Zablotsky and Secretary, Department of Social Services (Social services second review)
[2019] AATA 4367
•25 October 2019
Zablotsky and Secretary, Department of Social Services (Social services second review) [2019] AATA 4367 (25 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0359
Re:Igor Zablotsky
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:25 October 2019
Place:Sydney
The Secretary’s application for reinstatement of the proceedings in Zablotsky and Secretary, Department of Social Services (2019/0359) is granted.
...........................[sgd].............................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Social Security – disability support pension debt – member of a couple – application for reinstatement – application for review withdrawn by applicant – reinstatement application lodged by Secretary, Department of Social Services – whether Secretary is “a party to the proceeding” who may apply to the Tribunal for reinstatement for the purposes of section 42A(8) of the Administrative Appeals Tribunal Act 1975 – Tribunal accepts that Department is a party for the purposes of section 42A(8) – consideration of Hunter Valley Developments Pty v Cohen – explanation for delay – whether party has rested on their rights – any prejudice caused – merits of substantial application – consideration of fairness – reinstatement granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Appeals Tribunal Amendment Act 2005 (Cth)
Administrative Appeals Tribunal Amendment Act 1993 (Cth)
Civil Law and Justice (Omnibus Amendments) Act 2015 (Cth)
Corporations Act 2001 (Cth)
Migration Act 1958 (Cth)
Paid Parental Leave Act 2010 (Cth)
Tribunals Amalgamation Act 2015 (Cth)
CASES
Abrahams v Comcare [2006] FCA 1829
Alcan (NT) Aluminia Pty Ltd v Commisioner of Territory Revenue (NT) [2009] HCA 41
Attorney-General v Wentworth (1988) 14 NSWLR 481
Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772
CCA19 v Secretary, Department of Home Affairs [2019] FCA 946
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
De Los Santos-Aguilar and Migration Agents Registration Authority [2014] AATA 269
De Simone and Commissioner of Taxation [2017] AATA 1005
Devetzidis v Comcare [2018] AATA 5317
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Gildersleeve and Secretary, Department of Social Services [2019] AATA 2955
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318
Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
Kalafatis and Commissioner of Taxation [2012] AATA 150
Khalil v Minister for Home Affairs [2018] FCA 1712
Krivoshev v Secretary, Department of Employment [2016] AATA 568
Masson v Parsons [2019] HCA 21
New South Wales and Others v Commonwealth (1975) 135 CLR 337
Oates v Secretary, Department of Social Security (1994) 37 ALD 241
Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133
Re Myers and Commissioner of Taxation [2004] AATA 1337
Re Sobuk and Commissioner of Taxation [2004] AATA 655
Re The Taxpayers and Commissioner of Taxation (2002) 68 ALD 143
Re White and Secretary, Department of Families, Community Service and Indigenous Affairs [2007] AATA 1712
Re Williams and Australian Electoral Commission (1995) 38 ALD 366
Shi v Migration Agents Registration Authority [2008] HCA 31
Somba v Minister for Home Affairs [2019] FCAFC 150
Somba v Minister for Home Affairs (No 2) [2018] FCA 1537
Somba v Minister for Home Affairs [2018] FCA 1022
Somba and Minister for Immigration and Border Protection (Migration) [2018] AATA 1626
Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811
Zablotsky and Secretary, Department of Social Services (Administrative Appeals Tribunal, 2019/0359)
SECONDARY MATERIALS
Commonwealth, Parliamentary Debates, House of Representatives, 27 May 1993
Commonwealth, Parliamentary Debates, House of Representatives, 15 September 2019
Commonwealth, Parliamentary Debates, Senate, 3 December 2014
Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4th edition, 2015)
Explanatory Memorandum, Administrative Appeals Tribunal Amendment Bill 1992 (Cth)
Explanatory Memorandum Civil Law and Justice (Omnibus Amendments) Bill 2015 (Cth)
Revised Explanatory Memorandum, Tribunals Amalgamation Bill 2014
Steering Committee of the Review of the Administrative Appeals Tribunal, Report of the Review of the Administrative Appeals Tribunal 1991 (Report, November 1991)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
25 October 2019
THE RESPONDENT’S REINSTATEMENT APPLICATION
An application has been made by the Secretary, Department of Social Services for reinstatement of proceedings which were before this Tribunal until withdrawn by the applicant (Mr Igor Zablotsky).[1]
[1] Zablotsky and Secretary, Department of Social Services (Administrative Appeals Tribunal, 2019/0359, commenced 18 January 2019).
THE NARRATIVE OF PROCEEDINGS
On 20 December 2018 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made a decision in Mr Zablotsky’s application for review to that Tribunal. The Applicant had sought review of a decision made by the Secretary to raise a debt in respect to a Disability Support Pension overpayment. Following the decision of AAT1, the Applicant lodged a further appeal to this Tribunal on 18 January 2019 and the matter came to hearing on 8 July 2019. The hearing did not conclude on 8 July 2019 and the Applicant was instructed to file additional material prior to resuming the hearing on 31 July 2019 in order to hear closing submissions. The Applicant filed some of the material that was requested in the form of various “Blue Books” (i.e. records of maritime service) on 26 July 2019.
The details of the AAT1 determination are material only to the extent that neither party found them satisfactory. Both the Applicant and Respondent made submissions that the determination, in whole or in part, should be set aside and substituted on review. The details of these submissions will be briefly outlined below.
Both the Applicant and Respondent had a right to further appeal the decision of AAT1 but it was Mr Zablotsky who exercised his right and commenced proceedings as the Applicant on 18 January 2019.
On 31 July 2019, the Applicant wrote to the Tribunal, as provided for by section 42A(1A) of the Administrative Appeals Tribunal Act 1975 (the Act), and gave notice that he wished to withdraw his application for review.
[42A] Discontinuance, dismissal, reinstatement etc. of application
……….
Deemed dismissal--applicant discontinues or withdraws application
(1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
As a result of this notification, the resumed hearing listed on 31 July 2019 was vacated.
On the same day, the solicitor for the Respondent advised both the Tribunal and Mr Zablotsky that the Secretary sought an extension of time to appeal the AAT1 decision in order for her to seek a review of the decision made on 20 December 2018. Further to this advice the Respondent sought to resume the proceedings from the point of adjournment on 8 July 2019.
On 1 August 2019 the Tribunal notified the parties that Mr Zablotsky’s application for a second tier review by this Tribunal of the original Tribunal (AAT1) decision had been dismissed in accordance with the provisions of section 42A(1B) of the Act, with effect from 31 July 2019.
[42A] (1B) If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.
On 19 August 2019 the Secretary applied to the Tribunal under section 42A(8) of the Act to have the proceedings reinstated. No valid application for an extension of time to lodge an appeal against the AAT1 decision was received despite an earlier notice of intention to do so.
The Tribunal notified Mr Zablotsky of the Secretary’s application for reinstatement and was given a period of 14 days to advise the Tribunal of his position in relation to this request.
On 5 September 2019 the Tribunal advised both parties that a telephone directions hearing had been listed on 18 September 2019 in order discuss the reinstatement request and set a timetable for the filing of any further evidence and submissions.
Mr Zablotsky formally objected to the reinstatement request in writing on 11 September 2019.
On 16 September 2019 the Applicant wrote to the Tribunal seeking to postpone the directions hearing scheduled for two days due to ill-health and his relocation to Queensland. The Secretary objected to this request. The Applicant provided medical evidence in support of his request at the request of the Tribunal on 17 September 2019 and the Tribunal deemed it appropriate to vacate the hearing re-list the directions hearing for 4 October 2019, a date beyond that specified by Mr Zablotsky in his request for postponement.
On 3 October 2109, the Applicant sought a further adjournment on medical grounds. The Tribunal granted this request and decided to list the matter for an interlocutory hearing to consider the reinstatement request on 15 October 2019 . The Tribunal heard the matter on this date with both parties appearing by telephone.
THE PROCEEDINGS IN AAT1
While the Secretary is a party to proceedings in AAT1, at this level of review, it is rare for the Secretary to appear and make submissions at hearing. For the hearing and resumed hearing in AAT1 for this matter, the Applicant appeared in the absence of a representative for the Secretary.
On 20 December 2019, AAT1 made the following findings:
(a) That the Applicant was a member of a couple from 11 June 2009 to 29 August 2011;
(b) there is insufficient evidence to conclude that they were living together between 30 August 2011 and 25 August 2014 and they are not regarded as members of a couple in that period;
(c) they became members of a couple again from 26 August 2014;
(d) the decision of the Authorised Review Officer (ARO) on 9 November 2017 to recover a Disability Support Pension (DSP) debt from Mr Zablotsky of $12,498.08 for the period from 17 July 2009 to 4 October 2012,2 is set aside;
(e) the matter is sent back to Centrelink to recalculate Mr Zablotsky’s entitlement on the basis that he was a member of a couple from 17 July 2009 to 29 August 2011 but was not a member of a couple from 30 August 2011 to 4 October 2012; and
(f) any debt remaining after recalculations by Centrelink is to be recovered from Mr Zablotsky.
On review, Mr Zablotsky contested this decision and maintained that, at the relevant period(s), he was not a member of a couple. However upon withdrawing his application, the Applicant paid the outstanding debt amount calculated by AAT1 that is, $1,660.35 to the Department.[2]
[2] The original debt as calculated by the Department’s Authorised Review Officer was $12,498.08.
In making her submission, the Secretary acknowledged that AAT1 made a correct decision based on the material before it at that time but contends that the decision is incorrect based on the material now before this Tribunal. The Secretary contends that the fact that this material was not before the AAT1 led it to make its erroneous decision and that since proceedings in this Tribunal must be taken to constitute a de novo hearing of all the material, and furthermore must be based upon the most contemporaneous material available to it, it is open to this Tribunal to set aside the reduced debt calculation and substitute it with the original figures calculated by the Authorised Review Officer.
There is no doubt that the Secretary is correct in stating that any decision by this Tribunal must be based upon the facts before it at the time of its own decision-making.
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[3]
“The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[4]
“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[5]
[3] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 [page 11].
[4] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198; Commonwealth v (1985) 8 ALD 554 and Re KLGL and QCYY Australian Prudential Regulation Authority [2008] AATA 452.
[5] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Hence the position contended for by the Secretary would need to be determined. It is not the task of the Tribunal in these proceedings to make such a determination, however it needs to be persuaded that there is a prima facie case made out by the Secretary to this effect.
The consideration of the existence of a prima facie case prior to making a determination about reinstatement was canvassed by the Tribunal in Oates v Secretary, Department of Social Security where it was held that authority suggested that
“provided the party seeking reinstatement can establish a prima facie case and it is fair to the other party to reinstate the application, it will be reinstated.”[6]
[6] Oates v Secretary, Department of Social Security (1994) 37 ALD 241 at [18] per Deputy President Forgie.
The material before the Tribunal, such as it was at the date of the adjournment, is persuasive of the claim for a prima facie case to exist, although in the absence of final submissions being made, it cannot reach a definitive conclusion on such a matter.
GROUNDS FOR REINSTATEMENT
As has been noted, the Secretary contends that the debt determination made by the AAT1 was incorrect and should be reviewed by this Tribunal.
In the Applicant’s response of 11 September 2019, Mr Zablotsky submitted:[7]
“In my application for a review I stated the reasons for requesting a review was to review the wording that described Mrs Zablotsky and myself as being ‘a couple’. It was a matter of principle. I did not seek to review the decision relating to the amount of money that it had been determined that I owed.”
[7] Email to Tribunal, 11 September 2019.
Further: :
The Secretary of the Department of Social Services sought an order that I had a debt for overpayment of Disability Support Pension in the amount of $12,498.08. I lodged an application to review this amount (the ‘first review’) and under review it was recognised that the amount of $12,498.08 was automatically computer generated and in fact incorrect in the circumstances. The amount was recalculated at a hearing and the Administrative Appeals Tribunal made a decision on 20 December 2018 that the amount of Disability Support Pension I had been overpaid and owed back was in fact $1,660.35. It was satisfied by Centrelink and reflected in their last payment request latter dated 23 January 2019.
…..
The second review I brought was specifically only in relation to the wording contained in the decision describing Mrs Zablotsky and myself as a ‘couple’, which I object to. I never took issue with any other part of the decision of 20 December 2018.
This simply does not accord with the reasons stated by Mr Zablotsky in his application for a second-tier review, dated 14 January 2019 and lodged on 18 January 2019. There he stated:
Reasons for the Application: Why do you claim the decision is wrong?
“Not objective as the case is unusual, very specific & seats (sic) outside of typical investigative approach & government guidelines. Not even one of a few relevant & critical witnesses were called to testify, no important information properly investigated (apart of (sic) the bank statement & settlement documents were read in the AAT office on which assumptions were maid (sic)) & serious new & ongoing evidence were not taken into account.”
Only limited intelligence can be gained from consideration of any reasons stated by Mr Zablotsky in his first Application for Review Form (AAT first review of a Centrelink decision). On the standard tick-a-box form provided for such applications, Mr Zablotsky, where the form asks, “What decision(s) would you like reviewed?” has ticked the boxes marked “Rate of payment” and “Overpayment/debt recovery”. He has left blank the box marked “Other”.[8]
[8] Application for Review Form dated 7 December 2017, received 12 December 2017.
It appears that the reinstatement application brought by the Secretary is the first such application made under section 42A(8) of the Act since its commencement in its amended form on 1 July 2015 following Assent to the Tribunals Amalgamation Act 2015 (Cth).
As such, there are no principles which have been laid down by way of authority or precedent to guide the Tribunal in considering the application.
In such a case it is necessary for the Tribunal, in what appears to be a determination of a matter under the Act for the first time, to set out clearly any principles which it sees as relevant to such a determination.
REINSTATEMENT AFTER WITHDRAWAL
The basis for the Secretary’s request for reinstatement of these proceedings requires a careful consideration of the logic behind/in the drafting of various sections and provisions in the AAT Act.
Section 42A(1A) provides:
A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
Section 42A(1B) then deems the Tribunal’s response to the notification to constitute a dismissal of the original application. It states:
If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to have reviewed the decision.
Thus a withdrawal by an applicant under section 42A(1A) becomes a dismissal by operation of law under section 42A(1B).
Thereupon a right of reinstatement is created by section 42A(8) as follows:
If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
Section 42A(8B) specifies that period to be 28 days, subject to the possible grant of an extension of time.
The reinstatement of an application is not automatic, rather, such an application enlivens the discretion of the Tribunal as provided for in subsection 42A(9):
If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appears to it to be appropriate in the circumstances.
OTHER GROUNDS FOR DISMISSAL AND REINSTATEMENT
Section 42A(2) allows the Tribunal to dismiss an application in the event that one of the specified parties fails to appear as directed by the Tribunal.
Section 42A(4) allows for dismissal by the Tribunal where it is satisfied “that the decision is not reviewable by the Tribunal”.
Section 42A(5) allows for dismissal by the Tribunal where an applicant “within a reasonable time” fails to proceed with the application or comply with a direction of the Tribunal.
Section 42A(8A) allows for an application for reinstatement where a party to the original proceedings fails to appear and a dismissal decision has been made.[9]
[9] See discussion related to the definition of “decision” arising in Somba v Minister for Home Affairs [2019] FCAFC 150.
Finally, Section 42A(10) considers the reinstatement of an application that has “been dismissed in error.”
A similar range of reinstatement provisions, covering such matters as erroneous deregistration or complaints by an aggrieved party affected by deregistration are to be found in section 601AH of the Corporations Act 2001 (Cth).
ORIGINS AND PURPOSE OF SECTION 42A(8)
The legislative history of section 42A(8) contextualises the purpose for which it was enacted by the Parliament.
History of the reinstatement provisions of the Administrative Appeals Tribunal Act 1975
Reinstatement applications were not provided for in the original version of the Administrative Appeals Tribunal Act 1975.[10]
[10] Administrative Appeals Tribunal Act 1975 (no 91 of 1975).
The Act was amended in 1977[11] to insert a new section 42A which provided, for the first time, a schema covering dismissal of applications and proceedings before the Tribunal.
[11] Administrative Appeals Tribunal Amendment Act 1977 (no 58 of 1977).
Amendments to the original section 42A of the 1975 Act were first proposed in their report by the Steering Committee of the Review of the Administrative Appeals Tribunal in November 1991. The Review noted that there was, at that time, no power to “withdraw” an application, so that “Even if an application has been substantially successful, where no agreement under section 34(2) has been made, the only option is to ‘dismiss’ the application.”
The Review proposed to amend the Act to allow an applicant to “discontinue” an application in writing; that an applicant could “withdraw(s)” an application thus deeming it to have been discontinued and for such discontinuance to have the same effect as if the application had been dismissed. The Review also proposed a power to dismiss an application where there was a “failure to pursue” or where there was “a default by the respondent.” In addition the Review proposed amendment to allow the Tribunal to “vacate the dismissal of an application for review where such dismissal has occurred through administrative error on the part of the Tribunal.”[12]
[12] Steering Committee of the Review of the Administrative Appeals Tribunal, Report of the Review of the Administrative Appeals Tribunal 1991 (November 1991) [292]-[294].
It is interesting to note that the Review did not discuss the details of the proposed amendments in the body of its Report, but rather listed the proposed amendments in an Appendix to the main report.[13]
[13] Ibid [237]-[239].
The following amendments were passed in 1993, for the first time making reference in the Act to the possibility of proceedings being reinstated. The 1993 amendments[14] introduced a new section 42A. subsections (6), (8), (9) and (10) as follows:
(6) If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.
……..
(8) If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
[14] Administrative Appeals Tribunal Amendment Act 1993 (Cth) (no 31 of 1993).
As explained by the Minister in his Second Reading Speech[15], the purpose of these amendments was to the effect that:
Clause 18 of the Bill will amend section 42A to expand the Tribunal’s powers to dismiss applications. The new powers to dismiss matters include the power to dismiss matters for delay in pursuing the application, where there is no reviewable decision, and for failure to appear at a directions hearing or mediation. Section 42A will also expressly provide where a matter has been dismissed an applicant may apply for a reinstatement.
[15] Commonwealth, Parliamentary Debates, House of Representatives, 27 May 1993,1143 (Peter Duncan MP, Parliamentary Secretary to the Attorney- General).
The Explanatory Memorandum[16] to the Bill stated:
[54] New subsection 42A(6) provides that where an application is dismissed the proceeding is concluded unless the application is reinstated. …..
[55] New subsection 42A(8) provides that in cases other than where the tribunal has made an order staying a decision an applicant may apply for reinstatement within 28 days of receipt of notification of dismissal. New subsection 42A(9) provides that the Tribunal may, if it is appropriate to do so, reinstate the application by restoring it to its predismissal state and give such directions as the Tribunal considers necessary to enable it to proceed with the review of the decision.
[56] New subsection 42A(10) provides for the Tribunal, on its own initiative, to reinstate an application which has been dismissed through administrative error on the part of the Tribunal.
[16] Explanatory Memorandum, Administrative Appeals Tribunal Amendment Bill 1992 (Cth).
The next amendment to the Act[17] did no more than insert the heading “reinstatement of applications” above the text of section 42A(8).
[17] Administrative Appeals Tribunal Amendment Act 2005 (Cth) (no 38 of 2005).
There were two sets of major amendments made to the Act in 2015.
The Tribunals Amalgamation Act 2015 (Cth)[18] provided for amendment of section 42A as follows:
[18] No 60 of 2015.
114 Subsection 42A(8)
Omit “the person who made the application may, within 28 days after receiving notification that the application has been dismissed”, substitute “a party to the proceeding may, within the period referred to in subsection (8A)”.
115 After subsection 42A(8)
Insert:
(8A) For the purposes of subsection (8), the period is:
(a) 28 days after the person receives notification that the application has been dismissed; or
(b) if the person requests an extension—such longer period as the Tribunal, in special circumstances, allows.
There was no mention of the amendment or its purpose in the Minister’s Second Reading Speech[19] but its rationale was set out at length in the accompanying Revised Explanatory Memorandum.[20] It states:
[19] Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 10070- 10072 (Senator Mitchell Fifield, Assistant Minister for Social Services).
[20] Revised Explanatory Memorandum, Tribunals Amalgamation Bill 2014 at [69]-[70].
Items 114—Subsection 42A(8), and Item 115—After subsection 42A(8)
(541) Items 114 and 115 would amend and restructure existing subsection 42A(8) of the AAT Act.
(542) Existing subsection 42A(8) provides that, where the Tribunal has dismissed an application under existing subsection 42A(2) (other than an application relating to a proceeding in respect of which a stay order has been made under subsection 41(2)), the person who made the application may apply within 28 days of notification of the dismissal for the application to be reinstated.
(543) Item 114 would amend existing subsection 42A(8) to make two key changes:
· The reference to the person who made the application is changed to a party to the proceeding. In matters with two citizen parties (eg child support), the applicant may decide not to pursue an application but the other party may wish to proceed. Accordingly, it is proposed that subsection 42A(8) be amended to refer to a ‘party’ to allow the non-applicant party to request reinstatement.
· The time to apply would be provided in new subsection 42A(8A).
(544) Item 115 would insert a new subsection 42A(8A) to provide that an application for reinstatement must be made within:
·28 days after the person making the application for reinstatement receives notification that the application has been dismissed, or
·if the person requests an extension, such longer period as the Tribunal, in special circumstances, allows.
(545) New paragraph 42A(8A)(a) would reflect the policy of existing subsection 42A(8). New paragraph 42A(8A)(b) is intended to preserve the policy of provisions in the child support legislation (subsections 100(3) and 100A(3) of the CSRC Act) and of social services legislation (such as subsections 171(3), 172(4) of the SSA Act; 135(3), 136(4) of the FAA Act).
It is thus clear in the Explanatory Memorandum, but not made explicit in the text of the legislation, that the purpose of the 2015 amendment was related to proceedings under social services legislation involving two “citizen parties” who were at odds and were both parties to proceedings. There was no apparent consideration of the positon of the Commonwealth itself as a party to the proceedings.
The second piece of 2015 legislation was the Civil Law and Justice (Omnibus Amendments) Act.[21] It provided:
4 Subsections 42A(8) and (8A)
Repeal the subsections, substitute:
(8) If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8A) If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8B) For the purposes of subsections (8) and (8A), the period is:
(a) 28 days after the party receives notification that the application has been dismissed; or
(b) if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.
[21] Civil Law and Justice (Omnibus Amendments) Act 2015 (Cth).
The Explanatory Memorandum[22] to the Bill makes two references to these new provisions. In the Statement of Compatibility with Human Rights section it states:
35. As described above, items 1 to 4 of Schedule 1 of the Bill will amend the Administrative Appeals Tribunal Act to provide that other people may be made a party to a review and require notification that an application has been made. The amendments also provide that a party to a proceeding, other than an applicant or the decision maker, may request the Tribunal to reinstate an application that has been dismissed.
36. These amendments promote the right to a fair hearing by ensuring that persons with an interest in a matter are given a reasonable opportunity to engage with the Administrative Appeals Tribunal (the AAT) review process.
[22] Explanatory Memorandum Civil Law and Justice (Omnibus Amendments) Bill 2015.
In the body of the Memorandum it states:
Item 4: Subsections 42A(8) and (8A)
74. The dismissal powers in subsection 42A(1A) of the Administrative Appeals Tribunal Act assume that it is typically an applicant who will withdraw from proceedings. However, because of the passage of the Tribunals Amalgamation Act, the Tribunal will deal with more applications involving two or more non-governmental parties, especially in child support. It may be the case that while an applicant decides to withdraw the proceeding, another party wishes to continue it and should be entitled to do so.
75. This item will provide that where the Tribunal has dismissed an application under subsection 42A(1B), a party to the proceeding (other than an applicant or the decision maker) may request the Tribunal to reinstate the application. The amendment will provide for this request to be made within 28 days after notification of the dismissal is received. It will also provide that a party can request there be an extension of time within which to make a request for reinstatement.
The Minister’s Second Reading Speech is of some interest because it outlines clearly the purpose of these amendments:
The bill will also make minor and technical changes to the Administrative Appeals Tribunal Act, further supporting amalgamation of four key Commonwealth merits review tribunals. The amendments will ensure all persons who are parties to a review receive notice that an application for review has been made. The bill will clarify that the tribunal may make orders that certain information is not to be disclosed to the parties. It will enable the president to authorise any member of the tribunal to exercise existing powers to dismiss applications and ensure that in matters with more than one non-government party, other than the applicant, they may seek to have the application reinstated. The bill will provide flexibility to the tribunal to set out the manner for lodging or giving documents to the tribunal, or to a person, in a regulation, in a practice direction, or both.[23] (emphasis added)
[23] Commonwealth, Parliamentary Debates, House of Representatives, 15 September 2019, 10179 (Michael Keenan MP, Minister for Justice and Minister Assisting the Prime Minister on Counter-Terrorism).
The Minister makes clear reference to the potential parties to a reinstatement application as being “non-government” parties and this is consonant with the original intent of the legislation referred to in the Explanatory Memorandum to the Tribunals Amalgamation Bill where the example provided related to instances where two “citizen parties” are in dispute over a social services determination.
It thus appears clear that the legislative intention was to safeguard the rights of what are referred to variously as “citizen parties” or “non-government parties”. In effect, a safeguard was created so that the party initiating proceedings could not, by their subsequent withdrawal, deprive the other party of their right to contest a decision, their ”right to a fair hearing”, and allow the creation of a situation where “whoever gets in first” is given a whip-hand over the entire proceedings.
There appears however, to be no reference to or suggestion that such a reinstatement application would be open to, or used by, the government when it was one of the parties to proceedings before the Tribunal.
On the other hand, it appears on the face of it, that this interpretation is not barred by the words of the statute itself.
Commentary and Case Law on section 42A(8)
In his authoritative text[24], Professor Dennis Pearce makes only one brief reference to section 42A(8):
[15.11] Subsections 42A(8) and (9) relate to reinstatement of an application that has been dismissed under s 42A(2) for failure of an applicant to appear.
[24] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, Butterworths, 2015).
He also writes:
[15.8] If the AAT ‘considers it appropriate to do so’, it may reinstate the application and give appropriate directions: s 42A(9). There is no indication in the provisions of what might be considered appropriate reasons for reinstatement. The issue was first considered by the AAT in Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133.[25] The approach adopted was that followed in applications for an extension of time to make an application….”
[25] See also reference to Re Stevenson and Commonwealth of Australia [1987] 13 ALD 524.
This approach, using extension of time principles, was followed in a number of cases: Re Myers and Commissioner of Taxation [2004] AATA 1337; Re White and Secretary, Department of Families, Community Service and Indigenous Affairs [2007] AATA 1712, Re Sobuk and Commissioner of Taxation [2004] AATA 655.
There appears to be no case law dealing with section 42A(8) in its current form.
Most of the previous cases dealing with reinstatement have turned upon instances where the reinstatement had been sought after a dismissal due to the failure of a party/parties to proceedings to appear or where proceedings have been dismissed in error.[26]
[26] Re Oates and Secretary, Department of Social Services (1994) 37 ALD 241; Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367; re The Taxpayers and Commissioner of Taxation (2002) 68 ALD 143; Re Taxpayers and Commissioner of Taxation [2010] AATA 899; Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772; Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811; Krivoshev v Secretary, Department of Employment [2016] AATA 568.
The only recent decision that gives a degree of consideration to the post-2015 schema of section 42A is De Simone and Commissioner of Taxation.[27]
[27] De Simone and Commissioner of Taxation [2017] AATA 1005.
In that case the Tribunal set out its summary of the issues and findings thus:
[1] The Applicant contends that his substantive application for review of an objection decision concerning an income tax assessment has not been dismissed, because the Tribunal had no power to make the direction it did, or because he should be taken to have complied with the direction made. In the alternative, the Applicant contends that the Tribunal has power to reinstate his application pursuant to either s 42A(9) or s 42A(10) of the Act and that the Tribunal should exercise that power.
[2] Conversely, the Respondent Commissioner contends that the substantive application was validly dismissed by reason of what has been described in the present matter as a self-executing direction that was not complied with, that the Tribunal has the power to make such a direction and there are now no means by which the effect of that direction can be changed by the Tribunal.
[3] For the reasons that follow the dismissal is confirmed and the substantive application cannot be reinstated by the Tribunal.
Once again the principal issue before the Tribunal was the question of whether the initial application had been dismissed in error. The Tribunal stated:
[17] The history to ss 42A(9) and (10) shows that s 42A(9) compliments s 42A(8) and that s 42A(10) is to afford the Tribunal a power to reinstate an application that has been dismissed through administrative error of the Tribunal.
[19] A consistent line of decisions of this Tribunal has adopted the same approach, to the effect that s 42A(9) compliments s 42A(8).
[20] Contrary to the applicant’s contentions, s 42A(9) is not a free standing and unlimited discretionary power for the Tribunal to reinstate applications that have been dismissed under s 42A(5). It is a power that compliments ss 42A(8) and (8A), neither of which concern applications dismissed under s 42A(5) for failure to proceed with an application or comply with a direction.
[21] Reinstatement pursuant to s 42A(10) requires an error on part of the Tribunal in dismissing an application. Without an error having been made, the jurisdiction to reinstate is not enlivened.
[22] Here, there has been no error. There has been non-compliance with a direction that was appropriately made. And the consequence of that non-compliance, as contemplated by the Act, has arisen.
However the Tribunal has also considered cases where the original applicant has withdrawn and subsequently sought to reinstate their own proceedings. This was considered in Kabue[28] where the Tribunal held that for an applicant to be successful in reinstating their own original application, that dismissal itself, had to have been “in error”:
(23) Thus, the Tribunal agrees with the Respondent’s submission that, in order to reinstate the Applicant’s application, the Tribunal must be satisfied that the application has been dismissed in error. The Tribunal notes that if there is no error, the AAT would be
“functus officio” (Re Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811 at [18]). The term “functus officio” is defined in the Oxford Dictionary of Law (7th ed, 2013) as:... a person who has discharged his duty and whose office or authority is at an end. Once a judgment has been given, the judge is functus officio: he has no power to make changes in his decision, which can only be questioned by others presiding in the further courts of appeal.
[28] Kabue and Minister for Home Affairs (Migration) [2019] AATA 3753. Also Krivoshev and Secretary, Department of Employment [2016] AATA 568.
This decision in turn relied upon authority in Kalafatis and Commissioner of Taxation[29] to the effect that:
[49] On behalf of Mr Kalafatis, it was submitted that he could withdraw his application provided he had a right to have it reinstated should he be successful in his action in the Supreme Court. This is not an option available to an applicant ….
….
[80] If the Tribunal has power to reinstate an application that has been withdrawn, it is to be found in s 42A(10) of the AAT Act if at all. If it does, it is a discretionary power. There is nothing in the AAT Act, the ITAA36 or the TA Act that would confer a right on Mr Kalafatis to have his application reinstated were he to withdraw it at this stage.
[29] Kalafatis and Commissioner of Taxation [2012] AATA 150 per Deputy President Forgie.
In Kabue it was also held that:
[24] Further, the Applicant has the burden of establishing that his application should be reinstated (De Los Santos-Aguilar and Migration Agents Registration Authority).
In turn, the relevant section of that decision reads:[30]
(35) To reinstate the application or even adjourn the application given the unsatisfactory nature of the material provided would have been, in my view, inconsistent with the objectives set out in section 2A of the AAT Act. ……. The applicant bears the burden of establishing why her application should be reinstated and adjourning the application to allow for further unspecified evidence in support would not have, in my view, promoted the objects of the AAT Act. It was made clear at the hearing that refusing the current application for reinstatement did not preclude the applicant from making a fresh application properly addressing the issues for reinstatement but the onus would be on the applicant to progress that matter.
[30] De Los Santos-Aguilar and Migration Agents Registration Authority [2014] AATA 269 at [35] per Deputy President J Redfern.
Authority thus supports the proposition that an original applicant cannot avail him or herself of a right of reinstatement simply because either circumstances or their mind have changed since they withdrew their proceedings. The course of action open to them is to apply for an extension of time to lodge a fresh application.[31]
[31] Kabue and Minister for Home Affairs (Migration) [2019] AATA 3753 [28].
This of course, throws no light on the immediate positon of any other party to the withdrawn application. The Tribunal has however, held that where a matter has been itself “decided and finalised” or where “the respondent is entitled to regard the matter as concluded”, then any application for reinstatement might be regarded as “misconceived and an abuse of process of the Tribunal.”[32]
[32] Devetzidis v Comcare [2018] AATA 5317 at [22] and [23].
In these proceedings, a decision on the substantive matter had not been made prior to the Applicant’s withdrawal.
IS THE POWER UNDER SECTION 42A(9) LIMITED ?
In a recent decision of the Tribunal, Gildersleeve and Secretary, Department of Social Services[33] the Tribunal held that:
[18] Subsections 42A(8), (9) and (10) of the AAT Act provide the only power for the Tribunal to reinstate applications that have been dismissed. Subsections 42A(8) and (9) of the AAT Act are to be read together with the effect that the power to reinstate an application under s 42A(9) is only enlivened where the application has been dismissed under s 42A(2). The power in s 42A(9) of the AAT Act is not available when an application has been dismissed under s 42A(1B) following notification of withdrawal.
[19] In the present matter the Respondent submits, correctly in the Tribunal’s view, that s 42A(10) is the only provision that applies in considering an application for reinstatement where the application for review was dismissed pursuant to ss 42A(1A) and (1B) of the AAT Act. Subsection 42A(10) enables the Tribunal to reinstate an application only if it was dismissed in error.
[33] Gildersleeve and Secretary, Department of Social Services [2019] AATA 2955 per Member Brigadier AG Warner.
With the greatest respect, I cannot accept that to be the case.
Section 42A(8), and indeed section 42A(8A), only give an applicant the right to make an application (“may apply to the Tribunal”) for reinstatement. There has to be a specific mechanism whereby such an application can be effected and the right claimed, exercised. That lies in section 42A(9) and is not, in my view, limited only to matters appealed under section 42A(2) which are confined to matters where an applicant has failed to appear.
It would make little or no sense for an applicant to be given the statutory right to make an application following a dismissal under section 42A(1B) and then provide no mechanism for that application to be effected. Since section 42A(10) is clearly confined by its own wording to where “an application has been dismissed in error,” it follows that section 42A(9) provides the only mechanism for reinstatement where a case has been dismissed following the withdrawal of an applicant.
PRE-EMPTIONS AND PECULIARITIES
As noted above, the relevant Explanatory Memorandum makes references to cases in the social security jurisdiction involving two “citizen parties”. Clearly what was contemplated was a situation such as this:
Two individuals are in dispute over a social security payment where the determination of one party’s outcome impacts directly upon the other party’s position. For example Parent 1 has been awarded a certain percentage of child support by a decision of the Department or of the Social Services and Child Support Division of this Tribunal (AAT1) and disputes this determination. Parent 2 also objects to the determination and is expecting to be able to advance their position and advocate for their preferred outcome at the hearing. The proceedings are commenced by Parent 1 who then subsequently decides to withdraw the application. This leaves Parent 2 unsatisfied as they were intending to advocate for the decision-maker to vary the original decision in their favour but now have no change to advance their claim as the matter was been dismissed. Although they might be able to have the matter listed de novo by making an application for an extension of time to lodge their own application for review, rather than subject them to this process, the 2015 amendment allows them to apply for a reinstatement.
Or to take another hypothetical example which reflects more directly the issue in this current application:
A number of findings have been made in a decision of AAT1.
The Applicant finds that at least one finding of that decision is unfavourable to them, although the others are in their favour. The Applicant lodges a further application for review which brings into scope all of the findings of the decision, both favourable and unfavourable from their point of view.
The Respondent is equally dissatisfied with the determination and accepts the opportunity afforded by the Applicant’s appeal to argue for a variation of the original decision, contesting those findings of it which were favourable to the Applicant.
In becoming itself party to the proceedings in this manner, the Respondent has forgone the opportunity to lodge its own appeal against the original decision within the statutory time limit.
The matter proceeds to hearing and both parties put their cases to the Tribunal, each advocating the setting aside or substituting of some part of the reviewable decision, although each party seeks a variation of a different part.
The Applicant decides to withdraw their application and thus the matter is dismissed and the original decision stands.
The Respondent has lost the opportunity to use the current proceedings to bring about the outcome it was seeking and had advocated during the course of proceedings. If the Respondent sought review of the AAT1 decision, the lodgement of an application for further review would be considered out of time.
It would seem that the only avenue available for the Respondent to review the AAT1 decision would be to initially lodge an application for an extension of time to review the decision. That specific matter would need to be heard and determined.
Only in the event of a successful outcome in those proceedings would the matter come before the Tribunal. Deemed a new application, all the material before the Tribunal and all the evidence presented in the aborted or discontinued hearings would have to be filed again and new hearing held. In bringing proceedings before the Tribunal in light these circumstances, the Respondent suffers continuing temporal disadvantage due to the significant delays.
In the alternative, if a reinstatement were granted, the Tribunal could, in effect, direct that matters be picked up at the point at which they were abandoned and resume the decision making process. The material before the Tribunal would be current and delays avoided.
Following the approach suggested in Manoli[34] the granting of a reinstatement would have been decided on the same principles as would have been advanced and tested in an extension of time application.
The reinstatement option would be more in accordance with the objectives of the Tribunal to review matters in a fashion which is “fair, just, economical, informal and quick”.[35]
[34] Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133.
[35] Administrative Appeals Tribunal Act 1975 (Cth) section 2A(b).
A peculiarity is introduced into proceedings in social security matters in that they are the only category of matters in which a second-tier review is available within the Tribunal itself, and generally no appeal lies to the courts from a decision of the AAT1 until they have been subject to a second-tier review by the General Division of the Tribunal.[36]
CAN THE COMMONWEALTH TAKE ADVANTAGE OF A PROVISION WHICH WAS INTENDED TO BE USED BY “NON-GOVERNMENT” OR “CITIZEN PARTIES”?
[36] With some exemption under the Paid Parental Leave Act 2010 s.44(2) an s 44AAA of the AAT Act.
This is a matter which requires an exercise in statutory interpretation. Fortunately the principles binding the Tribunal have been set out as recently as June 2019 by the Federal Court. The Tribunal believes it the best course of action to set them out in full. Bromberg J said:[37]
[37] CCA19 v Secretary, Department of Home Affairs [2019] FCA 946.
39. As French CJ, Hayne, Kiefel, Gageler and Keane JJ said in Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22], the task of statutory construction involves the attribution of meaning to statutory text. The task must begin with the consideration of the text itself, but the meaning of the text must be construed by reference to the context and legislative purpose of the provision. Similar guidance emphasising the need to discern the statutory purpose of a provision was given by Gageler J in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [39] where his Honour said that “integral” to the making of constructional choices “is discernment of statutory purpose”. Similar guidance also is derived from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
40.The circumstances in which it is permissible to read words into legislation were addressed by the High Court in Taylor v Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531. In Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2 at [86]- [91], I surveyed the relevant authorities, including Taylor:
86. In Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 at 113, McHugh J adopted what had been said by Lord Diplock in Jones v Wrotham Park Estates [1980] AC 74 at 105 concerning when it is permissible to read words into legislation. McHugh J said as follows:
If the target of a legislative provision is clear, the court's duty is to ensure that it is hit rather than to record that it has been missed. As a result, on rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose. In Jones v Wrotham Park Estates, Lord Diplock said that three conditions must be met before a court can read words into legislation. First, the court must know the mischief with which the statute was dealing. Second, the court must be satisfied that by inadvertence Parliament had overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. Third, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
87. Lord Diplock’s test has also been adopted in James Hardie & Coy Pty Ltd v Seltsam Pty Limited [1998] HCA 78; (1998) 196 CLR 53 at [73] (Kirby J) and Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 244 (McHugh J). It has many times been applied (directly or by application of McHugh J in Newcastle) at the intermediate appellate level, including in Director of Public Prosecutions (DPP) v Leys [2012] VSCA 304; (2012) 296 ALR 96 at [45]–[112] (Redlich and Tate JJA, T Forrest AJA), Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318 at [43]–[47] (Bathurst CJ, with whom Beazley and Basten JJA agreed), and Secretary, Department of Health and Ageing v Nguyen [2002] FCAFC 416; (2002) 124 FCR 425 at [22] (Black CJ, Sundberg and Finkelstein JJ).
88. Finally, and probably most relevantly, in Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531, French CJ, Crennan and Bell JJ said as follows (at [38]–[39]) (citations omitted):
[38] The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in factused by the legislature”.
[39] Lord Diplock’s three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”.89. The reformulation in Inco Europe to which their Honours referred was explained in a footnote on CLR 548 thus: “[2000] UKHL 15; [2000] 1 WLR 586 at 592; [2000] UKHL 15; [2000] 2 All ER 109 at 115 per Lord Nicholls of Birkenhead. The reformulation was of the third condition: the court must be abundantly sure of the substance, although not necessarily the precise words, the legislature would have enacted.”
90. How do the principles set out in cases like Project Blue Sky interrelate with those set out in Wrotham Park, Inco Europe, and Newcastle City Council? I think the answer becomes clear from [65]–[66] of Taylor (Gageler and Keane JJ):
Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always” [Project Blue Sky] at 384 [78]). Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation (eg, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 310-311, 319-321; MacAlister v The Queen (1990) 169 CLR 324 at 330). The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.It appears clear to the Tribunal that any “discernment of the statutory purpose” leads to the conclusion that the reinstatement opportunity provided in the legislation was intended to benefit parties which did not expressly include the Commonwealth itself. There is no hint or suggestion in any of the extraneous material that the Commonwealth was thought of or considered to be a potential user or beneficiary of these provisions. The most recent Explanatory Memorandum[38] refers to the intention that a reinstatement would ensure that “persons with an interest in a matter are given a reasonable opportunity to engage with the Administrative Appeals Tribunal (the AAT) review process.”[39] (emphasis added)
[38] Explanatory Memorandum: Civil Law and Justice (Omnibus Amendments) Bill 2015 at [36].
[39] The Commonwealth qualifies as a “person”. See New South Wales and Others v Commonwealth (1975) 135 CLR 337 per Barwick CJ at [8], Gibbs J at [15], Stephen J at [28], Murphy J at [69].
On the other hand, had the Parliament intended specifically to confine this opportunity or specifically to exclude the Commonwealth from access to it, it could have said so and made that intention explicit. It would have been an easy drafting matter to do so. The section is clear in stating that the original applicant themselves cannot make such an application, the Commonwealth as a party/respondent is not so identified for exclusion. The High Court, as recently as June 2019 made it explicit that:
“…. a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning”.[40]
Applying this test the Tribunal sees no explicit intent on the part of the Parliament to exclude the Commonwealth from being regarded as a party to proceedings which include a right to seek reinstatement.
[40] Masson v Parsons [2019] HCA 21 at 26 per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.
The High Court has also made clear that while a decision-maker can examine the historical background and origins of legislative provisions, and take note of the public policy considerations leading to that legislative enactment – including noting remedies proposed to cure perceived deficiencies, it is the precise words of the text itself that matters:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[41]
[41] Alcan (NT) Aluminia Pty Ltd v Commisioner of Territory Revenue (NT) [2009] HCA 41 at [47], citations omitted.
The issue here, seems to the Tribunal to be not a matter of reading words into legislation to give effect to the clearly stated original legislative purpose but rather whether the Commonwealth can claim equal status with the clearly nominated beneficiaries and avail itself of the same opportunities provided to them by the legislation.
Some degree of confusion arises because there are separate references to “applicants”, “citizen parties”, “non-government parties”, “persons” and “party” all with reference to the right to initiate, participate in, or benefit from, the process of reinstatement.
As a result of the latest amendments to the Act, the current wording refers to “a party” to proceedings. This must clearly encompass the Commonwealth, especially in the event where the Commonwealth is the only other party to proceedings.
THE PRACTICAL EFFECT OF A REINSTATEMENT
This matter was considered in the complex proceedings which resulted in a very recent decision of the Full Federal Court in Somba v Minister for Home Affairs (No 2).[42] Initially the Tribunal had considered an application from Mr Somba challenging the mandatory cancellation of his visa. When Mr Somba refused to attend a hearing of the Tribunal (by telephone) his application was dismissed. He subsequently applied to the Tribunal for a reinstatement of his application and that application was refused.[43]
[42] Somba v Minister for Home Affairs [2019] FCAFC 150.
[43] Somba and Minister for Immigration and Border Protection (Migration) [2018] AATA 1626 at [17].
These proceedings were taken under section 42A(8A) which relate to where initial applications have been dismissed for failure to appear, not to section 42A(8) as in this application, nevertheless the court’s decisions on the status or reinstated proceedings must be considered as potentially relevant to any reinstated application.
Mr Somba then applied to the court for an interim order preventing his removal from Australia in order to be given time to lodge an appeal against the Tribunal decision. That order was granted[44] and the appeal was lodged.
[44] Somba v Minister for Home Affairs [2018] FCA 1022 per Thawley J.
That appeal was heard by a single judge of the Federal Court and was dismissed. The primary judge held that, “in the event reinstatement was ordered …. There would have been no relevant decision made under s 42A of the AAT Act…”[45] It must be noted that this case was brought in relation to decisions which had to be made under the Migration Act 1958 (Cth) and in accordance with the statutory time limits imposed by it for certain decisions to be made.
[45] Somba v Minister for Home Affairs (No 2) [2018] FCA 1537 at [48] per Barker J.
On appeal, the Full Federal Court allowed the appeal, quashing the original decision of the Tribunal not to reinstate Mr Somba’s application and remitting the matter to the Tribunal for reconsideration.[46] The Full Court appears to have accepted the characterisation of section 42A(8A) as having a “beneficial and remedial purpose”.[47] However, in relation to the positon of the prior decision of the Tribunal once a reinstatement of the matter had been granted, the Court stated:
[In relation to the wording to section 42A(9)] : [32] They confer on the Tribunal a power to 'reinstate the application and give such directions as appear to it to be appropriate in the circumstances' if the Tribunal 'considers it appropriate to do so'. This operates on the application, not on the decision to dismiss under s 42A(2). It says nothing about the effect of reinstatement on that decision. In contrast, in s 42C of the AAT Act, concerning decisions made with the consent of the parties, the terminology used is that of revocation of the decision. The different terminology used in s 42A suggests that a different result is intended.
[46] Somba v Minister for Home Affairs [2019] FCAFC 150 per Logan, Stewart and Jackson JJ.
[47] Ibid at [5(2)].
In rejecting the argument that reinstatement under 42A(9) or 42A(10) has the effect that the previous decision dismissing an application (in this instance under section 42A(2)) ceases to have effect for all purposes and that the application for review proceeds on the basis that the application has not been dismissed, the Court said:
[38] ………….. after reinstatement of an application, of the original decision to dismiss, for the purposes of s 500(6L) that decision is one which has in fact been made so s 500(6L)(c) is no longer engaged. We see no cause to read in to s 500(6L) a requirement that the decision be one that has continuing legal effect.
Importantly, in terms of the powers of the Tribunal, the Court made it clear that:
[41] … Each of s 42A(9) and s 42A(10) give the Tribunal a discretion as to whether to reinstate an application and a discretion as to what directions to make in the circumstances.
The Tribunal stresses again that the application in this matter arises under section 42A(8) and not under any of the other referenced sections but it takes note of any relevant principles laid down by the Court dealing with reinstatements generally.[48]
[48] See also Khalil v Minister for Home Affairs [2018] FCA 1712.
SHOULD EXTENSION OF TIME PRINCIPLES APPLY?
Reinstatement may operate as an alternative to the more lengthy multi-stage process of an aggrieved party seeking to reinstate or revive proceedings by way of making an extension of time application (under section 29(7) of the Administrative Appeals Tribunal Act 1975) to lodge a fresh appeal against a reviewable decision.
In the Secretary’s submissions for reinstatement, the Secretary contended that the principles laid down in Hunter Valley[49] and referenced by the Full Federal Court in Goldie[50] which establish the bases upon which an extension of time application can be considered, should be applied in equal measure to assessing reinstatement applications.[51]
[49] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.
[50] Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367.
[51] Secretary, Department of Social Services, Application to Reinstate under section 42A(8) of the Administrative Appeals Tribunal Act 1975 paragraph [28].
The Tribunal is of the view that there is merit in adopting the Secretary’s contention. The Hunter Valley principles invite consideration of the following matters:
- an applicant must show an “acceptable explanation of the delay” and this it is “fair and equitable in the circumstances” to extend time;
- a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
- any prejudice to the respondent caused by the delay;
- whether persons other than the respondent or the general public would suffer any prejudice as a result of the extension;
- the merits of the substantial application; and
- “considerations of fairness as between the applicant and other persons” in a similar position.[52]
[52] This allows for a consideration of wider “public interest” issues.
There have been no delays in the Secretary’s application for reinstatement, and the Secretary has clearly not rested on her rights. Clearly there are issues of prejudice to the other party, Mr Zablotsky, who had taken steps to bring the matter to what he thought was a conclusion. While Mr Zablotsky and the Secretary both avert to the positon of Mrs Zablotsky, whose potential status as a “member of a couple” is a contested matter, in this application only Mr Zablotsky and the Secretary are parties. As noted above there are merits in the Secretary’s application and the legislative history of the relevant section of the AAT Act suggests that the position of persons in a similar position were precisely what was to the forefront of the legislative mind.
It is clear on this analysis that should an application for extension of time in exactly the same proceedings have been initiated it would have been regarded as having, at the very least, reasonable prospects of success.
CONSIDERATION
The Tribunal notes that in terms of its statutory requirement to provide “a mechanism of review” that is “fair, just economical, informal and quick”, (section 2A(b) of the AAT Act) the availability of a simple application under section 42A(8) is more likely to comport with those objectives than the more elaborate mechanism which exists in the alternative of a party seeking an application for an extension of time to lodge an appeal under section 29(7).
It follows that having determined that the Commonwealth is not explicitly excluded from the right to apply for reinstatement of proceedings under the Act, the correct and preferable decision would be to facilitate this by granting such an application.
The Tribunal recognises that Mr Zablotsky may not regard this as “fair” to him (in terms of the formula in Oates – see 21 supra) but that does not necessarily preclude such a decision being made. The Tribunal is regularly required to make a “calculus”[53] of conflicting interests to come to the correct and preferable decision.
[53] Contreras v Minister for Immigration and Boarder Protection [2015] FCAFC 47 at [52].
Any reinstatement is, as provided for under section 42A(9) subject to “such directions” as appear to the Tribunal to be “appropriate in the circumstances.” The most logical course of action would be to “reinstate the application by restoring it to its predismissal state”, to use the words of the 1992 Explanatory Memorandum. Given the state of the hearing at its adjournment on 8 July 2019 it would seem appropriate to resume proceedings from that point and proceed to conclude consideration of those matters which were indicated to the parties as being subject to final submissions at resumed hearing. That of course does not preclude either party from making further submissions prior to the presentation of concluding statements.
VEXATIOUS APPLICATIONS
The Tribunal appreciates that there may be circumstances where a party to dismissed proceedings on the basis of withdrawal, may seek to have the matter(s) reinstated for purely vexatious reasons. For example, as a means of delay or to inconvenience another party.
The Tribunal has power under section 42B of the AAT Act to dismiss an application for a review of a decision if it is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
This is a power which the Tribunal recognises is to be used sparingly; it applies to the entirety of an application and cannot be confined to merely a part of it and it can be used to avoid the canvassing of irrelevant or collateral issues.[54] Applications intended merely to harass or embarrass another party or which obviously have no prospect of success can be dismissed under the grounds of being vexatious.[55]
[54] Re Williams and Australian Electoral Commission (1995) 38 ALD 366.
[55] Attorney-General v Wentworth (1988) 14 NSWLR 481; Abrahams v Comcare [2006] FCA 1829.
Although section 42B refers to an application for a “review” of a decision, the Tribunal sees no reason why it should not be held to be applicable to a request for the reinstatement of proceedings which themselves involve the review of a decision.
IN PRINCIPLE
If a principle needs to be enunciated it should be to the effect that reinstatement under sections 42A(8) and 42A(9) should be available where the withdrawal by one party (for whatever reason) deprives any other party to the proceedings of their legitimate opportunity to seek a favourable outcome from the proceedings of the Tribunal by way of reinstatement rather than by way of an extension of time application to lodge a fresh application for review.
Both avenues of redress are at the discretion of the Tribunal to grant.
Where a withdrawal has had the practical effect of preventing the Tribunal from making the “correct and preferable decision”[56] about the issue in question, there may be greater justification for the Tribunal to give favourable consideration to a reinstatement application.
[56] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [page 11].
REINSTATED PROCEEDINGS
In the event of the application for a reinstatement of the proceedings being granted, proceedings should be restored to their predismissal state. It would be necessary for a hearing date to be set for the parties to make final submissions as these were not made prior to the matter being withdrawn. Any further submissions based on material not before the Tribunal as at 31 July 2019 could be tendered by leave of the Tribunal.
DECISION
The Secretary’s application for reinstatement of the proceedings in Zablotsky and Secretary, Department of Social Services (2019/0359) is granted.
I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.........................[sgd]...............................................
Associate
Dated: 25 October 2019
Date(s) of hearing: 15 October 2019 Applicant: By phone Solicitors for the Respondent: Dr S Thompson, Department of Human Services, by phone
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