Gerber, Paul --- "Limitations on Section 43 of the Administrative Appeals Tribunal Act 1975" [1999] AdminRw 5; (1999) 51 Admin Review 15

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LIMITATIONS ON SECTION 43 OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975

Paul Gerber^[*]

This article examines recent judgments that deal with the interplay of the Safety, Rehabilitation and Compensation Act 1988 and the jurisdiction of the Administrative Appeals Tribunal under section 43 of the Administrative Appeals Tribunal Act 1975 to reconsider a reviewable decision.

In Comcare v Burton and Lees,^[1] Justice Finn held, inter alia, that the effect of the Safety, Rehabilitation and Compensation Act 1988 ('SRC Act') was to limit the jurisdiction of the Administrative Appeals Tribunal ('AAT') to a reconsideration of a 'reviewable decision'. In other words, the AAT cannot, of its own motion, determine a claim which had not previously been made, determined and reviewed by the primary decision-maker when dealing with a different (and unrelated) claim.

At first blush, his Honour's view - with respect clearly correct - cuts across the AAT's wide powers conferred on it by section 43 of the Administrative Appeals Tribunal Act 1975, which enables it to affirm, vary or set aside the decision under review and make a decision in substitution for the decision so set aside. The width of the AAT's function was put succinctly by the Full Federal Court in Banovich v Repatriation Commission:^[2]

The task of the Administrative Appeals Tribunal, in reviewing a decision relating to an application for a pension, is to make the decision which the primary decision-maker ought to have made upon the basis of the evidence before the Tribunal. Subject to any change in the relevant law, the Tribunal should put the applicant in the position in which he or she was entitled to be put at the time of the primary decision.

In Delkou v Repatriation Commission,^[3] the Full Federal Court again held that the duty of the AAT was to make the decision which, upon the facts proved before it, the original decision-maker ought to have made.

This articulates what has been referred to as the 'continuum' theory of administrative review, namely that - subject to the particular legislation in issue - an administrative review before the AAT, as distinct from an appeal to a court of law, compels the Tribunal, standing in the shoes of the primary decision-maker, to look at the position at the date of its decision rather than be bound by the position as it existed at the time of the decision to be reviewed. Alas, the SRC Act has severely clipped the Tribunal's wings with respect to the review of claims made under that enactment.

The facts in Lees can be briefly stated. In May 1995, the second respondent (Ms Lees) made a claim on the applicant (Comcare) for compensation for a work-related injury. Liability to pay compensation was accepted and weekly payments of compensation and related medical expenses were duly paid. The only remaining dispute between the parties was the issue of taxi fares to and from the treating specialist, for which liability was denied. That decision was made under section 16 of the SRC Act. Ms Lees' solicitors sought a reconsideration of that decision, and the determining authority reconsidered the matter and confirmed the previous refusal. This refusal, being a 'reviewable decision' under the SRC Act, became in due course the subject of an application before the AAT.

The relevant facts, taken from the judgment of Justice Finn, are as follows:^[4]

On 11 February 1998 Ms Lees' solicitors wrote to the Registrar of the Tribunal giving notice that she would be “expanding the issues and her claim in relation to these proceedings”... In her Statement of Issues served on the Office of the Australian Government Solicitor on 16 February 1998, the following issue (amongst others) was specified:

What other, if any, entitlements the applicant has arising from the compensable conditions, the subject of these proceedings.

On 25 March 1998 it was made clear that one of those “other entitlements” was for compensation for permanent impairment under section 24 of the SRC Act.

At a preliminary hearing, Senior Member Burton (the first respondent) held the Tribunal had jurisdiction in the matter, relying on the decision of Deputy President McDonald in Re Crozier and Comcare,^[5] who in turn adopted the reasoning in Commonwealth v Ford.^[6]

In Ford, Justice Wilcox concluded that the (1971) SRC Act did not require that a claim for compensation thereunder specify the particular type of compensation sought by the employee, and accordingly, if it appeared on submission for compensation that an employee was entitled to a category of compensation not the subject of a previous determination, it was the obligation of the Commissioner to decide the particular category or categories of compensation to which the employee was entitled and to determine accordingly, notwithstanding that the employee may not have specified the type of compensation to which he or she was in fact entitled.

In summary, Justice Wilcox concluded that once a claim has been lodged, the Commissioner is duty bound to make such determination from time to time as is necessary to confer on the employee the particular benefits to which he or she is, on the facts, entitled without the intervention of a fresh claim, if the Commissioner becomes aware that additional benefits are payable. If the matter is appealed to the AAT as the final tier in the administrative review process, Justice Wilcox held that the Tribunal likewise has the power not only to reconsider the determination of the Commissioner and to vary or set aside that determination, but to award benefits under the Act to which the claimant was entitled on the evidence now before it, even though such benefits had neither been claimed at first instance nor referred to in the Commissioner's determination, and in so doing the Tribunal is not confined either to the material which was before the Commissioner or to the events which had occurred up to the date of the original determination.

In Crozier, Deputy President McDonald, adopting the ratio in Ford's case, held that once it was found that the AAT had jurisdiction to decide one issue, it could consider the whole question of compensation under the SRC Act, having regard to the wide powers conferred on the Tribunal by section 43(1) of the AAT Act. The learned Deputy President was referred to two earlier decisions of this Tribunal - Re Miers and Commonwealth of Australia^[7] and Kennedy and Telstra Corporation Ltd^[8] both of which held that:^[9]

The 1988 Act insists that before any application is brought to the Tribunal there must have been a reconsideration of a decision and only “reviewable decisions” are capable of being the subject of an application to the Tribunal.

Both these earlier decisions held that Ford's case had no application after the introduction of the 1988 SRC Act, and in particular section 64(1).

In Crozier, Deputy President McDonald was unpersuaded by these decisions:^[10]

In neither case did the Tribunal give reasons as to the point of distinction arising as the result of the introduction of section 64(1) of the 1988 Act. It seems to the present Tribunal that there is no real distinction. Ford's case is authority for the proposition that all necessary procedural steps must be completed before the AAT is seized of jurisdiction. In the case of the 1988 Act, among the procedural steps which must be completed, is that there must have been a review carried out of the initial decision before an application can be lodged with the AAT. The fact that this is an additional step, not required under the provisions of the 1971 Act, which must be completed does not however affect the ratio decidendi of Ford's case.

This view stands in sharp contrast with that expressed by Finn J who noted in Lees:^[11]

... that it is section 64 of the SRC Act which performs the function envisaged by section 25(1)(a) of the AAT Act of specifying the type of decision - “a reviewable decision” - for which application for a review may be made to the Tribunal. As will be seen, only decisions under particular provisions of the SRC Act are capable of giving rise to a “reviewable decision”.

His Honour pointed out that the decision to refuse the taxi fares in the instant case was made under section 16 of the SRC Act, and that the decision the Tribunal proposed to make would be made under section 24 of the SRC Act, adding that decisions made under each of the statutory provisions referred to above were capable of giving rise to 'reviewable decisions' for the purpose of an application to the Tribunal by virtue of section 64 of the SRC Act. Justice Finn noted that the SRC Act had its own distinctive (though by no means unique) review procedure which provides the pathway to applications to the AAT, involving a three-tiered process of decision-making: (i) an initial 'determination' as defined, (ii) a reconsideration by the person who made it (or a delegate) undertaken on his or her own motion or at the request of the claimant, (iii) an application to the Tribunal under section 64 which provides, inter alia:

64. (1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

(a) The claimant; ...

His Honour added:^[12]

The obvious, but important, point to be made of this tiered process is that application can only be made to the Tribunal to review a decision made under the Act (a) if the decision itself was made under a section that can give rise to a section 60 “determination”; and (b) that decision has been reconsidered so as to constitute a section 62 “reviewable decision”.

Conclusion

To the extent that the decision in Crozier purports to apply to claims made under the Safety, Rehabilitation and Compensation Act 1988, it is irreconcilable with the recent decision of the Federal Court in Lees and must be rejected.

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^[*] Professor of Law, University of New South Wales (ATAX)

Endnotes

¹ [1995] 1144 FCA

^[2] (1986) 69 ALR 395 at 404

^[3] (1986) 69 ALR 406

^[4] at p 1144

^[5] [1995] AATA 134; (1995) 37 ALD 550

^[6] (1986) 9 ALD 433

^[7] (1990) 20 ALD 483

^[8] No N93/803 AAT No 9464

^[9] per Miers at pp 484-485

^[10] at p 551

^[11] at p 1145

^[12] at p 1146