XYZ and Australian Research Council
[2012] AATA 841
•27 November 2012
[2012] AATA 841
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4379
Re
XYZ
APPLICANT
And
Australian Research Council
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 27 November 2012 Date of written reasons 29 November 2012 Place Sydney The Tribunal does not have jurisdiction to determine the application for review lodged by the Applicant on 2 October 2012.
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Senior Member J F Toohey
CATCHWORDS
PRACTICE AND PROCEDURE – JURISDICTION – application for grant under the Australian Research Council Future Fellowships Scheme – whether Tribunal has jurisdiction to review decision not to grant an application – information concerning appeals mechanisms – finding that Tribunal has no jurisdiction to determine the application
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 25
Australian Research Council Act 2001
REASONS FOR DECISION
Senior Member J F Toohey
The applicant in this matter applied for a grant of a Future Fellowship under a scheme administered by the Australian Research Council (ARC). The ARC declined the application.
Has the Tribunal jurisdiction to review the ARC’s decision?
The question arises whether the Tribunal has jurisdiction to review the ARC’s decision. For the following reasons, I find that it has not.
By s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act), an enactment may provide that an application may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment, or for the review of decisions made in the exercise of the powers conferred, or that may be conferred, by another enactment having effect under that enactment.
An enactment means an Act, an Ordinance of a Territory other than the Northern Territory, Australian Capital Territory Norfolk Island, or an instrument (including rules, regulations or by-laws) made under an Act or such an Ordinance, including an enactment amended by another enactment: s 3 AAT Act.
The Tribunal has the power to review any decision in respect of which an application is made to it under any enactment: s 25(4) AAT Act. It power is not “at large”: it may only review those decisions in relation to which it has been given jurisdiction by an enactment.
The first question in any matter is whether an enactment confers on the Tribunal the power to review a decision made under it.
The ARC is established by the Australian Research Council Act2001 (the ARC Act) for purposes including making recommendations to the Minister in relation to which research programs should receive financial assistance under the ARC Act. Each year the ARC, through its CEO, makes rules about such matters as eligibility criteria and the process by which applications are assessed: s 59 ARC Act.
Nothing in the ARC Act provides for a right of review of decisions concerning which proposals are recommended for approval, and the Tribunal cannot identify any other enactment by which jurisdiction is conferred on it to review such decisions.
As there is no decision made under an enactment for the purposes of s 25 of the AAT Act, it follows that the Tribunal has no jurisdiction to determine the present application.
Information about applications
The applicant referred the Tribunal to two documents from which an impression was gained that the AAT could review the decision to refuse the application for funding. The first is the Complaints Handling Policy and Procedures issued by the ARC in July 2012 which sets out how a range of complaints will be dealt with. It includes the following advice:
While the ARC only accepts appeals against administrative process issues, at any time you may seek to appeal any ARC decision using an alternative external appeal mechanism.
Potential external options for appeal include:
- Commonwealth Ombudsman
- Privacy Commissioner
- Australian Information Commissioner
- Administrative Appeals Tribunal (AAT)
- Administrative Decisions (Judicial Review) (ADJR)
- Scheme for Compensation for Detriment caused by Defective Administration (the CDDA scheme).
The other document is the ARC’s Futures Fellowship Funding Rules for 2012 which provide that applicants may appeal against administrative process issues, and may “at any time seek to appeal ARC decisions using available external appeal options”.
The complaints policy refers to potential external options for appeal, and the Rules to using available external appeal options. I do not think either can be read as stating there is a right of review by the Tribunal of every ARC decision. However, the applicant read them that way, and perhaps words to the effect that only certain decisions are reviewable by the Tribunal would assist.
That said, even if quite incorrect advice was given to the effect that the Tribunal had jurisdiction to review a decision to refuse an application for funding, it would not follow that the Tribunal would have jurisdiction. Its power would still be limited to that conferred by legislation.
Conclusion
For the reasons set out above, I find that the Tribunal has no jurisdiction to review the decision to refuse the applicant’s application for research funding.
1. I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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Associate
Dated 29 November 2012
Date of interlocutory hearing 27 November 2012 Date of written reasons 29 November 2012 Representative for the Applicant In person Representative for the Respondent Mr A Dillon,
Australian Government Solicitor
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