Federal Court of Australia

Harding v Secretary, Department of Employment and Workplace Relations [2023] FCA 1512

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondent’s costs on a lump sum basis to be assessed by a Registrar of the Court in the absence of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    The appellant appeals from a decision of the Administrative Appeals Tribunal made 7 July 2023 pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

2    Appeals to this Court from decisions of the Tribunal pursuant to s 44 of the AAT Act are on questions of law.

3    The appellant is self-represented. In the notice of appeal dated 2 August 2023, the appellant raises two questions of law.

4    The first question, in summary, raises the issue of whether s 147 of the Social Security (Administration) Act 1999 (Cth) which modifies the operation of ss 43(6) of the AAT Act is predicated on “a valid, authorised formal review and written notice” of such a review.

5    The second question, again in summary, follows on from the first question. The point is that if a review of a decision carried out by an authorised review officer is not valid, any subsequent review of that decision is also invalid.

The review process

6    Under the provisions of the Administration Act, if a person is dissatisfied with a decision of an officer under the social security law, that party may apply to the Tribunal for a first review of that decision.

7    After the first review, a party is entitled to apply to the Tribunal for a second review of the decision of the Tribunal on first review. The Tribunal’s decision on second review is the subject of this appeal.

8    The Tribunal was dealing with three decisions made by the respondent relating to the appellant’s JobSeeker payments. Those three decisions have been the subject of a first review with the Tribunal’s first review decision dated 30 March 2022.

9    The first decision being considered on second review was a suspension of the appellant’s JobSeeker payments on 20 January 2021 as from 9 January 2021 and its cancellation on 16 February 2021. This decision was affirmed by an authorised review officer on 14 February 2022. The appellant applied to the Tribunal for a first review which set aside the decision to cancel the appellant’s JobSeeker payments and substituted a decision that the appellant continued to be qualified for JobSeeker payments. The respondent conceded before the Tribunal on second review that the decision was correct.

10    The second decision arose out of the appellant lodging a new claim for JobSeeker payments on 16 February 2021 after the cancellation of her JobSeeker payments as a result of the first decision. The appellant’s new claim for JobSeeker payments was initially granted as from 16 January 2021 but on 14 February 2022 was varied by an authorised review officer such that her JobSeeker payments were granted from the later date of 16 February 2021. In view of the Tribunal’s decision on first review setting aside the first decision, it followed that the second decision should also be set aside. The respondent conceded before the Tribunal on second review that was correct.

11    The third decision was to once again suspend the appellant’s JobSeeker payments, this time from 3 April 2021 and cancel it as of 28 April 2021. That decision was affirmed by an authorised review officer on 13 July 2021 and affirmed on first review by the Tribunal.

12    The appellant applied for a second review of the third decision.

13    On the Tribunal’s second review, which is the subject of this appeal, the respondent conceded that the decision to cancel the appellant’s JobSeeker payments from 28 April 2021 which had been affirmed on review by an authorised review officer on 13 July 2021 and on first review by the Tribunal’s decision dated 30 March 2022 should be set aside with the date the decision came into effect being 3 February 2022. The appellant contended the date of effect should be 9 December 2021. The Tribunal found the effective date as 3 February 2022, being the date of the application for first review.

First ground of appeal

14    The third decision, made by an authorised review officer, was notified to the appellant by letter dated 13 July 2021 (AB 43-47).

15    The first ground of appeal collates two issues. The first is that the authorised review officer’s decision dated 13 July 2021 was invalid. The second is that the operation of s 147 of the Administration Act, which modifies s 43(6) of the AAT Act as to the date the decision of the Tribunal takes effect is predicated on the authorised review officer’s decision being valid.

The validity of 13 July 2021 decision

16    The appellant contended before the Tribunal and before this Court on appeal that the letter from the authorised review officer dated 13 July 2021, which advised the appellant of the authorised review officer’s decision, has as a reference number A302830 which is the wrong reference number. The significance, so the appellant contends, is the authorised review officer reviewed the first and second decisions and not the third decision.

17    I do not accept that contention. There is no doubt that the letter dated 13 July 2021 identifies in the first paragraph of the letter that it is dealing with a formal review requested (by the appellant) of the decision made 28 April 2021 to cancel the appellant’s JobSeeker payments. There can be no doubt that the matter being reviewed by the authorised review officer was that decision.

18    The fact that there was a typographical error is no reason to defy common sense by not observing that a typographical error was made: CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682, [29] (Marshall J). Accordingly, the first part of ground one.

The operation of s 147 of the Administrative Act

19    The second part of ground one is that for s 147 of the Administration Act to modify s 43(6) of the AAT Act there must be a valid decision, in this case the 13 July 2021 decision. As I have concluded the 13 July 2021 decision was valid, the second part of ground one falls away.

20    Although strictly not forming part of the grounds of appeal, in the appellant’s written submissions the appellant submits that the Tribunal Member erred in determining that the decision on second review comes into effect on 3 February 2022, being the date of the application for the first review.

21    The respondent contended the date of effect of the second review decision is 3 February 2022. The appellant disputed that date as being the date of the application for review and contended that it was 9 December 2021.

22    The respondent submitted that because of the manner in which the appellant has framed the questions of law, if the Court is not satisfied that the decision on 13 July 2021 was invalid, the question of law about how s 147 of the Administration Act modifies s 43(6) of the AAT Act does not arise.

23    Nonetheless the respondent dealt with the argument. The matter having been fully ventilated and there being no suggestion that the respondent is unable to deal with the point, I proceed to do so.

24    Apart from the invalidity point, no substantive argument was advanced by the appellant as to why s 147 of the Administration Act should not apply to modify s 43(6) of the AAT Act.

25    Section 43(6) of the AAT Act provides:

43 Tribunal’s decision on review

…

Tribunal’s decision taken to be decision of decision-maker

(6)    A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

26    Section 147, item 8 of the Administration Act modifies the operation of s 43(6) of the AAT Act in a way that is relevant to this matter by providing in part that:

[s 43 (6)] has effect as if the decision under review had taken effect on the day a person applied for AAT first review of the decision, if:

(a)    the person is given written notice of the decision under the social security law; and

(b)    the person applies for AAT first review more than 13 weeks after the notice was given; and

(c)    on AAT first review, the AAT varies the decision or sets the decision aside and substitutes a new decision.

27    There is no issue that the appellant was given written notice of the decision made 13 July 2021.

28    So too, there is no issue that the appellant applied for a first review of that decision. As I have noted, the appellant contends she made the application on 9 December 2021 or at the latest, 3 February 2022, which is the date the respondent contends the appellant made the application.

29    The Tribunal Member determined as a matter of fact that the appellant had applied for a first review on 3 February 2022. Nothing turns on the difference in dates because both dates are more than 13 weeks after the written notice was given on 13 July 2021.

30    The respondent submits that the provisions of s 43(6) are such that in order to determine when the decision under review comes into effect, the first step is to determine what decision is under review. The respondent submits that the Tribunal’s decision on second review has, as its subject, the Tribunal’s decision on first review dated 30 March 2022, which concerned the third decision.

31    Since the Tribunal’s decision on second review dated 7 July 2023 substitutes for the Tribunal’s decision on first review, because of s 43(6) the decision on first review “… has effect, or shall be deemed to have had effect, on and from the day on which a decision under review has or had effect.”

32    I accept these submissions.

33    Although s 43(6) is modified by s 147 of the Administration Act, the effect of s 43(6) is that the decision on second review is deemed to be the decision on first review. Accordingly, the issue is what would the date of effect have been had the decision on first review been that the decision of the authorised review officer dated 13 July 2021 be set aside.

34    Had that been the case, s 147 of the Administration Act applies to make the date of effect 3 February 2022, being the date the Tribunal found the appellant made her application for first review of the decision dated 13 July 2021.

35    It is clear that by combination of s 43(6) of the AAT Act and s 147 of the Administration Act, the second review substitutes for the decision of the first review such that the requirements of s 147, item 8 are met. Accordingly, the decision on first review is taken to have effect on the day the appellant applied for first review, being 3 February 2022.

36    Although the appellant contends the date of the application was 9 December 2021, the Tribunal Member on second review found the date of the application was 3 February 2022 based upon the letters of acknowledgement from the Department to the appellant showing a date of lodgement of the application for first review as 3 February 2022.

37    There is no error demonstrated in the Tribunal member making that finding.

Second ground of appeal

38    The second ground of appeal relies on the first ground of appeal being successful. In view of my decision about the first ground of appeal, the second ground of appeal fails.

Conclusion

39    It is for these reasons that the appeal must be dismissed. There is no reason why costs should not follow the event.

40    There will be orders:

(1)    The appeal is dismissed.

(2)    The appellant is to pay the respondent’s costs on a lump sum basis to be assessed by a Registrar of the Court in the absence of agreement.

Associate:

Dated:    1 December 2023