A decision involving wholly or partly review of a determination
35 That which fixed the jurisdiction of the Tribunal to undertake a "second review" was the character of the decision being previously reviewed; for the Tribunal to undertake a "second review" the "first review" had to be (inter alia) the "review of a care percentage decision".
36 The "first review" was that undertaken by the Social Services & Child Support Division of the Tribunal in November 2017. As expressed in the reasons provided by that Division, the decision then being reviewed was (without alteration) the "objection officer's decisions". That being the decision made in July 2017 and taken pursuant to s 87 of the Registration Act.
37 The July 2017 decision, however, was not the "determination" which fixed the father's percentage of care. It is, however, concluded that it was a "decision involv[ing] (wholly or partly)" a review of that "determination".
38 This conclusion, it is respectfully considered, gives effect to the natural and ordinary meaning of the terms employed in the definition in s 4. It is also supported by the legislative context in which the definition is employed. The contrary submission of the Registrar, with respect, fails to give effect to the phrase in s 4 "wholly or partly".
39 Unlike the simplicity of language employed in s 89, the language employed in s 96A(b) gives rise to initial uncertainty.
40 In resolving any uncertainty in statutory language, the "starting point for ascertainment of a statutory provision is, of course, the text of the provision considered in light of its context and purpose": SAS Trustee Corporation v Miles [2018] HCA 55 at [20], (2018) 92 ALJR 1064 at 1071 per Kiefel CJ, Bell and Nettle JJ. "In the absence of any clear identification of the legislative purpose intended to be served by the words appearing" in a statutory provision, "it is necessary to give effect to, the literal words chosen by the legislature": cf. Mitchell v Bailey [2008] FCA 426 at [31], (2008) 168 FCR 370 at 378. Tracey J there went on to observe that a "Court should not speculate about the legislature's intention": [2008] FCA 426 at [31], (2008) 168 FCR at 379. Similarly, in Certain Lloyd's Underwriters v Cross [2012] HCA 56 at [26], (2012) 248 CLR 378 at 390 French CJ and Hayne J said that the "purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions" (footnote omitted).
41 There is no uncertainty in discerning a legislative intent to:
confine the ability of the Tribunal to undertake a "second review" by means of reference to Subdiv B of Div 4 of Pt 5 of the Assessment Act - so much follows from the express reference in the definition of a "care percentage decision" in s 4 of the Registration Act to Subdiv B but not Subdiv C of Div 4 of Pt 5 of the Assessment Act.
There is similarly a discernible legislative intent:
to limit the category of decisions that could be reviewed by employing the phrase "to the extent";
but conversely there is a clear legislative intent:
to also convey the width of the boundary of the category of decisions that could be reviewed by employing the terms "particulars" and "involves" and the phrase "wholly or partly".
42 But there the certainty ends. Where the boundary of the category of decisions that were susceptible of "second review" was to be drawn initially remained an elusive exercise.
43 A reference to the range of the potentially relevant decisions provided a fertile field for those advocating uncertainty in meaning. The making of the decision under s 54F of the Assessment Act (for example) - being a decision to revoke an existing "determination" and a decision made under Subdiv C of Div 4 and not Subdiv B - also necessitates the making of a new "determination" under s 49 or s 50, being provisions found within Subdiv B. On the approach of the Registrar, a decision under s 54F would not be susceptible to "second review" by the Tribunal because it was not made under Subdiv B of Div 4 of Pt 5 of the Assessment Act. Similarly, so it was submitted, the making of a decision under s 87 of the Registration Act and the resolution of an objection was not susceptible to "second review", again because it was not made under Subdiv B. This was so even though the decision made under s 87 had the legal effect of remaining on foot a prior determination as to the percentage of care being exercised.
44 But all such examples as were given had the temptation to divert attention from the words employed in s 96A(b) and the definition in s 4 in the Registration Act. If attention is focused upon the words employed, it would seem apparent that the Commonwealth Legislature:
when conferring jurisdiction, in s 89, on the Tribunal to undertake a "first review" did so with a considerable degree of precision as evidenced by the identification of the statutory source of power to make the decision sought to be reviewed;
but when conferring jurisdiction on the Tribunal pursuant to s 96A(b) to undertake a "second review":
evidenced a deliberate legislative intent to be more expansive and less confining in identifying the decisions of the Tribunal that would be susceptible to review, as evidenced by a deliberate intent not to prescribe the boundaries of that jurisdiction by reference to specific sources of statutory power but rather by reference to the more broadly expressed definition of a "care percentage decision".
45 Properly construed, it is considered that the definition in s 4 of a "care percentage decision", as embraced by s 96A(b), was a deliberate choice made by the Commonwealth Legislature to:
identify determinations made "under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act" as the core element of the decisions susceptible of "second review"
but:
not to confine the decisions susceptible to "second review" by reference to the source of those statutory powers found exclusively in Subdiv B of Div 4 of Pt 5 of the Assessment Act.
Such a construction simply gives effect to the terms employed in s 96A(b) and s 4. The difference in the terms in which jurisdiction is conferred by s 89 and s 96A(b) assumes significance. Whereas the Commonwealth Legislature saw fit to identify a discrete number of decisions as susceptible to "first review" and did so by reference to the specific source of power being exercised, when conferring jurisdiction to undertake a "second review" it was the character of decisions which were susceptible to review that was seized upon. In not identifying specific sources of statutory power, the drafting of s 96A(b) evidences a deliberate legislative choice to leave a wider category of decisions susceptible to review - subject only to the constraint that the decisions to be so reviewable involved in whole or in part a determination as to the percentage of care. And that was so irrespective of whether the statutory source of power of the specific decision under review was to be found within Subdiv B.
46 To be susceptible to "second review" the decision of the Tribunal on "first review" does not have to be one made exclusively under Subdiv B but rather be one which "involve[d] (wholly or partly) … a determination made under a provision of Subdivision B…". A decision to affirm a decision as to an existing determination of a parent's percentage of care, or a decision to disallow an objection made to an existing determination, is such a decision. It is a decision which, at least in part, "involves" a decision that the existing "determination" remained appropriate. Similarly, a decision made under s 54F to revoke a "determination" may not itself be the making of a "determination" under ss 49 or 50 of the Assessment Act to replace the existing "determination" but it is a decision "involv[ing]" the existing determination; the existing "determination" is immediately involved in the making of a revocation decision under s 54F because it is a decision that the existing "determination" is to be set aside.
47 On any construction of ss 96A(b) and 4, the availability of "second review" was not sought to be confined by the Commonwealth Legislature to only the making of a new "determination". So much was denied (inter alia) by the use of the phrase "involves (wholly or partly)".
48 This more expansive construction of ss 96A(b) and 4 is not only driven by the terms employed by the manner in which those provisions are drafted but is further supported by two further considerations.
49 First, the legislative history leading to the introduction by way of amendment in 2015 of s 96A(b) tends to suggest that no change was intended to be effected to the prior structure for review which contemplated both review of comparable decision by the SSAT and thereafter for review by the Tribunal. The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth) thus referred to the "new section 96A" and "application[s] for AAT second review" and stated that "[t]hese categories of decision are the same as the SSAT decisions in respect of which a person may currently seek AAT review, under … s103VA" and that "there would be no change to existing policy": at para [1440]. The reference to s 103VA was a reference to the terms of s 103VA of the Registration Act which provided, prior to the amalgamation of the Tribunals, as follows:
A party to a review aggrieved by a decision of the SSAT under this Part relating to a party's percentage of care for a child may apply to the AAT for review of that decision.
50 Second, the construction now advocated in the present case on behalf of the Registrar as to unavailability of "second review" of decisions other than those taken under Subdiv B does not sit comfortably with the fact that "second review" is available with respect to comparable decisions made under the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the "Family Assistance Administration Act"). This Act, the Assessment Act and the Registration Act were obviously intended to operate in tandem. So much is evident from (inter alia):
the comparable definitions of a "care percentage decision" - that phrase being defined in s 3 of the Family Assistance Administration Act in similar terms as the definition in s 4 of the Registration Act; and
the express reference in the Assessment Act to the Family Assistance Administration Act: e.g. in s 54L of the Assessment Act.
Under s 128 of the Family Assistance Administration Act provision is made for "second review" by the Tribunal of an earlier decision of the Tribunal. Section 128 thus provides, in part, as follows:
Application for AAT second review
(1) Application may be made to the AAT for review (AAT second review) of a decision made by the AAT under subsection 43(1) of the AAT Act on AAT first review.
(2) For the purposes of subsection (1), the decision on AAT first review is taken to be:
(a) if the AAT affirmed a decision - the decision as affirmed; and
(b) if the AAT varied a decision - the decision as varied; and
(c) if the AAT set a decision aside and substituted a new decision - the new decision; and
(d) if the AAT set a decision aside and sent the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT - the directions or recommendations of the AAT.
Although the very different terms employed in s 128, when compared to s 96A(b) of the Registration Act, obviously make the availability of "second review" under the Family Assistance Administration Act apparent, the incongruity as to the availability of "second review" remains if the Registrar's position was to prevail.
51 Although the contrary construction advanced by Counsel on behalf of the Registrar has great merit, it is nevertheless considered that the jurisdiction conferred on the Tribunal under the Registration Act is not as confined as suggested.
52 The Tribunal in the present case was correct in assuming jurisdiction to undertake a "second review".