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Editors --- "The Administrative Appeals Tribunal" [2004] AdminRw 7; (2004) 56 Admin Review 50

The Administrative Appeals Tribunal

Changes to jurisdiction

The Administrative Appeals Tribunal may review a decision only if an enactment provides that the decision is subject to review by the Tribunal.

Between 1 May 2003 and 30 April 2004 the following enactments (including delegated legislation) conferred new jurisdiction on the Tribunal (the date from which jurisdiction is conferred is noted for each enactment):

• the Australian Meat and Live-stock Industry (Export of Cattle) Order 2003—1 May 2003

• the Australian Meat and Live-stock Industry (Export of Live Sheep and Goats to the Middle East) Order 2003—1 May 2003

• the Aviation Transport Security Act 2004on proclamation or 10 March 2005

• the Dairy Produce Amendment Regulations 2003 (No. 2) (amendment of the Dairy Produce Regulations 1986)—7 November 2003

• the Designs Act 2003—on proclamation or 17 June 2004[1]

• the Financial Sector Legislation Amendment Act (No. 1) 2003 (amendment of the Banking Act 1959)—28 November 2003

• the Maritime Transport Security Act 2003—12 December 2003

• the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003—1 July 2003.

Between 1 May 2003 and 30 April 2004 the Tribunal’s jurisdiction under the following enactments was amended, either increasing or decreasing the range of decisions subject to review:

• the Air Navigation Act 1920—to come into effect on proclamation or 10 March 2005

• the Bankruptcy Act 1966

• the Bankruptcy Regulations 1966

• the Civil Aviation Regulations 1988

• the Civil Aviation Safety Regulations 1998

• the Customs Act 1901

• Defence Determination 2002 (Employer Support Payments)

• the Income Tax Assessment Act 1997

• the Industrial Chemicals (Notification and Assessment) Act 1989

• Marine Orders Parts 30, 34 and 42

• the Marriage Act 1961

• the Medical Indemnity Act 2002

• the Migration Act 1958—to come into effect on proclamation or 22 October 2004

• the National Health Act 1953—some amendments to come into effect on 1 July 2004; others on proclamation or 27 August 2004

• the Petroleum (Submerged Lands) Act 1967—to come into effect on proclamation or 4 June 2004

• the Primary Industries Levies and Charges Collection Regulations 1991

• the Taxation Administration Act 1953

• the Telecommunications Numbering Plan 1997

• the Therapeutic Goods Act 1989

• the Trade Practices Act 1974

• the Veterinary Chemicals Code Act 1994.

Decisions of interest

Jurisdiction, use of summons and entitlement to reasons for decision

In a series of decisions relating to a single matter, the Tribunal constituted by the Acting President has explored the means whereby a prospective applicant for review of a decision can obtain material relating to that decision.

The applicant made a complaint pursuant to s. 536 of the Corporations Act 2001 to the Australian Securities and Investments Commission about the conduct of the liquidator of One.Tel Limited. This section of the Act allows ASIC to make inquiries into the conduct of a liquidator in certain circumstances (including if a complaint is made) but any resultant action is taken by the Federal Court, not ASIC.

After some initial consideration and correspondence, ASIC decided not to proceed further. The applicant then sought a statement of reasons for that decision. ASIC refused to provide this, asserting that the power to make the decision came from its general powers under the Australian Securities and Investments Commission Act 2001, rather than the Corporations Act, and was therefore not reviewable by the Tribunal. As a result, reasons were not required to be provided under the Administrative Appeals Tribunal Act 1975.

The application to the Tribunal was for a decision under s. 28(1AC) of the AAT Act as to whether the applicant was entitled to a statement of reasons. There was no application for review of the alleged substantive decision.

The applicant sought issue of a summons requiring ASIC to produce documents associated with its conduct in connection with the initial complaint. In its first decision, the Tribunal granted leave for the issue of the summons. It held that the applicant was entitled to at least seek to prove that ASIC’s conduct included making a reviewable decision under s. 536. The documents that came into existence within ASIC in connection with its inquiries would at least in part determine whether a decision had been made.[2]

ASIC answered the summons but objected to the production of the documents to the applicant, on the grounds that the application for a statement of reasons would inevitably fail and the documents would effectively grant the applicant reasons he was not entitled to obtain. ASIC argued that s. 536 of the Corporations Act simply sets out one of its functions and that power to perform those functions was conferred by the ASIC Act. Therefore there would never be any decision under s. 536 capable of review.

After considering relevant authorities and the terms of s. 536, the Tribunal rejected this argument. Section 536 did not merely identify ASIC’s inquiry function: it also conferred the power to make those inquiries. The documents produced under summons were therefore capable of revealing that a reviewable decision had been made, and as a consequence the applicant’s case was not hopeless.[3]

In its third decision the Tribunal examined the correspondence between the applicant and ASIC and other documents that showed ASIC had earlier investigated its own separate concerns about the liquidation of One.Tel and received assurances from the liquidators. The Tribunal held that, on receipt of the applicant’s complaint, ASIC had in effect re-examined its own inquiries and had concluded that it remained satisfied with the results of those inquiries. This constituted a new decision under s. 536 to not inquire further. The applicant was therefore entitled to a statement of reasons for this decision.[4]

Notification of a decision to attribute income and assets of a trust to recipients of a pension

In Re Peura and Secretary, Department of Family and Community Services[5] the applicants were recipients of an aged pension and a wife pension. In November 2001 one of the applicants was advised by letter that, with the introduction of new private trust and private company attribution rules, Centrelink would attribute the income and assets of a family trust to the applicants from 1 January 2002. The letter also stated, ‘You and/or your partner will be advised of this decision in December 2001 and its effect on entitlements’. The same applicant had also received a letter in February 2001, advising her of the proposed new rules and asking her to supply information about the family trust.

Both applicants received a letter dated 10 December 2001 that purported to advise them of a decision. Although the letters provided details of the amounts of payment that would be made, they made no reference to the previous correspondence and did not state that the change in payment was a result of application of the new rules. One of the applicants gave evidence that she regularly received letters making small adjustments to the rate of pension without explanation, which were virtually indistinguishable from the letters of 10 December 2001.

The applicants advised Centrelink in May 2002 that the trust had been inactive since June 2001. In consequence, Centrelink decided to cease attributing the income and assets of the trust to the applicants. However, it refused to pay arrears of the pensions for the period January to May 2002 on the basis that the applicants had failed to seek review of the December 2001 decision within the statutory period of 13 weeks after notice had been given.[6]

After reviewing a number of authorities, the Tribunal decided that the correct approach in deciding whether the letters constituted notice of the relevant decision could be summarised as follows:

• The Tribunal should identify the decision in relation to which notice was to be given.

• The subject letters should be construed objectively.

• The letters should be intelligible; that is, they should inform the recipient of the making of the decision and the content of it.

• Where the rate of pension is changed as a result of changed circumstances or the manner in which those circumstances are assessed, merely advising the recipient of the rate of his or her pension only constitutes advice of the effect of the decision.

• The letters need not advise the reasons for the decision.

The Tribunal concluded that the letters of 10 December 2001 only constituted advice of the effect of the decision on the applicants’ rates of pension. They failed to advise what the relevant decision was—that is, that the rates of payment had been varied as a result of the application of the new income attribution rules—and so were not intelligible in that they did not constitute notice of the relevant decision within the meaning of the section imposing the 13-week period.

This was despite previous correspondence making clear that advice of both the decision and its impact could be expected. The Tribunal considered that the letters of 10 December 2001 should not be interpreted by reference to the earlier correspondence since they made no reference to that earlier correspondence.

The Tribunal held that, because no notice had been given, arrears should be paid to the applicants for the period in contention.

Scholarship by reduction in fees not to be assessed as income

In Re Torv, Bond University Limited and Secretary, Department of Family and Community Services[7] Mr Torv was offered a half-scholarship to Bond University to undertake studies in law. The scholarship was structured so as to reduce the fees payable by Mr Torv. He did not receive any of the scholarship money in his hand.

Centrelink assessed the scholarship as income pursuant to s. 8 of the Social Security Act 1991. This meant that Mr Torv was not entitled to receive Youth Allowance because his income exceeded the threshold for eligibility. Centrelink argued before the Tribunal that the scholarship came within the Act’s definition of income because it was valuable consideration: Mr Torv had the benefit of paying only half the normal tuition fee.

The Tribunal rejected this approach. Neither Bond University nor the student received any money as a result of the scholarship. The fees were simply not payable. What other students might pay for the same degree was not relevant to the question of whether Mr Torv was receiving income.

In the Tribunal’s view there was a significant difference between a scholarship drawing monies out of a trust fund to pay tuition fees and a scholarship where the fees were never payable. A scholarship in the latter category, as in Mr Torv’s case, would not constitute income.

[1] This Act will repeal the Designs Act 1906, under which the Tribunal currently has jurisdiction. Transitional provisions in the new legislation ensure that any applications or proceedings under the repealed Act can be completed.

[2] Re Rich and Australian Securities and Investments Commission [2003] AATA 1009.

[3] Re Rich and Australian Securities and Investments Commission [2003] AATA 1044.

[4] Re Rich and Australian Securities and Investments Commission [2003] AATA 1339.

[5] [2003] AATA 1123.

[6] Section 109 of the Social Security Administration Act 1999.

[7] [2004] AATA 182.

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