ZHRM and Child Support Registrar (Child Support Second Review)
[2018] AATA 1246
•4 May 2018
ZHRM and Child Support Registrar (Child support second review) [2018] AATA 1246 (4 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1129
Re:ZHRM
APPLICANT
AndChild Support Registrar
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:4 May 2018
Date of written reasons: 8 May 2018
Place:Sydney
The Tribunal does not have jurisdiction to hear the application for review filed on 7 March 2018.
....................[sgd]................................................
Chris Puplick AM, Senior Member
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
CATCHWORDS
PRACTICE AND PROCEDURE – Jurisdiction – whether Tribunal has jurisdiction to review matter – child support – first review application dismissed under section 42B – second tier Tribunal review only available for certain decisions – no jurisdiction
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 42B(1)(b), 43(2A), 42A(4), 44AAA
Child Support (Registration and Collection) Act 1988 (Cth) ss 89, 96A
CASES
Duarte and Australian Maritime Safety Authority [2011] AATA 530
Luck v University of Southern Queensland [2008] FCA 1582
Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing (2004) 82 ALD 514Re Williams and Australian Electoral Commission and The Greens [1995] 38 ALD 366
WRITTEN REASONS FOR DECISION
Chris Puplick AM, Senior Member
8 May 2018
INTRODUCTION
ZHRM sought review of a decision of the Social Services & Child Support Division of this Tribunal to dismiss his application under the provisions of section 42B(1)(b) of the Administrative Appeals Tribunal Act1975 (AAT Act).
This application was listed before me as an interlocutory hearing on 4 May 2018. Following that hearing, ZHRM requested written reasons for my oral decision pursuant to section 43(2A) of the AAT Act.
THE AAT ACT
In 1975 the Commonwealth Parliament enacted the Administrative Appeals Tribunal Act. This followed from the recommendation of the Commonwealth Administrative Review Committee (Kerr Committee) report of 1971.
The purpose of the AAT Act was to establish a system for the independent review of administrative decisions made by Ministers, departments, authorities and agencies acting under Commonwealth legislation.
The AAT Act is not, however, an authorisation for the Tribunal to review all and any pieces of Commonwealth legislation.
This is made clear in section 25(1) of the AAT Act which provides:
(1) 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.
In plain English – this Tribunal has review powers only where they are expressly given or conferred by another Act of the Parliament.
At present there are in excess of 400 pieces of Commonwealth legislation which provide for decisions to be reviewed by this Tribunal.
FIRST REVIEW AT THE TRIBUNAL
One of these pieces of legislation which does make provision for appeals against decisions to be heard by the Tribunal is the Child Support (Registration and Collection) Act 1988.
Section 89 of that Act provides that certain decisions – but not all – may be appealed to this Tribunal for what is called a “first review”.
ZHRM availed himself of his right under this section of the Act and on 5 March 2018 the Social Services & Child Support Division of this Tribunal decided (Deputy President J Walsh) that his application was without merit.
In the words of the Deputy President: “I have come to the view that [ZHRM’s] application has no substantive merit.” (at para [17]).
The Deputy President went on to say: “Permitting proceedings that simply cannot succeed to continue would be inconsistent with notions of justice, fairness, economy and proportionality that the Tribunal must take into account.” (para [18]).
However, what the Tribunal did was to dismiss the application under the provisions of section 42B(1)(b) of the AAT Act.
The relevant part of that section reads as follows:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal 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.
It is important to note that the Tribunal has various powers and alternatives available to it which it can use to bring a matter to conclusion. Using section 42B has certain consequences relevant in this application. This was a decision to dismiss the application.
There is clear judicial authority to the effect that this dismissal power should be used sparingly and carefully (Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing (2004) 82 ALD 514). However if the continuing of the application serves no purpose for the applicant then its use is justified (Re Williams and Australian Electoral Commission and The Greens (1995) 38 ALD 366).
SECOND REVIEW IN THE GENERAL DIVISION
There are provisions for decisions of the AAT in its “first review” to be subject to a second review in the General Division of the Tribunal.
However, like the initial conferring of power, this can occur only where the legislation in question grants this permission in specific terms.
Section 96A of the Child Support (Registration and Collection) Act 1988 outlines which decisions of the AAT first review are subject to second review.
That section is as follows:
An application may be made to the AAT for review (AAT second review) of the following decisions of the AAT:
(a) a decision under section 92 to refuse an extension application;
(b) a decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision;
(c) a decision under subsection 95N(2) to make, or not to make, a determination.
In other words there are only three instances under this Act in relation to which a decision for a second tier review can be made and they are where the Tribunal has made decisions under sections 92; 43(1) and 95N(2).
Decisions under section 42(B)(1)(b) of the AAT Act are not included in this list.
As a result there is no legislative basis on which this Tribunal can entertain an application for a review such as that now sought by ZHRM.
ZHRM has other avenues for judicial review of the Tribunal’s first review decision. They are provided elsewhere in the AAT Act but are not of immediate concern to these proceedings. They are a matter for ZHRM.
I should also note that section 42(A)(4) of the AAT Act provides:
The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
(see Luck v University of Southern Queensland [2008] FCA 1582; Duarte and Australian Maritime Safety Authority [2011] AATA 530).
I am not dismissing this application in those terms because what I have to determine, in the first instance, is a jurisdictional issue.
Because section 96A of the Child Support (Registration and Collection) Act 1988 limits by specific delineation the grounds of second tier review, this Tribunal has no statutory right or authority to review the decision made in relation to ZHRM under section 42B(1)(b) of the AAT Act – that is to say it has no jurisdiction in the matter – and so his appeal is dismissed accordingly.
DECISION
The Tribunal does not have jurisdiction to hear the application for review filed on 7 March 2018.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
......................[sgd]..............................................
Associate
Dated: 8 May 2018
Date(s) of hearing: 4 May 2018 Applicant: In person Solicitors for the Respondent: Department of Human Services
0
2
0