Nelson and Repatriation Commission [2007] AATA 1069 | Case summary

Administrative Appeals Tribunal of Australia|2007-02-20

For the reasons set out in Re Knight and Repatriation Commission, the determination was not a decision affecting Mr Richard's rate of pension. It could not be reviewed by the Tribunal.[73]

Re Hildebrand and Repatriation Commission[74]

Having regard to the decisions in Re Hovell, Re Deason, Re Knight, Re Stewart and Re Lobik, the Tribunal was satisfied that it did not have jurisdiction to review the decisions. It adopted the reasons of the Tribunal in Re Knight at [9]-[12].

Re Porritt and Repatriation Commission[76]

No jurisdiction to review as decision to recover overpayment does not come within s 57(2).

Adopted reasons in Re Knight at [9]-[12].[77]

Re Carrick and Carrick and Repatriation Commission[78]

Decision service pension overpaid and decision to recover it.

Mr and Mrs Carrick failed to notify DVA of annual cost of living adjustments made to their United States of America pensions. They were notified of a decision to recover an overpayment. The decision was amended when the Commission realised it had not taken the gross amount of pension into account. The Commission amended its decision later to have regard to variations in exchange rates during the period of the overpayment.

Mr Carrick contended only that repayment of the debt would cause him and his wife considerable financial difficulty.

The Tribunal decided that the decision to recover overpayment is not a decision to reduce or increase the rate of a service pension and so is not a decision falling under s 57.[79]

Re Jakab and Repatriation Commission[80]

The decision under review was a decision to reduce the rate of payment of a service pension. It was reviewable as it was a decision of the sort referred to in s 57(2)(c) of the VE Act.[81] Implicit in the Tribunal's reasons is an assumption that a decision to raise an overpayment follows a reassessment of the rate of pension to which Mr Jakab was entitled during the relevant period.

The Tribunal has no jurisdiction to review a decision to recover an overpayment as not referred to in s 57.[82]

Re Westerman and Repatriation Commission[83]

No dispute that the Tribunal has jurisdiction to consider the correct amount of pension between 30 January and 11 April 2001. That was the period between the date on which Mr and Mrs Westerman lodged their claim for service pension and the date on which the Commission granted it. 11 April 2001 was also the day on which the Commission told them of their obligations to notify the Commission.

Apart from that small period, the Tribunal decided that a decision to recover payments that have already been made is not a decision reducing or increasing the rate of a service pension.[84]

The self-operating provisions of s 56B took effect and a delegate of the Commission neither made a decision nor reviewed it.[85]

Re Holt and Repatriation Commission[86]

Section 56B permits the Commission to pay pension at the reduced rate in the circumstances specified in that section. "The reduced rate as determined by that section is not reviewable under s 57 and consequently cannot be the subject of review by this Tribunal."[87]

The decision should have been made by reference to s 56B alone. As it was, the delegate made it without power but it was still not reviewable as it would not have been reviewable if properly made.[88]

33. In all the cases in which it was considered, the Tribunal concluded that it did not have jurisdiction to review a decision to raise and recover an overpayment. Whether it had jurisdiction to review whether the pensioner had been in breach of the notification requirements or the rate of pension that would have been payable during the relevant period is a different matter. On their face, the vast majority of the cases have decided that the Tribunal does not have jurisdiction to review a decision to raise and or recover an overpayment of service pension when there has been a failure to comply with an obligation to notify of certain events. In giving their reasons they have, in essence, based their conclusion on the view that s 56B is a self-executing or self-operating provision. That conclusion is the basis of their further conclusion that a decision under s 56B is not a decision of the sort described in s 57 and so cannot be a decision reviewed by the Commission under s 57B and reviewable by the Tribunal under s 175. They have tended to rely on the earlier authorities of Re Stewart, Re Deason and Re Knight and the reasoning in those cases.

34. Other than Re Hildebrand and Re Carrick, none has referred to any authority that comes to a contrary conclusion. Re Hildebrand referred to Re Lobik but it did not give any reason for disagreeing with the reasoning that led to a contrary conclusion in that case. Re Carrick referred to the conclusion by the Tribunal in Re Lobik that it had not hesitation in accepting a submission that it did not have jurisdiction to review a decision to recover an overpayment. The Tribunal in Re Carrick did not refer to the reasoning in Re Lobik that, although s 56B may be described as a "self-operating" provision, it does not necessarily, of itself alone, produce a certain reduction in the rate of service pension payable. That reasoning had led the Tribunal in Re Lobik to remit the decision to the Commission to reconsider the rate at which the service pension was payable.

35. The three authorities on which the majority of cases have placed most reliance are not as unequivocal in their reasoning as would seem from the later cases. In Re Stewart, the Tribunal accepted that then s 98AAA operated to reduce the rate of payment of a service pension as a matter of law but did not give any reasons for its reaching that view. It may be understandable that it did not do so because it appears from the face of the reasons for decision that there had been a separate decision reducing the rate of pension. Review had not been sought of that decision but only of the decisions to raise the overpayment and the rate at which it was to be recovered. Re Deason did not purport to give detailed reasons. Instead, it raised the issue of whether it had jurisdiction and doubted whether it did but, because it considered that the correct decision had been made if it did have jurisdiction, never explored the matter.

36. In Re Knight, the Tribunal began its consideration from the point of view that it had to find a valid decision under s 57 if it was to have power to review the decision. It referred to Re Deason but did not refer to the fact that the Tribunal was concerned only with a recovery decision under s 205 and that review had not been sought of the separate decision. That had also been the position in Re Stewart. As I have said, all Tribunals who considered the issue, have agreed that the Tribunal does not have jurisdiction to review a decision under s 205. That is because it is not a decision that meets the description of any of the decisions that the VE Act permits the Tribunal to review and, if that is the proper characterisation of the decision under review, I would reach the same conclusion.

37. The Tribunal in Re Knight did not take account of the principles in cases such as Director-General of Social Services v Hales[89] and Director-General of Social Services v Hangan.[90] Those cases as well as the Tribunal's decision in Re Matteo and Director-General of Social Services[91] were considered by the Tribunal in Re Johns but no reference was made to any of these cases in Re Knight.

38. I do not accept Mr Douglass's submissions regarding Re Lobik and Re Hovell. I have summarised their main points in the table above. With regard to the latter, it is clear from the reasons that there was a decision of the delegate made on a specific date to vary the rate of service pension. It is that decision that the Tribunal said it had jurisdiction to review and it reached that conclusion after careful analysis of the provisions of the VE Act and the decisions that had been made by the delegate. It referred to previous authorities concluding that there was no right to review the calculation of an overpayment and accepted their conclusion. There was, though, a right of review in relation to a decision reducing the rate of a service pension and that was the decision that had been made by the delegate in that case and of which the Tribunal found review had been sought.

39. With regard to Re Lobik, it is true that the Tribunal said that it had jurisdiction to review a decision that "purported" to have been made under s 57B. It is clear from its decision that nothing should be read into its use of the word "purported" for it found that the delegate had jurisdiction to do so under s 57B of the VE Act. The reasoning shows that it considered that a decision had to be made to reduce the rate before there could be a decision to recover an overpayment. It said that s 56B did not necessarily, of itself alone, produce a certain reduction in the rate of service pension. A decision was necessary to ascertain the precise amount of the increase in Mr and Mrs Lobik's income and, on the basis of those increases, to calculate the precise amount of the reduction of the service pensions. It relied on s 56D(1). While I respectfully disagree with the conclusion as to the source of power to make the reduction decision, it will appear that I do not disagree with the Tribunal's broader conclusion that s 56B does not of itself alone produce the rate reduction in any given case.

Federal Court authorities considering self-executing provisions

40. I was referred to several Federal Court authorities concerned with self-executing provisions. One is that found in s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) which provides:

"Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program."

41. Mr Douglass referred me to Federal Court cases that had been decided by single judges and that had considered this section: Trajkovski v Telstra Corporation Ltd,[92] Chowdhary v Bayne[93] and Australian Postal Corporation v Pascoe.[94] None was followed by the Full Court of the Federal Court in Australian Postal Corporation v Forgie.[95] The Full Court questioned the judgment in Buck v Comcare.[96] That case was referred to in Telstra Corporation Ltd v Administrative Appeals Tribunal,[97] to which Mr Douglass also referred. Telstra Corporation Ltd v Administrative Appeals Tribunal considered s 57 of the SRC Act. Section 57(2) is expressed in terms similar to s 37(7). Kiefel J decided that the Tribunal could consider whether the circumstances referred to in s 57 were present. Among them was whether Mr Rodriguez himself had a reasonable excuse to refuse to attend the medical examination. It could not consider whether he ought to have been excused from attending the examination.[98]

42. The SRC Act provides that an application may be made to the Tribunal for review of a reviewable decision. That is the effect of s 64. A "reviewable decision" means a "decision made under subsection 38(4) or section 62".[99] Section 38(4) refers to the decision that Comcare may make after reviewing a determination made under ss 36 or 37 in relation to a rehabilitation program. Section 62 refers to the decision that a determining authority, such as Comcare or Australia Post, may make of its own motion or after a request made by, among others, a claimant in respect of a determination. A "determination" means "a determination, decision or requirement made under ..." the sections specified in s 60(1). A "decision" has the same meaning as in the AAT Act.[100]

43. The Full Court in Australian Postal Corporation v Forgie referred to the judgment of Lockhart J, with whom Sheppard J agreed, in Director-General of Social Services v Hales,[101] which followed the individual judgments of the members of the Full Court in Director-General of Social Services v Hangan.[102] It was, in turn, followed by Von Doussa, with whom Spender and French JJ agreed, in Secretary, Department of Social Security v Alvaro.[103] On the general issue of the meaning of the word "decision", Lockhart J had said in Director-General of Social Services v Hales:

"One cannot look to the definition in s 3(3) [of the AAT Act] to determine definitively the meaning of the word 'decision'. It must takes its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review of the Administrative Appeals Tribunal. The multiplicity of statutes which continue to grow and to confer jurisdiction on the Administrative Appeals Tribunal, and the manifold and diverse circumstances which attract the power of the decision maker, all call for a liberal approach to the word 'decision' ... It is necessary to examine the Act which confers jurisdiction on the Administrative Appeals Tribunal and the administrative framework in which it operates to determine whether there is a 'decision' susceptible of review under the Administrative Appeals Tribunal Act. A pronouncement which alters rights or imposes liabilities is readily classified as a 'decision', but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities: Duncan v Defence Force Retirement and Death Benefits Authority and Commonwealth of Australia [1980] FCA 58; (1980) 30 ALR 165 at 169-70."[104]

44. Lockhart J was required to consider whether a "decision" within the meaning of s 3(3) of the AAT Act had been made when s 140(1) of the Social Security Act 1947 had been relied upon to justify a decision to recover an overpayment. That section could also be described as self-executing. It provided:

"Where in consequence of a false statement of representation, or in consequence of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension, allowance, endowment or benefit which would not have been paid but for the false statement or representation, failure or omission, the amount so paid shall be recoverable in a court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the Commonwealth."

45. Lockhart J considered only s 3(3)(e) of the AAT but the provision provides in full:

"A reference in this Act to a decision includes a reference to -

(a) making, suspending, revoking or refusing to make an order or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing."

46. Applying the principles he had set out, Lockhart J said:

"I am content to assume that the recoverability of an overpayment as a debt due to the Commonwealth does not depend upon a decision of the Director-General that he cannot waive such a debt. But I fail to see how action for recovery of an overpayment can be taken otherwise than by following a decision of the Director-General or his delegate to recover it. Certain administrative processes must precede any action for recovery in a court pursuant to s 140(1). Some officer in the Department must form an opinion that there has been a failure or omission to comply with a provision of the Social Services Act or that there has been a false statement or representation, and that a benefit has been paid in consequence of that failure or omission or false statement or representation that would not otherwise have been paid. Some officer must decide that the overpayment is recoverable and should be recovered."[105]

47. The Full Court in Australian Postal Corporation v Forgie adopted these principles and applied them to the interpretation of s 37(7) of the SRC Act:

"... we, like Lockhart J in Hales_, fail to see how action to suspend statements, or to stop proceedings under the SRC Act, can be taken otherwise than by following a decision of the determining authority that the requisite conditions are met, that steps to stop payments should be taken and that a record of the suspension of rights to institute or continue proceedings in relation to compensation should be made on the employee's file._

To adopt again the language of Lockhart J in Hales_, certain administrative processes must precede the suspension of compensation and proceeding rights. Some officer in the determining authority must form an opinion that there has been an unreasonable refusal or failure to undertake the rehabilitation program such that s 37(7) applies._

In cases such as the present, a conclusion that an employee has refused or failed to comply with a rehabilitation program, and that there is no reasonable excuse for such failure or refusal, has real practical effect. It is only when such a conclusion, however it is characterised, has been reached that what is said to be the self-executing aspect of s 37(7) is triggered."[106]

48. A finding that the suspension or cessation of proceedings under the SRC Act must follow the authority's reaching a decision that the prerequisite conditions specified in s 37(7) have been met is not enough to give the Tribunal jurisdiction. Section 60(1) of the SRC Act requires that the decision be "made under" an enactment. The Full Court referred to a passage from the judgment of Black CJ in Hutchins v Commissioner of Taxation:[107]

"It is clear that there may be a decision 'under an enactment' within the meaning of that expression in the ADJR Act notwithstanding that the enactment concerned does not expressly require or authorise the decision in question but does so impliedly."

It also referred to the judgment of Finn J in Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission:[108]

"The second quality required of a 'reviewable decision' is that it be a decision 'made under' an enactment ... This test requires there to be a 'sufficient connection' between the text of the statute in question and the decision sought to be reviewed ... This 'sufficient connection' requirement itself effects a balance between the policy, on the one hand, of allowing effective redress to persons aggrieved by administrative decision making processes (so enhancing those processes), and that, on the other hand, of protecting the efficient administration of government from impairment by an extended conception of a reviewable decision."

49. The notions of a "sufficient connection" and of an implicit authorisation are illustrated by the conclusion reached by Mason, Deane and Dawson JJ (Gibbs CJ and Brennan J dissenting) in Minister for Immigration and Ethnic Affairs v Mayer.[109] This is a case to which the Full Court referred in Australian Postal Corporation v Forgie:

"... That case involved the interpretation of s 6A(1)(e) of the Migration Act 1958 (Cth). Section 6A(1)(c) was to the effect that an entry permit was not to be granted unless one or more of a number of conditions were met, one of them being that 'the Minister has determined ... that he has the status of a refugee.' Mason, Deane and Dawson JJ ... held that the Minister's decision that the respondent did not have refugee status was made in performance of a function impliedly conferred upon him by s 6A(1)(c) of the Migration Act. It was therefore a decision made 'under an enactment' as required by s 3(1) of the ADJR Act."[110]

50. Applying that logic to s 37(7) of the SRC Act, the Full Court concluded:

" Likewise under s 37(7), when an employee has refused or failed to undertake a rehabilitation program, rights are to be suspended, unless one element is present, namely a reasonable excuse. There is a direct connection between the text of the statute 'without reasonable excuse' and the decision, which the respondent seeks to have reviewed 'that there is no reasonable excuse'. Since the connection is both direct and explicit, it must easily fall within the notion of sufficient connection for the purposes of 'made under' in the context of the ADJR Act. It follows that it would also be a decision 'made under s 37' for the purposes of s 60(1) of the SRC Act."[111]

Principles generally applicable in consideration of self-executing provisions

51. A consideration of a self-executing provision and the review rights it entails beings with a consideration of s 25(1) of the AAT Act. It provides that:

"An enactment may provide that applications may be made to the Tribunal:

(a) for review of decisions made in the exercise of powers conferred by that enactment..."

The emphasis, therefore, is upon whether the decision made by virtue of a self-executing provision in a particular enactment has been "made in the exercise of powers conferred by that ..." enactment. That is, the emphasis is upon that aspect rather than upon whether the decision has been made "under an enactment". There may be little difference between the two but it should be noted.

52. It is clear from these principles that, in considering whether there is jurisdiction to review an application to review a decision made in the context of a statutory provision that may, at least in some aspects, be described as self-executing, regard must be had to:

∙ the precise terms of the statutory provisions giving the Tribunal jurisdiction to review decisions being:

(2) the particular Act giving the Tribunal jurisdiction to review decisions made under it;

∙ the precise terms of the self-executing provision to separate:

(1) the conditions that must be satisfied before the provision determines the outcome that is to apply;

(3) whether the agency is required to take any action to implement the specified outcome;

∙ the proper characterisation of the terms of the decision or decisions of which review is sought;

(1) the decision of which review is sought is expressly authorised under the Act so that the decision may be said to have been made in respect of powers conferred by the enactment; or

(2) there is a connection between the conditions that must be satisfied and the decision of which review is sought:

(a) of sufficient strength to support a conclusion that the decision was made in performance of a function impliedly conferred by the enactment upon an officer who is of the opinion, however expressed, that the conditions exist;

(b) leading to a conclusion that the opinion, however expressed, is a decision that has been made in the exercise of powers conferred by the statutory provision specifying that the condition must be satisfied; and

∙ whether, having regard to the proper characterisation of the decision or decisions of which review is sought, provision is made for review of the decision made in the exercise of powers conferred by the Act.

Are the general principles applicable in the case of s 56B and the VE Act?

53. As always Parliament, may alter the application of general principles in any particular enactment. I do not consider that it has done so in this case. Section 56B comes within Division 15 of Part IIIB of the VE Act. The Division is entitled "Variation and termination" and is clearly concerned with the variation and termination of service pensions (and income support supplements). Provision is made for "automatic" termination or rate reduction in the case of a person complying with the notification requirements imposed by a notice under the VE Act or in the case of a recipient not complying with such requirements. Sections 56, 56A and 56B fall into that category. Provision is also made for rate increases and rate decreases where a service pension is paid at a rate less than or greater than that provided for by the VE Act. Sections 56C and 56D fall into that category. Section 56E gives the Commission a general power to cancel or suspend a pension and provisions such as 56EA and 56EB give the Commission power to cancel or suspend a service pension for specific failure.

54. There are four apparent differences between those sections that specify that they provide for "automatic" cancellation, suspension or rate reduction and those that do so without the designation of "automatic". The first is that the "automatic" provisions are couched in terms that first specify a number of conditions and then prescribe the outcome that is inevitable if those conditions exist. They are not couched in terms of the Commission's being required to make a specified determination or, indeed, of the Commission's being required to do anything at all. Those provisions that are not automatic are couched in terms of the Commission's first being satisfied of certain matters.

55. The second difference follows from the nature of the outcome. I will take as an example the rate reduction and increase provisions but the outcome is the same in relation to the cancellation provisions. The rate of the service pension must be reduced or increased to the rate provided for in the VE Act. The difference lies in the manner in which the outcome is achieved. An "automatic" provision such as 56B provides that by specifying that the "... pension ... becomes payable to the person at the reduced rate ...". No intervention is necessary by the Commission for the outcome to follow. By way of contrast, s 56D(1) provides that the "Commission must ... determine that the rate is to be reduced to the rate specified in the determination". Section 56D(1) is mandatory and so the outcome is no different in the sense of the pension's having to be reduced.

56. The third difference between the two groups of sections lies in the rate reduction itself. The "automatic" provisions of s 56B, for example, do not specify how the reduced rate is calculated or where it is to be specified. It simply provides that the pension becomes payable at the reduced rate on a particular day. In contrast, a non "automatic" provision such as s 56D requires the Commission to specify the reduced rate in a determination.

57. The fourth significant difference between the "automatic" provisions and the others lies in the date of effect of the outcome. The dates of effect of the "automatic" group are specified in the sections themselves. There is no discretion to alter that date. The date of effect of adverse determinations made under sections in the other group are specified in s 56H. Section 56H has some scope for the Commission to exercise its discretion.

58. Having regard to the differences, it is difficult to see how the "automatic" characterisation of a provision such as s 56B can be attached to any aspects of it other than that the service pension must be paid at a reduced rate and that it will be paid at that reduced rate from the specified day. There is no room for any discretion to be exercised by the Commission.

59. Beyond that, it cannot be said that there is anything automatic about the provisions. It is essential that there be some assessment of whether the conditions have been met. That assessment cannot be carried out automatically. Take, for example, whether the occurrence of the event or change in circumstances specified in the notice has led to a rate reduction. Not every event or change in circumstances specified in a notice leads to a rate reduction. It may be that it does so but only of a small amount that is to be disregarded by virtue of s 56DA. Even if it does lead to a larger rate reduction, nothing in s 56B automatically determines the impact of the event or change of circumstances on the rate and so the rate at which it becomes payable.

60. It is clear from the words of s 56B that Parliament did not intend that it would do so. Section 56B(1)(e) refers to a situation in which "because of the occurrence of the event or change in circumstances, the person's rate of pension ... is to be reduced" (emphasis added). The reference to the fact that the person's rate of pension "is to be reduced" is a clear reference to an assessment's having been made apart from the operation of s 56B as to the rate of pension that was properly payable to a person in the circumstances of which the Commission had become aware and of which the person had not informed it.

61. A similar assessment must be made whether the conditions specified in ss 56B(a)-(d) have been met. Again, the section does not do so automatically. A decision must be first be made as to whether the person was given a notice under s 54 at all and if it specifies the relevant event or change of circumstances. If not, s 56B can have no application. This was understood by the Tribunal which considered whether Mr Deason had failed to comply with a notice he had been given under the VE Act. It decided that he had and it is clear from its reasons that failure to comply was an important prerequisite for the "automatic" operation of s 59(1)(b).[112] Unfortunately, I find myself in disagreement with the Tribunal's conclusion in Re Stewart when it decided that The Tribunal concluded that no notice had been sent to Mr Stewart but accepted the Commission's submission that "... subs (2) of s 98AAA[[113]] operated to reduce the rate of pension paid as a matter of law and did not require any determination made by or on behalf of the Commission.

62. It seems to me that, for all practical purposes, an assessment or decision of some sort by the Commission is essential before s 56B can be taken as coming into effect. Its power to do so is implicit in the requirement that the conditions must exist before the specified outcome takes effect. The manner in which it must do so is specified elsewhere in the VE Act i.e. in the Rate Calculator. Although not expressly stated in s 56B, it is implicit from its terms that the Commission has power to determine the reduced rate. Unless it does so, there could be no way in which the "new rate", to which the pension is reduced, could be determined

63. I do not consider that Note 1 to s 56D alters that conclusion. It does not say that a determination may not be made under s 56 in a case where an automatic rate reduction is required by s 56B. Rather, it provides that "a determination under this section [56D] is not necessary". It is not necessary because s 56D has no work to do. Section 56D is concerned with a determination to reduce the rate of a pension. It requires that the Commission reduce the rate if it is satisfied that the rate at which a person is being paid is, or has been, more than it should. The fact of the Commission's being so satisfied is a necessary fact that must exist before s 56D imposes the obligation to make a determination. In the circumstances specified in s 56B, there is no need for a determination of the sort specified in s 56D. Section 56B itself, specifies the outcome without the need for a separate determination by the Commission. Similarly, unlike s 56D, there is no need to have regard to s 56H because the date of effect is already determined by reference to s 56B.

64. That brings me to s 56BB. It was repealed with effect from 11 December 1997 and so well before the period under which I am concerned.[114] It was concerned with "Automatic termination, where care receiver meets notification obligations". It was repealed as part of the removal of all carer provisions from the VE Act.

Applying the general principles to the facts: did the Commission have power to review any decision

65. I have already set out the general principles that apply in determining whether there is jurisdiction to review a decision made, or appearing to have been made, in the context of a self-executing provision. They are just as applicable to whether the Commission has jurisdiction as to whether the Tribunal does so.

66. The precise statutory provision that is relevant is s 57(2)(c) that provides that a person may ask the Commission to review a decision "reducing or increasing the rate of a service pension ...". I have already considered the second step, which is an examination of the precise terms of the self-executing provision.

67. The third step is the proper characterisation of the decision or decisions of which review is sought. The delegate said that she had "had to complete a number of different assessments in order to calculate your new rate of pension" and referred to "multiple advice letters following."[115] In that particular letter, dated 13 July 2006, she advised Mrs Nelson that her change in circumstances had resulted in an overpayment of $3,391.65. As the delegate advised, she had needed to complete a number of different assessments in order to work out the amount of the overpayment. Given that Mrs Nelson's circumstances and income had varied, those assessments had to be assessments using the Rate Calculator to calculate the rate of pension payable to her at various times between 18 May 2005 and 6 June 2006. Inherent in each assessment was a decision to reduce or increase the rate of her service pension, as the case might be.

68. A second letter to Mrs Nelson of the same date advised her that her service pension had been reduced to nil and advised her that she could ask the Commission to review the decision.[116] It also advised her that her pharmaceutical allowance had been cancelled.

69. A third letter addressed to Mr Nelson advised that his outstanding overpayment would continue to be recovered at the same rate of $300 per fortnight.[117] Unlike the letters to Mrs Nelson, the delegate has not referred to the rate to which his service pension had been reduced. The delegate did state that she had made a number of different assessments in order to calculate his new rate of pension. The letter must be read as notifying that there had been a decision as to a new rate of pension. Even if it had not referred to the delegate's calculating his new rate of pension, it is a necessary precursor to her raising an overpayment that she had carried out that calculation. Unless the delegate had carried out the calculation, she could never have known that an event or change of circumstances would lead to a reduction in the rate of service pension payable to Mr Nelson. She would have had no way of knowing the reduced rate at which, by virtue of s 56B, the pension became payable on the day the event or change of circumstances occurred.

70. The fourth step requires the consideration of the powers underpinning those decisions. I will consider that with the fifth which requires consideration of any power to review the particular decision. In the case of an overpayment and its recovery, it is underpinned by an express power in s 205(1)(a) of the VE Act. The Commission has an express power to recover the overpayment by deductions and so, if it wishes, by more than one deduction. Section 57 does not provide for the review of decisions made in the exercise of those powers.

71. The decision to reduce Mrs Nelson's service pension to nil is a decision made on the basis of the Commission's implied power given by s 56B. I have already decided that it is implicit in the relevant provision, s 56B, that the Commission make a decision as to the rate at which service pension would have been payable in the circumstances notified to it. It is also implicit that it compare that rate with the rate at which the pension was being paid so that it can decide whether "because of the occurrence of the event or change in circumstances, the person's rate of pension or income support supplement is to be reduced" (emphasis added) within the meaning of s 56B(e). If it were the case that the rate were increased because of the occurrence or change of circumstances, s 56B would not come into play at all. The decision to reduce Mrs Nelson's service pension to nil is reviewable by the Commission under s 57(2)(c). The same reasoning leads to the conclusion that Mr Nelson may apply to the Commission for review of the decision to reduce his service pension.

72. When Mrs Nelson asked the VRB to review the Commission's decision, she attached the letter from the delegate dated 13 July 2006. She referred to the overpayment, the reduction of her service pension to nil and the cancellation of her pharmaceutical allowance as well as to the fact that her husband had been overpaid as well. Mrs Nelson also set out her reasons for being unhappy with the decision. At the heart of her reasons is her belief that the payment characterised as worker's compensation payment by the delegate was income and below the permitted threshold. It is clear that Mrs Nelson is seeking review of the way in which the rate of pension has been calculated as a result of her receiving the payment that she disclosed to the Commission. She is not simply seeking review of the amount of the overpayment but the whole foundation of the reasoning leading to the conclusion that she has been overpaid any amount.

73. For the reasons that I have given, I have concluded that the decisions to reduce the rate of the service pensions paid to her and Mr Nelson were reviewable by the Commission. They are among the decisions of which s 57(2) permits review by the Commission. The decisions to cancel her pharmaceutical allowance and to recover the overpayments are not among them. Therefore, review may not be sought of them under s 57. No other provision of the VE Act permits a person to ask the Commission to review them. Therefore, Mr and Mrs Nelson may not request review of them. If they are ultimately successful in their applications for review of the decisions to reduce the rate of their pensions, the practical outcome will be that there will be a consequential variation of those decisions as well.

May the Tribunal review the Commission's decision?

74. Contrary to my view, the Commission was of the view that its delegate's decision was not reviewable by s 57 of the VE Act. It stated this in its letter of 14 September 2006 and advised Mrs Nelson that its decision was not reviewable by the Tribunal under s 57. Despite that, a delegate of the Commission looked at the matter and was satisfied that notices had been given to Mr and Mrs Nelson under s 54, a change in their circumstances had occurred, they had not advised of that change as required by the notice and that the change meant that they were no longer entitled to service pensions from the date of the change. Therefore, the decision to raise the overpayments and recover them was correct. Clearly, the delegate affirmed the decision.

75. Even though the delegate thought that he was reviewing the decision to reduce the rates of service pension payable to Mr and Mrs Nelson quite outside the procedures provided for in the VE Act, are they decisions that can be regarded as a decision under s 57B(1)? Only if they are such decisions may the Tribunal review them under s 175(2).

76. I have already mentioned s 25(1)(a) of the AAT Act. It must be considered when construing the provisions of s 175(2) of the VE Act in view of the principles set out by Smithers J in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd:[118]

" In construing these provisions what may be seen as the objective of the Administrative Appeals Tribunal is I think of paramount importance. It is clear that in enacting the Act, Parliament had in mind to provide for the review by an independent Tribunal of certain administrative decisions by reference to standards of good government: cf Sullivan v Department of Transport (1978) 1 ALD 383 at 386; 20 ALR 323 at 326. True is that administrative errors may well occur in the performance of valid and legally effective administrative acts. And of course it might have been the intention of Parliament to empower the Tribunal to review only those decisions which are legally effective. In that case the function of the Tribunal would be restricted to considering whether or not in exercising its legal power validly the administrator making the decision had acted in accordance with the principles of fairness and good government. But to construe the Act as providing for the review of only such errors would leave untouched those administrative acts which are invalid and legally ineffective for one reason or another, but were performed in the course of action falling within the general purposes of a statute. To my mind such a situation would not be compatible with the objective of the Administrative Appeals Tribunal Act. If administrative decisions are to be subjected to review in the course of good government exclusion from review of those decisions made without power would remove from review those decisions most in need of review. The very absence of guidelines as to the exercise by the Tribunal of its powers of review is a most significant feature supporting a conclusion that review is to proceed by reference to the standard of good government. It is a short step to infer that the overriding purpose of the Act is to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task.

It is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review. In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.

It is to be noted also that the subjects of review are decisions. If an administrator makes a particular decision in the course of government administration, then whether or he is authorized to do so, there is in fact a decision made. The fact that the decision cannot affect legal rights or liabilities is irrelevant to that fact.

There is a distinction also between a decision, the steps that may be taken to implement it and the legal effect thereof. It does not appear to me to be sound to regard a decision to take certain action as a nullity because such action will not be legally effective. ..."[119]

77. Although this is not a case in which there is any question about the delegate's authorisation to make the decision on review, the principles set out by Smithers J are equally relevant. The central issue to be decided is whether there has been a decision in fact. If there is, the decision is reviewable. It matters not whether the delegate thought that he was making a decision otherwise than under s 57B. All that is important is the fact that he reviewed the decision that the delegate made initially. As Bowen CJ said in Brian Lawlor:

"... Under s 25 it is the jurisdiction of the Tribunal, which is in question. It seems inappropriate to interpret s 25 so as to make this dependent upon the state of mind of the official. It would, if adopted, appear to introduce a false issue and to impose upon the person aggrieved the burden of approving it. He could well be the very person, who was ignorant of that state of mind. Perhaps also it would involve the consequence that if the evidence on an appeal to the Tribunal showed that an official did not honestly believe he was acting in the exercise of powers conferred by that enactment, the appeal would have to be dismissed notwithstanding that the absence of honest belief might not affect the legal standing of the decision. ..."[120]

78. In this case, the delegate affirmed the decision reducing Mr and Mrs Nelson's rate of service pension. This Tribunal has jurisdiction to review those decisions.

I certify that the seventy-eight preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: ...............................................................

Date of Telephone Jurisdiction Hearing 11 December 2006

Solicitor for the Respondent Mr R. Douglass, departmental advocate

[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 72

[8] A "compensation affected pension" includes an invalidity service pension or a partner service pension: s 5NB(1)

[10] Division 12 of Part IIIB of the VE Act is concerned with the provision of fringe benefits and treatment at DVA expense in certain circumstances.

[13] The Commission's obligation is qualified by the requirement that, except in limited circumstances, it must not make a determination if the amount by which the service pension would be increased or decreased would be less than $26 per annum: s 56DA.

[15] The qualification in s 56DA also applies: see FN12 above.

[29] Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 939-45

[32] R v Lavender [2005] HCA 37; (2005) 218 ALR 521 at 530-531 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ and at 550-551 per Kirby J

[35] Section 98AAA(2) in the Repatriation Act 1920 was drafted in terms similar to s 56B.

[40] (1991) 23 ALD 637 at 647. At the time, s 59 was enacted in the same terms as s 56B.

[44] Decision No. 1245, 29 November 1991

[47] [1993] AATA 336; (1993) 18 AAR 370 at [12] There is a distinction between "rate" and "amount": Re Stewart and Repatriation Commission [1990] AATA 196; (1990) 20 ALD 737 at 741 relying on Harris v Director-General of Social Security [1985] HCA 1; (1985) 57 ALR 729 at 731.

[59] [2000] AATA 109; (1994) 30 AAR 548 at 567 citing Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338; (1979) 2 ALD 1; (1979) 24 ALR 307

[66] Decision No. 10451, 5 October 1995

[67] Division 18 of Part III of the VE Act at the time is now Part IIIB, Division 15 and included ss 56 -56L

[68] Decision No. 10451 at [19] and [24]

[72] Decision No. 1618, 12 November 1993

[79] [2004] AATA 270 at [25]- [30] relying on Re Deason, Re Knight, Re Lobik, Re Hildebrand and Re Porritt.

[82] [2004] AATA 428 at [12] agreeing with the Tribunal's decision in Re Knight and Repatriation Commission [1993] AATA 336; (1993) 18 AAR 370.

[90] [1982] FCA 262; (1982) 70 FCR 212; (1982) 45 ALR 23; and see discussion in Hales; [1983] FCA 81; (1983) 47 ALR 281 at 308 per Lockhart J

[95] [2003] FCAFC 223. A later Full Court allowed an appeal against the judgment of Australian Postal Corporation v Pascoe [2004] FCAFC 4; (2004) 77 ALD 464

[102] [1982] FCA 262; (1982) 45 ALR 23; and see discussion in Hales; [1983] FCA 81; (1983) 47 ALR 281 at 308 per Lockhart J

[113] Section 98AAA(2) in the Repatriation Act 1920 was drafted in terms similar to s 56B.

Nelson and Repatriation Commission [2007] AATA 1069; (2007) 44 AAR 540; (2007) 94 ALD 418 (20 February 2007)

At a glance

Court

Decision date

Source

Judgment (202 paragraphs)

Legislation Cited (7)

Cases Cited (40)

Nelson and Repatriation Commission [2007] AATA 1069; (2007) 44 AAR 540; (2007) 94 ALD 418 (20 February 2007)