support first review[37] but otherwise provides:
“The Tribunal may vary or revoke so much of a decision as it made in accordance with subsection (2) or (3) if:
(a) the parties, or their representatives, reach agreement on the variation or revocation; and
(b)the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c) the variation or revocation appears appropriate to the Tribunal; and
(d) in the case of a variation—the Tribunal is satisfied that it would have been within the powers of the Tribunal to have made the decision as varied.”
[35] The equivalent provision in s 34D is s 34D(4), which was also inserted in the AAT Act by the TA Act.
[36] Act No. 60 of 115; TA Act; s 3; Schedule 1, Item 117
[37] AAT Act; s 42C(6)

Clause 559 of the Revised Explanatory Memorandum to the TA Act explains that:
“New subsection 42C(5) would insert a new provision enabling the Tribunal to vary or revoke a decision made under subsections 42C(2) or (3) where the parties reach agreement to the variation or revocation, the agreement is reduced to writing, the Tribunal considers it appropriate, and the decision would be within the Tribunal`s powers. At present, the Tribunal does not have an explicit legislative power to vary or revoke such decisions in appropriate circumstances. New subsection 42C(5) would enable the Tribunal to implement outcomes satisfactory to the parties where it is within its powers to do so.”

Even without the explanation of the Revised Explanatory Memorandum, s 42C(5) is drafted in terms that assume that a range of decisions might possibly have been made by the Tribunal. By permitting the variation or revocation of a decision made in accordance with ss 42C(2) or (3) to be varied, s 42C(5) makes it clear that more than one decision would have been within the Tribunal’s powers.

B. Section 42C: scope of sections 42C(2) and (3)

Section 42C(2) is concerned with the situation in which the agreement is directed to the decision that the parties agree that the Tribunal should make in the proceeding:
“If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if the hearing has commenced, without completing the hearing.”

If the Tribunal decides that it is appropriate to make a decision using the power given to it by s 42C(2), that will be a decision in the proceeding. In the case of a proceeding that is an application for review of a decision made under s 100(6) of the NDIS Act reviewing a reviewable decision made under s 33(2), the Tribunal’s decision will, subject only to s 42C(5), conclude the proceeding. The Tribunal will have made its terms within its powers and so within the restrictions of s 43 of the AAT Act and exercising the powers and discretions of the CEO under the NDIS Act.

Section 42C(3) provides:
“If the agreement relates to a part of the proceeding or a matter arising out of the proceeding, the Tribunal may in its decision in the proceeding give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing of the proceeding with the part of the proceeding or the matter arising out of the proceeding, as the case may be, to which the agreement relates.
The question arises whether the Tribunal may make a decision in accordance with s 42C(3) in relation to part of the proceeding without deciding the whole of the matters arising out of a proceeding or whether it may only make it when it make it as part of its final decision under s 43. In the case of Re Higginbotham and Repatriation Commission[38] (Higginbotham), I said:
“ Also for the sake of completeness I observe that I have reservations whether section 42C may be used to make a decision or part only of the issues arising from the application. So, for example, I have reservations whether a decision could be made that a disease is war-caused and the veteran is entitled to be paid a certain rate of pension in respect of it while his other diseases and injuries are the subject of a hearing. Any reservations flow from the reference in sub-section 42C(2) to the terms of ‘the decision in the proceeding’. On one view, it is limited to the decision finalising the application. A similar view may be taken of sub-section 42C(3) which also refers to the Tribunal's ‘decision in the proceeding’ as if it were the one and final decision. Whatever the powers of the Tribunal under section 42C, it is open to the Tribunal to make such a decision otherwise than under the AAT Act provided it takes the precaution of adjourning further consideration in respect of the outstanding issues and not rendering itself functus officio.”[39]
[38] [1994] AATA 458; (1994) 35 ALD 179
[39] [1994] AATA 458; (1994) 35 ALD 179 at [29]; 185-186

I think that the reservations I expressed in Higginbotham in 1994 have been given some weight by the subsequent enactment of s 42C(5) in 2015. The Tribunal is give power to “… vary or revoke so much of a decision as it made in accordance with subsection (2) or (3) …” (emphasis added) in the circumstances specified in the provision. This strongly suggests that, in so far as s 42C(3) is concerned, the Tribunal must wait until it makes its final decision under s 43 before it may have regard to the agreement reached by the parties as to part of the decision.

At first blush, this interpretation has practical difficulties in its application. The parties have agreed on certain issues and do not wish to lead evidence on them should there be a hearing. At the same time, it does not have the certainty that the Tribunal will be satisfied that a decision in those terms or consistent with them would be within its powers. Do the parties have to prepare their cases in any event to cover that eventuality that the Tribunal is ultimately not so satisfied? To my mind, this is not a satisfactory outcome either from an economical point of view for the parties or the Tribunal or from the point of view of paying regard to their agreement.

I suggest that these practical difficulties could be readily overcome if the Tribunal were to indicate whether or not it was prepared to make a decision in the terms agreed upon by the parties when it made its final decision. If it were prepared to do so, it could give the parties certainty regarding its intention by using its power under s 25(4A) of the AAT Act. That section provides:
“The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.”

The terms of its determination would note the matters agreed upon in the context of s 42C(3). They would then limit the questions of fact, the evidence and the issues that it considers at the hearing of the proceeding, but not otherwise, to those issues that do not relate to those agreed upon by the parties. The Tribunal would be determining the scope of the review under s 25(4A) in the sense that it would be determining the limits within which the review would be conducted and the matters that the Tribunal would accept in its final decision.

C.Scope of s 42C(3) in context of review of decision under s 100(6) of NDIS Act

The interpretation of s 42C(3) of the AAT Act that I favour raises difficulties when the decision under review is a reviewable decision made under s 100(6) of the NDIS Act in relation to a decision made under s 33(2) of that enactment. If the contrary interpretation to the effect that a decision may be made under s 42C(3) on part only of the issues raised by the review is to be preferred, that raises its own set of difficulties. I will deal with each in turn.

C.1Assumption: Tribunal cannot give effect to parties’ agreement by making a decision in accordance with sections 42C(1) and (3) and before it finally disposes of the application for review

If, as I think is the case, parties must wait until the final determination of the matter, whether after a final hearing or by agreement leading to a decision under s 42C(2), the NDIS will be unable to implement the terms of the decision they have agreed upon. The Tribunal will not have exercised any power to vary the reviewable decision made under s 33(2) in the form in which it remains after review by the reviewer under s 100(6). The statement of participant supports will not have been altered in fact and the Agency will not be able to provide further funds to a participant beyond those already specified in the statement of participant supports. In summary, if the Tribunal cannot give effect to the parties’ agreement before it makes its final decision in the proceeding, there is no purpose in their reaching that agreement at all for it cannot extend the supports available to the participant in the existing plan.

C.2Assumption: Tribunal can give effect to parties’ agreement by making a decision in accordance with sections 42C(1) and (3) and before it finally disposes of the application for review

If, contrary to my view, this assumption were the correct interpretation of ss 42C(1) and (3), the result would be that the Tribunal could make a decision on the matters that have been agreed between the parties immediately. Assuming that it did make that decision, those matters would no longer be in issue between the parties. They would no longer be matters that the Tribunal could review at any hearing. The only variation that could be made to them would come about under s 42C(5) of the AAT Act. The same would be true if the parties wanted to revoke them. In both instances, s 42C(5) would require their agreement. In either case, the revocation or variation would have to appear appropriate to the Tribunal. If the parties seek a variation, the Tribunal would have to be satisfied that it would have been within its powers to make the decision as varied.

Whether this would mean that s 42C(3) is an inappropriate vehicle for the parties to agree on a variation of the terms of a statement of participant supports, including the date or circumstances in which the Agency must review the plan under Division 4, depends on what they want. If they want to determine once and for all certain matters that would otherwise be the subject of review, it could be suitable. Once the Tribunal had made its decision under s 42C, the Agency could implement it.

Section 42C(3) would not, however, be an appropriate vehicle if the participant and the Agency wanted to use it to extend the provision of supports beyond the review date expressed in the plan but were otherwise still in dispute about the nature of the supports provided. A decision under s 42C(3) is, subject only to s 42C(5), a final decision. It is a decision made by the Tribunal exercising its powers under s 43(1). With the exception of instances in which it has made a jurisdictional error, there is no room for the Tribunal to vary its decision once made.

It is only in the context of this second assumption of the interpretation of ss 42C(1) and (3) that the Agency’s submission on this point comes into play. Its submission is:
“The proposed decision would also vary the review date, but again in a context where the intention is clearly not to finally resolve that issue. The Respondent sees no barrier to a further variation to that review date in a final decision of the Tribunal.
In the circumstances, we do not think that the Agreement, or a partial decision reflecting that Agreement, would be construed to preclude the Tribunal from subsequently making a different decision about the reasonable and necessary supports in the Applicant’s statement of participant supports, or about the review date. The Tribunal may give effect to that partial decision in its final decision, by making a final decision that is consistent with the agreement on a pro rata extension.
For example, the Respondent considers that a final Tribunal decision that:
(a)gave effect to the pro rata extension issue in the partial decision, by referring to the parties’ agreement on that issue; and
(b)further extended the review date (to give time after Tribunal decision for plan to have effect without the need for further review); and
(c)further varied the level of reasonable and necessary supports (usually expressed as supports in a 6 or 12 month period);
would be consistent with the proposed s 42C(3) decision, given that partial decision only deals with the continuation of supports while the matter is in the Tribunal.”[40]
[40] Respondent’s submissions at [59]-[61]

The Tribunal would have power to make a decision consistent with any variation of the determination agreed upon between the parties if that variation related to the supports to be provided or an extension of the period during which they would be provided. It would be able to consider whether the review date of the plan of participant supports approved under s 33(2) should be extended and if the nature of those supports should be varied in any way. Its power to review that part of the decision made by the CEO and as confirmed, varied or affirmed on review under s 100(6) does not arise as a result of any operation of s 42C of the AAT Act. It arises as a result of the Tribunal’s power under s 43 of the AAT Act, when read with the powers and discretions given to the CEO under s 33(2) of the NDIS Act. It is that power to which s 42C(3) refers when it provides that “the Tribunal may in its decision in the proceeding” and to which s 42C(2) refers when it provides that “the Tribunal may make a decision in accordance with those terms”. The Tribunal has not been given a power separate from the power it is given by s 43 “For the purpose of reviewing a decision …”. Section 42C carefully refers to the Tribunal’s making a decision “in accordance with” ss 42C(2) or (3) but not “under” either one of them. That is to say, the Tribunal’s power is given to it by s 43 but, in exercising it, the Tribunal may act in accordance with ss 42C(2) or (3). Once the Tribunal has exercised its power, the Tribunal has exhausted that power. That does not mean that it must exercise it all at once. As I said earlier, the Tribunal may give a decision in relation to some of the issues and adjourn further consideration of others. Once it decides a part of the proceeding, however, its power is at an end in relation to that part of the proceeding. Therefore, its power to review the matters raised by the extension of the supports and the review date would be at an end.

If I were incorrect and a decision could be made in accordance with ss 42C(1) and (3) before the Tribunal makes its decision in the proceeding, I can think of only one way that the difficulty I have identified could be overcome. Even then, the way of overcoming it would depend on acceptance by the parties that, whatever they may be after the review of the statement of participant supports, the supports that will be reasonable and necessary in the extended period will be no different from what they were in the period of the plan. If that were the case, the parties could ask the Tribunal to make a decision in accordance with ss 42C(1) and (3) and s 43 in relation only to the supports to be provided in the extended period of the plan. They would do so on a pro rata basis consistent with the period of the extension and expressed as a percentage or proportion. Therefore, if the plan were expressed to extend over a 12 month period and the extended period for a further six months, the decision agreed upon in relation to that extended period would be expressed in terms of half or 50% of the supports provided in the statement of participant supports under review.

The Tribunal’s power to review the statement of participant supports as approved by the CEO and reviewed under s 100(6) of the NDIS Act would be unaffected. Whatever the Tribunal ultimately decided with regard to the statement of participant supports in the original plan would be implemented by the Agency in the extended period by virtue of its being a percentage or proportion of the supports determined by the Tribunal. What the Tribunal would not be able to do in its decision in reviewing the statement of participant supports would be to increase that percentage or proportion in relation to the extended period because it would have exhausted its powers under s 43 in relation to the extended period when it acted in accordance with s 42C(3).

What is the role of section 26 of the AAT Act?

A. Section 26: the provision

In so far as s 26 of the AAT Act relates to proceedings other than child support first reviews and applications authorised by Norfolk Island enactments, it provides:
‘(1) Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:
(a)if regulations made for the purposes of subsection 25(2) (which deals with Norfolk Island) did not authorise the making of the application – the enactment that authorised the making of the application expressly permits the decision to be altered; or
(aa)…
(b)the parties to the proceeding, and the Tribunal, consent to the making of the alteration.
(1A)…
(2)A reference in subsection (1) to the alteration of a decision is a reference to:
(a)the variation of a decision; or
(b)the setting aside of a decision; or
(c)the setting aside of a decision and the making of a decision in substitution for the decision set aside.”

I will look first at s 26(1)(a). The NDIS Act is not a regulation made for the purposes of s 25(2) of the AAT Act. It does not permit a reviewable decision made under s 33(2) to be altered once an application has been made to the Tribunal for review of a decision made by a reviewer under s 100(6). Even if an application has not been made to the Tribunal, the decision made by the reviewer under s 100(6) may not be changed. Otherwise than being varied by a reviewer after conducting a review under s 100(6), the only way in which a reviewable decision made under s 33(2) may be changed arises if a request is made for review of the reviewable decision before the reviewer makes a decision on review. That variation is provided for in s 101 of the NDIS Act but it is not available to permit a variation once the reviewer has made a decision under s 100(6).

B. Section 26: constraints imposed by the parties’ power to reach agreement

The power to alter a decision under review by the Tribunal under s 26(1)(b) relies on the parties, as well as the Tribunal, consenting to it. Section 26(1)(b) does not of itself give the parties power or authority to consent. It does not give the Tribunal power to consent. That power or authority must be found elsewhere. All that s 26(1)(b) does is to state that a decision may be altered if the circumstances arise in which the parties and the Tribunal consent to the alteration. The power or authority to consent to the alteration must come from somewhere else.

In the case of a party who is an individual and not the decision-maker, he or she may not be constrained by any considerations external to his or her own personal interests. Other parties who are not the decision-maker may be constrained by other considerations. I refer, for example, to a corporation. Its power or authority may be found in provisions of the Corporations Act 2001 that apply to it as replaceable rules or in any constitution it may have. Those are the documents that govern its internal management.[41] It is to be expected that those representing a corporation would follow the replaceable rules and any constitution in authorising agreement to an alteration to the decision under review. From the other party’s point of view and even that of the Tribunal, unless he, she or it knows or suspects that the assumption is incorrect, each of them is entitled to assume that the corporation has complied with its replaceable rules and with any constitution.[42]
[41] Corporations Act; s 134
[42] Corporations Act; ss 128(1) and (4) and 129(1)

B.1Constraints on decision-maker set out in the enactment under which decision made

A decision-maker who has made the administrative decision that is subject to review by the Tribunal is, however, subject to constraints and they take the form of legislative constraints. If a decision-maker is able to agree to an alteration, his or her power has to be found in a legislative provision other than s 26(1)(b). As I have said, s 26(1)(b) refers only to the fact of the parties to the proceeding having consented. It does not give them power or authority to consent. That power or authority must be found in a place other than s 26(1)(b).

In the case of a decision under s 33(2) approving a statement of participant supports, the CEO does not have any power or authority to vary that decision. I have explained the reasons for this at [24] to [27] above. Should it be thought that this conclusion is inconsistent with the conclusion I have reached in relation to ss 34D and 42C of the AAT Act, I would observe that those provisions are expressed in terms of the Tribunal’s power to make a decision. The agreement that the parties reach under those provisions is not to consent to the alteration of the decision under review. It is an agreement as to the terms of a decision in the proceeding, or part of it, that would be acceptable to them were the Tribunal to be satisfied that a decision in those terms, or consistent with them, would be within its powers. The power to make the decision leading to a confirmation, variation or setting aside and substitution of all or part of the decision under review is exercised by the Tribunal. The parties simply agree to the terms of a decision of the Tribunal that would be acceptable to them. This means that the decision-maker does not himself or herself have to exercise any power to make that decision. That is to be contrasted with the situation under s 26 when it is not the Tribunal that is altering the decision. It is consenting only to an alteration to which the parties also consent. For the reasons I have given above, a decision-maker cannot consent to an alteration unless authorised to do so by the legislation under which the decision under review has been made.

I note that the same approach was adopted by a differently constituted Tribunal in Re Rebeiro and Comcare[43] (Rebeiro). Comcare had made a determination on 23 August 1995 under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). It had determined that it was not liable to pay the cost of Ms Rebeiro’s surgery in circumstances in which it noted that the condition that necessitated surgery might have been aggravated by her employment but in which that condition itself had not arisen out of or in the course of her employment. Comcare affirmed its decision on 26 September 1995. That became the reviewable decision. Ms Rebeiro lodged an application for review of Comcare’s reviewable decision. She did not wait for the outcome and underwent the surgery. Following her surgery, further medical evidence led Comcare to form the view that Ms Rebeiro’s condition itself had arisen out of or in the course of her employment. Consequently, on 15 October 1996, a delegate of Comcare decided to set aside its earlier determinations and to grant Ms Rebeiro’s claim for compensation in the amount of the surgical costs. Comcare then asked the Tribunal to vacate the hearing that it had listed and also asked Ms Rebeiro to withdraw her application or it would apply to the Tribunal for an order dismissing her application under s 42B for being frivolous and vexatious.
[43] [1996] AATA 364; Senior Member Hotop and Dr Billings and Mr Staer, Members

The Tribunal noted that Comcare was authorised by s 62(1) of the SRC Act to reconsider, or cause to be reconsidered, a determination of the sort it had made on 23 August 1995. The terms of s 62(1) expressly permitted Comcare to undertake that reconsideration regardless of whether a proceeding had been instituted under Part VI of the SRC Act in respect of a reviewable decision made in relation to its determination. That is to say, Comcare could review its determination regardless of the fact that Ms Rebeiro had lodged an application for review of the reviewable decision it had made on 26 September 1996 affirming its determination dated 23 August 1995.

Reconsideration of the determination and substitution of another determination for it did not, however, alter the reviewable decision that was the subject of Ms Rebeiro’s application to the Tribunal for review. The power that Comcare had under s 62(1) of the SRC Act was limited to reconsideration of the determination and not of the reviewable decision. Nothing else in the SRC Act permitted Comcare to vary its reviewable decision. Therefore, it could not consent to the making of an alteration to its reviewable decision and s 26(1)(b) had no application. The reviewable decision affirming the determination dated 23 August 1995 remained the subject of review by the Tribunal despite Comcare’s wishing to change its position in view of further medical evidence it had received.[44]
[44] [1996] AATA 364 at [48]-[51]

I followed the reasoning of Rebeiro in Re De Courcy Brown and Comcare.[45]In Re Rose and Comcare[46] (Rose), I adopted the same reasoning but then extended it by reference to the principles in Re Gee and Director General of Social Services[47] (Re Gee). Those principles assist the Tribunal to identify the operative decision that is under review. I relied on them to conclude that the operative decision under review was in fact the decision as varied by Comcare using its own powers of review under s 62 of the Comcare Act. I do not think that this reasoning is valid because each decision made by Comcare under s 62 is itself a reviewable decision by virtue of the definition of that term in s 60(1) of the SRC Act. Section 64 gives, among others, each claimant a right to make an application for review of each reviewable decision. The scheme of the SRC Act does not leave any room for the application of principles of the sort addressed in Re Gee.

B.2Constraints on Agency in consenting to any alteration of statement of participant supports

[45] [1997] AATA 528

[46] [2005] AATA 349

[47] (1981) 3 ALD 132 at 141 (Davies J, President, Mr Cusack and Mr Prowse, Members)

Reasoning of the sort adopted in Rebeiro applies in this case. The decision made by the reviewer under s 100(6) must be to take one or other of three courses of action. Although the word “confirm” is used to describe one of those courses rather than “affirm”, the courses are no different in substance. The principles explained in Re Gee lead to the conclusion that, when an application is made to the Tribunal for review of the decision made under s 100(6) of the NDIS Act, the Tribunal reviews the operative decision. The operative decision is the decision that affects, in this case, the supports that Ms Williamson receives. It is the decision that approved the statement of participant supports under s 33(2). For the reasons I have given above, the CEO has no power to review the decision made under s 33(2).[48] That means that the CEO cannot consent to the making of an alteration to a decision made under s 33(2).

[48] See [24]-[27] above

If I look at the matter from the point of view of the fact that Ms Williamson has sought review of the decision made by a reviewer confirming the reviewable decision that is the decision under s 33(2), the outcome is no different. Nothing in the NDIS Act permits alteration of the reviewer’s decision. Section 101 does not do so for it permits alteration only of the reviewable decision that is being reviewed by the reviewer under s 100(6) and not of the decision of the reviewer. Therefore, s 26(1)(b) cannot permit the alteration of the decision made by the reviewer under s 100(6). Subject only to s 42D, the decision may not be altered otherwise than by the Tribunal.

It follows that I do not find myself in agreement with Deputy President Constance when he said in SHGH that, when the parties consented to making alterations to a statement of participant supports, then:
“As soon as the consent of the Tribunal to alter the reviewable decision was obtained, the parties were free to implement the agreement they made in accordance with section 26 of the AAT Act to increase the funding of the therapies … [and to extend the date of review of the participant’s plan].
… As the alteration of the decision under review was made with the consent of the parties, the altered decision becomes the reviewable decision in accordance with section 26 of the AAT Act.”[49]
[49] [2018] AATA 674 at [23]-[24]

Although I understand the desire to find that the Tribunal has jurisdiction to deal with all of the issues, I remain of the view that the Tribunal must find its jurisdiction in the legislation. In this instance, I do not agree that s 26 of the AAT Act can be regarded as a source of power enabling a decision-maker to consent to an alteration of the decision under review. As the AAT Act is currently drafted, the decision-maker’s power to consent to an alteration must be found in the enactment authorising applications to be made to the Tribunal. It seems to me that it is at this point that Deputy President Constance and I do not agree.

Section 42D

Section 42D of the AAT Act is the final provision to consider. It does not apply to a proceeding for review of a decision in the Social Services and Child Support Division but, that aside:
“At any stage of a proceeding for review of a decision …, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.”[50]
[50] AAT Act; s 42D(1) It has no application in the Tribunal’s Migration and Refugee Division either but that outcome can be effected under the Migration Act 1958; ss 349 and 415

If a decision is remitted under s 42D(1), the person may reconsider the decision and affirm or vary the decision or set it aside and make another in substitution for it.[51] When remitting the decision, the Tribunal may specify the period within which the reconsideration must be undertaken and may extend that period if asked to do so.[52] When the Tribunal does not specify a period within which to reconsider the decision, the decision-maker has 28 days within which to do so. Again, the decision-maker may request an extension of that time.[53] Should the decision-maker not reconsider the matter and come to a decision of the sort outlined in the following paragraph, he or she is taken to have affirmed the decision.[54]
[51] AAT Act; s 42D(2)
[52] AAT Act; ss 42D(5)(a) and (6)
[53] AAT Act; ss 42D(5)(b) and (6)
[54] AAT Act; ss 42D(7)

In the case of an affirmation, whether taken to be so by virtue of s 42D(7) or by virtue of the decision-maker’s decision on reconsideration, the proceeding resumes in the Tribunal.[55] If the decision-maker varies the decision or sets it aside and substitutes a new decision, the application in the Tribunal is taken to be an application for review of the decision as varied or as substituted.[56] In the case of variation or substitution, the person who made the application to the Tribunal may either proceed with the application for review of the decision as varied or of the new decision or withdraw his or her application.
[55] AAT Act; s 42D(8)
[56] AAT Act; ss 42D(3) and (4)

The way in which s 42D operates on remittal is encapsulated in the passage from the judgment of a Full Court of the Federal Court in Commissioner of Taxation v Cancer and Bowel Research Association:[57]
“ We find no error of law in the Tribunal’s exercise of the s 42D power. The Commissioner had contended that the Tribunal had erroneously exercised the power in s 42D by remitting the objection decision to the Commissioner in a way not permitted by s 42D: that is, with an impermissible direction to apply s 426-55 by reference to the approach considered by the Tribunal to be the correct approach. The Commissioner was correct in his submission that s 42D does not permit the Tribunal to remit the matter back to the primary decision maker with a direction as to how the Commissioner must determine the objection decision. The Tribunal, however, did not purport to do so. It had expressed a view about the proper construction of s 426-55 which, if correct, required additional facts if the Commissioner was to exercise his power according to law. The Tribunal’s expression of a view as to s 426-55 did not bind the Commissioner. The Commissioner, acting responsibly, could still affirm his earlier decision leaving it for the Tribunal, if minded to maintain the contrary view, to decide the proceeding by setting aside the Commissioner’s decision under s 43. It follows that the judicial review proceeding should be set aside on the basis that the error concerning s 42D was not made out.”[58]
[57] [2013] FCAFC 140; (2013) 305 ALR 534; (2013) 61 AAR 509 at [15]; 544; Edmonds, Pagone and Davies JJ
[58] [2013] FCAFC 140; (2013) 305 ALR 534; (2013) 61 AAR 509 at [15]; 544; 519-520

The operation of s 42D is not dependent on the decision-maker’s having power to reconsider a decision as is the case with s 26. A decision-maker’s power or authority to reconsider the decision comes from the Tribunal’s remittal to reconsider and that is quite separate from the power that he or she is given to reconsider, vary or alter a decision by, in this case, the NDIS Act. It goes without saying that the decision that the decision-maker reaches after reconsideration must be a decision that can be made in accordance with the powers and discretions given by the relevant enactment under which the original decision was made.

Could s 42D be used as a means of varying a decision regarding a statement of participant supports? While acknowledging that the Tribunal has no power to require an outcome on reconsideration, I think that serious consideration has to be given to s 42D as a means of obtaining a practical, while lawful, outcome that enables a participant to have continuing access to supports when the funds or supports provided for in the statement of participant supports that is under review have come to an end. Where the parties have reached an agreement as to what the extended review date should be and the nature and amount of the supports provided for in that extended period, the Tribunal could remit the matter to the Agency for reconsideration. Reconsideration of the sort required under s 100(6) of the NDIS Act is not called for under s 42D. It is reconsideration provided for by the AAT Act. Although there would be no obligation that the Tribunal or the participant could impose on the Agency, the understanding would be that the Agency would make a decision in accordance with the agreement on remission under s 42D. The time within which it did that could be very short indeed and be a matter of only a day or two because the Agency would have already come to its view when reaching agreement with the participant.

I acknowledge that this is somewhat of a “ploy” or strategy to achieve a practical outcome and may not reflect the purpose for which s42D was enacted. It is, though, a strategy that is open in the circumstances. In the absence of any provision in the NDIS Act allowing for the practicalities associated with the provision of ongoing supports while a statement of participant supports is under review, it is one which I think is open to the parties and to the Tribunal.

DECISION

For the reasons I have given, I have decided that it ss 42C(1) and (3) do not provide the appropriate vehicle to achieve the result that the parties seek in this case. To my mind, the most appropriate is provided by s 42D because it allows for the participant to continue to receive supports. At the same time, it allows for the parties to have those supports reviewed by the Tribunal when reviewing the original decision under s 33(2) of the NDIS Act. Whether they wish to proceed in this way or whether they prefer that the Agency make a new plan and Ms Williamson seek internal review of the statement of participant supports under s 100(6) before making an application to the Tribunal is a matter for the parties. Therefore, I adjourn further consideration.

I certify that the preceding ninety four [94] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie.

[sgd].................................................................
Associate
Dated: 20 August 2018

Date of hearing:	19 July 2019
Solicitors for the Applicant	Mr Tim Noonan and Ms Olympia Sarrinikolaou Victorian Legal Aid
Solicitor for the Respondent:	Mr Chris Herscovitch National Disability Insurance Agency