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Cited legislation

No linked legislation citations have been extracted yet.

What happened

The Applicant, Donald John Sullivan, sought review by the Administrative Appeals Tribunal (AAT) of an alleged failure by the Defence Force Retirement and Death Benefits Authority (DFR&DBA) to decide his claim under the Defence Force Retirement and Death Benefits Act 1973 (the DFRDB Act). The application to the AAT was lodged on 17 December 2008 ([1]).

The factual sequence relevant to the Tribunal's decision is:

• The Applicant had been administratively discharged in 1987 and later requested his discharge be amended to a medical (invalidity) discharge (his letter of 27 March 2008 appears in the correspondence) ([4]).
• By letter dated 12 June 2008 an Air Force official (described as Director General Personnel - Air Force) replied, declining to support the change because, according to Defence medical records and advice, there was no evidence of a mental health problem before discharge and the supporting medical report did not relate specific symptoms to military service. The letter stated the Applicant's records would continue to reflect an administrative discharge ([4]).
• The Authority (DFR&DBA) wrote to the Applicant on 1 December 2008 explaining that because the Chief of Air Force had not informed the Authority that grounds existed for medical retirement, the Authority had no discretion under section 37 to treat the Applicant as if he had been retired on invalidity grounds ([6]).
• The Applicant applied to the AAT claiming the Authority had failed to make a decision; the Tribunal considered whether it had jurisdiction to entertain the review ([1], [10]).
• The Tribunal (Senior Member M D Allen) concluded it had no jurisdiction because no decision of the Authority under s37 had been made, the key statutory precondition (an informing by the relevant service Chief) had not occurred, and directed the Registrar to take no further action ([10]; Decision).

Why the court decided this way

The Tribunal's reasoning turned entirely on statutory structure and precedent about the role of service Chiefs under s37.

Statutory starting points:

• Section 99 permits applications to the AAT for review of decisions of the Authority ([2]).
• Section 37 provides that where a contributing member was retired otherwise than on invalidity grounds, but after retirement the relevant service Chief informs the Authority that grounds existed for invalidity, the Authority "may" treat the member as if retired on that ground. The Tribunal quoted s37 in full ([3]).

The Tribunal relied on the Full Court's exposition in Defence Force Retirement and Death Benefits Authority v Britt [(1984) 4 FCR 306] to construe s37. The Full Court had explained that s37 "confers a specific function upon the Chiefs-of-Staff, that is, the function of determining whether the member could have been retired on the ground of invalidity and informing the authority of that fact" but that this is a precondition to the Authority's discretion; the Chief's informing is not itself an exercise of the Authority's discretion ([7], quoting Britt).

Applying that construction, the Tribunal concluded:

• Because the Chief of Air Force had not informed the Authority that grounds for retirement on invalidity existed, the Authority had no discretion under s37 to treat the Applicant as if retired on invalidity ([6], [10]).
• Therefore, there was no decision by the Authority under s37 that could be the subject of AAT review under s99; absence of a reviewable decision means the Tribunal lacked jurisdiction ([10]).

The Tribunal also examined whether the 12 June 2008 letter could be treated as a valid s37 informing by the Chief or by a delegate of the Chief. It concluded that the letter did not meet minimum formal indicia to be a s37 decision because:

• It did not state the author held a delegation from the Chief of Air Force to make decisions pursuant to s37;
• It did not state the decision was made by the author as a delegate; and
• It did not give reasons for the decision, only referring to opinions of a service medical officer ([5]).

Finally the Tribunal observed that the DFR&DBA's letter of 1 December 2008 correctly set out the statutory effect of s37; given the lack of a Chief's informing, the Authority had no discretion and could not make the s37 decision ([6], [7]).

Before and after state of the law

Before this decision the legal position on the role of service Chiefs under s37 was already settled by Britt: s37 gives the service Chief a limited, specific function to determine whether grounds existed for retirement on invalidity and to inform the Authority; that informing is a precondition to the Authority's exercise of discretion ([7]). The Tribunal in this case follows and applies that principle.

After the Tribunal's decision, the practical consequence reinforced is that where the relevant service Chief has not informed the Authority that invalidity grounds existed at the time of retirement, the Authority cannot itself treat the member as if retired on invalidity under s37; absent further statutory mechanism, that places the member outside the regime for a s37 treatment unless the Chief informs the Authority. The Tribunal also emphasised formal requirements for any purported s37 informing (delegation and reasons) if relied upon as a decision.

The decision signals two enduring points:

• AAT jurisdiction under s99 depends on a genuine decision by the Authority; if statutory preconditions for that decision have not occurred, there is no reviewable decision.
• The operation of s37 is functionally limited; it creates a gatekeeping role for service Chiefs whose informing is necessary before the Authority acts.

Key passages with plain-English translation

1. Quotation of s37 ([3])

   • Plain English: Section 37 says that if a member was not retired for invalidity at the time, but later a service Chief tells the Authority that invalidity grounds existed at the time of retirement, then the Authority may treat the member as if they had been retired for invalidity.
   • Significance: It makes the Chief's informing a statutory precondition to any exercise of the Authority's discretion under s37.

2. Tribunal's description of the 12 June 2008 letter and why it is not a s37 decision ([4], [5])

   • Plain English: The letter from an Air Force official explained why the Air Force would not change the Applicant's discharge to medical. But the Tribunal said that letter did not count as a formal s37 decision because it did not say the author had written authority from the Chief to make that kind of decision, did not say it was a delegated decision, and did not give legally relevant reasons, it only referred to medical opinions.
   • Significance: Casual or administrative responses that lack formal delegation and reasons may not satisfy the statutory requirement for a Chief's informing.

3. Quotation from Britt on the role of Chiefs ([7])

   • Plain English: The Chief's job under s37 is simply to say whether the member's medical condition was such that they could have been retired on invalidity grounds; that statement is a prerequisite to the Authority exercising its discretion but is not itself the exercise of that discretion.
   • Significance: This authoritative exposition was the linchpin of the Tribunal's analysis that no s37 decision by the Authority could exist without that informing.

What fact patterns trigger this precedent

This decision applies where:

• An applicant seeks AAT review under s99 of a DFR&DBA decision (or alleged failure to make such a decision) under s37,
• There is no documented informing from the relevant service Chief (or an authorised in-writing delegate) to the Authority that grounds for invalidity existed at the time of retirement, and
• The only communications are administrative responses or letters from service personnel which do not state delegation or provide reasons tying the communication to a s37 informing.

Practical triggers include disputes where a former member asks for retrospective reclassification of discharge to an invalidity basis and the Authority declines, the AAT will first ask whether the precondition (Chief's informing) has occurred. If not, the AAT will likely find it lacks jurisdiction to review because the Authority has not made a s37 decision.

How later courts have treated it

This Tribunal decision itself principally applies the Full Court's earlier statement in Britt. The decision cites Britt and Cox v O'Donnell and distinguishes an AAT decision (Rana) as limited to its facts ([7]–[9]). The Tribunal does not record later appellate treatment of its own decision; it explicitly relies on Britt as the controlling construction of s37 ([7]). The Tribunal also notes a statutory lacuna (no mechanism to challenge the service Chief's opinion) and treats Rana as not undermining that observation ([9]).

Because this is a Tribunal decision, and the Tribunal both follows Britt and applies it to the facts before it, the main dynamic is one of application rather than setting new appellate precedent. Any different treatment by later courts or tribunals is outside the textual record of these Reasons.

Still-open questions

1. Delegation formalities and sufficiency: The Tribunal required explicit statement of delegation and identification of the author as a delegate. It remains open what formal words or documentary indicia will suffice to show a proper written authorisation under s37. The Tribunal's statements provide guidance but do not define a full checklist.

2. Content of reasons required for a s37 informing: The Tribunal criticised the June 2008 letter for failing to give reasons, but it did not state the minimum content of reasons necessary for a valid informing. What factual linkage or reasoning must a Chief (or delegate) provide to make the informing effective under s37 remains unelaborated.

3. Remedies for the lacuna identified: The Tribunal observed there is "a lacuna in the DFRDB Act" (Reasons [9]) because the Act lacks a statutory avenue to challenge the Chief's opinion under s37. The decision identifies a practical injustice for members who cannot secure a Chief's informing and so cannot access the Authority's discretion; it does not resolve whether alternative legal remedies (judicial review in the Federal Court, other statutory mechanisms) may be available. The Tribunal noted Rana is limited to its facts, but did not analyse broader pathways for challenge to a Chief's opinion.

4. Status of informal communications: The decision treats the June 2008 letter as insufficient on its face, but the boundary between insufficient informal responses and communications that can be elevated to formal s37 informings remains uncertain. Subsequent fact-specific determinations will be required to determine when an apparent administrative letter meets the statutory requirements.

5. Interaction with procedural fairness or merits review: The decision focuses on jurisdictional structure. It leaves open whether, if a valid s37 informing exists, the content of that informing or the process by which it was reached gives rise to reviewability (procedural fairness obligations, Wednesbury reasonableness or merits considerations), questions that would arise only if an actual s37 decision were made.

This decision therefore offers clear guidance on the need for a Chief's informing as a prerequisite for Authority action under s37 and on the formal indicia of an effective informing, but leaves open a number of practical and legal contours that future litigants, tribunals or courts may need to clarify.

Disclaimer: This is a grounded case analysis and explanation only, not legal advice. I can make mistakes. Before you act on or rely on this, or use any draft, get a qualified Australian lawyer to check it.