Editors --- "Extension of time: whether application fee payable" [2011] SocSecRpr 28; (2011) 13(4) Social Security Reporter, Article 1

• SEOUD and SECRETARY TO THE DFHCSIA
• Background
• Issues
• The Facts
• Legislation and regulations
• Consideration
• Formal decision:

---

Extension of time: whether application fee payable

SEOUD and SECRETARY TO THE DFHCSIA

(2011/3530)

Decided: 13th September 2011 by S. A. Forgie

Background

Seoud applied to the AAT for an extension of time in which to lodge an application for review of a decision to reject her claim for a pension under the Social Security Act 1991 (the Act). The Department of Families, Housing, Community Services and Indigenous Affairs (the Department) did not oppose the granting of an extension of time. In deciding upon the date to which the extension should be granted it was necessary for the AAT to determine whether or not a fee was payable for the application to the AAT.

Issues

The date to which an extension of time should be granted for Seoud to bring her application for review to the AAT.

The Facts

The AAT’s website stated the following about application fees:

Information about application fees

Application fees

When you apply to the Administrative Appeals Tribunal (AAT) for review of some kinds of decisions, there is no application fee. For the review of other decisions, a fee must be paid.

If a fee is payable, the full application fee is $777. In certain circumstances, this fee can be reduced to $100.

If your application will be dealt with in the Small Taxation Claims Tribunal, the application fee is $77. This fee cannot be reduced.

Your application cannot proceed until you pay the application fee.

Under the heading ‘When do you not have to pay an application fee?’ the website stated further that:

In certain circumstances, you do not have to pay an application fee.

1. No fee is payable if the decision to be reviewed is listed in Schedule 3 to the Administrative Appeals Tribunal Regulations 1976 (see list below). This includes decisions about Commonwealth workers' compensation, family assistance and social security payments and veterans' entitlements.

2. No fee is payable if the decision was made under the Freedom of Information Act 1982 in relation to a document which relates to a decision under Schedule 3 to the Administrative Appeals Tribunal Regulations 1976.

If you have paid a full application fee and the application is resolved in your favour, most of it will be refunded. There is no refund if you paid the reduced application fee or if your application was dealt with in the Small Taxation Claims Tribunal.

The website then relevantly stated:

Decisions which do NOT attract an application fee under Schedule 3 of the Administrative Appeals Tribunal Regulations 1976Decisions under the following Acts or enactments:

...

Social Security Act 1991,Social Security (Administration) Act 1999; Social Security (International Agreements) Act 1999...

Legislation and regulations

Schedule 3 of the Administrative Appeals Tribunal Regulations 1976 (the Regulations) is headed ‘Prescribed decisions for the purposes of regulation 19 (regulation 19)’. It then lists 12 decisions or groups of decisions. Item 9A relevantly reads: ‘A decision under the social security law within the meaning of subsection 23(15) of the Social Security Act 1991.’

Section 23(15) of the Act has nothing to do with what is meant by the expression ‘social security law’. Instead, it specifies those who are family members in relation to a person for the purposes of Part 2.11 of the Act and the Youth Allowance Rate Calculator in s.1067G.

Section 23(17), on the other hand, does refer to the social security law and its meaning by providing: ‘A reference in this Act to the social security law is a reference to this Act, the Administration Act and any other Act that is expressed to form part of the social security law.’

The ‘Administration Act’ refers to the Social Security (Administration) Act 1999 and the Social Security (International Agreements) Act 1999 forms part of the social security law.

Consideration

The AAT considered that the careful would be applicant would face a dilemma. On the one hand, the decisions made under Acts listed on the AAT’s website as not attracting an application fee included the three Acts that form part of the social security law as defined in s.23(17) of the Regulations. On the other, s.23(17) was not relevant to the identification of such decisions because Item 9A of Schedule 3 refered only to a decision made under the social security law within the meaning of s.23(15) of those Regulations.

The AAT identified the following possible conflicting thoughts in the ‘careful would be applicant’:

1. If telephoning the registry for advice on whether a fee is payable, would the Disclaimer on the AAT’s website not apply equally to statements made orally by the registry?

2. On what authority is it that the wording of Item 9A can be ignored? Can the AAT as well as a court characterise a regulatory provision as a mistake and substitute other words?

3. In light of the concept of the rule of law, a fundamental proposition that underpins the system of government in Australia that the rules or laws governing people’s behaviour and their rights and entitlements and corresponding duties and responsibilities are known to them and to everyone else or can be readily discovered by them, the careful would be applicant would ponder the omission of an explanatory statement on the AAT’s website.

4. Even if the careful would be applicant benefitted from the interpretation set out on the AAT’s website because he or she is not required to pay an application fee, someone might challenge the validity of his or her application in the future.

5. Item 9A has been in its current form for a long time and the Regulations have been amended since it was made, this could means that Item 9A really was intended to be read as it is written.

The Deputy President then referred to the previous AAT decision of Lawrie and Secretary Department of Family and Community Services in which the AAT considered a drafting error in the Act which if applied would lead to an irrational and absurd result. In that case the AAT applied the principle that in circumstances where legislation, read literally, is unintelligible, and the meaning intended by parliament is perfectly clear, the courts may correct the error in expression

The AAT considered that it must make the correct decision when reviewing a decision and, if more than one is correct, the preferable decision. A decision will be correct if it is made according to the applicable law on findings of fact properly made by the AAT. The law must be identified and interpreted. If its meaning is unclear, then the rules of interpretation developed in the general law and contained in theActs Interpretation Act 1901 are available to administrators who must apply the law. Tribunals do not determine the law but must interpret it daily in order to apply it.

The AAT determined that an application fee had not been required.

The Deputy President took the time to prepare the written reasons so that a ‘careful would be applicant’ may be assisted to understand why the AAT's website would seem to be at odds with Item 9A of the Regulations.

Formal decision:

The AAT decided to extend the time within which Seoud could make an application for review to 30 August 2011 being the date she lodged her application for review.

L.H.