Harding v Secretary, Department of Employment and Workplace Relations

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. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.