NNXF and National Disability Insurance Agency [2019] AATA 5552 (23 December 2019)

1. In Sweeney v Fitzhardinge,[6] Griffith CJ concluded that, where a number of Acts form a scheme of legislation, it is proper to look at all of the Acts comprising that scheme for the purpose of construing the expressions in any one of those Acts.
2. In Commissioner of Stamp Duties v Permanent Trustee Co Ltd,[7] Kirby P said:

[I]n construing the legislation under consideration here, I prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co-owners...We should presume that Parliament intended its legislation to operate rationally, efficiently and justly, together.

1. As Warren CJ and Osborn AJA said in Maroondah City Council v Fletcher: [8]

Where construction of separate but related legislation is simultaneously required, the object is to arrive at a construction of the provisions which assumes that Parliament intended its legislation to operate harmoniously or, in other words, rationally, efficiently and justly together.

1. In Commissioner of Police v Eaton, [9] Gageler J said:

Stated at its highest level of generality, it is that statutory texts enacted by the same legislature are to be construed so as far as possible to operate in harmony and not in conflict. The principle of harmonious construction applies to the construction of provisions within different statutes of the same legislature to create "a very strong presumption that the...legislature did not intend to contradict itself, but contended that both...should operate".

[References omitted]

1. The NDIS Act and the AAT Act are beneficial legislation and the policy behind these statutes is to promote opportunities for persons aggrieved by a decision to have that decision reviewed and to ensure that the correct and preferable decision is made.[10]
2. The sections of each Act should be construed harmoniously and justly[11] so as to achieve the purposes outlined in each Act, and consistently with the "General principles guiding actions" set out in s 4 of the NDIS Act ("the General Principles").
3. As Kirby P observed in Commr of Stamp Duties v Permanent Trustee Co Ltd,[12] this approach facilitates the sensible operation together of the two statutes mentioned, avoiding inefficiency and a capricious outcome which would seriously impede or discourage the availability of beneficial statutory provisions.
4. Lockhart J in the earlier case of Director-General of Social Services v Hales[13] said:

No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by 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 definition of 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.

1. Finally, the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection,[14] recently referred to:

...the evident legislative purpose of the conferral of jurisdiction on the Tribunal "to promote good government by those carrying out the actual practical task of administrating Acts of Parliament and making decisions incidental to that task".[15]

1. We will follow this approach in considering the way in which ss 25(5), 100(6) and 103 operate together.

THE OBJECTS AND GENERAL PRINCIPLES GUIDING ACTIONS UNDER THE NDIS ACT

1. As we have said, ss 100(6) and 103 must be construed in the context of the NDI Scheme as a whole and should be construed in a way which is consistent with the Objects of the NDIS Act and the General Principles under the NDIS Act.
2. Section 3(1) provides the objects of the NDIS Act which include providing reasonable and necessary supports for participants,[16] and protecting and preventing people with disability from experiencing harm from poor quality or unsafe supports or services provided under the NDI Scheme.[17]
3. Section 4 sets out the General Principles which include that:

(5) People with disability should be supported to receive reasonable and necessary supports ...

(7) People with disability have the same right as other members of Australian society to pursue any grievance.

1. Section 5 states the intention of the Parliament that the CEO (amongst others) is to perform functions and exercise powers under the NDIS Act in accordance with the principles in ss 4 and 5 and provides a further relevant General Principle that "people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves".[18]
2. An essential aspect of the ability to pursue a grievance is the right to independent merits review by the Tribunal. As a general proposition it would be contrary to the General Principles under the NDIS Act for the legislation to operate in the way suggested by the respondent, namely that participants in the NDI Scheme are deprived of their rights to merit review if the decision maker fails to make a decision as to the participant's request for review of a plan. Essentially, the effect of the respondent's submissions is that the decision maker, by inaction (for any reason), can deprive the participant of the right to pursue a grievance by way of merits review. The effect of the respondent's submission is that the provisions of the NDIS Act deprive NDIS applicants of rights enjoyed by other members of the Australian community (which would come into effect due to the operation of s 25(5)) to pursue a grievance.

1. The NDIS Act comprises three distinct stages. The first stage is found in Chapter 3, Part 1 and relates to the process of gaining access to the NDI Scheme. The second stage is found in Chapter 3, Part 2 and focuses on an applicant's plan getting approved. The third and final stage is Chapter 4, Part 6 which relates to the review of decisions both internally and by the Tribunal.
2. Chapter 3 provides for certain decisions to be made by the CEO relating to accessing the NDI Scheme and approving a plan. Chapter 4 then provides for internal review with respect to the decisions listed in s 99. The reviewer must make this internal review decision as soon as reasonably practicable under s 100(6). If the applicant remains dissatisfied with the internal review decision, then an application may be made to the Tribunal for a further review.[19]

1. Sections 18 to 30 deal with a person who is seeking to gain access to the NDI Scheme. In this case, the applicant was receiving support through Disability SA and when the NDI Scheme became operative the applicant was transitioned to the NDI Scheme. Nevertheless, it remains useful to examine this first stage in the process.
2. Section 18 enables a person to make a request to the NDIA to become a participant in the NDI Scheme. A request to become a participant is put before the CEO. The CEO must, within 21 days of receiving the access request, decide whether or not the person meets the access criteria or the CEO can make a request for further information.[20] Where the CEO requests further information, a decision must be made within 14 days of the CEO receiving that information.[21]
3. If the CEO does not make a decision within the prescribed periods, then the CEO is taken to have decided that the person "does not" meet the access criteria.[22] What is important here for the person requesting access is that, because the CEO has either decided that the person does not meet the access criteria or the CEO has failed to make a decision in the time permitted, the person has a right of review under s 100 of the NDIS Act (discussed below).

1. The sections of the NDIS Act that are of relevance in stage 2 include ss 31 to 33 and 48.
2. Section 32 requires the CEO to facilitate the preparation of the participant's plan. The CEO is required to commence facilitating the preparation of the plan "as soon as reasonably practicable", having regard to the obligations of the CEO under the rules to commence facilitating the preparation of other participants' plans.[23] This is the first example where the phrase "as soon as reasonably practicable" has been used to describe a time period in which something must be done.
3. Section 32 is also the first example where there is no consequence for the CEO not fulfilling its obligation. If the CEO does not facilitate the preparation of the participant's plan "as soon as reasonably practicable", the participant is left with no redress under the NDIS Act. The failure of the CEO to commence facilitation "as soon as reasonably practicable" is not a reviewable decision.
4. Section 32A(3) grants the CEO even more flexibility when it comes to facilitating the preparation of a participant's plan. Under this section, the CEO can delay the commencement of facilitating the preparation of a participant's plan in circumstances where the CEO is satisfied that it is appropriate to deal with another, arguably more urgent, participant's plan first.
5. Once the preparation of a participant's plan has commenced, the participant prepares a statement of participant supports ("SPS"). The SPS must be approved by the CEO under s 33(2).[24] Section 33(4) states that the CEO "must endeavour" to make a decision either approving or not approving the SPS "as soon as reasonably practicable". A decision by the CEO to approve the SPS is a decision reviewable under s 100. A decision not to approve the SPS is not reviewable.
6. Section 33 does not deal with the situation where the CEO does not make a decision

"as soon as reasonably practicable". Section 33(4) is another example where there is an obligation on the CEO to make a decision and Parliament has only given a direction to the CEO with respect to fulfilling that obligation. Where the CEO does not do anything, the participant is left with no statutory redress to get the CEO to make a decision. 7. Section 48 covers requests by participants for their plans to be reviewed ("s 48 review"). A s 48 review needs to be distinguished from an internal review under s 100. Section 48 applies when participants already have an effective plan in progress but wish to review that plan. A participant may request the CEO to conduct a review of their plan at any time.[25] Section 48 imposes three obligations on the CEO. 8. The first of these obligations is to decide whether or not to conduct the review. The CEO must satisfy this obligation within 14 days after receiving a s 48 review request. Parliament has imposed a consequence for when the CEO does not do this, namely that the CEO is taken to have decided "not" to conduct the review. The decision by the CEO not to conduct the review is reviewable under s 100.[26] 9. If the CEO decides to conduct the review, he or she must commence to facilitate that review within 14 days after deciding to conduct the review. This is the second obligation under s 48. Here, however, Parliament has decided not to incorporate any mechanism for enforcing the CEO's obligation. There is no statutory redress available to the participant if the CEO does not commence facilitating the review within 14 days. 10. The third obligation imposed on the CEO is to complete the review "as soon as reasonably practicable". If the CEO fails to complete the review "as soon as reasonably practicable" there is no consequence under the NDIS Act.

1. The decisions that may be reviewed are listed in s 99. Of greatest relevance to the Tribunal are the decisions listed in items one through to six, particularly items one, four and six. These are the decisions that relate to current and prospective participants of the NDI Scheme.
2. Where one of the decisions referred to in s 99 has been made, s 100 will apply. Section 100(1) facilitates the internal review process by requiring the respondent to give written notice that a decision has been made to each person who is directly affected by the decision. A person who is directly affected by the decision may then request the decision-maker to review that decision. Such a request needs to be made within three months after receiving the s 100(1) notice.[27]
3. Section 100(5) deals with the CEO's obligations once a request is received. The CEO "must cause the reviewable decision to be reviewed by a person (the reviewer)". The reviewer is someone to whom the CEO can delegate the CEO's powers and functions and who was not involved in making the reviewable decision. There is no time limit provided in which the CEO must allocate the decision to the reviewer. There appears to be no statutory consequence if the CEO does not carry out this obligation.
4. Pursuant to s 100(6) the reviewer is obliged to make a decision. The reviewer can confirm the reviewable decision, vary the reviewable decision, or set aside the reviewable decision and substitute a new decision. The reviewer "must" do one of these three actions "as soon as reasonably practicable".
5. Finally, s 103 allows for a participant who has received a decision under s 100(6) to make an application to the Tribunal for merits review. The Tribunal only has jurisdiction to deal with an application under the NDIS Act if there has been a decision under s 100(6).

1. Under s 25(1) other enactments can provide that applications can be made to the AAT for the review of decisions made in the exercise of powers made under the other enactment.
2. For the Tribunal to have jurisdiction to carry out a review, there must be a decision made under another enactment that is capable of being reviewed under the AAT Act.
3. One such enactment is the NDIS Act which, as mentioned earlier, provides in s 103 that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6).
4. It is convenient to consider separately the purpose of s 25(5) and its elements, namely:
   • for the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions;
   • a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing;
   • shall be deemed to constitute the making of the decision by that person at the expiration of that period;
   • not to do that act or thing.
5. Section 25 was previously s 26 in the 1975 version of the AAT Act and was amended with no material differences in 1982.
6. With respect to s 25(5), the Explanatory Memorandum to the Administrative Appeals Tribunal Bill 1975 (Cth) explains:

Sub-clause 26(5) provides that where a person fails to do an act within a prescribed period as provided by statute that failure is to be regarded as a decision not to do that act. This allows a person seeking the decision to place the matter before the Tribunal.

[Emphasis added]

for the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions...

1. The NDIS Act is such an enactment as s 103 enables applications to be made to the Tribunal for review of a decision made under the exercise of powers contained in s 100(6).
2. It follows that s 25(5) operates for the purpose of the NDIS Act, specifically s 103, in the context of applications being made to the Tribunal.
3. The fact that s 25(5) is to operate for the purpose of the enactment (the NDIS Act), is a clear indication that the two Acts are to be read together, so as to form what has been described as a scheme of legislation, in a way that is both harmonious and just.[28]
4. The respondent contends, in an alternative argument, that the NDIS Act impliedly repeals or excludes the operation of s 25(5).[29] There seems to be no clear express indication of this in the NDIS Act, and the words used in s 25(5) strongly suggest the contrary. Reading the Acts together in a way that is harmonious and just does not support the respondent's contentions.
5. Moreover, such an implied repeal or exclusion would lead to the NDIS Act operating in a way which is contrary to the General Principles of the NDIS Act as the implied repeal or exclusion would deprive NDIS participants of rights to pursue a grievance by way of merits review.
6. Further, s 25(6) provides expressly for the circumstances where the enactment may include provisions "...adding to, excluding or modifying" the operation of specified provisions in the AAT Act. Those provisions do not include s 25. If Parliament intended that s 25(5) could be excluded by another enactment then one would have expected s 25 to be included in the list contained in s 25(6).

1. The first element of the deeming provision in s 25(5) is that there is "a failure by a person to do an act or thing".
2. As at the date of the application to the Tribunal, the reviewer had not made a decision as required under s 100(6).
3. It would seem that it will always be possible to identify whether a decision has been made in response to the request by the applicant.

1. The second element in s 25(5) provides the temporal requirement. The failure to act must occur "within the period prescribed by that enactment...as the period within which that person is required or permitted to do that act or thing".
2. It is not disputed by the applicant, and is clearly the case, that s 25(5) will have no operation if there is no period prescribed by s 100(6).
3. An example of such a position is expressed in Comcare v Sassella[30], where Finn J said:

The SRC Act does not prescribe a time within which a s37(1) decision is to be made such as might attract a deeming provision equating a failure to decide with a negative determination: cf Administrative Appeals Tribunal Act, 1975, s 25(5)...

1. Another example is s 135 of the Social Security (Administration) Act 1999 (Cth), which obliges the Secretary, the Chief Executive Centrelink or an Authorised Review Officer to review certain decisions (including with respect to a disability support pension) but imposes no time limit within which to do so. Consequently, s 25(5) will not operate to deem a decision in the event of a failure to carry out the review required by s 135 of the Social Security (Administration) Act (Cth).
2. It is an integral element of the deeming provision in s 25(5) that there is a

"period prescribed" by the other enactment (here the NDIS Act). 3. It is necessary to consider the terms of the other enactment (the NDIS Act) to determine whether there is a "period prescribed". In this case s 100(6) provides that the decision must be made "as soon as reasonably practicable". 4. The respondent accepts, for the purposes of the present proceeding only, that the

s 100(6) decision was not made as soon as reasonably practicable.[31] Counsel for the respondent expanded upon this at the hearing and said:

It is only a concession in the applicant's case that in the circumstances of her case a decision was not made as soon as reasonably practicable. It is not a concession as to what date was the reasonably practicable one, and for all the reasons I've given that is something that is very difficult to identify. The admission only has the effect of enabling the tribunal, if it's satisfied that reasonably practicable is a period prescribed and you're also against me on the second part of my construction of 25(5). It has the effect of enabling 25(5) to be enlivened in this case as a practical matter, but it's no concession that reasonably practicable is actually a period that is capable in every case of being able to be objectively ascertained, ascertained in any efficient practical sense, and that is some concession as to how the Act itself should be construed. [32]

1. The ascertainment of the meaning of "as soon as reasonably practicable" is the first step in determining whether there is a "period prescribed" by s 100(6).
2. The starting point in statutory construction is the legislative text[33] which is to be read in its context and with its purpose in mind.[34]
3. For the reasons we outline, we have concluded that the obligation to make a decision as soon as reasonably practicable is a time period prescribed by the NDIS Act for the purposes of s 25(5).
4. The respondent questions whether a period can be prescribed by reference to what is "reasonably practicable".
5. In this context the contention of the respondent was that s 25(5) has no application to a timeframe which has indefinite parameters that cannot be objectively ascertained and would invariably permit a range of possibilities.
6. The phrase "as soon as reasonably practicable" has been considered judicially in various legislative frameworks.
7. In Williams v The Queen[35] the statutory obligation to bring a person before a justice

"as soon as is practicable" after he has been taken into custody required that the person making the arrest bring the arrested person before a justice in as short a time as is reasonably practicable. Gibbs CJ said that what is reasonably practicable in a particular case is a question of fact depending on the time when, the place in which and the conditions under which the arrest was made.[36] 8. McMillan v Territory Insurance Office[37] involved consideration of a requirement to make a claim "as soon as practicable" after a motor car accident. It was found there, that the phrase "as soon as practicable" was "designed to impose a reasonably practicable time limit". 9. In Al-Kateb v Godwin,[38] Gummow J considered the phrase "as soon as reasonably practicable" in the context of s 198 of the Migration Act 1958 (Cth) and said:

...there is a temporal element, supplied by the phrase "as soon as". The term "practicable" identifies that which is able to be put into practice and which can be effected or accomplished. The qualification "reasonably" introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme.

1. In S_nedden v Minister for Justice_[39] ("Snedden") it was held that:

There are essentially three elements to the composite expression "as soon as is reasonably practicable". First, the word "practicable" has the meaning of "capable of being carried out in action; feasible". It identifies that which is able to put into practice and which can be effected or accomplished. Secondly, the qualification "reasonably" limits or qualifies what would otherwise be an absolute obligation. It introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme. Thirdly, the phrase "as soon as" supplies a temporal element. It directs the decision-maker to make the determination without delay once it is reasonably practicable to do so.[40]

[References omitted]

The words "as soon as is reasonably practicable" do have work to do in the context of the availability of mandamus. They determine the time from which a person can commence proceedings to enforce the Minister's duty.

1. As is obvious, in that context it was concluded that the words "as soon as reasonably practicable" can define timeframes, in Snedden's case, from which a person can commence proceedings to enforce the Minister's duty.
2. We agree with the authorities outlined above, that words such as "as soon as reasonably practicable" introduce an assessment or judgment of the period which is appropriate or suitable for the purpose of the legislative scheme. In other words, such a description introduces a "period prescribed" by s 100(6).
3. In the context of the legislative scheme, including the General Principles of the NDIS Act, people with disability should have the same right as other members of Australian society to pursue any grievance. Consistent with that objective, the decision-making process would not be expected to be open ended and without accountability and the words

"as soon as reasonably practicable" provide a temporal limitation on the obligation to make a decision. The intent of s 100(6) is to define the period prescribed within which the decision must be made by requiring the decision to be made without delay once it is reasonably practicable to do so. 4. The time within which it is reasonably practicable to have made the decision can, against the background of the surrounding circumstances and on appropriate evidence,

be determined by the Tribunal.[42] 5. For a prescribed period, it must be possible to ascertain the commencement of that period as well as the conclusion of that period. Where a "prescribed period" is expressed in the terms "as soon as reasonably practicable" these two dates are able to be determined against the background of the specific circumstances relevant to the applicant. 6. The beginning of the period expressed in s 100(6) is when the person directly affected by the reviewable decision requests the decision-maker to review the reviewable decision under s 100(2). 7. The time limit or the expiration of the period within which the decision is to be made will be established by reference to the time at which it would have been reasonably practicable to have made the required decision. 8. The legislative scheme, set out in the NDIS Act, involves internally reviewing a decision which might, in one case, be a time-consuming task, but in another case, be less time‑consuming. In those circumstances, it is not feasible to specify a defined period within which the decision must be made. Thus, consistent with the NDI Scheme, s 100(6) requires that the decision be made "as soon as reasonably practicable". 9. As will be obvious, we are of the view that the timeframe imposed by the words "as soon as reasonably practicable" does not involve indefinite parameters that cannot be objectively ascertained. We agree with the observations of Deputy President Bean in FJKH[43] who said:

...noting the multitude of different decisions which are reviewable decisions under the NDIS Act, and the multitude of different circumstances in which those decisions are required to be made, it is also not entirely surprising that s 100(6) does not impose a rigid timeframe, or a series of different timeframes, within which internal review decisions must be made. Rather, it requires internal review decisions to be made "as soon as reasonably practicable". To my mind, however, that does not necessarily have the consequence that there is no applicable timeframe which can ever give rise to a deemed affirmation pursuant to s 25 of the AAT Act.

1. Consistent with the principles outlined, in this case the time frame specified is therefore sufficient to enable determination of the time within which the reviewer must make a decision under s 100(6). It is a period prescribed by an enactment as referred to in

s 25(5).For the reasons outlined we conclude that, based on the facts of individual cases it will be possible to identify these dates.

Does the wording of s 29 assist in understanding the operation of s 25(5)?

1. Section 25(5) is referred to in s 29(3) when dealing with the prescribed time for making applications. Section 29(3) provides:

Prescribed time for making applications - decision‑maker's failure to meet deadline

(3) In the case of a decision that is deemed to be made by reason of the operation of subsection 25(5) or (5A), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is deemed to be made and ending:

(a) in a case to which paragraph (b) does not apply - on the twenty‑eighth day after that day; or

(b) in the case where the person whose failure to do an act or thing within a particular period is deemed by subsection 25(5) or (5A) to constitute the making of the decision makes or purports to make, after the expiration of that period, a decision either to do or not to do that act or thing, being a decision the terms of which were recorded in writing and set out in a document that was given to the applicant - on the twenty‑eighth day after:

• (i) if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is given to the applicant; or
• (ii) if the decision does not set out those findings and reasons - the day that would be ascertained under paragraph (2)(b) if subsection (2) were applicable in relation to the decision.

1. Section 29(3)(b) deals with the position where a deemed decision arises from a failure to do an act or thing within a particular period and an actual decision is later made. Section 29(3)(a) applies to a case to which s 29(3)(b) does not apply. The reference to a failure to act "within a particular period" is clearly different language from that used in s 25(5), namely "within the period prescribed by the enactment". This suggests that the period prescribed for the purposes of s 25(5) can be a particular period (e.g. within 14 days), in which case s 29(3)(b) applies or some other prescribed period (e.g. as soon as reasonably practicable), in which case s 29(3)(a) applies.
2. We agree with what was said by Mayo J in O'Sullivan v Barton[44]:

It is a rule of construction that where in the same statute, in relation to the same subject matter, different words are used, the court must see whether the legislature has not made the alteration intentionally, and with some definite purpose. Prima facie such alteration would be considered intentional.

[References omitted]

1. By using different words,[45] the legislation distinguishes between where an enactment prescribes a particular period, for example a specific number of days, and where an enactment prescribes some other period, for example a "reasonably practicable" period. Either way, there is a prescribed period for the purposes of s 25(5). The structure of

s 29(3) suggests that a prescribed period is not confined to a particular period of days. 2. This supports the conclusion we have reached that the reference in s 100(6) to making a decision as soon as reasonably practicable is a period prescribed by the NDIS Act and so falls within the operation of s 25(5).

1. The respondent contends that the phrase "as soon as reasonably practicable" in s 100(6) does not give rise to a prescribed period for the purposes of s 25(5) having regard to the structure of the sections in the NDIS Act which suggest a legislative intention not to prescribe a time. The phrase appears in ss 32(3), 33(4) and 48(3) with respect to the CEO's obligations to commence facilitating the preparation of a plan, to decide whether or not to approve a SPS, and to complete the review referred to in s 48(1) respectively. There is no stated consequence in the NDIS Act if the CEO fails to carry out these obligations despite the requirement to do so "as soon as reasonably practicable".
2. The respondent submits that this indicates a legislative intention to not prescribe a period within which the obligation must be carried out, but instead to provide guidance in the nature of a direction for which there is no consequence for non-compliance. Further,

by contradistinction, the respondent notes there are other obligations in the NDIS Act which are defined by specified temporal limitations (e.g. 14 or 21 days) and for which there are stated consequences for non-compliance. Examples of these obligations can be found in ss 21(3) and 48(2) which are both reviewable decisions listed in s 99. There is a note accompanying each of these provisions that notice of the decision must be given because of s 100(1). 3. The respondent relies upon this contextual analysis as to the use of the phrase "as soon as reasonably practicable" within the NDIS Act to inform the meaning that should be given to it and in particular whether it was intended that it gives rise to a period prescribed for the purpose of s 25(5). The respondent submits that a consideration of the whole of the NDIS Act supports its contention that the phrase "as soon as reasonably practicable", wherever used in the NDIS Act, does not give rise to a prescribed period and does not impose a time limitation for which there is a consequence if breached. 4. It is submitted that this analysis of the NDIS Act establishes a pattern that in circumstances where an obligation is accompanied by the phrase "as soon as reasonably practicable" there is generally no consequence expressed in the NDIS Act for a failure to comply. On the other hand, where an obligation is accompanied by a temporal limitation specified by a number of days, there is a consequence, namely a right of internal review for a failure to comply. 5. The fact that the NDIS Act provides, in some sections, for a consequence for breaches of time limitations defined by a specified number of days but provides no consequence for breaches of time limitations specified by the phrase "as soon as reasonably practicable"

is not, in our view, a basis for not giving the phrase its ordinary meaning. The interpretive approach urged by the respondent is at odds with the mandated General Principles (outlined earlier) guiding the operation of the Act. 6. Within the NDIS Act, there are numerous obligations to which temporal limitations have been applied. Sometimes the temporal limitation is specified by reference to a number of days; other times, the temporal limitation is specified by the phrase "as soon as reasonably practicable". Either way, a temporal limitation is being imposed on the particular obligation and a period is being prescribed within which the obligation is to be carried out. Where the phrase "as soon as reasonably practicable" is used, the time limit or expiry of the prescribed period is ascertainable taking into account all the circumstances. 7. The respondent also relies upon the deeming provisions in s 21(3) and s 48(2) of the NDIS Act in support of its argument that the absence of a deeming provision in the NDIS Act with respect to s 100(6) is deliberate and shows an intention that the deeming provision in s 25(5) would not apply. We do not think that the inclusion of a deeming provision with respect to the decisions of the CEO in ss 21(3) and 48(2) is significant. Those decisions are not reviewable by the Tribunal (s 25(5) has no application to such decisions). If the intention was to create a deeming provision with respect to these first level decisions, then such a provision had to be included within the NDIS Act. However, with respect to the internal review decisions made under s 100(6) there was no need to include a deeming provision within the NDIS Act given that s 25(5) applies to such decisions. The failure of the reviewer to meet the deadline imposed by s 100(6) to make a decision "as soon as reasonably practicable" is expressly dealt with in s 25(5). 8. The respondent does not point to any express provision, but submits that because of the structure of the NDIS Act it is to be implied that the phrase, "as soon as reasonably practicable", does not give rise to a particular time period with the result that s 25(5) would not apply. As mentioned elsewhere in these reasons, the effect of this submission is that persons with a disability would be deprived of rights (available to others under s 25(5)) to pursue their grievances by way of merits review. The outcome is contrary to the General Principles under the NDIS Act. We do not think it can be implied that such an outcome was intended nor that there was any implied legislative intention to that effect. There is no room for such an implication particularly in light of the objects and General Principles. 9. In Snedden[46]it was held that the phrase "as soon as reasonably practicable" does not condition the power of the reviewer to make a decision but rather conditions the exercise of the performance of the duty to exercise the power.[47] The authority of Snedden is not relevant to whether s 100(6) is a prescribed period. The question relating to s 100(6) is whether a decision was made within a time "as soon as reasonably practicable". Relevantly, in this case we have found that s 100(6) expresses a temporal limitation such that the beginning and end of the period of limitation can be readily ascertained.

1. The third element provides for the deemed decision. A failure by a person to do an act or thing in the prescribed period "shall be deemed to constitute the making of a decision by that person at the expiration of that period".
2. The use of the word "deemed" in s 25(5) can create a statutory fiction, depending on the context.[48]
3. We agree with the view expressed by Cave J in The Queen v County Council of Norfolk[49] when he said:

...generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless, for the purposes of the Act, it is to be deemed to be that thing.

1. When considering the scope and effect of the deeming provision it is important to consider the purpose for which the provision is introduced.[50]
2. The purpose of the deeming provision in s 25(5) is to enable a person to make an application to the Tribunal when there has been a failure to make an actual decision as required by s 100(6). In the absence of an actual decision under s 100(6), s 25(5) deems a decision under s 100(6) so as to give jurisdiction to the Tribunal to hear the grievance.

The Fourth Element - What is the decision that is deemed by s 25(5) of the AAT Act?

1. The fourth and final element is the nature of the deemed decision. The deemed decision is "not to do that act or thing".[51]
2. The words "not to do that act or thing" provide a description of the decision that is deemed to have been made. It is the decision not to do the act or thing which becomes the deemed decision. Therefore, the relevant factor is what it is that the reviewer has not done.
3. The respondent contends that the provision of three alternatives under s 100(6) makes the application of s 25(5) unworkable because it is not possible to determine what decision is deemed not to have been made. The respondent also argues that s 25(5) assumes a binary decision-making framework and is not applicable because s 100(6) provides three alternative decisions that may be made.
4. For the reasons which follow we disagree with the respondent.
5. In order to answer the question as to what the reviewer has not done, it is necessary to consider the context of and what the reviewer was asked to do pursuant to s 100(2).
6. The reviewer was asked to review the reviewable decision. A request for a review is a challenge to the decision already made. The applicant seeking a review of a decision plainly does not ask for a confirmation of the decision. That would make no sense in general terms, and, in this case, is contrary to the actual request made in which the applicant said "I am seeking an internal review of the decision to approve the participant's plan because I disagree with the decision...".[52]
7. Having ruled out one of the three possible options under s 100(6), namely to confirm the reviewable decision, it follows that the act or thing being requested is either:
   • (a) to vary the reviewable decision; or
   • (b) to set aside the reviewable decision and substitute a new decision.
8. Therefore, for the purposes of s 25(5), the act or thing that the reviewer has not done is either to vary the reviewable decision or to set aside the reviewable decision and substitute a new decision.
9. A deemed decision not to vary or set aside and substitute the reviewable decision is a decision which, in effect, maintains the status quo (as the reviewable decision remains in place unaltered) and therefore confirms the reviewable decision. Deputy President Bean in FJKH[53] refers to the deemed decision as a "deemed affirmation". Finn J earlier in Comcare v Sassella[54] referred to a deemed decision as a "negative determination". A "deemed affirmation" and a "negative determination" amount, in effect, to the same outcome, namely that the challenge is unsuccessful and the status quo remains. We agree with the approach of Deputy President Bean.
10. In practice, the nature of the task before the Tribunal is to undertake a de novo review to reach the correct or preferable decision. In that deliberation, the Tribunal does not focus on, or seek to find error in, the decision of the original decision maker but rather stands in the shoes of the original decision maker and makes a fresh decision on the merits.[55]
11. The nature of the decision deemed to have been made is, in fact, not relevant to the way in which the Tribunal must deal with the matter. What is required is a decision under

s 100(6) with respect to which an application can be made to the Tribunal pursuant to

s 103 exercising rights outlined in s 25(1). That is clearly what s 25(5) is intended to provide. 12. As Deputy President Bean said in FJKH:[56]

A deemed decision under s 25(5) will necessarily always affirm the decision already made. This is simply a mechanism to allow an applicant access to the Tribunal and does not result in any change to the applicant's status or entitlement.

1. The respondent contends that any decision deemed by s 25(5) cannot be the subject of an application pursuant to s 103 because it is a decision not to make a decision

(i.e. a decision to not review, essentially to refuse to embark on the process required by

s 100(6), resulting in a failure by the decision maker to make any decision under s 100(6)) and is therefore not "a decision made by a reviewer under s 100(6)".[57] 2. To interpret the language to have the effect contended would defeat the object and operation of s 25(5). 3. Section 25(5) operates where there is "a failure by a person to do an act or thing within the period prescribed by that enactment". 4. The respondent's contention seems to be that the deeming provision does no more than to deem to have happened what actually happened, namely, there was a failure to do the act or thing (i.e. make the decision) within the period prescribed by the enactment

(the NDIS Act). 5. When language proscribes a thing being deemed to be something, we do not think this language is intended to "mean to say that it is that which it is to be deemed to be,"[58] or putting it another way, that the language was intended to say it is deemed to be what it is. That result makes little sense and allows no operation of the deeming provision. 6. We do not agree with the contention advanced. 7. Considering the effect of the deeming provision in light of all the circumstances including the purpose of the provision and the nature of what the applicant was seeking in the request made, we have concluded that the deemed decision was not to vary or set aside and substitute the decision but rather to affirm the decision.

1. The decision to which the application relates is the deemed decision and that is the application which will proceed in the Tribunal. As we have said earlier, the decision being reviewed makes little practical difference as the review is a de novo review. All information available as at the date of the hearing must be taken into account. That will include all the information which caused the reviewer to reconsider whether the original decision should be reviewed.
2. We conclude that:
   • (a) s 100(6) of the NDIS Act expresses a readily ascertainable temporal limitation and prescribes a period for the purposes of s 25(5) of the AAT Act;
   • (b) the reviewer failed to make a decision "as soon as reasonably practicable" as required by s 100(6) of the NDIS Act[59];
   • (c) as a result of the conclusions reached in (a) and (b) above, a decision pursuant to s 100(6) was deemed by operation of s 25(5) of the AAT Act;
   • (d) the terms of the deemed decision are in the letter from the respondent to the applicant dated 28 June 2018[60]; and
   • (e) the applicant was entitled pursuant to s 103 of the NDIS Act to bring her application to the Tribunal.
3. With respect to Question 1 posed by the respondent "can s 25(5) operate to deem a s 100(6) decision to have been made in circumstances where none was actually made?" the answer is "yes".[61]
4. With respect to Question 2 posed by the respondent "did s 25(5) of the AAT act operate to deem a decision pursuant to s 100(6) to have been made... prior to 4 April 2019?" The answer is "yes".

1. The decision of the Tribunal is that it has jurisdiction to hear the application for review lodged on 8 March 2019.

I certify that the preceding 141 (one hundred and forty -one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Justice D G Thomas, Deputy President P Britten-Jones

.................................[SGD]....................................

1. On 8 March 2019 NNXF lodged an application in the Tribunal for review of a decision made by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) on 28 June 2018 to approve a participant's plan under the National Disability Insurance Scheme Act 2013 (NDIS Act). That plan started on 27 June 2018 and would be reviewed by 27 June 2019. The delegate's decision was not a decision that had been reviewed by a reviewer under s 100(6) of that legislation even though NNXF had requested its review. Therefore, on its face, NNXF could not make an application for its review under s 103 of the NDIS Act. What she could do, and did on 10 September 2018 was to ask the NDIA to review the decision under s 100(6) of the NDIS Act. When she had not received a decision on her request by 8 March 2019, NNXF lodged an application for review in the Tribunal. In doing so, she relied on s 25(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act) and said that the reviewer had been deemed to have made a decision under s 100(6) because he or she had not complied with the obligation imposed by that provision to make a decision "as soon as reasonably practicable".
2. On that issue and for reasons I will come to, I have decided that the requirement in s 100(6) of the NDIS Act to make a decision "as soon as reasonably practicable" is not a requirement to do so "within the period prescribed by" the NDIS Act as those words are understood in the context of s 25(5) of the AAT Act. When read together with s 29(3) of the AAT Act, the reference to "the period prescribed by" an enactment is a reference to a period that can be ascertained objectively because it has been framed by reference to a fixed period of time or by reference to a particular event. Even if I am incorrect in that conclusion, the outcome of reading s 100(6) and s 25(5) together would lead to the reviewer's being deemed not to have made a decision at all. The reviewer would not be deemed to have made a decision to choose to confirm the decision when that is only one of three options available on review under s 100(6). I would have dismissed NNXF's application on the basis that she was not entitled to make it under s 103 of the NDIS Act.[62]
3. A further issue arose when a reviewer made a decision on 9 April 2019 after reviewing the delegate's original decision on 18 September 2018. NNXF applied for its review on 16 May 2019. The parties have now reached an agreement as to the terms of the statement of participant supports. Rather than relying on s 42C of the AAT Act and asking the Tribunal to make a decision by consent, they have decided that the NDIA should conduct a separate review of NNXF's participant's plan under s 48 of the NDIS Act. They have done so on the basis that the delegate of the CEO will approve the plan so that it includes the terms of the statement of participant's supports agreed upon between them. While I understand why they have taken this course, I do not think that there is any need to do so. For the reasons I will give, NNXF was entitled to make an application for review of the decision that had, in fact, been made under s 100(6) and to do so within the time prescribed by s 29(3)(b) of the AAT Act. Whether or not the reviewer acted beyond power in doing so is not a relevant consideration. Once NNXF had made her application, the Tribunal could exercise all of its powers including those powers under s 42C.

1. NNXF, who has Down syndrome and an intellectual disability, is a participant in the National Disability Insurance Scheme (NDIS). She is cared for by one of her sisters, who also cares for another of their sisters. On 27 June 2018, the National Disability Insurance Agency (NDIA) approved a participant's plan for NNXF for the period to 27 June 2019.[63] On 10 September 2018 and acting on her behalf, NNXF's sister used NDIA's form to request internal review of the decision to approve the participant's plan.[64] In setting out her reasons for requesting review, NNXF's sister explained that the amount of funding in

Core Supports did not cover all of the supports previously received from Disability SA and detailed the shortfall. She also noted that the transport funding did not cover all of NNXF's costs and, without appropriate funding, her placement in the family home would be in jeopardy. NNXF's sister followed her request some time later with a complaint about not having received a response to the request for review. On 21 September 2018, the NDIA determined that the additional Core Funding was not reasonable and necessary.[65] 2. An occupational therapy report prepared following an assessment on 7 February 2019 recommended that NNXF's Core Supports be increased to assist NNXF's sister with her caring role and to provide support services and respite to enable her to have NNXF continue to live at home.[66] On 22 February 2019, NNXF's sister completed a form entitled Change of Circumstances explaining that additional in kind support coordination hours were needed to explore further supports to eliminate current stresses, carer burnout and to strengthen and enhance her sister's supports. Among those stresses was the length of time the NDIA was taking in making its decision on the review application. 3. On 8 March 2019 NNXF's sister lodged an application in the Tribunal for review of the NDIA's decision dated 27 June 2018. She noted that she had made numerous telephone calls to the NDIA to check on the progress of the request for review with her last call being made on 1 March 2019 but was yet to receive a decision in response to that request.

In making her application, NNXF asserted that the Tribunal had jurisdiction by virtue of the operation of s 25(5) of the AAT Act when read with s 100(6) of the NDIS Act. During the proceeding, the NDIA conceded that the reviewer had not made a decision under s 100(6) "as soon as reasonably required". 4. On 9 April 2019, a reviewer made a decision under s 100(6) after reviewing the NDIA's determination on 21 September 2018 that:

"1. Additional Respite hours (Core Daily Activities Budget) is reasonable and necessary

1. Additional Core Consumables Budget is not reasonable and necessary
2. Additional Transport and Funding is not reasonable and necessary".
3. NNXF's solicitors lodged an application for review of this decision on 16 May 2019. A conference was held in the matter under Division 3 of Part IV of the AAT Act and the parties also engaged in their own discussions to resolve the matter. On 2 December 2019, the NDIA's solicitors wrote to the Tribunal's Registry advising that they had resolved the matter and identified the supports that would be added to NNXF's statement of participant supports. I have set out how they proposed to proceed at [144] above.

1. In this section of my reasons, I have summarised the broad features of the submissions made by the parties. I will return to further details of their submissions in the course of considering them.

1. NNXF's solicitor, Ms Higgins, submitted that the effect of s 25(5) of the AAT Act is to deem a reviewable decision to have been made by the NDIA. Her submission starts from the proposition that the decision, which the NDIA made under s 33(2), is a reviewable decision within the meaning of Item 4 of s 99(1) of the NDIS Act. It was a decision to approve the statement of participant supports in a participant's plan approved by the NDIA's Chief Executive Officer (CEO) for NNXF. NNXF requested review of that reviewable decision as provided for in s 100(2). Under s 100(6), a reviewer must, "as soon as reasonably practicable", make a decision. Given that NNXF had been waiting for two days short of six months for a decision to be made on her request for review and her current plan must be reviewed 12 months after it commenced, a "reasonably practicable" period must have passed. Given that an applicant has three months within which to lodge an application, a decision by the NDIA would be made as soon as reasonably practicable if it were made within three months of receiving the application. Ms Higgins referred to the cases of Snedden and Williams v The Queen[67] to illustrate the way in which similar expressions have been considered in other contexts. She submitted that, in its context, the words used in s 100(6) are imperative and impute a sense of urgency to the time frame.
2. Looking at the matter in the context of her plan, it would be unlikely that the Tribunal could hold a conference and any conciliation could be scheduled and agreed upon before the plan is due to be reviewed. That would mean that NNXF will have gone through her entire plan without being able to seek meaningful review from the Tribunal. It would be inconsistent with a participant's right of review under s 103 if a "reasonably practicable" period could be a period in which a participant's review rights to the Tribunal were practically rendered nugatory. Delays of this kind must be beyond a reasonably practicable timeframe.
3. The NDIA's failure to make a decision must be taken to be a decision to affirm the original decision. Ms Higgins relied on a passage from the reasons for decision in Re FJKH and National Disability Insurance[68] (FJKH):

"... A deemed decision under s 25(5) will necessarily always affirm the decision already made. This is simply a mechanism to allow an applicant access to the Tribunal and does not result in any change to the applicant's status or entitlements."[69]

1. Even if that is not the case and the decision that the NDIA is deemed to have made is a decision not to do one of the three things listed in s 100(6) of the NDIS Act, that decision would still be reviewable by the Tribunal. That follows from the wide definition of the word "decision" that is found in s 3(3) of the AAT Act and particularly from paragraph (g) which provides that a reference to a decision includes a reference to doing, or refusing to do, any act or thing. In any event, it is arguable that the three courses of action listed in s 100(6) of the NDIS Act are illustrative, and not exclusive, of the courses of action open to the reviewer. As the reviewer's not making a decision has not been expressly excluded, it is open to read s 100(6) as including a decision not to make a decision.
2. Ms Higgins also referred to the case of Re Wells and Repatriation Commission,[70] in which Deputy President Thompson had found that a failure by the Veterans' Review Board (VRB) to review a decision of the Repatriation Commission was a deemed decision for the purposes of s 25(5) of the AAT Act. He characterised that deemed decision as a decision to affirm the Repatriation Commission's decision.

1. On behalf of the NDIA, Ms Roughley of counsel submitted that a requirement that the reviewer make a decision under s 100(6) of the NDIS Act "as soon as reasonably practicable" cannot be regarded as a requirement to make that decision within a

"period prescribed" as set out in s 25(5) of the AAT Act. In summary, Ms Roughley's submitted that s 100(6) does not prescribe a period within which is to be made. It only conditions the performance of the reviewer's duty to exercise the power. Had Parliament chosen to impose a strict time limit on the review under s 100(6), it would have set that time limit clearly as it has done elsewhere in the NDIS Act e.g. s 100(2), which prescribes the time within which a participant may request a decision-maker to review a decision. Ms Roughley drew support from the judgment in Snedden. 2. Section 25(5) could not, in any event, have any application because the time frame it specifies cannot be objectively ascertained and would admit of a range of possibilities. The word "period" is used in s 25(5) in a manner that refers to a definite or fixed period which is objectively knowable and/or knowable or ascertainable without detailed and extensive enquiries of surrounding circumstances and facts that are not publicly available or that go to broader matters of the availability of resources, competing priorities involving other people's cases as well as those relating to an individual. 3. Even if that period could be ascertained, the nature of the decision that must be made under s 100(6) precludes the operation of s 25(5) because it assumes that a binary decision will be made. The NDIS Act does not provide a foundation on which s 25(5) may be used to select one of several possibilities. A decision to do nothing is not one of the possibilities contemplated by s 100(6) of the NDIS Act. The reviewer has no power under s 100(6) to decline to make a decision. 4. The questions that would arise if a decision were deemed to have been made illustrate why Parliament cannot have intended it to do so. The questions are: * (1) What is the decision deemed to have been made? * (2) What is the date of that deemed decision? * (3) Did the reviewer thereafter have power to make a new s 100(6) decision in respect of NNXF's application for internal review? * (4) Did the reviewer thereafter have power to alter the deemed decision? * (5) What is the status and character of the s 100(6) decision made on 4 April 2019 by the reviewer in respect of NNXF's application for internal review? 5. In further submissions addressing issues raised at the hearing, Ms Roughley referred to the general principles of statutory interpretation addressed by Gageler J in Commissioner of Police v Eaton[71] (Eaton). She did so to support her submission that full force and effect can be given to the provisions of the NDIS Act and to s 25(5) of the AAT Act. The relationship between two enactments is to be extracted from all available indications. Ms Roughley submitted that the NDIS Act represents a carefully structured and staged process of access, approval of a statement of supports and review. It is meant to be a self-contained code and its specificity precludes the operation of the general s 25(5) of the AAT Act in circumstances in which the NDIS Act operates. If it is determined that there is a conflict between the provisions of the two enactments, then those of the NDIS Act should prevail. Ms Roughley referred to Ferdinands v Commissioner for

1. The question whether the Tribunal has jurisdiction to review a particular decision is of critical importance for, as an administrative body, it may act only within the legal limits of its power. It is not a question to be treated lightly and nor is it a question to be approached from one particular point of view or another. However heartbreaking an applicant's circumstances may be, the answer to the question must always lie in the proper construction of the legislation. That legislation has been drafted to implement a scheme that is underpinned not only by policy considerations but by financial costings. An applicant's circumstances will be relevant in the speed with which the question is determined but not in the construction of the legislation. That is always the case whatever the nature of the decision of which review is sought. One piece of that legislation will always be the AAT Act and the other the specific enactment providing that an application may be made to the Tribunal.
2. In Re LQTF and National Disability Insurance Agency,[73] I explained why its having jurisdiction underpins the Tribunal's power to consider an application at all:

"... [It is imperative that the Tribunal be confident that it has jurisdiction to consider an application and it is important to resolve any doubts before it embarks on dealing with substantive issues. That follows from the fact that the Tribunal has no power to consider a matter unless an application for review has been made to it. An application for review may only be made to it if an enactment has provided that an application may be made for review of decisions identified in that enactment.[74] That requires consideration of that other enactment, which in this case is the NDIS Act. If the decision is one in relation to which that other enactment provides that an application may be made to the Tribunal then the Tribunal will have power to review the decision provided the application is made within the prescribed time or an extension of that time. Jurisdiction itself is not a matter that can be resolved by negotiation or agreement between the parties. As was said by the Full Court of the Federal Court in McLeish v Faure,[75] and it applies equally to the Tribunal:

'It is trite law that parties, by consent, cannot confer jurisdiction upon the court.'[76]"[77]

THE ADMINISTRATIVE APPEALS TRIBUNAL ACT

"... to establish a single independent tribunal with the purpose of dealing with appeals against administrative decisions on as wide a basis as possible. The Bill [that would become the AAT Act] would establish the Tribunal and provide for its membership, powers and procedures. The Tribunal thus established would be a standing body that can be given jurisdiction as new legislation creating administrative discretions is introduced. ...[&]7878 Second Reading Speech by the Attorney-General, Mr Enderby: Hansard, House of Representatives at 1138, 6 March 1975

1. It did so in Part II of the AAT Act and provided for its organisation in Part III and its management in Part IIIA. Part IV is entitled "Reviews by the Tribunal of decisions". With qualifications relevant to particular Divisions, its provisions apply in relation to proceedings in all of the Tribunal's Divisions other than the Migration and Refugee Division.[79] Various subsections, or groupings of subsections appear under their own sub‑headings. The first such grouping comes under the sub-heading "Enactment may provide for applications for review of decisions". The first is s 25(1), which provides:

"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; or

(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment."[80]

Section 25(2) makes a similar provision in relation to decisions made in the exercise of powers conferred by a Norfolk Island enactment. Section 25(3) requires the enactment to specify the person or persons to whose decisions the provision applies, whether those decisions are specified as a class or otherwise, and provides that the enactment may specify conditions subject to which an application may be made.

1. What is meant by a "decision" is the subject of a very broad definition in s 3(3) of the AAT Act:

"Unless the contrary intention appears, 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, or revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

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

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

1. Where an enactment makes a provision of the sort contemplated in s 25(1) of the AAT Act, that enactment:

"(a) shall specify the person or persons to whose decisions the provision applies;

(b) may be expressed to apply to all decision of a person, or to a class of such decisions; and

(c) may specify conditions subject to which applications may be made."[81]

1. Where an enactment makes provision in accordance with s 25 for the making of applications to the Tribunal for the review of decisions made in the exercise of a power conferred on that person, that provision of that enactment also applies in relation to decisions made in the exercise of that power by any person to whom the power has been delegated or who is lawfully authorised to exercise that power.[82] If the provision specifies the person by reference to his or her being the holder of a particular office or appointment, that provision applies in relation to decisions made in the exercise of that power by any person who is, for the time being, acting in, or performing the duties of, that office or appointment.[83]
2. Section 25(5) of the AAT Act provides:

"Failure of decision-maker to meet deadline

For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing."

1. Apart from making provision for the paths by which an application may be made to the Tribunal, Part IV of the AAT Act gives the Tribunal the tools it may use in taking an application through the review process to an outcome. While it is following the path between application and outcome, generally the decision under review may not be altered unless the parties and the Tribunal consent to its being altered.[84] There are a number of ways in which an outcome may be achieved but, in summary, an outcome will be achieved by a decision by the Tribunal,[85] agreement between the parties[86] or dismissal of the application.[87]
2. Part IV sets out the manner in which each of these outcomes is arrived at, how it obtains relevant material and also the way in which the Tribunal must conduct itself. It must, for example, hold the hearing of a proceeding in public except in certain circumstances.[88] The criteria that are used to judge whether circumstances are circumstances justifying a hearing that is something other than "in public" are set out in s 35(2).[89] In general terms,

s 33 gives the Tribunal discretion as to the procedure it adopts. Although this gives the Tribunal a very broad discretion, the AAT Act makes specific provision for some procedures so that it is clear that they are permitted. Participation by telephone is one such example.[90] Section 37 imposes an obligation on the decision-maker to lodge a statement of reasons and relevant evidence or other material. The Tribunal may summons persons to give evidence or to produce books, documents or things to it under s 40. When exercising its powers, the Tribunal must, with certain qualifications:[91]

"... ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to these documents."

1. In summary, what the AAT Act sets out to do is to establish the framework within which the review of administrative decisions will be conducted if an enactment has provided that an application for their review may be made to the Tribunal. What it then does is to permit variations of some of those provisions by the enactment providing for applications to be made to the Tribunal. It has done this in s 25(6) which provides:

"If an enactment provides for applications to the Tribunal:

(a) that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 29AB, 20AC, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and

(b) those sections and subsections have effect subject to any provisions so included."

1. On its face, a reading of s 25(6) and of the AAT Act as a whole might suggest that Parliament wanted to maintain the general framework of powers and procedures it established in the AAT Act but to permit addition to, variation or modification of certain limited parts of that framework by the enactment providing that applications may be made to the Tribunal. It might be thought that it did not want to permit addition to, variation or modification of the whole of it or to parts of it that it had not specifically mentioned in s 25(6). That thought would be at odds, though, with other specific provisions found in the AAT Act that modify the application of provisions not referred to in s 25(6). I refer in particular to those proceedings that take place in the Tribunal's Security Division and in relation to proceedings relating to particular decisions.[92]
2. It would also be at odds with previous understandings of the way in which s 25(6) of the AAT Act operates. I take, for example, the consideration given by Deputy President Tamberlin in Re Coshott and Commissioner of Taxation[93](Coshott) to a submission that

s 14ZZB of the Taxation Administration Act 1953 (TAA) prevented Mrs Coshott from applying for a stay of the operation of a reviewable objection decision by the Commissioner for Taxation (Commissioner) that she had made a capital gain of $175,000 in respect of the income tax year ended 30 June 2008. Section 14ZZA of the TAA provides that the AAT Act applies in relation to the review of reviewable objection decisions subject to "modifications" set out in Division 4 of Part IVC. That Division includes s 14ZZB(1)(a), which provides that s 41 of the AAT Act do not apply in relation to a reviewable objection decision. Mrs Coshott's submissions centred on the interpretation of s 25(6)(a) of the AAT Act, which refers to s 41(1) of the AAT Act as a provision to which an enactment may add to, exclude or modify in its operation but which makes no reference to s 41(2). As no reference was made to s 41(2), Mrs Coshott submitted that the TAA could not exclude its operation as it had purported to do in s 14ZZB(1)(a). 3. Deputy President Tamberlin did not accept Mrs Coshott's submissions. In so far as they related to the exclusion of s 41(2) of the AAT Act by s 14ZZB(1)(a), he said:

"I note that the same conclusion, namely that s 14ZZB operates to prevent a stay of a reviewable objection decision was reached by Deputy President Forgie in

Re The Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682. The gravamen of that decision is that notwithstanding that s 25(6) might be thought to suggest that only limited modifications may be made to the operation of the AAT Act, Parliament has clearly intended to change aspects of that framework in respect of the TAA provisions. It is clear that the express provisions of s 14ZZB must prevail over the dubious and generalised implications sought to be drawn by the Applicant from the wording of s 25(6) of the AAT Act and/or s 14ZZA of the TAA."[94]

1. In Beni v Minister for Immigration and Border Protection[95] (Beni), the Full Court of the Federal Court referred to Coshott when considering whether the operation of s 24Z of the AAT Act. Section 24Z provides that, except in relation to ss 25 and 42,[96] Part IV of the AAT Act does not apply in relation to a proceeding in the Tribunal's MRD. The applicant had submitted that s 29 of the AAT Act, which includes provisions to extend time for lodgement of an application, continued to apply. The submission was to the effect that, although the operation of s 29 had not been preserved by s 24Z(2), s 29(6) continued to have operation because it was referred to in s 25(6) and s 25 continued to apply to proceedings in the MRD. The Full Court in Beni said:

" With respect, we do not consider that the preservation of s 25 and thus s 25(6) does the work for which the appellant contends. It does not, in effect, resuscitate s 29 simply because reference to s 29 appears in s 25(6). Section 29 has 'effect' regardless in the general sense because it is contained in a statute that is in orce. It is true that the provisions of a statute can be limited by the terms of that statute or by the terms of another statute, usually a later one. In this case,

s 24Z of the AAT Act did just that. Equally, the provisions in s 25(6)(a) can be limited, not only by other provisions in the AAT Act and provisions of later statutes, but also by provisions in later delegated legislation. As the secondary materials discussed below reveal, this was the legislative purpose of retaining s 25(6) of the AAT Act. Its function is not to give s 29 effect. Rather, it is to confirm that s 29 may be added to, excluded, or modified by other enactments, such that where other enactments make such provision which can be seen as excluding or modifying its application, s 25(6) ensures that the other enactment is given priority so that the provisions of both statutes can be read together. This purpose was recognised in Coshott v Federal Commissioner of Taxation [2013] AATA 822; (2013) 96 ATR 967, where Tamberlin DP stated:

... s 25(6) of the [AAT Act] is an empowering provision and not a restricting provision and operates to enable enactments such as the TAA to include provisions 'adding to,' 'excluding' or 'modifying' the operation of s 41(1) and therefore this provision does not in any way assist ..."[97]

1. The reference to the secondary materials is a reference to those accompanying the amendments made by the Tribunals Amalgamation Act 2015. As originally presented and first read, Item 40 of Schedule 1 to the Tribunals Amalgamation Bill 2015 would have repealed s 25(6). The Full Court set out cll 360 and 361 of the Explanatory Memorandum:

"360. Existing subsection 25(6) provides that other enactments conferring jurisdiction on the Tribunal may contain provisions that add to, modify, or exclude the operation of sections 27, 29, 32, 33 and 35 or subsection 41(1) or 43(1) or (2) in relation to applications under that enactment. Several other enactments include provisions to this end and also add to, modify or exclude other provisions of the AAT Act. It is a general principle of statutory interpretation that a later Act of Parliament overrides an earlier Act to the extent of any inconsistency. Accordingly, subsection 25(6) can be misleading and should be repealed. However, its repeal does not diminish the general position that any modifications to the AAT's procedures should be kept to a minimum and only made where special circumstances warrant it.

361. The repeal of these provisions would not change the existing scope of the Tribunal's jurisdiction or powers.

(Emphasis added.)"[98]

1. The Full Court then went on to set out cl 17 of the Supplementary Explanatory Memorandum to the Tribunals Amalgamation Bill 2015:

"17. New Item 40A would amend subsection 25(6) of the AAT Act, which permits other enactments to modify certain provisions of the AAT Act. The Bill proposed to repeal subsection 25(6) on the basis that the general principle of statutory interpretation that a later Act of Parliament overrides an earlier one to the extent of any inconsistency makes it redundant (see paragraph 360 of the Explanatory Memorandum). However, because the definition of 'enactment' in section 3 of the AAT Act is broad and includes (for example) Regulations, subsection 25(6) serves the purpose of preserving the validity of enactments that would not otherwise be permitted to modify the AAT Act. It is desirable to preserve the status quo that the AAT Act may be modified where appropriate in relation to particular types of applications. As a result, new Item 40A would retain subsection 25(6) and amend it to also include new sections 29AB and 29AC in the list of provisions that may be modified by other enactments. This is a technical amendment made necessary because the matters dealt with in new sections 29AB and 29AC were previously dealt with in section 29 of the Act, which is a provision that may be modified under existing subsection 25(6).

(Emphasis added.)" [99]

1. Parliament recognised that enactments had added to, modified or excluded provisions other than those specifically mentioned in s 25(6) of the AAT Act as well as the general principle of statutory interpretation that a later Act of Parliament overrides an earlier Act to the extent of any inconsistency. Its understanding has been endorsed by the Full Court in Beni.

THE NDIS ACT PROVIDES THAT APPLICATIONS MAY BE MADE TO THE TRIBUNAL

1. The NDIS Act is an "enactment" within the meaning of s 25(1) of the AAT Act because it is an Act of Parliament.[100] As provided for in ss 25(1) and (3) of the AAT Act, s 103 of the NDIS Act provides that:

"Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6)."

Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer."

1. As the decision in respect of which an application may be made has been specified by reference to a decision made under another provision of the NDIS Act, I must go to that other provision. It is s 100(6), which provides:

"The reviewer must, as soon as reasonably practicable, make a decision:

(c) confirming the reviewable decision; or

(d) varying the reviewable decision; or

(e) setting aside the reviewable decision and substituting a new decision."

1. The reference to the "reviewable decision" is a reference to one of the 33 decisions identified in s 99(1) of the NDIS Act by reference to its effect, the provision under which it has been made and by whom. The person who has made the reviewable decision must give notice of the decision to each person directly affected by it and of further review that may be requested or that, in the case of decisions made under ss 21(3) or 48(2), will be reviewed automatically.[101] In NNXF's case, the CEO has made a decision under s 33(2). That is a reviewable decision identified in Item 4 of s 99(1). Under s 100(2), a person who is directly affected by a reviewable decision may request the decision-maker, being the CEO in this case, to review that reviewable decision.

THE ROLE OF THE DEFINITION OF "DECISION" IN THE AAT ACT

1. A submission made on behalf of NNXF is to the effect that the definition of "decision" in s 3(3) of the AAT Act is wide enough to permit s 103 of the NDIS Act to be read as permitting an application to be made to the Tribunal when a decision-maker has not made a decision at all. A decision not to do one of the three required acts would be synonymous with a decision-maker's "refusing to do any other act or thing". Section 3(3) of the AAT Act specifically provides that a reference to a decision includes a reference to "doing or refusing to do any other act or thing".
2. At [165] above, I set out the definition of "decision" as it appears in s 3(3) of the AAT Act. What is important to note about this definition is that it applies only to a reference to the word "decision" when used in the AAT Act. Therefore, in the context of s 25(1) of that same Act, it means that another enactment may provide that applications may be made to the Tribunal for review of a "decision" that comes within that definition and that has been made in the exercise of powers conferred by that other enactment. The reference is to a decision made by the original decision-maker rather than that made by the Tribunal[102] and the "decision" described in the other enactment may be broadly framed just as the definition of "decision" is broadly framed in inclusionary terms in s 3(3) to cater for any number of ultimate or operative determinations of which it may provide for review by the Tribunal. Parliament may decide, for example, that an enactment may provide that an application may be made to the Tribunal for review of a decision "doing or refusing to do any other act or thing"[103] in the exercise of powers conferred by a particular enactment.

It may pass an enactment providing that applications may be made to the Tribunal for review of conditions or restrictions, making a demand, revoking a certificate and so on. 3. Whether Parliament has done so depends on the wording it has chosen. As Lockhart J said in Director General of Social Services v Hales:[104]

"... One cannot therefore look to the definition in s 3(3) to determine definitively the meaning of the word 'decision'. It must take 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 by 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 definition of the word 'decision', although it is important to bear in mind the warning of the late Professor de Smith in his work Judicial Review of Administrative Action 4th ed, 1980, at p 3: 'Judicial review of administrative action is inevitably sporadic and peripheral.

The administrative process is not, and cannot be, a succession of justiciable controversies. Public authorities are set up to govern and administer, and if their every act or decision were to be reviewable on unrestricted grounds by an independent judicial body the business of administration could be brought to a standstill. The prospect of judicial relief cannot be held out to every person whose interests may be adversely affected by administrative action.'"[105]

1. To illustrate the point, I will take s 224 of the Patents Act 1990 (Patents Act) as an example of the way in which Parliament has identified the decisions in relation to which an application may be made to the Tribunal. Section 224 sets out a number of decisions made under particular provisions of the Patents Act. Those decisions are made in a variety of contexts addressing a variety of issues and are formulated in a variety of ways. Each is described in s 224 as a "decision" but, when regard is had to the extended meaning of the word "decision" given in s 3(3) of the AAT Act, it is apparent that they can be broadly categorised by reference to each of the seven formulations of decision in the definition. I will set out examples of decisions in the following table against the relevant paragraphs of the definition of "decision" to illustrate what I mean:

Patents Act: selection of decisions under Patents Act in respect of which application may be made to the Tribunal[106]

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

determination made by Commissioner for enabling a patent application to proceed in the name of one or more applicants and for regulating the manner in which it is to proceed when two or more joint applicants in dispute: s 32(1)

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

to consent to the withdrawal of a patent application, other than a PCT application when the application has been opposed under s 59 of the Patents Act: s 141(1)(b)

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

to revoke a patent under s 137(3) after Commissioner given notice by patentee offering to surrender it

steps taken by the Commissioner under s 152(1) as are necessary and expedient to give effect to a notice given by the Director of Safeguards under s 147 of any prohibitions or restrictions on the publication or communication of certain information

(e) "making a declaration, demand or requirement"

to direct that the consent of a mortgagee or licensee is not necessary in relation to a proposed amendment: s 103(2)

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

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

a decision of the Designated Manager not to register a person as a patent attorney: s 198

1. Once Parliament has provided that an application may be made to the Tribunal for review of a decision or decisions that it identifies as it has done under the Patents Act,

the definition in s 3(3) of the AAT Act as to what a decision may be has no more work to do. It cannot be used to extend the meaning of the decision so prescribed. Identification of whether a decision of a sort that may be reviewed has in fact been made will become a task that is carried out in the context of the enactment that makes provision for applications to be made to the Tribunal. 2. In the case of the NDIS Act, Parliament has prescribed those decisions made by a reviewer under s 100(6) of that enactment as the decisions in relation to which an application may be made to the Tribunal. Although not in the context of applications to the Tribunal for review of reviewable decisions, the NDIS Act also makes provision for certain situations in which a decision-maker has not made a decision. I refer to those at [303]‑[305] below. Those provisions and the structure of the NDIS Act generally show that the definition of "decision" in s 3(3) of the AAT Act has no part to play in identifying the scope of a decision described in s 103. It is clear that Parliament has identified the decisions in respect of which an application may be made to the Tribunal for review as those decisions that have the following characteristics. As required by s 100(5) of the NDIS Act, those decisions have been made by a reviewer under s 100(6) after reviewing reviewable decisions identified in s 99.

DOES SECTION 100(6) PRESCRIBE A PERIOD FOR DOING AN ACT OR THING WITHIN THE MEANING OF SECTION 25(5) OF THE AAT ACT?

1. Putting aside for the moment the proper characterisation of the "act or thing" that s 100(6) requires to be done, is the requirement that it be done "as soon as reasonably practicable" a "period prescribed by" the NDIS Act as that latter expression is used in the AAT Act?

The authorities: what may be meant by "as soon as reasonably practicable"?

1. The meaning of the expression "as soon as reasonably practicable" was considered in their joint judgment by Middleton and Wigney JJ in Snedden in the context of s 22(2) of the Extradition Act 1988 (Extradition Act). That section provided:

"The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences."

"... As the primary judge found, the language used in the subsection, including the use of the imperative 'shall', confers on the Attorney-General both the power to make the surrender determination and the duty to make the determination as soon as is reasonably practicable. Read in that way, the time stipulation does not condition the exercise of power. Rather, it conditions the performance of the duty to exercise the power. As the Minister submits, and as the primary judge found,

the performance of the duty to exercise the power as soon as is reasonably practicable can be compelled by an order in the nature of a writ of mandamus."[107]

1. Section 100(6) of the NDIS Act is also framed in mandatory terms. Like s 22(2) of the Extradition Act, it also confers a power and a duty. The power is to review a reviewable decision and the duty is to do so as soon as reasonably practicable. For that reason and like s 22(2), the power is not lost if and when it is not exercised as soon as reasonably practicable.[108]
2. Their Honours also separated and analysed the elements of the expression "as soon as is reasonably practicable":

" There are essentially three elements to the composite expression 'as soon as is reasonably practicable'. First, the word 'practicable' has the meaning of 'capable of being carried out in action; feasible': M38/2002 v Minister Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146 (M38/2002) at 165 [65]. It identifies that which is able to put into practice and which can be effected or accomplished: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb) at 608 [121]. Second, the qualification 'reasonably' limits or qualifies what would otherwise be an absolute obligation: M38/2002 at 165 [65]. It introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme: Al-Kateb at 608 [121]. Third, the phrase "as soon as" supplies a temporal element: Al-Kateb at 608 [121]. It directs the decision-maker to make the determination without delay once it is reasonably practicable to do so: Santhirarajah at [74]; Judgment at [24].

It is undesirable to attempt to provide a rigid definition of when it would be 'reasonably practicable' for the Attorney-General or Minister to make a determination under s 22(2): cf. NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 at 516 [51]. That will depend on a consideration of all the relevant circumstances of the particular case at hand.

So much is clear from the additional words 'having regard to the circumstances' that are included in the subsection. A range of considerations may be relevant."[109]

1. As it is clear from Snedden, the period that is "as soon as reasonably practicable" must be determined in each case. It depends on a range of factors that necessarily go beyond the immediate context of the particular application for review of a reviewable decision made by a particular applicant. I say that because, although the decision that a reviewer must make in this case is but a single decision, it is very likely to be but one of a great many that reviewers will be asked to make under the NDIS Act in the course of a year. That fact alone brings into play the resources of the NDIA to provide reviewers to review reviewable decisions. It also brings into play the number of requests the NDIA receives for review of reviewable decisions and the number on hand when a request for review is received and the stage those on hand have reached in the review process. Also relevant will be the complexity of the matters that must be reviewed as a result of the particular request for review but so too will be the complexity of the other matters that must be reviewed as a result of the other requests that are waiting to be reviewed. Reviewers have the powers and functions of the decision-maker when reviewing decisions. That means that they may consider it necessary to use their powers under s 36 of the NDIS Act to obtain further information under s 36 or ask the participant to undergo an assessment. Regard will need to be had to that as well. The order in which requests for review were received may be relevant but that order may not be determinative as some requests will no doubt require more immediate attention than others.
2. This approach is consistent with the observations made by Gummow J in NAIS v Minister for Immigration and Multicultural Affairs[110] (NAIS). The majority concluded that delay in the Refugee Review Tribunal's (RRT) reaching its decision on an application for review of a decision refusing the applicants applications for protection visas prevented it from weighing up the evidence satisfactorily in circumstances in which the decision had been partly dependent on findings regarding the demeanour of the applicants and their credibility. Therefore, there had been procedural unfairness and the decision was set aside. Although his Honour was in dissent regarding the final outcome of the appeal, there is nothing in the judgments of the majority that are at odds with the general comments Gummow J made regarding decision-making in the context of public administration.

They are equally pertinent in this case for, like the RRT, the Tribunal is part of the executive arm of government. It is part of the continuum of administrative decision-making provided for in several hundred enactments. 3. His Honour said:

"17 The range of powers conferred by various laws of the Commonwealth upon its officers varies greatly. So does the institutional framework for the exercise of those powers. This litigation concerns delay in administrative decision-making at a second level, by way of review by a statutory tribunal of decisions of delegates of a Minister. The procedural arrangements for such a tribunal, including (as in this case) the giving of written reasons, may be far more elaborate than those for decision-making at other levels in public administration.

1. Observations by LeBel J in the Supreme Court of Canada in Blencoe v British Columbia (Human Rights Commission) [[2000] 2 CR 307 at 392-3] may usefully be repeated here. LeBel J observed that there are different kinds of delay and that not all administrative bodies are the same. Delay in deciding an individual case may relate to the special complexity of the subject-matter as well as to the inattention of the decision-maker. The former may encompass necessary delay. Further, the diversity of the powers, mandates and structures of administrative bodies makes it inappropriate to apply particular standards from one context to the other.
2. Among the sources of delay in administrative decision-making which have been identified in the United States are the presence of a large workload, the complexity of issues entrusted to administrative decision-makers, inadequate funding and staffing and legislatively required time-consuming procedures. It may be said to be a responsibility of the executive and legislative branches of government to the public at large to alleviate such sources of delay. It is another matter to enlist the judicial branch to require an outcome or to set aside a delayed outcome and remand for redetermination. Even in a system where there is constitutionally mandated 'due process', such as the United States, the most effective remedies for administrative delay have been said to lie in the political rather than the judicial process .
3. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ('the ECHR') entitles 'everyone ... to a fair and public hearing within a reasonable time' in the determination of "civil rights and obligations", as well as of any criminal charge. In Dyer v Watson_,_

Lord Bingham of Cornhill considered the Strasbourg case law applying the ECHR to a range of matters, including delayed determinations of civil rights and obligations by administrative bodies. Lord Bingham concluded that '[t]he threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed' ."[111] 4. In the different, but not entirely unrelated, jurisdiction of disability discrimination in employment under the Disability Discrimination Act 1992, Mortimer J took a similar approach in deciding:

"32. Further, s 5(2) as a whole must be construed in a way that allows it to operate in a practical way in the workplace, and in the educational and other settings with which the Act deals. Adjustments may be simple, but also complex. Not only complex because of technical or technological requirements, but also perhaps because of personnel and workplace requirements. Time may be needed to implement them. Part of the work to be done by the second limb is to allow for the position of a discriminator who recognises her or his legal responsibilities, but the implementation of adjustments requires a period of time. In those circumstances, it cannot be said, consistently with the proper construction of the provision, that a discriminator 'proposes not to make' reasonable adjustments.

The period of time during which it might be said, in a given factual situation, that a discriminator has acknowledged her or his legal obligation and is pursuing implementation cannot be fixed in advance. Invariably it will be fact dependent. Delay may, after a period, indicate lack of genuine recognition of the legal obligation and make available the inference that the discriminator's position is that it 'proposes not to make' the adjustment. On the other hand, delay may be accounted for by the unavailability, for example, of an adjustment where the adjustment is a practical, technological adjustment."[112]

1. The NDIA is an agency whose responsibilities include the delivery of the NDIS and its financial sustainability. At the same time, it must undertake other responsibilities such as the development and enhancement of the disability sector by means that include its facilitating innovation, research and contemporary best practice in the sector, building community awareness of disabilities and the social contributors to disabilities and the collection and analysis of data about disabilities and supports for people with disabilities and research relating to disabilities and supports generally.[113] In the course of delivering the NDIS, the NDIA must make decisions of various kinds and in various frameworks.

In Attachment A, I have outlined the various considerations it must take into account in deciding whether a person may become a participant of NDIS and, if so, the content of the participant's plan and, in particular, the content of the statement of participant supports. They are found not only in the NDIS Act itself but in the NDIS rules. 2. An essential feature of the NDIS is the annual review of each participant's plan. In the NDIA's Annual Report for 2017-2018, it reported that it was supporting 183,965 participants as at 30 June 2018.[114] That means that the NDIA will be engaged in an annual review of participant's plans in the 2018-2019 annual year and, given the growth of NDIS, it can be expected to that the reviews that are required will number no less than 183,965. That is quite apart from reviews that follow from requests for review made by participants. I do not have any indication of the number of such requests that are made, their complexity and the need for the NDIA to obtain further information and nor do I have any indication of the staff available to conduct reviews or the rate at which they resolve them. 3. If this matter were to proceed, I would need to have some evidence relating to these matters. I would have to look at the evidence in light of the words chosen by

Lord Bingham when sitting in the Privy Council in Dyer v Watson[115] and adopted by Gummow J in NAIS:

"...The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. ..."[116]

1. The fact that it is not easily crossed is not to say that it cannot be crossed. Whether it would be crossed would depend on the whole of the administrative context in which the review of the reviewable decision is to be made. It was crossed in Dyer v Watson and also in NAIS. If I thought that s 25(5) of the AAT Act were operable in the context of s 100(6) of the NDIS Act, and I do not, I note that the Tribunal would have to consider the whole administrative context in which NNXF's request for review will be considered and not simply the passage of time. Only then could the Tribunal determine whether the period prescribed by s 100(6) has concluded i.e. whether or not the reviewer had failed to make a decision under s 100(6) as soon as reasonably practicable. I will come to that at [220] to [233] below.

IS A REQUIREMENT IN THE NDIS ACT TO REVIEW A DECISION "AS SOON AS REASONABLY PRACTICABLE" A DECISION TO DO SO WITHIN A "PERIOD PRESCRIBED" BY THAT ENACTMENT WITHIN THE MEANING OF SECTION 25(5) OF THE AAT ACT?

A. General principles of statutory interpretation

1. Before turning to the particular provisions, I begin with the general proposition that ascertaining what the relevant law is requires an analysis of the express terms of the relevant legislation but also a consideration of the context, general purpose and policy underlying those terms and an understanding that they must be construed on the basis that they are intended to give effect to harmonious goals. In Project Blue Sky Inc v Australian Broadcasting Authority,[117] for example, McHugh, Gummow, Kirby and Hayne JJ said:

" The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute ... The meaning of the provision must be determined 'by reference to the language of the instrument as a whole' ... In Commissioner for Railways (NSW) v Agalianos ..., Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed ...

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals ..."[118]

1. The language chosen by Parliament and the purpose and policy it sets out to achieve are both to be considered in the task of interpreting a statute. The words cannot be ignored in favour of the purpose and policy Parliament intended to implement. The purpose and policy cannot be ignored in favour of a literal or grammatical construction of the words Parliament has chosen and particularly so when a literal or grammatical construction leads to an outcome that does not accord with Parliament's purpose or policy.[119]

The purpose and policy is to be drawn from the language used by Parliament and with the assistance of any common law and statutory aids to interpretation. This is apparent from the passage from the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory):[120]

" This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself .... Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text .... The language which has actually been employed in the text of the legislation is the surest guide to legislative intention .... The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision ..., in particular the mischief ... it is seeking to remedy."[121]

1. Sections 13(1) and (2) of the Acts Interpretation Act 1901 (AI Act) provide that all material from and including the first section of an Act to the end of the last section or, if it has a Schedule or Schedules, to the end of the last Schedule the Act as well as the long title, preamble, enacting words and headings appearing before the first section are all part of an Act. Care must be taken to place appropriate weight to headings. Although decided at a time when headings to Parts, Divisions and Subdivisions, but not to sections, were taken to be part of an Act,[122] the approach of the plurality[123] in Concrete Constructions (NSW) Pty Ltd v Nelson[124] (Concrete Constructions) and by Latham CJ, with whom Rich and McTiernan JJ concurred, in Silk Bros Pty Ltd v State Electricity Commission

(Silk Bros)[125] remains appropriate in relation to the part played by headings in an Act. In the latter case, Latham CJ said:

"... The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous,

and may sometimes be of service in determining the scope of a provision (see

In re Commercial Bank of Australasia Ltd ... [(1893) 19 VLR 333 at 375]).

'But where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment' (Bennett v Minister for Public Works (NSW) ... [(1908) [1908] HCA 50; 7 CLR 372 at 383], per Isaacs J). ..."[126]

1. The heading to s 25, states that "Tribunal may review certain decisions" (emphasis added). It is clearly indicating that the section is making provision for the Tribunal to review decisions but the use of the word "certain" to describe those decisions indicates that the decisions are confined by the subsections that follow. Further regard must be had to the particular headings that appear before a particular subsection or group of subsections. The subsection heading to ss 25(1) to (3) specifies one class of

"certain decisions", which the Tribunal may review. Within that class are those decisions, for which an enactment provides that an application may be made to the Tribunal for their review. Reference must be made to an enactment other than the AAT Act to identify those decisions. The heading to s 25(5) specifies another class of "certain decisions": i.e. when there has been a "Failure of a decision-maker to meet deadline". I will return to s 25(5) below[127] but, for the moment, I note that regard must be had to the terms of each of the subsections of s 25 to determine whether Parliament has provided that a particular decision may be reviewed by the Tribunal.

B. The AAT Act and the NDIS Act: are they to be regarded as two enactments in a legislative scheme or two enactments whose provisions must co-exist and operate together in their entirety?

1. The question that I have posed for myself in the heading arises out of a proposition that has been put that a place had to be found for the operation of s 25(5) of the AAT Act when interpreting the provisions of the NDIS Act. Answering it requires a consideration of two issues. The first draws in consideration of whether the AAT Act and the NDIS Act can, together, be regarded as part of a statutory scheme so that they are read and interpreted together and the AAT Act is interpreted consistently with the general principles set out in s 4 of the NDIS Act. The second is clear from the second part of the question I have posed in the heading.

B.1 Are the principles relating to the statutory interpretation of a scheme comprising two or more enactments relevant?

1. At the outset, I respectfully disagree with the majority's view that the AAT Act and the NDIS Act can be regarded as comprising a scheme for the purpose of construing the expressions in either one of them.[128] At [20]-[29], they have referred to the cases of Sweeney v Fitzhardinge,[129] Commissioner of Stamp Duties v Permanent Trustee

Co Ltd,[130] Maroondah City Council v Fletcher[131] and Eaton. I do not have any difficulty with the passages on which the majority relies in so far as they relate to a situation in which, to use the words of the plurality in Maroondah City Council, "... construction of separate but related legislation is simultaneously required, the object is to arrive at a construction of the provisions which assumes that Parliament intended its legislation to operate harmoniously or, in other words, rationally, efficiently and justly together." Where the majority and I part company is in their apparent conclusion that the AAT Act and the NDIS Act should be read as part of a scheme so that the sections of each enactment should be construed harmoniously and justly to achieve the purposes outlined in each and consistently with the general principles set out in s 4 of the NDIS Act and guiding actions under it. 2. I note that, apart from Eaton and Sweeney v Fitzhardinge, each of the cases referred to in the previous paragraph was concerned with separate legislation that either formed a scheme or that were meant to operate together. In both Commissioner of Stamp Duties v Permanent Trustee Co Ltd and Maroondah City Council v Fletcher, the court found Parliament had intended that the legislation operate harmoniously together. They did so after examining the terms of the legislation and the scheme of regulation in each. 3. In Sweeney v Fitzhardinge, the High Court was concerned with a slightly different situation. The Liquor Act 1898 (NSW) had no application to clubs. In 1905, the Liquor Amendment Act 1905 (NSW) was passed to, among other purposes, amend the law relating to the supply of intoxicating liquor, to regulate the supply of liquor to clubs and to amend the Liquor Act 1898. If the later enactment were construed as part of the earlier enactment, an appeal would lie from a decision of the Licensing Court, which had been established under the earlier enactment, regarding the registration of a club under provisions introduced by the later enactment. The issue was resolved by whether the amending Act should be construed with the amended Act. The principle was that they should be so construed unless a contrary intention appeared in the amending Act. No contrary intention appeared in that case. 4. The case of Eaton is not concerned with a situation in which it was said that two separate enactments form part of a legislative scheme. I return to this at [283]-[284] below but note for the moment that it was concerned with a common law principle of statutory interpretation. As Gageler J put it in his dissenting judgment in that case:

"... Stated at its highest level of generality, it is that statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict. The principle of harmonious construction applies to the construction of provisions within different statutes of the same legislature to create 'a very strong presumption that the ... legislation did not intend to contradict itself,

but intended that both ... should operate' ..."[132]

1. His Honour observed that the principle applies also to the construction of multiple provisions of a single statute so that, where conflict appears from the language, the conflict must be alleviated, so far as possible, by adjusting the meaning that "... will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions ...".[133] He went on to observe:

" Application of the principle of harmonious construction to the construction of provisions within different statutes can be difficult where a legislature does not 'state an intention either that the two statutory regimes should both apply ... or that [one] regime should apply to the exclusion of the [other]' ....

Application of the principle of harmonious construction to the construction of provisions within different statutes is much more straightforward where it is the stated intention of the legislature that the two statutory regimes should both apply. The two statutory regimes might be 'so plainly repugnant' that 'effect cannot be given to both at the same time' ... The result produced by giving effect to the statement of intention might be so improbable or inconvenient in light of a policy inhering in one or other of the statutory regimes as to require the statement of intention to be read as implicitly qualified in a way that conforms to that policy ... But if that is not so, the stated intention of the legislature is the beginning and end of the matter ... Both statutory regimes apply."[134]

1. What these cases illustrate is that regard must be had to what it is that Parliament set out to achieve. In doing so, it may be relevant to consider whether the bills for the relevant legislation were introduced together, travelled through the Parliamentary processes together and can be seen as components of an overall response to an issue then before Parliament.[135] It may be, as in Sweeney v Fitzhardinge, that timing is not relevant at all. What is relevant is whether Parliament is addressing the same issue, albeit a different aspect of the same issue.
2. An example of this is found in the High Court's consideration in Certain Lloyd's Underwriters v Cross.[136] The issue was whether orders for costs made in favour of certain respondents in the District Court on New South Wales were subject to the limitation imposed by s 198D of Division 5B of Part 11 of the Legal Profession Act 1987 (NSW)

(LP Act). Section 198D had fixed the maximum costs for legal services provided to a party in connection with "a claim for personal injury damages" if the amount recovered on the claim did not exceed $100,000. A lawyer and client might contract out of that limitation but a court or tribunal could not order the payment by another party of an amount exceeding that maximum when that maximum had been fixed by Division 5B. Section 198C(1) defined the expression "personal injury damages" to have the same meaning as it was given in the Civil Liability Act 2002 (NSW) (CL Act). Division 5B of Part 11 had been introduced into the LP Act as amendments connected with, and consequential upon,

the enactment of the Liability Act. 3. In their joint judgment, French CJ and Hayne J in Certain Lloyd's Underwriters v Cross noted the differences between the two Acts. Whereas the LP Act referred to a "claim for personal injury damages", the Liability Act was concerned with an "award of personal injury damages". There was no textual reason to limit the expression "persona injury damages" in the LP Act to those claims for personal injury damages the award of which was regulated by the Liability Act. Considerations of context did not support a conclusion that the two Acts were to be read as having coextensive fields of operation.[137] As Kiefel J expressed her conclusion in reaching the same conclusion:

" When it is said that statutes form part of a legislative scheme such that they should be read together, the statutes usually deal with the same subject matter. Here the LP Act and the Liability Act each had its own sphere of operation by reference to different subject matter: the Liability Act was concerned with the calculation of awards of damages; the LP Act's concern was with legal costs associated with all claims for personal injury damages where the sum recovered was no more than $100,000."1[138]

1. Turning to s 25(5) of the AAT Act and s 100(6) of the NDIS Act, I have come to the conclusion that they do not form part of a scheme in the sense that it is proper to look at both of them for the purposes of construing the expression in the other. The AAT Act establishes a tribunal to review decisions made by Ministers and officials under powers conferred by various enactments. Those enactments now number more than 400 and each of those enactments provides whether an application may be made to the Tribunal for review of the decisions, or to specific decisions, made under them. Those enactments relate to a wide range of regulatory schemes from social security to aviation and taxation to freedom of information. The AAT Act makes broad provision for the scheme of review but each of the enactments may vary the way in which that scheme applies to review of decisions made under it. Section 25(6) of the AAT Act expressly recognises this but, as

I have said above, Parliament may vary the operation of the AAT Act in the context of the review of particular decisions. 2. To find that the AAT Act and the NDIS Act must be read together as they form a scheme would mean that the AAT Act and each of the other 400 odd pieces of legislation would have to be read together to form 400 odd schemes of legislation. At one level this is so but it is not a scheme in the sense that the provisions of the AAT Act and, in this case,

the NDIS Act, can be construed by reference to each other. To reach that conclusion would require acceptance of the view that the terms of the AAT Act cannot be construed without reference to the enactment making provision for review of a particular decision. That would mean that the framework established by the AAT Act is a fluid affair. 3. What seems to me to be the better construction is that the AAT Act establishes a framework of review that can be ascertained by reference to its own terms. How it applies when reviewing a particular decision under an enactment depends on whether that enactment has varied the application of the terms of the AAT Act and so the application or form of any part of the framework it provides. Different policy considerations underpinning different decision- making regimes will be reflected in different enactments providing for the making of applications for review of decisions made under them. That this is so is apparent from the framework of the AAT Act itself, the provision it makes in s 25(6) for variation of its terms and the recognition by the courts that enactments making provision for review may vary the application of the terms of the AAT Act in so far as they apply to review of decisions made under them.[139] 4. In my view, therefore, there is no room to refer to s 100(6) of the NDIS Act when interpreting s 25(5) of the AAT Act. The first step is to interpret s 25(5) of the AAT Act as

I have done above. Having done that, the next step is to decide whether what is prescribed in s 100(6) of the NDIS Act is a prescribed period for the purposes of s 25(5) of the AAT Act. Only if it does can s 25(5) of the AAT Act have any application. There is no requirement that every provision of the AAT Act must apply in the context of the review of every decision.

B.2 Must all of the provisions of the AAT Act co-exist or operate when reviewing a decision made under the NDIS Act?

1. This is a question I posed to the parties at the hearing. In enacting the NDIS Act, can, and did, Parliament exclude or modify the operation of s 25(5) of the AAT Act? On reflection, I have not chosen the words "repeal" or "implied repeal" in framing the question.

The reason for my making that choice lies in the fact that the AAT Act establishes a general framework for the review of decisions made under a myriad of enactments.

It would be inconsistent with that general framework that one of those enactments could repeal, or impliedly repeal, one part of that framework. What would be consistent with it would be for one of those enactments to vary or exclude the way in which that general framework operates in relation to applications made for review of decisions made under that particular enactment. That this is what Parliament intended is apparent from s 25(6) of the AAT Act when it provides that an enactment may add to, exclude or modify the "operation" of certain provisions. The Tribunal and the Federal Court have found that Parliament is not limited to those named provisions and may exclude others.[140] 2. It may also be the case that not every provision of the AAT Act will be relevant when reviewing a decision under an enactment providing for applications to be made to the Tribunal. Section 25(5) of the AAT Act is itself an example. If an application were made under s 224 of the Patents Act for review of a decision identified in that provision, there would be no room for the operation of s 25(5). That would follow from the fact that none of the decisions of which review may be sought must be made by the Commissioner, Designated Manager or Director within a period of time whether described by reference to days, as soon as reasonably practicable or within some other way.

C. What is meant by a "period prescribed by that enactment" within the meaning of s 25(5) of the AAT Act?

1. To my mind, the question I have posed in the heading is a pivotal question. Section 25(5) and the meaning of the expression a "period prescribed by an enactment" is the starting point. The first question is not whether the enactment has required or permitted an act or thing to be done in a certain time or by reference to certain criteria that could be said to be a "period prescribed by that enactment". Instead, the first question must be addressed to what is meant by the expression "period prescribed by that enactment" when it is used in s 25(5) of the AAT Act. Given the general application of s 25(5) of the AAT Act, the particular purpose and objects of the particular enactment - in this case the NDIS Act - are of no relevance. The terms of the particular enactment and their proper construction become very relevant once the meaning of s 25(5) of the AAT Act has been determined. The question then becomes whether any period prescribed by the particular enactment is a "period prescribed" as that term is used in s 25(5) of the AAT Act.
2. The ordinary meanings of the word "period" in this context include:

"... 1 a portion of time. 2 a phase or stage, eg in history, or in a person's life and development etc. 3 an interval of time at the end of which events recur in the same interval. ... 5 any of the sessions of equal length into which the school day is divided, and to which particular subjects or activities are assigned. ..."[141]

"... 1. an indefinite portion of time, or of history, life, etc., characterised by certain features or conditions. 2. Any specified division or portion of time. ..."[142]

It is apparent from these ordinary meanings that the word "period" may refer to a length or portion of time that must be ascertained by reference to other factors or to a length or portion of time that is pre-determined.

1. When it is used in s 25(5) of the AAT Act is the word "period" used so that it carries both its meanings or is it intended to have only one of them? Is a portion of time determined by reference to outside factors, some of which will not be known to an applicant,

a "period prescribed by an enactment" for the purposes of s 25(5) of the AAT Act or does it require a length or portion of time that is specified and that has been laid down, and so prescribed, by the enactment making provision for the making of applications to the Tribunal? The answer to that question is not clear on the face of s 25(5) but I think that it becomes clear when regard is had to the heading to s 25(5) and to s 29(3). The heading to s 25(5), which is part of the AAT Act, is "Failure of decision-maker to meet deadline". The ordinary meanings of the word "deadline" are "... 1. a line or limit that must not be passed. 2. the latest time for finishing something."[143] Those meanings suggest that a clearly ascertainable limit or latest time for making a decision can be identified. 2. Section 29 sets out the manner of applying for review. Section 29(1) specifies the criteria that an application to the Tribunal must satisfy. Among them is s 29(1)(d), which provides:

"if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) or (5A) - shall be lodged with the Tribunal within the prescribed time."[144]

1. Sections 29(2), (3) and (4) specify the prescribed times. Of these, s 29(4), which must be read with ss 29(5) and (6), provides for the situation in which no prescribed time has been made for making applications. It is of no relevance in these proceedings in which the prescribed time is determined by reference to s 29(2).
2. Section 29(2) is concerned with the general situation when a decision has been made. Subject to s 29(3), the general situation is that the prescribed time for the purposes of s 29(1)(d) is the period commencing on the day on which the decision is made and ending on the 28th day after one or other of the following two events has occurred. The first event occurs if the decision sets out the findings on material questions of fact and the reasons for decision. The period ends on the 28th day after the day on which a document setting out the terms of the decision is given to the person.[145] The second event occurs if the decision does not set out those findings and reasons. Section 29(2)(b) then stipulates three circumstances in which to calculate the 28th day. One is the day on which a statement of setting out findings and reasons is given to the applicant otherwise than in response to a request under s 28(1) of the AAT Act.[146] The second circumstance arises if the applicant has requested a statement of reasons under s 28(1) but has been notified in accordance with s 28(3A) that a statement would not be given.1[147]In any other case where the decision does not set out the findings and reasons for its being made, the prescribed time for the purposes of s 29(1)(d) is the 28th day after the day on which a document setting out the terms of the decision is given to the applicant.1[148]
3. As I have said, s 29(2) is expressed to be subject to s 29(3), which provides:

"Prescribed time for making applications - decision-maker's failure to meet deadline

In the case of a decision that is deemed to be made by reason of the operation of subsection 25(5) or (5A), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is deemed to be made and ending:

(f) in a case to which paragraph (b) does not apply - on the twenty-eighth day after that day; or

(g) in the case where the person whose failure to do an act or thing within a particular period is deemed by subsection 25(5) or (5A) to constitute the making of the decision makes or purports to make, after the expiration of that period, a decision either to do or not to do that act or thing, being a decision the terms of which were recorded in writing and set out in a document that was given to the applicant - on the twenty-eighth day after:

• (i) if the decision sets out the findings on material questions of fact and the reasons for decision - the day on which a document setting out the terms of the decision is given to the applicant; or
• (ii) if the decision does not set out those findings and reasons - the day that would be ascertained under paragraph (2)(b) if subsection (2) were applicable in relation to the decision."

1. It is important to have regard to the opening words. Section 29(3) has effect when a decision has been deemed to have been made by reason of the operation of ss 25(5) or (5A). A decision's having been deemed to have been made is a condition precedent to determining the prescribed time for lodgement of an application by reference to ss 29(3)(a) or (3)(b). Section 29(3)(a) is also subject to a further condition precedent

i.e. that the decision-maker has not made, or purported to make, a decision even though a decision has already been deemed to have been made. Section 29(3)(a) provides that, for the purposes of s 29(1)(d), the prescribed time within which an application may be made to the Tribunal commences on the day on which the decision is deemed to have been made and ends on the 28th day after that day. 2. Section 29(3)(a) clearly contemplates that a person entitled to make an application to the Tribunal is able to determine the day on which the decision is deemed to have been made by operation of ss 25(5) or (5A) so that he or she can determine the 28th day after that. That is the clear window within which a person may apply for review of a deemed decision. It assumes that a person is able to identify the day on which the decision is deemed to have been made. A person is not able to determine when a period described "as soon as reasonably practicable" expires for he or she can never have knowledge of all the factors that are relevant in determining the period. As I have explained above, a period that is described as being "as soon as reasonably practicable" is not determined simply by the passage of time between the time a matter is referred to a decision-maker and the decision is made. 3. Section 29(1)(d), when read with s 29(3)(a) cannot mean that an applicant can comply with it on the basis that the Tribunal will ultimately determine when the decision was deemed to have been made and hope that he or she lodged the application within 28 days from that date and not at a time before the decision was deemed to have been made.[149] For the reasons I have given, that an applicant could never determine whether he or she had a right to apply for review for he or she would never be in possession of all the relevant criteria that would, applying the principles in Snedden, need to be taken into account.[150] 4. Turning to s 29(3)(b), I note that it begins by identifying the criteria of the particular decision or the circumstances in which that decision has been made, to which it relates. The first criterion must be that it is a decision that meets the condition precedent set out in the opening words of s 25(3) i.e. a decision has been deemed to have been made by reason of the operation of subsection 25(5) or (5A). The opening words of s 29(3)(b) identify the person whose failure to do an act within a particular period was deemed by ss 25(5) or (5A) to constitute the making of the decision. That is the second criterion.

The third criterion is that the person identified by the second criterion makes, or purports to make, "after the expiration of that period" a decision. The reference to "that period" is a reference to the "particular period" referred to in the opening words of s 29(3)(b) as the period during which the person failed to do an act or think and that failure was deemed by ss 25(5) or (5A) to constitute the making of a decision. Reading that reference with the opening words to s 29(3), it is clear that the reference to a "particular period" is a reference back to the period described in s 25(5) as the "period prescribed by that enactment ... as the period within which the person is required or permitted to do that act or thing ...". 5. In summary, I do not consider that the wording of s 29(3)(b) has any relevance in determining when a decision has been deemed to have been made. It assumes a deemed decision and provides only for the situation in which a decision-maker goes on to make, or purport to make, a decision despite there being a deemed decision. Section 29(3)(a) does, however, remain relevant to determining what is meant by the "period prescribed by that enactment" when those words are used in s 25(5) of the AAT Act. Section 29(3)(a) assumes that an applicant can determine the date from which the 28 day period for lodgement of an application is calculated. That is one of the criteria, set out in s 29(1)(d), with which an applicant must require when lodging an application for review. Unless the applicant is able to ascertain the 28th day after the decision is deemed to have been made, he or she will not be able to meet the criterion in s 29(1)(d) to lodge the application for review within the prescribed time. 6. I have also looked to Explanatory Memoranda. Section 29(3) continues to be in the form in which it took when s 29 was repealed and inserted by the Administrative Appeals Tribunal Amendment Act 1977.[151] As I have set out below, s 25(5) was amended by the Statute Law (Miscellaneous Amendments) Act (No. 1) Act 1982[152] but not in a way that impinges on the central application of the provision i.e. that it applies when there has been a failure by a person to do an act or thing "within the period prescribed by" the enactment making provision for the making of applications to the Tribunal. I have been unable to locate an Explanatory Memorandum to the Administrative Appeals Tribunal Amendment Bill 1977 and the Second Reading Speeches do not touch on it at all.[153] 7. As an illustration of a provision that I have found to have prescribed a period of the sort referred to in s 25(5) of the AAT Act,[154] I refer to s 269L(4) of the Customs Act 1901 (Customs Act), which provided:

"As soon as practicable after, but not more than 7 days after, a proposed amendment of a TCO application was notified to the Comptroller-General of Customs, the Comptroller-General of Customs must consider the proposed amendment and:

(h) if the Comptroller-General is satisfied that the proposed amendment does not contravene subsection (3) - the Comptroller-General of Customs must inform the applicant that he or she is so satisfied and that subsection (4B) applies accordingly; or

(i) if the Comptroller-General of Customs is not so satisfied - the Comptroller- General must inform the applicant that he or she is not so satisfied and of the reasons for not being so satisfied."

Section 269L(4) clearly contemplates that the Comptroller-General of Customs must come to a decision no later than seven days after being notified of the proposed amendment. Relying on s 25(5) of the AAT Act, the applicant is able to calculate with certainty the day on which the Comptroller-General is deemed to have made a decision for the purposes of s 269L(4) and ultimately s 224 of the Customs Act. The applicant is able to make that calculation relying only on information available to him or her[155] and without any reference to information that is available to the Comptroller-General of Customs.

1. For these reasons, I do not think that s 100(6) of the NDIS Act prescribes a "period" within which the reviewer must review a decision. It is not a provision of the sort, to which s 25(5) of the AAT Act applies as what amounts to a period that is "as soon as reasonably practicable" does not provide for a period that can be identified by a person seeking to make an application. An applicant will certainly be aware of the time that has passed and may well be aware of the complexity of the issues and perhaps the other factors of the type that I have identified at [193]-[199] above and to which regard would need to be had before a decision could be made that the reviewer had not made a decision under s 100(6) "as soon as reasonably practicable". What the applicant would not have is evidence or information about those other factors.
2. From a practical point of view, the criticism may be made of my conclusion that a participant in the NDIS who has not received a decision under s 100(6) will not have any way of coming to the Tribunal. He or she will have to go to the Federal Court seeking a writ of mandamus against the NDIA's reviewer under s 39B of the Judiciary Act 1901 requiring him or her to perform the statutory duty imposed by s 100(6). I acknowledge that this would be an imposition on the participant and is not one that he or she should be asked to take. At the same time, it is not a consideration that can have a pivotal role in the interpretation of the relevant provisions. Many would be applicants to the Tribunal potentially find themselves in the same position for the majority of the enactments under which the Tribunal has jurisdiction do not impose time limits within which decisions must be made. Section 25(5) of the AAT Act does not deem a decision to have been made in those circumstances. The fact is that most people aggrieved by an administrative decision do not need to resort to seeking a writ of mandamus for the relevant decision-maker will proceed with some haste to make the decision as the reviewer has done in this case. The reviewer is free to do that, because on my view of s 25(5) of the AAT Act and s 100(6) of the NDIS Act, the power to review has not been exercised and the reviewer is free to do so at any time. When the reviewer does so and makes a decision,

an application may be made to the Tribunal as provided by s 103 by the NDIS Act. 3. That is an end of the matter in my view but, should I be incorrect in my view, I will go on to consider other issues including the effect of s 25(5) of the AAT Act in light of s 100(6) on the assumption that s 100(6) does prescribe a period of the sort referred to in s 25(5).

WHAT IF "AS SOON AS REASONABLY PRACTICABLE" WERE A "PERIOD PRESCRIBED" BY THE NDIS ACT WITHIN THE MEANING OF SECTION 25(5)?

1. Contrary to my view of the law, I have assumed for this section of my reasons that failure of a reviewer to make a decision under s 100(6) of the NDIS Act "as soon as reasonably practicable" is a failure to do an act or thing within the period prescribed by that legislation. That would bring it within the purview of s 25(5) but for what purpose?
2. The opening words of s 25(5) and the AAT Act are: "For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions ..." (emphasis added). Section 25(5) has not been enacted for the purposes of making applications to the Tribunal for review of decisions. The distinction is important. Regard must be had to the particular provisions of the enactment that has provided for applications to be made to the Tribunal and that has done so in accordance with ss 25(1) and (2) of the AAT Act. The deeming provisions in s 25(5) are for the purposes of that enactment. It may be that the decision that is deemed to have been made by virtue of s 25(5) of the AAT Act is a decision for which the enactment under consideration has made provision for applications to be made to the Tribunal for its review but, equally, it may not.

Regard must be had to the particular words of the provision with which a decision- maker has failed to comply

1. The case of Comcare v Sassella[156] (Sassella) illustrates the importance of paying regard to the opening words of s 25(5) and of making the distinction that I have drawn. The enactment under consideration in Sassella was the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and the claim had been made by Ms Brophy,

an employee of Qantas. Section 37(1) of the SRC Act provided:

"A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program." (emphasis added)

1. If a rehabilitation authority, of which Qantas was one, made a determination under s 37(1), it might provide the program itself or make arrangements for an approved provider to provide a program for the employee.[157] Qantas refused to make a determination under

s 37(1). On 29 November 2000, Ms Brophy requested Comcare to review Qantas's refusal to extend a rehabilitation program to her. Comcare's power and duty to review a determination made by a rehabilitation authority was set out in s 38(4) of the SRC Act:

"On receipt of a request, Comcare shall review the determination and may make a decision affirming or revoking the determination or varying the determination in such manner as Comcare thinks fit."

Comcare refused to do so on 1 February 2001 on the basis that Qantas had not made a determination under s 37(1). Qantas wrote to Ms Brophy on 20 March 2001 asking her to point to the provision in the SRC Act that made it mandatory for it to make a determination under s 37(1). Ms Brophy applied to the Tribunal for review of Comcare's decision to refuse to review Qantas's decision to refuse to make a determination was lodged on 15 March 2001.

1. In his reasons for judgment, Finn J noted concessions made by Comcare. Among them, was a concession that a decision by Qantas refusing to make a determination that Ms Brophy should undertake a rehabilitation program is itself a decision that could be reviewed under s 38(4). By letter dated 20 March 2001, Qantas had communicated a decision to refuse to make a determination under s 37(1).
2. The judgment turned on the fact that Ms Brophy had lodged her application for review in the Tribunal before Qantas had made its decision on 20 March 2001. Qantas's decision had to predate the lodgement of her application as it supported any reviewable decision that Comcare would make when reviewing Qantas's decision under s 38(4). The decision alleged to have been made by Comcare on 1 February 2001 could not be that decision as it pre-dated the decision of Qantas that it was said to have reviewed. Therefore, Comcare had not made a reviewable decision and the Tribunal had no jurisdiction as its jurisdiction depended on there being that reviewable decision.
3. Finn J then contemplated the position had s 37(1) been the subject of a deeming provision of the sort in s 25(5) of the AAT Act or s 10 of the Ombudsman Act 1976:

" The SRC Act does not prescribe a time within which a s 37(1) decision is to be made such as might attract a deeming provision equating a failure to decide with a negative determination: cf Administrative Appeals Tribunal Act 1975, s 25(5); see also Ombudsman Act 1976 (Cth), s 10. It has not been suggested in submissions that s 37(1) is subject to an implied limitation that any determination made by the rehabilitation authority is to be made within 'a reasonable time' of its receipt of a rehabilitation assessment or of an employee request for such a program consequent upon an assessment: cf Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 111 ALR 1 at 6. And the application has not been framed so as to attract the jurisdiction of this Court under the Administrative Decisions Judicial Review Act 1977 (Cth) s 7 to review a failure to make a decision where there is a duty to make that decision.

In the end what one is left with is not some antecedent decision (either made or deemed to have been made in consequence of some statutory prescription) which could have given jurisdictional life, first, to Comcare's s 38(4) review and then to the s 64 application to the Tribunal. Rather, the decision relied upon by the Tribunal can, on the evidence to which it referred, only be ascribed to a period later than both Ms Brophy's request to Comcare and the application to the Tribunal. The Tribunal lacked jurisdiction to review that decision. Comcare had not made any reviewable decision in relation to it: Lees v Comcare [1999] FCA 753. Comcare's 1 February 2001 decision on Ms Brophy's request for a s 38 review could not, given the scheme of the SRC Act, be said to have effectively affirmed Qantas' decision."[158]

1. In this passage of his judgment, Finn J is clearly considering a hypothetical situation. He acknowledges that s 37(1) of the SRC Act does not prescribe a time within which a decision is to be made. Had it done so, he says, it might have attracted a deeming provision such as s 25(5) equating a failure to decide with a "negative determination". There can be no argument with his Honour on this provided a further assumption is made. That assumption is that, contrary to the drafting of s 37, a rehabilitation authority is obliged to make a determination that an employee would either undertake, or not undertake,

a rehabilitation program. He has assumed that the rehabilitation power must be exercised but the use of the word "may" in s 37(1) means that the rehabilitation authority could do so at its discretion. It "may make a determination that an employee ... should undertake a rehabilitation program", or it may not. This interpretation is consistent with s 33(2A) of the AI Act, which applies to Acts assented to after the commencement of that subsection. The SRC Act was assented to on 24 June 1988 and s 33(2A) of the AI Act commenced on 18 December 1987.[159] 2. Had s 37(1) prescribed a time of the sort that attracted s 25(5) and had it required the rehabilitation authority to make a determination either that the employee should, or should not, undertake a rehabilitation program, it is inescapable that the failure to decide would have been a "negative determination". Section 25(5) that would have deemed the rehabilitation authority to have made a determination not to do the act or thing i.e. not to undertake a rehabilitation program. That can be described as a "negative determination" i.e. a determination that the employee should not undertake the rehabilitation program. His Honour's reasoning is given in the context of a specific example. I respectfully suggest that it cannot be applied as a general principle without regard to the particular legislative provisions under consideration.

What decision would the reviewer be deemed to have made under section 100(6)?

1. I have addressed the parties' submissions from various points of view in the following paragraphs but I want to start with the most straightforward. It is the submission that a reviewer's failure to make a decision under s 100(6) as soon as is reasonably practicable, must lead to the reviewer's being deemed by s 25(5) to have made a decision affirming the decision under review. I want to address that submission by first separating s 25(5) into its essential elements and matching them with the relevant part of ss 103 and 100(6) in the NDIS Act.

"For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions ..."

"Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6)."[160]

Failure to do an act or thing/what reviewer must do

(a) confirming the reviewable decision; or

(b) varying the reviewable decision;

(c) (c) setting aside the reviewable decision and substituting a new decision."[161]

"... within the period prescribed by that enactment ..., as the period within which that person is required or permitted to do that act or thing ..."

"... as soon as reasonably practicable ..."[162]

"... deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing."

Deemed to constitute the making of a decision at the end of the period determined to be as soon as reasonably practicable not to:

(a) confirming the reviewable decision; or

(b) varying the reviewable decision; or

setting aside the reviewable decision and substituting a new decision."[163] (emphasis added)

1. On that analysis, the operation of s 25(5), when read with s 100(6) would not lead to a decision in respect of which applications may be made to the Tribunal under s 103 of the NDIS Act. Applications may only be made for review of a decision made by a reviewer under s 100(6) and not for review of a decision not to make a decision under s 100(6).
2. I do not consider that a decision not to make a decision under s 100(6) to take one or other of three actions specified in the provision can be regarded as a decision to confirm the reviewable decision. If I understand them correctly, the majority rely on the judgment of Finn J in Sassella and particularly on his reference to a deeming provision's equating a failure to decide with a negative determination. When seen in context, Finn J's reference to equating Qantas's failure to decide with a "negative determination" is a reference given in a particular context. That context was s 37(1) of the SRC Act, which provided that a rehabilitation authority might make a determination that an employee, who had suffered an injury resulting in incapacity or impairment, should undertake a rehabilitation program.[164] As Qantas was Ms Brophy's employer, it was her rehabilitation authority.[165] Under s 37(1) of the SRC Act, a rehabilitation authority had power to make a rehabilitation program. If Qantas had been required to make a determination under s 37(1) within a prescribed time and if it had not done so, then the effect of s 25(5) of the AAT Act would have been to deem it to have made a decision not to make a determination. That would follow from the fact that the act or thing that Qantas had to do under s 37(1) within the prescribed period would have been to make a decision to make a determination or not make a determination. That deemed decision would have been the decision that Comcare could have reviewed under s 38(4) and would potentially have led to a reviewable decision of which Ms Brophy could have applied to the Tribunal for review.
3. Justice Finn does not address what the situation would have been had the SRC Act imposed a time period within which Comcare had to make a decision under s 38(4). He had no need to as Qantas had not made a decision that Comcare could have reviewed. Therefore, his observation that a failure to make a decision under a provision such as s 37(1) of the SRC Act is a "negative determination" was made without any reference to the task that would have faced Comcare under s 38(4) i.e. first to "... review the determination... " and then to "... make a decision affirming or revoking the determination or varying the determination in such manner as Comcare thinks fit." His observation has no relevance because, unlike s 37(1) which he considered on the basis that it required a determination to be made (regardless of content for this purpose) or not made, s 38(4) requires Comcare first to carry out a review and then choose one or other of three avenues of action. The effect of the deeming provision of s 25(5) of the AAT Act in the context of s 38(4) of the SRC Act would be to deem Comcare to have made a decision not to carry out the review that, had it done so, would have led it to making a decision to affirm, revoke or vary the determination.
4. Returning to s 25(5) of the AAT Act in the context of s 100(6) of the NDIS Act, it is important to identify what is the "act or thing" that must be done within the period prescribed by that provision of the NDIS Act. Section 100(6) must also be seen in the context of s 100(5). When, in this case, the CEO received a request for review of the reviewable decision, the CEO must cause the reviewable decision to be reviewed by the reviewer. Section 100(6) requires the reviewer to make a decision confirming or varying the reviewable decision or setting it aside and substituting another "as soon as reasonably practicable". It is implicit that the reviewer must review the reviewable decision before coming to one or other of the three decisions set out in s 100(6). When what is regarded as a period that is "as soon as reasonably practicable" has passed, the act or thing that the reviewer had to do was to make a decision confirming or varying the reviewable decision or setting it aside and substituting another. If s 25(5) of the AAT Act has application, the reviewer is deemed not to do the act or thing that he or she is required to do "as soon as reasonably practicable" i.e. make a decision confirming or varying the reviewable decision or setting it aside and substituting another.
5. The outcome is that there is no decision that has been made under s 100(6). The fact that the status quo has been maintained in that the reviewable decision remains on foot does not mean that the reviewable decision can be regarded as having been confirmed by the reviewer. The status quo has been maintained to the extent that the reviewable decision remains unreviewed under s 100(6). There is no basis on which an application may be made to the Tribunal under s 103 of the NDIS Act.

If the majority is correct that any deemed decision is to be characterised as a decision to confirm the decision, what are the practical implications?

1. In this section of my reasons, I have considered the issues on the basis that the majority view that the reviewable decision is deemed to have been confirmed when the reviewer did not make a decision under s 100(6) as soon as reasonably practicable.

A. Tribunal obliged to consider whether or not the reviewer has failed to make a decision under section 100(6) as soon as reasonably practicable

1. If the majority is correct and the effect of s 25(5) on the NDIA's admitted failure to comply with the obligations under s 100(6) is to deem a decision to confirm the earlier decision, an application could be made to the Tribunal under s 103. On receiving that application, however, the Tribunal could not automatically assume that it has jurisdiction for it would need first to satisfy itself that the reviewer has failed to make a decision under s 100(6) of the NDIS Act as soon as reasonably practicable. Given the matters to which the Tribunal would have to have regard and which I have outlined at [193]-[199] above in discussing the principles in Snedden as applied to s 100(6), it would have to give the parties the opportunity to lead evidence and make submissions whether orally or in writing.
2. If the Tribunal decides that the reviewer has failed to make a decision as soon as reasonably practicable under s 100(6), it will also need to determine when the reviewer failed to do so. The timing is important to determine whether the person seeking review has lodged an application for review before or after the time the decision was deemed to have been made. If the applicant has lodged before any decision is deemed to have been made, the Tribunal will not have jurisdiction. If the Tribunal determines that a decision was deemed to have been made at a later time, the applicant may lodge a further application together with, if necessary, an application for an extension of time within which to lodge that application.[166]

B. May the NDIA make a substantive decision under section 100(6) even though a decision has been deemed to have been made?

1. In view of the fact that the Tribunal would have to make a determination in each case of whether a decision had been made as soon as reasonably practicable under s 100(6), that leaves open the question of whether the NDIA could proceed to make a substantive decision while, and perhaps even after, that determination was being made. This raises questions as to the meaning of the deeming provision in s 25(5) and whether or not it is to be taken to exhaust the NDIA's powers to make a decision.

1. There are various authorities regarding the meaning of the word "deem" and its derivatives. In some, the various meanings that may be ascribed to the word "deem" have been considered. Muller v Dalgety and Co Limited and Rodger[167] is one such case.

Griffith CJ considered ss 9A, 9B, 9C and 9D of the Immigration Restriction Act 1901 which contained various deeming provisions. Section 9A(2), for example, provided that

"every stowaway brought into any port on board a vessel shall be deemed to be a prohibited immigrant for the purposes of this section unless it is proved that he has passed the dictation test or that an officer has given him permission to land without restriction." His Honour said:

" The first question for determination in this appeal is whether sec. 9D is to be read as an interpretation clause, as suggested by the marginal note, or is to be read as extending sub modo the sense which would otherwise be given to that word as used in sec. 9A. It obviously cannot have any application to secs. 9B and 9C.

The word 'deemed' may be used in either sense, but it is more commonly used for the purpose of creating what James, L.J., and Lord Cairns, L.C., called a 'statutory fiction' - see Hill v. East and West India Docks Go., 9 A.C. 448, 456; that is, for the purpose of extending the meaning of some term to a subject-matter which it does not properly designate. When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced.

An instance of the use of the word in the other sense is to be found in the case of R. v. Norfolk City Council, 60 L.J. Q.B. 379, where it was held that in a clause beginning - 'The following . . . shall be deemed to be,' the word imported an exclusive definition and not an extension of meaning. ..."[168]

1. In Hunter Douglas Australia Pty Ltd v Perma Blinds,[169] Windeyer J considered this passage from Muller v Dalgety and Co Limited and Rodger and continued:

"... It is a recognition that the verb 'deem', or derivatives of it, can be used in statutory definitions to extend the denotation of the defined term to things it would not in ordinary parlance denote. This is often a convenient device for reducing the verbiage of an enactment. But that the word can be used in that way and for that purpose does not mean that whenever it is used it has that effect. After all, to deem means simply to judge or reach a conclusion about something. ... The words 'deem' and 'deemed' when used in a statute thus simply state the effect or meaning which some matter or thing has - the way in which it is to be adjudged. This need not import artificiality or fiction. It may be simply the statement of an indisputable conclusion, as if for example one were to say that on attaining the age of twenty-one years a man is deemed to be of full age and no longer an infant. Hundreds of examples of this usage of the word appear in the statute books. ..."[170]

1. It seems to me that the approach taken by Windeyer J is also applicable in the interpretation of s 25(5) of the AAT Act. If the majority's view that the effect of s 25(5) of the AAT Act and s 100(6) of the NDIS Act is to deem the reviewer to have made a decision confirming the decision under review, there are two outcomes. The effect of the deemed decision is "for the purposes of the enactment" being the NDIS Act. It is not for the purposes of making an application to the Tribunal under the NDIS Act. Therefore, the deemed confirmation is taken to be for the purposes of the NDIS Act being the relevant enactment making provision for applications to be made to the Tribunal. That would mean that the NDIA's powers are exhausted under s 100(6) by virtue of the deeming provision.

B.2 If the reviewer were to make a substantive decision under section 100(6) even though a decision has been deemed to have been made beforehand, may an applicant apply for its review?

1. Again, I am assuming in this section of my reasons that the majority is correct and that the effect of s 25(5) of the AAT Act, when read with s 100(6) of the NDIS Act, is that, as they have concluded, the NDIA is deemed to have made a decision under s 100(6) confirming the reviewable decision. Was NNXF entitled to apply for review of the reviewer's later decision made on 9 April 2019 when she had already applied for review of a deemed decision?
2. The starting point for answering a question such as this is always s 25(1) of the AAT Act. An enactment may provide that an application may be made to the Tribunal. Section 103 of the NDIS Act has done that. An application to the Tribunal may be made for review of a decision made under s 100(6). Section 103 does not refer to a decision that is made lawfully or with power under s 100(6). It simply refers to "a decision made by a reviewer under subsection 100(6)." On its face, therefore, a decision that has been made in fact by a reviewer, whether with power or not, under s 100(6) of the NDIS Act is a decision in respect of which an applicant may make an application to the Tribunal.
3. I find support for my conclusion from two sources, which are inter-related. The first is s 29(3)(b) of the AAT Act. It clearly contemplates that an applicant is entitled to apply for review of a decision that a person "makes or purports to make" after the expiration of the period within which the person has failed to do an act or thing and whose failure has led to a decision's being deemed to have been made under s 25(5). For the purposes of s 29(1)(d) of the AAT Act, s 29(3)(b) sets out the prescribed time within which an application may be made to the Tribunal for review of a decision that the person has made or purported to make.
4. The second source of support for my conclusion lies in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[171] (Brian Lawlor), which has been followed in Australia[172] to the extent that it has been said that it was said by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[173]

"... as a 'landmark decision' in the early history of the Administrative Appeals Tribunal .... The Full Court of the Federal Court there construed the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a 'decision' in respect of which an enactment might provide for review by that Tribunal as a reference to nothing more than 'a decision in fact made, regardless of whether or not it is a legally effective decision' .... The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdiction on the Tribunal 'to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task': '[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review' and 'technicality would be introduced at the outset' .... In the context of the Administrative Appeals Tribunal, that construction has not since been doubted."[174]

1. The rationale for this approach was explained by Bowen CJ in Brian Lawlor. It is a practical one, as Bowen CJ explained:

"... It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the [AAT] Act is designed to give a simple remedy in all such cases. ..."[175]

1. In this case, the effect of the reviewer's decision made on 9 April 2019 was to vary the operative decision that had been made by the delegate of the CEO on 28 June 2018. It made no difference that, on the majority's view, the reviewer was deemed by virtue of the operation of s 25(5) of the AAT Act to have been deemed to have confirmed the decision made by the delegate on 28 June 2018. That original decision as varied by the later decision made on 9 April 2019 was now the decision that affected NNXF's entitlements under the NDIS Act. It had been made under s 100(6) of the NDIS Act and NNXF was entitled to apply for its review under s 103.

C. What is the status of the terms of the decision agreed upon by the parties after NNXF's application for review of the decision made on 9 April 2019?

1. Once NNXF lodged her second application for review of the decision made on 9 April 2019, the Tribunal had all of the powers given to it under the AAT Act. Therefore, when the parties lodged their terms of agreement with the Tribunal and asked it to make a decision in accordance with its terms, the Tribunal had power to make a decision under

s 42C of the AAT Act provided it was satisfied that a decision in those terms, or consistent with those terms, would be within its powers. 2. That would leave NNXF's first application for review of the deemed decision on foot but, for the reasons I have given, it would no longer be an operative decision for it would have been subsumed in the later decision made by the reviewer on 9 April 2019. She could either withdraw her application or consent to the Tribunal's dismissing it under s 42B of the AAT Act on the basis that it no longer had any substance.

1. I will now address other issues raised by the submissions either supporting conclusion contrary to that which I have reached or explored during the hearing.

What did the 1982 amendment to section 25(5) of the AAT Act clarify?

1. Ms Higgins submitted that the amendments to the wording of s 25(5) of the AAT Act by s 20 of the Statute Law (Miscellaneous Amendments) Act (No. 1) Act 1982 (SLMA Act 1982) clarified its purpose. Section 20(a) had amended s 25 of the AAT Act, which, had not previously been amended since it was included in the AAT Act as originally enacted. To understand the amendment, it is necessary first to set out s 25(1) and then 25(5) as originally enacted:

"(1) An enactment may provide that applications may be made to the Tribunal -

for review of decisions made in the exercise of powers conferred by that enactment; or

for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

...

(5) For the purposes of this section, a failure by a person to do an act or thing within the period prescribed by an enactment as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing."

1. Clause 26 of the Explanatory Memorandum to the Administrative Appeals Tribunal Bill 1975 (AAT Bill 1975) began with a general explanation to the clause that was, when enacted as Act No. 91 of 1975, to become s 25. The general explanation was:

" The Bill does not specify in its clauses those existing statutory discretions (as identified by the Bland Committee) in which appeals will lie to the Tribunal. Other legislation, usually that which creates the particular statutory powers, will need to provide further that the Tribunal may review decisions made in the review of those powers. The Tribunal would then do so under the provisions of the Bill."[176]

1. Paragraph 70 of the Explanatory Memorandum stated in relation to what was to become s 25(5):

" Sub-clause 26(5) provides that where a person fails to do an act within a prescribed period as provided by statute that failure is to be regarded as a decision not to do that act. This allows a person seeking the decision to place the matter before the Tribunal."

1. At the time, the decisions reviewable by the Tribunal were set out in a Schedule to the AAT Act. I have looked at each of them as in force at the time and have found that, except in one instance, no period was prescribed within which a decision-maker had to make a decision. The only exception is found in the Defence Force Retirement and Death Benefits Act 1973 (DFRDB Act). Item 15 of the Schedule provided that "Applications may be made to the Tribunal for review of a decision made by the Defence Force Retirement and Death Benefits Authority ..." (Authority) in a case in which a request could be made to the Authority itself under s 101 of the DFRDB Act for review. A person was required to choose between the Authority and the Tribunal as the avenue of review. Section 101 has to be read in light of s 100. It provided that a person affected by a decision of the Authority might request it to review its decision. Upon receipt of the request, that Authority was required under s 100(2) to consider its decision and either confirm or vary it in such manner as it thought fit.
2. Section 101 established a subsequent avenue of review. Section 101(1) provided:

(a) upon receipt of a notice informing him of the result of the reconsideration by the Authority of its decision, the person who made the request is not satisfied with the result of the reconsideration; or

(b) within a period of ninety days after making the request, the person who made the request has not received notice of the result of the reconsideration by the Authority of its decision,

he may, by notice in writing given to the Authority within a period of thirty days after receiving the notice or upon expiration of that period of ninety days, as the case may be, request the Authority -

(c) in the case of a decision of the Authority made under section 30 or 34 - to refer the decision to an Invalidity Classification Review Tribunal for review; or

(d) in any other case - to refer the decision to an Administrative Review Tribunal for review."

1. Going back to s 25(5) of the AAT Act as enacted in 1975, the failure of the Authority to reconsider its decision within a period of 90 days (and so within a prescribed period) would be deemed to constitute the making of a decision not to reconsider it. The outcome would not be that the Authority was deemed to have confirmed the decision, which was one of the two choices it was given under s 100(2) had it reconsidered the decision. That is not the language of s 101(1)(d) of the DFRDB Act or of Item 15 of the Schedule to the AAT Act. The decision that is referred to is the decision that the person asked the Authority to review under s 100 and that it did not review.
2. Section 20(a) of the SMLA Act 1982 amended s 25:[177]

"by omitting from sub-section (5) 'For the purposes of this section, a failure by a person to do an act or thing within the period prescribed by an enactment' and substituting 'For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment,' ...".

1. The Explanatory Memorandum to the Statute Law (Miscellaneous Amendments) Act (No.1) Bill 1982 (SMLA Bill) stated:

"Paragraph (a) of this clause makes a drafting change to clarify the intention of sub- section 25(5) of the Principal Act."

1. In light of the amendment and the Explanatory Memorandum, Ms Higgins submitted that:

"The change of wording clarified the purpose of s 25(5). Where the act in question has provision for applications to the Tribunal, if the decision has not been made in the prescribed period, then a decision will be deemed to be made which 'opens the door' on the jurisdiction of the Tribunal."[178]

1. When the amendment is understood against the wording of s 25(1), which has continued throughout without amendment, and the original wording of s 25(5), it can be seen that the reference to an "enactment" in s 25(5) did not link back to an enactment that made provision for review of decisions made in the exercise of powers conferred by that enactment or by another enactment having effect under that enactment. Instead, it referred simply to "an enactment" without any reference to the enactment that provides for an application to be made to the Tribunal. The drafting change effected by s 20(a) of the SLMA Act was directed to clarifying Parliament's intention that the enactment to which reference is made in s 25(5) is an enactment to which reference is made in s 25(1). That is apparent from the nature of the amendment that was made. First, the amendment removed the reference to "For the purposes of this section ...", being s 25, and substituted a reference to "For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions ...". It then ensured that the reference to the period prescribed for doing an act or thing was not simply the period "prescribed by an enactment". Again, it matched the wording of s 25(1) by providing that the period for doing the act or thing is the "period prescribed by that enactment [being the enactment that makes provision for the making of applications to the Tribunal], or by another enactment having effect under that enactment."
2. The amendment made by the SLMA Act went no further than to clarify the enactment to which reference was being made. It certainly did not go so far as to say that a decision is deemed to have been made for the purposes of making an application to the Tribunal. Neither s 25(5) in its amended or unamended form did that. Whether an application may be made to the Tribunal depends on the wording of the relevant enactment providing that applications may be made to the Tribunal. All that s 25(5) does is to deem a person to make a decision not to do an act or thing at the expiration of the prescribed period. The effect of that deeming provision must be determined in the context of the relevant enactment providing for review. In that way, I agree that the amendment made by the SLMA Act did clarify s 25(5).
3. Before leaving this point, I respectfully disagree with the majority in so far as they place any weight on the Explanatory Memorandum to the AAT Bill. As enacted, s 25(5) of the AAT Act was in the same terms as it had appeared in cl 26(5) of the AAT Bill when it was introduced. I have explained how it worked in the context of the Tribunal's power to review decisions under the DFRDB Act as set out in the Schedule to the AAT Act. It required regard to be had to the terms of s 25(5) and to those of the DFRDB Act. None of the other decisions identified in the Schedule to the AAT Act had to be made within prescribed time limits. Section 25(5) had no part to play in them. As time went by and further decisions became reviewable by the Tribunal, however, consideration had to be given to the terms of the enactment making provision for applications to be made to the Tribunal when read with s 25(5). In some instances s 25(5) had a role to play and, in others, it did not.
4. More importantly in the context of this case, s 25(5) has been the subject of amendment and it is an amendment that substitutes for the words "For the purposes of this section" as appearing in cl 26(5) as introduced and in s 25(5) as enacted, the words "For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions". That is a significant difference. Although addressing the relevance of an Explanatory Memorandum when amendments have been made to a Bill by the Parliament in the course of its passage, I think that the words of Kirby J in Avel Pty Ltd v Attorney-General (NSW)[179] are apt when considering anExplanatory Memorandum written about a Bill that has led to an Act that has later been amended. His Honour said:

"It is important to compare the Bill to which the Parliamentary remarks are addressed with the Bill as finally enacted. The remarks may be addressed to quite different, and even contrary, language. The Bill may have been substantially amended after the second-reading speech."[180]

B. Is it relevant to consider that a later enactment may impliedly repeal another?

1. For the reasons I gave above, I think it better to think in terms of one enactment varying or excluding terms, or the operation of the AAT Act in certain respects when an application is made for decisions made under that enactment. I will, however, examine the issue from the viewpoint of implied repeal because it was a matter explored at the hearing.

1. I will begin with the general relevant principles of statutory interpretation that apply when two pieces of legislation may appear to be at odds with each other. They are set out in the following passage from the joint judgment of Gummow and Hayne JJ in Ferdinands: "

It has long been recognised ... that even though one statute does not expressly repeal an earlier statute, the later statute must be read as impliedly repealing the earlier, if the two are inconsistent. Inconsistency lies at the root of this principle .... But, as Isaacs J pointed out in 1907 ..., '[i]t is very hard to formulate a rule which will apply to every case of implied repeal'. There are, however, two cardinal considerations. First, as Gaudron J said in Saraswati v The Queen ..., '[t]here must be very strong grounds to support [the] implication, for there is a general presumption that the legislature intended that both provisions should operate'. Secondly, deciding whether there is such inconsistency ('contrariety' ... or 'repugnancy' ...) that the two cannot stand or live together ... (or cannot be 'reconciled' ...) requires the construction of, and close attention to, the particular provisions in question."[181]

1. In their joint judgment in Eaton, Crennan, Kiefel and Bell JJ referred to Ferdinands and drew out the following principle:

"... [A]s their Honours observed, the law presumes that statutes do not contradict one another. The question is not whether one law prevails, but whether that presumption is displaced ... Their Honours said that deciding whether the two statutes could not 'stand or live together' in the relevant respect 'requires the construction of, and close attention to, the particular provisions in question' ..."[182]

1. In Ferdinands, the earlier legislation, the Industrial and Employees Relations Act 1994 (SA), regulated certain employment matters relating to employees generally. The later legislation, the Police Act 1998 (SA), regulated employment matters relating to a specific group of employees being police officers. In Eaton, the situation was reversed. The earlier legislation, the Police Act 1990 (NSW) dealt with the specific situation regulating police officers. The later legislation, the Industrial Relations Act 1996 (NSW) regulated matters for employees generally. Regardless of that, both cases applied the same principles by examining the structure and operation of each.[183]
2. The same approach had been adopted much earlier by the High Court in Cobiac v Liddy,[184] in which the High Court considered s 47(4) of the Road Traffic Act 1961 (SA) (RT Act) and s 4 of the Offenders Probation Act 1913 (SA) (OP Act). The earlier Act provided that the court could, in certain circumstances where it thought the charge proved, exercise a range of powers including dismissing the charge without conviction, convict the person but without penalty and, either with or without conviction, require a person to be of good behaviour and subject to other conditions. The later Act, being the RT Act, was concerned with specific offences and provided:

"Notwithstanding any other Act the minimum amount of any fine and the minimum period of imprisonment or disqualification prescribed by this section shall not be reduced or mitigated in any way except as follows:-

In the case of a first offence, the court, if it is satisfied by evidence given on oath that the offence is trifling, may order disqualification for a period less than three months but not less than fourteen days."

1. Windeyer J considered an argument to the effect that the later RT Act abrogated the provisions of the earlier OP Act. The question whether the magistrate had been correct in exercising his power under the OP Act on the basis they had not been abrogated by the RT Act was, Windeyer J said:

"... to be decided not by any assumptions of what Parliament's purpose was, but by its intention as expressed in the language it has used. ... The proposition that the [OP] Act has been supplanted by the rigorous provisions of the later Act was put to us as an example of the contrast between the general and the special - the provisions of the Road Traffic Act being regarded as the special. So put, the proposition is the obverse of the maxim generalia specialibus non derogant: but whether a later Act has taken away a discretionary power given by an earlier Act must depend upon a comparison of the actual language of each, to see whether they stand together or whether the latter has, pro tanto, abrogated the former. The question is not answered by maxims. ..."[185]

1. I am not concerned with a situation in which a later Act has taken away a discretionary power given by an earlier Act. I am concerned with a situation in which s 25(5) of the AAT Act was enacted long before the NDIS Act was enacted. As in Cobiac v Liddy, the proposition is the obverse of the maxim generalia specialibus non derogant ("General words do not derogate from special"[186]) to become generalibus specialia derogant ("Special things take from generals"[187]). In either case, however, the task is the same. In view of the general presumption that the legislature intended that both provisions should operate, I must look to the words of the legislation to see whether they can be reconciled. That is a task that does not permit regard to be had to:

"... hypothetical or possible conflicts. Legislation being concerned with the highly practical business of lawmaking, the issue in every case of a suggested conflict will be the practical ways in which the legislation operates together and whether, in that context, an irreconcilable conflict of duties really arises. In answering this question it is relevant to consider whether one of the statutes applies to a special class or subject matter whereas the other applies to a more general or wider subject matter...".[188]

1. If there is an irreconcilable conflict, it is not a case of the earlier legislation giving way to the later but to provisions of general application giving way to provisions that are of particular application. This follows from what was said by O'Connor J in Goodwin v Phillips:[189]

"... Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply. ..."[190]

**B.2 Can the specific provisions of the NDIS Act be reconciled with the general operation of section 25(5) of the AAT Act?

1. The NDIS Act sets out a scheme founded on insurance principles with the object of supporting the independence and social and economic participation of people with disability. In doing so, it sets out a number of strategies directed to ensuring that people with disability exercise choice and control in support of their goals and in the planning and delivery of their supports in a system that has a nationally consistent approach having regard to the scheme of supports under the NDIS and otherwise. The NDIS Act also provides for the registration of those who are NDIS providers and a system of quality standards and compliance for the provision of NDIS supports, the appointment of plan nominees and correspondence nominees and the cancellation or suspension of their appointment. The CEO may require a participant in the NDIS, or a prospective participant, who, in the CEO's opinion, is entitled to compensation in respect of a personal injury and who has taken no action, or reasonable action, to claim or obtain that compensation, to take that action.[191] Provision is made for the NDIA to recover compensation fixed after NDIS amounts have been paid or may treat the whole of a compensation payment as not having been fixed if the CEO thinks there are special circumstances.[192]
2. Provision is also made for other bodies, such as the NDIS Quality and Safeguards Commission and NDIS Quality and Safeguards Commissioner (Commissioner) to uphold the rights of, and promote the health and safety of people with disability who are receiving supports or services including those received under the NDIS. The Commissioner also has other responsibilities including those to develop and manage national quality standards and safeguards for them as well as securing compliance with the NDIS Act through effective compliance and enforcement arrangements.[193] Chapter 7 of the NDIS Act is concerned with other matters such as debt recovery.
3. The NDIS Act must be read with the "National Disability Insurance Scheme Rules"

(NDIS rules).[194] Those rules are made by the Minister by legislative instrument. They prescribe matters required or permitted by the NDIS Act to be prescribed or necessary or convenient to be prescribed in order to carry out, or give effect to, that legislation.

The rules may be of general application or limited. They may make different provisions in relation to different kinds of providers, supports, services, circumstances or other matter. When making the rules, the Minister must have regard to the need to ensure the financial sustainability of the NDIS.[195] Section 209(8) sets out the provisions for whose purposes NDIS rules may be made. They include s 33, which relates to matters that must be included in a participant's plan and s 48, which relates to the review of a participant's plan. Neither sets time limits within which the CEO must make a decision. 4. Section 204 relates to time frames for decision-making by the CEO:

"(1) If this Act requires the CEO to make a decision or do a thing within a specified period, the National Disability Insurance Scheme rules may prescribe that the decision is to be made, or the thing done, within a longer period that is not more than double the length of the specified period.

(2) If this Act requires or provides for a person other than the CEO to do a thing within a specified period, the National Disability Insurance Scheme rules may prescribe that the thing is to be done within a longer period."

1. The Minister has not made one set of NDIS rules but a series of them. Apart from the National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013 (NDIS Decision-making time frame rules), none has made any relevant provision in relation to time frames. The NDIS Decision-making time frame rules applied only in the initial roll out of the NDIS. Even if it still applies, it prescribes time frames only in relation to access requests made by prospective participants. That is not the subject of this case but I note that the rules make no provision deeming the CEO to have made any decision one way or another.

B.2.2 Review of decisions made by the CEO or the Commissioner

1. In Attachment A to my reasons, I have summarised the procedures that are followed in order first to become a participant in the NDIS and then having a participant's plan approved. I have done so in order to show the processes that are followed and the obligations imposed on the NDIA. I have not summarised the other aspects of the NDIS Act but note that, like those relating to access to the NDIS and approval of participant's plans, provision is made in Part 6 of Chapter 4 for review of particular decisions made either by the CEO or by the Commissioner. I will take three examples with two drawn from decisions made by the CEO and relating to a person's becoming a participant in the NDIS and two drawn from decisions relating to the NDIS providers and made by the Commissioner.
2. Section 99(1) specifies the decisions that are reviewable decisions under the NDIS Act. They are specified in a table, to which I will return. The decision-maker, be it the CEO or Commissioner, of a reviewable decision must give written notice of that decision to each person directly affected by the reviewable decision.[196] Except in the case of ss 21(3) and 48(2), the notice must advise the person that he or she may request a review of the reviewable decision in accordance with s 100.[197] The decisions made under ss 21(3) and 48(2) are decisions that are deemed to have been made by the CEO. In the case of those deemed decisions, the notice must include a statement that they will be reviewed automatically. In the case of all decisions, the notice must also state that the person may seek further review under s 103. I will return to s 103 at [300] below. For the moment, I note that the statutory requirement to advise a person directly affected by a reviewable decision of two avenues of review is often confusing for those seeking review.

That confusion arises from the fact that the two avenues cannot be taken contemporaneously but must be taken sequentially with the right to apply to the Tribunal under s 103 only arising if a decision has been made under s 100(6). 3. Returning to the first level of review under s 100, a person, who has been given a notice under s 100(1) of the reviewable decision, has three months within which to request, either in writing or orally,[198] the decision-maker to review the decision. It is apparent from a reading of s 100(2) that the three month period would not apply if notice is not given. Section 100(2) reads:

"A person who is directly affected by a reviewable decision may request the decision- maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice."

1. Sections 100(5) and (6) set out the decision-maker's duties on receiving a request for review. They provide:

(a) the decision-maker receives a request for review of reviewable decision; or

(b) the decision-maker is taken to have made a reviewable decision because of subsection 21(3) or 48(2);

the decision-maker must cause the reviewable decision to be reviewed by a person (the reviewer):

(c) to whom the decision-maker's powers and functions under this section are delegated; and

(d) who was not involved in making the reviewable decision.

(6) The reviewer must, as soon as reasonably practicable, make a decision:

• (a) confirming the reviewable decision; or
• (b) varying the reviewable decision; or
• (c) setting aside the reviewable decision and substituting a new decision."

1. Section 100(7) is concerned with the effect that a request for review has on a reviewable decision. It provides:

"A request for review of a reviewable decision, or a requirement to review a reviewable decision that the decision-maker is taken to have made, does not affect the operation of the decision or prevent the taking of action to implement the decision."

1. Section 101 applies if a request is made for review of a reviewable decision and, before a decision on the review is made, the reviewable decision is varied. Section 101 provides that the request for review is taken to be for review of the reviewable decision as varied. An applicant may withdraw an application for review at any time and may do so in writing or orally.[199]

1. Section 103 gives a person a further right of review when it provides:

"Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6)."

Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer."

The Note refers to the requirement under the AAT Act to give notice to a "person whose interests are affected by a decision of the reviewer". That requirement is found in s 27A of the AAT Act where the reference to a "person whose interests are affected by the decision..." reflects the words used in s 27 to describe those who may apply to the Tribunal i.e. "by or on behalf of any person or persons ... whose interests are affected by the decision" in respect of which an enactment has provided that an application may be made to the Tribunal.[200] Those words do not precisely reflect the words used to describe those who may apply to the decision-maker for review of a reviewable decision under s 100(2) i.e. "a person who is directly affected by a reviewable decision" (emphasis added).

C. Are the particular provisions of the NDIS Act providing for review of decisions reconcilable with section 25(5) of the AAT Act?

1. As Windeyer J said in Cobiac v Liddy, the answer to the question must depend upon a comparison of the actual language that has been used in each. Consistently with s 25(1) of the AAT Act, the NDIS Act has provided that an application may be made to the Tribunal for review of the decisions it specifies. Parliament must be taken to have understood the framework of the merits review provided for under the AAT Act when it provided that an application for review could be made to the Tribunal. It has acknowledged that framework when it notes that the decision-maker must give notice of the decision made by the reviewer under s 100(6) to those "whose interests are affected by a decision of the reviewer." In doing so, it can be taken to have acknowledged that those who may make an application to the Tribunal are those identified in s 27 ("by or on behalf of any person or persons ... whose interests are affected by the decision") rather than the potentially narrower group who may seek review of a reviewable decision by the decision-maker be it the CEO or the Commissioner (i.e. "a person who is directly affected by a reviewable decision" (emphasis added).
2. What Parliament has done within the NDIS Act is to enact a scheme of initial decision- making and of review by a reviewer that, in some instances, fixes a time or period, however described, within which a decision must be made, and in others does not. In some instances where it has fixed a time, it has deemed the CEO or Commissioner to have made a decision and, in others, it has not. I will illustrate this by reference to a handful of reviewable decisions identified in the table in s 99(1) of the NDIS Act.

The examples I have chosen, together with a reference to the relevant passage in Attachment A where further detail is provided are:

Provision under which the reviewable decision is made

a decision that a person does not meet the access criteria

paragraph 20(a)[201] subsection 21(3)[202] paragraph 26(2)(c)[203]

a decision to approve the statement of participant supports in a participant's plan

a decision to vary, or refuse to vary, the registration of a registered NDIS provider

a decision to revoke, or not to revoke, the registration of a person as a registered NDIS provider

1. Item 1 sets out three reviewable decisions that may be made by the CEO to the effect that a person does not meet the access criteria to become a participant in the NDIS. Two refer to decisions that are made by the CEO within the specified time frames under ss 20(a) and 26(2)(c). The third, s 21(3), refers to a decision that will be deemed to have been made under that section by the CEO under if he or she does not make a decision within the timeframes specified in ss 20(a) and 26(2)(c), as appropriate, or make a request for further information under them.
2. Under s 33(2), the CEO is not required to make a decision approving a statement of participant supports within any particular time whether that time be described in general of specific terms. Section 48(2) takes the approach taken in s 21(3) in relation to decisions under ss 20(a) and 26(2)(c). The CEO must decide whether or not to review the participant's plan within 14 days of receiving a request from a participant to do so. If, within that period, the CEO has not made a decision one way or the other, he or she is taken to have decided not to conduct the review.
3. The two examples I have taken of the Commissioner's decisions also illustrate two separate approaches adopted by Parliament. Section 73L(1)(b) provides that the Commissioner may vary the registration of a registered NDIS provider, who applies for a variation under s 73M, if he or she considers it appropriate in all the circumstances to do so. Section 73L(5) of the NDIS Act provides that:

"If, after receiving an application under section 73M, the Commissioner refuses to vary the registration of a registered NDIS provider, the Commissioner must give written notice of the refusal, including reasons for the refusal."

Section 73L does not impose any period within which the Commissioner must make a decision after receiving an application under s 73M.[206] This approach is to be contrasted with that under s 73P, which permits the Commissioner to revoke the registration of a person as a registered NDIS provider in certain circumstances. Before deciding to revoke the registration, the Commissioner must notify the person that revocation is being considered and invite him or her to make written submissions within 28 days of receiving the notification. The Commissioner must notify the person in writing of his or her decision and must give notice of the decision within 28 days after the end of the period for making submissions. If the notice is not given in that period, "... the Commissioner is taken to have decided not to revoke the registration."[207]

1. What these provisions demonstrate is that Parliament had turned its mind to the situations in which the CEO or the Commissioner would be deemed to have made a decision. It has chosen those situations in which they would be deemed to have made them and those in which they would not. It has chosen a two tier system of review. Given the care with which it has done that and provided for review of both types of decisions by the reviewer, the omission of any reference to deemed decisions in s 103 is indicative of its limiting the right to make an application for review to those seeking review of a decision actually made by a reviewer under s 100(6).
2. This would be consistent with the Note to s 103, which requires notice to be "... given to persons whose interests are affected by a decision of the reviewer." Such a requirement does not sit well with the notion of a deemed decision not to make a decision at all even though the interests of persons may be affected by that decision.
3. When the practicalities are considered, the same conclusion is reached. Why would Parliament have intended the NDIA to divert its resources to considering when a period that is "as soon as reasonably practicable" has passed rather than to supporting the reviewer to make a decision? Indeed, s 101 shows what Parliament intended the NDIA to do when it has the power to vary a reviewable decision although I do not think that it has that power in every case. For the reasons I have given, I do not think that it does when the reviewable decision is made under s 33(2). Section 101 provides that the request for review is taken to be for review of the reviewable decision as varied. It gives the NDIA the flexibility to make updated decisions that take account of a participant's needs by varying the reviewable decision while it is under review. At the same time, it gives the reviewer authority to undertake the review of the reviewable decision as varied so that he or she is not locked into reviewing a decision that the NDIA no longer regards as reflecting its current thinking regarding a participant's entitlements under the NDIS Act.[208]
4. Against this argument, it could be said that Parliament was well aware of the existence ofs 25(5) in the AAT Act. It had no need to make provision in the NDIS Act for the reviewer to be deemed to have made a decision if he or she did not make a decision "as soon as reasonably practicable" because it knew that s 25(5) of the AAT would provide for a decision to be deemed to be made. I have explored the merits of that argument and, for the reasons I gave, have concluded that it does not have merit.

1. Even though I can well understand the frustration felt by those waiting for decisions, s 25(5) of the AAT Act cannot be used as a tool to deem decisions to be reviewable by the Tribunal even if they do not come within its terms. It has a purpose but has rarely been used and, perhaps, because it rarely has application. I will begin with the case of Wells in which Deputy President Thompson decided that the failure by the Veteran Review Board (VRB) to review a decision by the Repatriation Commission was deemed to constitute its making a decision to affirm the Repatriation Commission's decision. In doing so, he relied on s 25(5) of the AAT Act. Ms Higgins referred to Deputy President Thompson's reasoning when he said:

"... I have no doubt that the effect of s 25(5) of the AAT Act is to require that, unless the Board has no power to review the Commission's decision as to the date of the increase, its failure to exercise its power of review is to be deemed to be a decision by it to affirm the Commission's decision. The issue is, therefore, whether it had power to review it or not."[209]

1. I respectfully suggest that the reasons for reaching this conclusion are neither expressed nor apparent. In an attempt to understand them, I have set out the chronology of events:

Mr Wells (W) lodged a claim for pension with the Repatriation Commission (Commission) for ischaemic heart disease.

The Commission rejected W's claim on the ground that incapacity from that condition was not service-related.

The Commission decided W suffered incapacity from ischaemic heart disease and that it related to war service.

The Commission assessed total rate of pension payable to W having regard to the incapacity from ischaemic heart disease and from previously accepted conditions. It decided W should be paid pension at the special rate from 12 January 1984.

In December 1984, s 107VD of the Repatriation Act permitted a member of the Forces to apply to the Repatriation Review Tribunal (RRT) where the Commission or a Board had made certain decisions. A member of the Forces might make that application within three months of service of the decision on him or her.

Section 27(1) provided that each Board had duties to determine matters relating to incapacity of a member of the Forces as well as assessing the rate of any pension payable and determining the dates of commencement and cessation of such pensions. The Commission might make such determinations in any particular case or class of cases it directed be referred to it.

The RRT ceased to exist at the end of December 1984 and it was replaced by the Veterans' Review Board (VRB).

Section 55 of the Repatriation Legislation Amendment Act 1984 set out transitional provisions providing that a person who had been entitled to apply to the RRT was now entitled to apply to the VRB. Section 55(3) provided that the person had three months within which to do so unless he or she had previously applied to the RRT under s 107VD.

W wrote to the Department of Veterans' Affairs (DVA) requesting that it review the Commission's decision dated 3 December 1984 in so far is it related to setting the date of effect at 12 January 1984. DVA treated W's request as an application to the VRB for review.

The application was also within the three month time period specified in s 55 of the transitional provisions.

With effect from 1 January 1985, s 107VC(1) of the Repatriation Act provided: "Where a person -

(a) who has made a claim for a pension in accordance with section 25; or

(b) who has made an application for a pension, or for an increased pension, in accordance with section 26,

is dissatisfied with any decision of the Commission in respect of the claim or application (not being a decision under sub-section 29A(3)), the person may, subject to this Act, make application to the Board for a review of the decision of the Commission."

In September 1985, s 107VC(2A) was added but it was given retroactive effect to 1 January 1985:

"A person may make application to the Board for the review of a decision of the Commission for the purposes of sub-section 29(1)."

(a) in considering a claim or application submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application;

(b) to assess, from time to time, the rates of pensions of members of the Forces or their dependants, and determine the dates of the commencement and cessation of those pensions;

(c) to determine, in such cases as the Commission deems proper, that payment of pension shall be suspended and fixing the date of any such suspension; and

(d) to determine the date of re-commencement of a pension that has been suspended."

The VRB informed W that it did not believe that it was empowered to deal with his application but invited him to request it formally consider the matter if he so wished.

The VRB heard his application and W attended. VRB decided it did not have power to review the Commission's decision dated 3 December 1984 regarding date of effect and did not do so.

At this time, s 107VZW of the Repatriation Act 1920 (Repatriation Act) provided:

"(1) Where a decision made by the Commission for the purposes of sub-section 29(1), or under section 29A or 31, has been reviewed by the Board and affirmed or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review -

(a) of the decision of the Commission that was so affirmed; or

(b) of the decision made by the Board in substitution for the decision so set aside, as the case may be."

W applied to the Tribunal for review of the VRB's decision.

" As the applicant would have had a right to apply to the Repatriation Review Tribunal under section 107VD of the Repatriation Act if Part IIIA of that Act had not been repealed, he was entitled, by virtue of section 55 of the 1984 amending Act, to apply to the Board before 3 March 1985 under the new section 107VC for review of the Commission's decision. Accordingly the Board's failure to review the decision is, by reason of section 25(5) of the AAT Act, to be deemed to constitute the making of a decision by the Board to affirm the Commission's decision. Consequently the applicant had a right to apply to the Administrative Appeals Tribunal under section 107VZW for it to review that decision. The effect of section 19 of the Transitional Provisions Act is that the Tribunal has power, and is required, to carry out that review.

Whether the application has any merit is doubtful; that is a matter which the applicant's solicitors may now wish to consider. However, it is not a matter for decision by the Tribunal at this stage."[210]

1. I respectfully suggest that these paragraphs do not sit comfortably with s 25(5) of the AAT Act. In order to have any effect, s 25(5) requires that there be a failure by a person to do an act or thing within a period prescribed by the relevant enactment. There was a requirement that the VRB make a decision and it had declined to do so. That might be said to be a "failure ... to do an act or thing ..." within the meaning of s 25(5). If it is,

the reasons in Wells do not disclose any period, however broadly described, within which the Board was required to make a decision. Without the reference to such a period, the there was no basis on which the deeming provisions in s 25(5) could be called upon to assist the Tribunal to find jurisdiction. 2. Quite apart from the absence of a prescribed period, however described, within which to the VRB had to do an act or thing being the making of a decision, the reasons in Wells do not address how the VRB is deemed to have affirmed the decision. The VRB had refused to exercise its power and so had not made a decision of the sort that entitled Mr Wells to make an application to the Tribunal under s 107VZW. The reasons in Wells do not address how that conclusion is reached when the decision that s 25(5) deems to have been made is a decision not to make a decision at all. The answer is not self-evident to me. 3. NNXF's submissions referred to common law principles to support the proposition that a deemed decision is a decision to affirm the original decision. No authorities were advanced in support of that proposition and I am not aware of any. It seems to me that the effect of a deemed decision would have to depend on the nature of the decision that is deemed to have been made. In the case of a failure to make a decision on an internal review application under the Right to Information Act 2009 (Qld), for example, the agency's principal officer or the Minister is taken to have made a decision at the end of a prescribed period affirming the original decision.[211] Another example is found in s 344 of the Superannuation Industry (Supervision) Act 1993 (SIS Act). Upon receiving a request to review a decision, the Australian Prudential Regulation Authority (APRA) must reconsider that decision. Having done so, it may confirm or revoke the decision or vary it in such manner as it thinks fit.[212] If APRA does not take one or other of those courses before 60 days have passed after it received the request, s 344(5) provides that it is taken to have confirmed the decision under s 344(4). That decision is deemed to have been made at the end of the 60 day time period. An application may then be made to the Tribunal for review of APRA's decision that has been confirmed or varied under s 344(4). 4. The Repatriation Act considered in Wells contained no similar provision. In its absence, there is no basis for coming to the view that a failure to make a decision leads to a conclusion that the decision under review is affirmed. The only view that can be reached is that there is no decision and all remains as it was. In particular, the decision under review continues to remain unaltered because the act or thing that had to be done under s 29 of the Repatriation Act was to review the reviewable decision. No decision had been made under s 29. The fact that no decision has been made under s 29 does not equate with the reviewable decision's having been affirmed. 5. I also respectfully suggest that the approach of the Full Court of the Federal Court in Deputy Commissioner of Patents v Board of Control of Michigan Technological University[213] when confronted with a refusal to make a decision is to be preferred.

The approach involves an analysis of the provisions giving the Tribunal jurisdiction and a comparison with the decision made. In that case, r 92 of the Patent Regulations provided:

"Applications may be made to the Administrative Appeals Tribunal for review of decisions made by the Commissioner in exercise of the powers conferred on him by sub-regulation 7B(8) or 16F(6) or by regulation 44 or 52."

Sub-regulation 7B(8) of the Patent Regulations gave the Commissioner of Patents (Commissioner) power to restore a lapsed application for a patent in certain circumstances. Section 160(2) of the Patents Act 1952 (Patents Act 1952) provided that the Commissioner might extend the time for doing an act or taking a step in relation to an application for a patent or in proceedings under that legislation. The Deputy Commissioner decided that s 160(2) did not authorise him to extend the time for doing an act or taking a step in relation to an application for a patent that had lapsed for reasons set out in r 7B(4). It was not then possible to restore that lapsed application. Regulation 92 provided that applications could be made to the Tribunal for review "of decisions made by the Commissioner in exercise of the powers conferred on him by sub-regs 7B(8) ...". Section 151 of the Patents Act 1952 provided that applications might be made to the Tribunal for review of "a decision of the Commissioner under s ... 160." A decision by the Deputy Commissioner of Patents that he had no power to grant the applicant's request for an extension of time within which to apply for the restoration of the lapsed application under r 7B(8) was a decision made "under" s 160. A decision that he had no legal power under r 7B(8) of the Regulations to restore the lapsed patent was a decision made "in the exercise of powers" under that regulation i.e. in the exercise of powers conferred on him by that provision. Therefore, the Tribunal had jurisdiction to review the decision under

s 25(4) of the AAT Act. Since the repeal of s 25(4) of the AAT Act, the argument must now centre on s 25(1) but the outcome is the same.[214]

1. In the course of his judgment, Smithers J referred to the earlier case of Brian Lawlor and to his own judgment when he said:

"... there is a distinction between the decision and action taken upon it. It is the decision itself which is the important thing. Whether right or wrong it may have serious results for the citizen (p 336). Such serious results may follow from a decision not to exercise the power, or that a power does not exist. It is important because of this, that it is with the actual administrative decisions that the AAT Act is concerned. As was said by Bowen CJ in Lawlor's case (at p 317): 'As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in the exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not the action on the basis there was power to make the decision was right or wrong.'

It was also pointed out by Bowen CJ in Lawlor's case that it would be unsound to adopt an interpretation of s 25 of the AAT Act which would restrict reviewable decisions under the Act to those only which constitute a legally effective exercise of powers conferred by an enactment. He said: The Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and law ... It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by determination of a court or tribunal. It appears to me that the Act is designed to give a simple remedy in all such cases."[215]

1. Returning to the case of Deputy Commissioner of Patents v Board of Control of Michigan Technological University, the Full Court found that the Deputy Commissioner of Patents had made a decision even if it was a decision that he could not make in the exercise power conferred upon him under s 160(2). It was a decision made in the exercise of powers conferred on him by r 7B(8) of the Patent Regulations. As Smithers J explained:

"... It is said that what was actually decided was that the Commissioner could not entertain the applications. It is suggested that if the matter is properly expressed in that form it is clear that the Commissioner did not enter upon the business of considering and disposing of the application pursuant to the Act. But it is manifest that he did. He could not decide that he had no power to give relief under s. 160 in the application made under that section until he had acquainted himself with its contents and ascertained that the extension of time sought therein related to a lapsed application for a patent. It was only for the purpose of deciding whether on the facts disclosed in the applications he could or should give the relief sought therein that the Commissioner had cause to refer to s. 160(2). It was in the course of deciding what to do with the application, in the course of performing his function under the Act, that he necessarily consulted and construed s. 160(2). Having done that and made his decision that the provisions of s. 160(2) did not apply to an application concerning a lapsed application and that the application for restoration under reg. 7B(8) must therefore necessarily fail, and having informed the defendant thereof he officially disposed of the applications. In effect he rejected them. It is impossible to regard the Commissioner's intimation that s. 160(2) did not empower him to grant the relief sought as an exercise independent altogether of the performance of his functions in relation to the applications, or to say that he made the decision merely 'in gross' so to speak. When what actually was done is examined it is clear that the applications were dealt with and disposed of by reference to what was regarded as the proper construction of s. 160(2)."[216]

1. It was not an approach that was available in Wells because of the way in which s 107VZW of the Repatriation Act was worded. Section 107VZW(1) provided that an application might be made to the Tribunal where a decision had been reviewed and either affirmed or set aside. There had to be a decision that had in fact been made and that had led to the decision's being affirmed or set aside. Unlike r 92 of the Patent Regulations, it is not enough that the decision has been made "in the exercise of powers conferred by ...", as it had been under r 7B(8) in the case of Deputy Commissioner of Patents v Board of Control of Michigan Technological University.
2. So much depends on the wording chosen by Parliament to confer a right upon persons to make applications to the Tribunal for review of decisions made in the exercise of powers under a particular enactment. This is illustrated in more recent times by von Doussa J, with whom Spender and French JJ agreed, in Secretary, Department of Social Security v Alvaro[217] (Alvaro). Mr Alvaro had pleaded guilty to conspiring to defraud the Commonwealth in relation to his receipt of supporting parent's pension and unemployment benefit over a period of some eight years. An officer of the Department of Social Security (DSS) wrote to Mr Alvaro stating that he had been overpaid $66,682.04 and that DSS was required to recover it. An Authorised Review Officer (ARO) affirmed the officer's decision as did the Social Security Appeals Tribunal (SSAT). When Mr Alvaro applied to this Tribunal for further review of the recovery decision, it declined to do so on the basis it was not satisfied that the officer who decided to seek recovery of the debt was authorised to do so.
3. Section 1283(1) of the Social Security Act 1991 (SS Act) provided that, if a decision had been reviewed by the SSAT, application might be made to the Tribunal for a review of the SSAT's decision. For the purposes of s 1283(1), s 1283(2) provided that the decision made by the SSAT would be taken to be, where it had affirmed the decision, the decision as affirmed. In his judgment, von Doussa J focused on both s 25 of the AAT Act and s 1283 of the SS Act saying:

" Section 1283 refers simply to 'a decision' which has been reviewed by the SSAT, and 'the decision' of the SSAT. Unlike the context in which the word 'decision' appears in s.25 of the AAT Act, 'decision' in s.1283(1) is not qualified by the words 'made in the exercise of powers conferred by that enactment'. In s.1283(1), even on a literal reading, there is no reason why 'decision' should be narrowly construed. The reasons of convenience given by Brennan J at first instance in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, and by the majority of the Full Court on appeal, supra, apply to require that the narrow interpretation of 'decision' in s.1283(1) adopted by the AAT must be rejected. To hold otherwise would defeat the purposes of the review procedures established under the Act. ...

The right of review by the AAT of a decision of the SSAT given by s.1283(1) arises where an administrative decision made in purported exercise of powers conferred by the Act has, as a matter of fact, been reviewed by the SSAT. That right exists whether or not the decision reviewed by the SSAT, or the decision of the SSAT itself, was legally effective. A similar construction should also be accorded to 'decision' in ss.1239 and 1247 which respectively provide for internal review of decisions by the Secretary, and the review of decisions by the SSAT."[218]

1. Ms Higgins submitted that the operation of s 1283 of the SS Act considered in Alvaro is comparable with the combined operation of ss 100(6) and 103 of the NDIS Act. Relying on the principles in Brian Lawlor, the outcome should be the same. In each instance, the Tribunal's jurisdiction is not reliant on the existence of a valid decision by the second decision-maker in the hierarchy. Alvaro stands for the proposition that the term "decision" used in s 103 of the NDIS Act cannot be construed narrowly. Provided the preceding decision-maker had purported to make a decision in the exercise of power conferred by the NDIS Act and that decision affected the interests of the person seeking review,

the Tribunal has power to review the decision. 2. The logic that must underpin this submission is that the reviewer must be deemed to have made a decision affirming the CEO's decision under s 33(2) for no decision has been made in fact. For the reasons I have given, the decision that s 25(5) of the AAT Act deems the reviewer to have made for the purposes of the NDIS Act is a decision not to make a decision. Under the NDIS Act, s 103 is quite specific in that applications may be made for review of a decision made by a reviewer "under" s 100(6). No provision is made for applications for review of decisions made "in the exercise of powers" under s 100(6) or for review of either no decision at all or, if s 25(5) of the AAT Act were to apply, a decision not to make a decision. 3. My conclusion is consistent with that in Re Duarte and Australian Maritime Safety Authority,[219] to which Ms Higgins referred, where the Tribunal had found that s 25(5) had no operation because there was no prescribed time within which a decision had to be made on Mr Duarte's application. As no decision had been made in fact, there was nothing for the Tribunal to review. My conclusion is also consistent with the general statement of principle set out by Gageler, Keane and Nettle JJ in the passage I have quoted from Plaintiff M174/2016 v Minister for Immigration and Border Protection at [262] above. Their Honours had no need to go beyond the two general principles that are imperative for the implementation of the principles in Brian Lawlor. One is that there is a decision in fact; its lawfulness is irrelevant. The other is that the decision that has been made in fact is a decision in respect of which an enactment might provide for review.

I suggest that there is no need to go beyond that in this case. The reviewer has not made, and has not been deemed to have made, a decision under s 100(6). Therefore,

an application may not be made to the Tribunal under s 103. 4. Finally, I must sound a note of caution in relation to a passage from the reasons for decision given by Deputy President McCabe and Dr Bygrave, Member, in Re Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services[220] when they said:

"There is a danger of over-thinking some of the jurisprudence on jurisdictional error. The provisions of the AAT Act (read in light of the decisions in Brian Lawlor) point the way to dealing with defective decisions by original decision-makers. The fact the Tribunal is independent of the agencies whose decisions it reviews does not change the fact the Tribunal remains part of the executive. The Tribunal's decision-making processes are incorporated by operation of law into the executive decision-making process that it reviews. If there is a problem - even a fundamental problem - encountered during the course of the original decision-making process, the Tribunal can set things to right."[221]

1. As I concluded in Re KRBG and National Disability Insurance Authority,[222] unfortunately, the Tribunal cannot "set things to right" if the relevant legislation, which includes s 25(5) of the AAT Act and the enactment that makes provision for an application to be made to the Tribunal, does not allow it to do so.

1. For the reasons I have given, I would decide that the period described in s 100(6) of the NDIS Act is not a "period prescribed" as that expression is used in s 25(5) of the AAT Act. Therefore, s 25(5) does not operate with s 100(6) to deem a reviewer to have made a decision under s 100(6). As no decision has been made under s 100(6), s 103 did not authorise NNXF to make an application for review on 8 March 2019. She was entitled to make an application for review of the decision made by the reviewer under s 100(6) on

9 April 2019. Provided it was satisfied that the agreement complied with s 42C,

the Tribunal was entitled to make a decision in the terms that the parties agreed would resolve the matter and to do so when it received them.

BECOMING A PARTICIPANT IN NDIS AND HAVING A PARTICIPANT'S PLAN

1. Part 6 of Chapter 4 of the NDIS Act specifies those decisions which may be reviewed and the steps that must be taken to seek that review. In this case, NNXF has sought review of the CEO's decision to approve her statement of participant supports. Whether or not that is what she actually seeks or whether she will be found to have sought review of her statement of participant supports is not a matter I must consider. I simply note that her choice will lead to different outcomes and it may be that she will want to think about whether she should clearly seek review of her statement of participant supports.[223] I will focus on both review rights and also on others more generally.

1. When a person makes a request to the NDIA to the NDIA to become a participant in the NDIS;

"... the CEO must, within 21 days of receiving the access request:

(a) decide whether or not the prospective participant meets the access criteria; or

(b) make one or more requests under subsection 26(1)."[224]

1. A person meets the access criteria if the CEO is, at the time of considering the request, satisfied that the person meets the residence and age requirements and either meets the disability requirements or meets the early intervention requirements as set out in ss 22, 23, 24 and 25 respectively.[225] If the CEO does not decide whether or not a person meets the access criteria, he or she must make a request under s 26. Under that section,

"(a) that the prospective participant, or another person, provide information that is reasonably necessary for deciding whether or not the prospective participant meets the access criteria;

(b) that the prospective participant do either or both of the following:

• (i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
• (ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination."

1. If the CEO receives the information and reports requested under s 26(1) within the time specified in the request:

"... the CEO must, within 14 days of receiving the access request:

(a) decide whether or not the prospective participant meets the access criteria; or

(b) make one or more requests under subsection 26(1)."[226]

1. If the CEO does not receive the information or reports requested within the specified time, the person is taken to have withdrawn his or her access request unless the CEO is satisfied that it was reasonable for the person not to have complied with the request.[227]
2. Section 21(3) sets out the consequences of the CEO's not making a decision or a request under s 20 within 21 days of receiving an access request or making a decision or a request under s 26(2) within 14 days of receiving the last information or report.

The consequences are that the "... CEO is taken to have decided that the prospective participant does not meet the access criteria ...".[228]

B.1 Facilitation of the preparation of the participant's plan**

1. If a person becomes a participant, the CEO must commence facilitating the preparation of the participant's plan in accordance with the NDIS rules. That is the effect of ss 32(1) and (2). Section 32(3) provides for the situation in which the NDIS rules made for the purposes of s 32(2) do not require the CEO to commence facilitating the preparation of a participant's plan within a prescribed period or in prescribed circumstances. In those circumstances, the CEO must:

"... commence facilitating the preparation of the plan as soon as reasonably practicable, having regard to the obligations of the CEO under the rules to commence facilitating the preparation of other participant's plans."

1. The National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013 is made under s 204. They applied only to a limited time and the ordinary timeframes specified in the NDIS Act now apply.
2. As noted above, s 32 of the NDIS Act requires the CEO to facilitate the preparation the participant's plan and to do so in accordance with the NDIS rules.[229] Without limiting their generality under s 32(2), the NDIS rules made for that subsection may require the CEO to commence facilitating the preparation of the plan for a participant included in a class prescribed by the rules within a period prescribed by the rules or in the circumstances prescribed in the rules. That is the effect of s 32A(1).
3. The content of those rules is the subject of s 32A. Without limiting s 32(2), the NDIS rules made for the purposes of s 32(2):

(a) prescribe a class by reference to a decision of the CEO about a matter prescribed by the rules;

• (b) prescribe a period or circumstances by reference to a decision of the CEO;
• (c) prescribe matters by reference to a decision of the CEO."[230]

1. Examples of the classes that may be prescribed are set out in s 32A(2):

"Without limiting the classes that may be prescribed as mentioned in subsection (1), a class may be prescribed by reference to one or more of the following:

(a) whether the participant's name is included on a prescribed waiting list;

• (b) whether the participant is receiving support from a prescribed service provider or under a prescribed program;
• (c) whether, when the participant first made an access request, he or she was not receiving supports other than informal supports in relation to his or her disability;
• (d) the place of residence of the participant on a prescribed date or throughout a prescribed period;
• (e) whether, when the participant first made an access request, he or she had left, or was reasonably likely to leave, school at a prescribed time or during a prescribed period;
• (f) the participant's age;
• (g) other matters."

1. Situations of urgency may arise. They are the subject of ss 32A(3) and (4). Section 32A(3) provides that, despite ss 32(2) and 32A(1), which require the CEO to facilitate the preparation the participant's plan and to do so in accordance with the NDIS rules:

"... if the CEO is satisfied that, because of the urgency of the circumstances, it is appropriate to commence facilitating the preparation of a participant's plan at a particular time:

(a) the CEO may do so; and

(b) if doing so means that it is necessary not to commence facilitating the preparation of the plans of one or more other participants - the CEO may delay commencing such facilitation, so far as is reasonably necessary."

"... matters to which the CEO is to have regard in deciding for the purposes of subsection (3) whether or not he or she is satisfied that, because of the urgency of the circumstances, it is appropriate to commence facilitating the preparation of a participant's plan."[231]

"The CEO does not have a duty to consider whether to exercise a discretion conferred upon the CEO by:

(a) subsection (3); or

(b) National Disability Insurance Scheme rules made for the purposes of subsection 32(2) (including as mentioned in subsection (1) of this section).

Section 32(5) is also relevant to the scope of the CEO's duty under s 32(2) and the NDIS rules when it provides_:_

"If the CEO commences or delays facilitating the preparation of a participant's plan in accordance with subsection (3), the CEO does not breach subsection 32(2), or National Disability Insurance Scheme rules made for the purposes of that subsection, in relation to the participants concerned."

B.2 Principles relevant to the preparation, review and replacement of a plan

1. Section 31 of the NDIS Act sets out the principles relating to a plan:

"The preparation, review and replacement of a participant's plan and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:

(a) be individualised; and

(b) be directed by the participant; and

(c) where relevant, consider and respect the role of family, carers and other persons to support participants who are significant in the life of the participant; and

(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and

(da) if the participant and the participant's carers agree - strengthen and build the capacity of families and carers to support the participant in adult life; and

(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and

(f) support communities to respond to individual goals and needs of participants; and

(g) be underpinned by the right of the participant to exercise control over his or her own life; and

(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and

(i) maximise the choice and independence of the participant; and

(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and

(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate delivery of disability services where there is more than one disability service provider."

1. A participant's plan must include a statement of the participant's statement of goals and aspirations and a statement of participant supports.[232] The participant's statement of goals and aspirations must specify:

"(a) the goals, objectives and aspirations of the participant; and

(b) the environmental and personal context of the participant's living, including the participant's:

• (i) living arrangements; and

• (ii) informal community supports and other community supports; and

(iii) social and economic participation." [233]

1. A statement of participant supports must be prepared with the participant and be approved by the CEO. It specifies:

"(a) the general supports (if any) that will be provided to, or in relation to, the participant; and

(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and

(c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and

(d) the management of the funding for supports under the plan (see also Division 3); and

(e) the management of other aspects of the plan."[234]

1. In deciding whether or not to approve a statement of participant supports, the CEO must:

"(a) have regard to the participant's statement of goals and aspirations;

(b) have regard to the relevant assessments conducted in relation to the participant;

(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d) apply the National Disability Insurance Scheme rules (if any) made for the purpose of section 35; and

(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

(f) have regard to the operation and effectiveness of any previous plans of the participant."[235]

1. For the purposes of specifying in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded:

"... the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

(c) the support represents value for money in that costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

• (i) as part of a universal service obligation; or
• (ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability."[236]

1. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Participants Rules) must be used by the CEO in deciding whether to approve a statement of participant supports. The Outline summarises the criteria and tools to which the CEO must have regard:

"2.6 Part 3 sets out criteria or considerations that the CEO is to use in deciding whether the CEO is satisfied in relation to some of the matters in paragraph 2.3. These are:

(a) value for money (see paragraph 2.3(c));

(b) whether the support is effective and beneficial (see paragraph 2.3(d));

(c) taking account of the expectations of what is reasonable to expect families, carers, informal networks and the community to provide in informal supports (see paragraph 2.3(e));

(d) whether the support is appropriate under the NDIS (see paragraph 2.3(f)).

2.7 Part 4 relates to the needs assessments and the use of assessment tools when conducting such assessments.

2.8 Part 5 sets out general criteria for supports, and supports that will not be funded or provided.

2.9 Part 6 provides for other matters, such as how these Rules are to be interpreted.

2.10 Schedule 1 sets out considerations relating to whether supports are most appropriately funded through the NDIS, which is relevant to the matter set out in paragraph 2.3(f) [i.e whether "... the support is most appropriately funded, or provided through the NDIS, and is not more appropriately funded or provided through other service systems ..."]."

1. These are matters of which the CEO must be satisfied under s 34 of the NDIS Act but they are not the only matters.
2. Section 35 provides that the NDIS rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports. Matters which may be prescribed in those rules include, but are not limited to:

"(a) methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and

(b) reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and

(c) reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants."[237]

B.4 When a participant's plan comes into effect

1. A participant's plan comes into effect when the CEO has received the participant's statement of goals and aspirations from the participant and approved the statement of participant supports.[238] A participant's plan cannot be varied once it comes into effect but can be replaced under Division 4 of part 2 of Chapter 3 of the NDIS Act.

B.5 New participant's plan when participant's statement of goals and aspirations changed but statement of participant supports unchanged

1. Division 4 is concerned with reviewing and changing participants' plans. A plan can be changed at any time by a participant giving the CEO a changed version of the participant's statement of goals and aspirations.239 The participant's plan is taken to be replaced by a new plan comprising the changed version of the participant's statement of goals and aspirations and the statement of participant supports in the existing plan.240 The NDIA must provide a copy of the new plan to the participant within seven days of receiving the changed version of the participant's statement of goals and aspirations.23[239]

1. Under s 48(1), a participant may request the CEO to conduct a review of the participant's plan at any time. Section 48(2) provides:

"The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review.

Note 1: The period may be extended under the National Disability Insurance Scheme rules made under section 204.

Note 2: Notice of a decision that the CEO makes, or is taken to have made, must be given because of subsection 100(1), and a decision that the CEO is taken to have made will be automatically reviewed because of subsection 100(5)."

1. If the CEO decides to conduct a review under s 48(1), he or she must commence to facilitate the review as soon as reasonably practicable.[240] Quite apart from a request from a participant, the CEO may conduct a review of a participant's plan at any time and, in any event, before the plan's review date.[241] If the CEO decides to conduct a review under s 48(1), the CEO must commence to facilitate the review within 14 days after so deciding and must complete the review as soon as reasonably practicable. If the CEO does not make a decision within that 14 day period, he or she is taken to have decided not to conduct the review.
2. If the CEO conducts a review of a participant's plan under s 48, he or she must facilitate the preparation of a new plan in accordance with the provisions of the NDIS Act I have set out above.244 As the Notes to s 49 state, the preparation of a new plan will comprise the participant's statement of goals and aspirations either in its original form or, if the participant wishes, in a new form. It will also require the CEO to approve a fresh statement of participant supports under s 33(2). That is a separate reviewable decision prescribed in Item 4 of the table at s 99(1).
3. I have referred to the relevant provisions in ss 99, 100 and 103 at [294]-[300] above.

I certify that the preceding 215 (two hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

............................[SGD]...................................

Ms Kate Higgins, Legal Services Commission of South Australia

Ms Kim Robbins, National Disability Insurance Agency

[1] [2018] AATA 1294.

[2] [2018] AATA 1326.

[3] [2019] AATA 144.

[4] Applicant's Submissions on Jurisdiction at [61] (6 May 2019).

[5] Submissions of the Respondent Regarding Jurisdiction at [38] (3 May 2019); Transcript of proceedings, page 71, lines 12 - 23.

[6] [1906] HCA 73; (1906) 4 CLR 716 at 726.

[7] (1987) 9 NSWLR 719 at 723-724.

[8] [2009] VSCA 250; (2009) 169 LGERA 407 at [85].

[9] [2013] HCA 2; (2013) 252 CLR 1 at [98].

[10] Re Young and Telstra Corporation [1993] AATA 376; (1993) 32 ALD 307 at 309 (per President O'Connor J).

[11] See the cases referred to above of Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 726; Commr of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 723 - 724 (Kirby P); and Maroondah City Council v Fletcher [2009] VSCA 250; (2009) 169 LGERA 407 at [85].

[12] (1987) 9 NSWLR 719 at 723-724.

[13] (1983) 5 ALN 116 at 164.

[14] [2018] HCA 16 at [39] (Gageler, Keane and Nettle JJ).

[15] See discussion of Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [39] (Gageler, Keane and Nettle JJ).

[16] National Disability Insurance Scheme Act 2013 (Cth), s 3(1)(d) (subsequent sections in footnotes are with respect to the National Disability Insurance Scheme Act 2013 (Cth) unless stated otherwise).

[17] Section 3(1)(ga).

[18] Section 5(a).

[19] Section 103.

[20] Section 20.

[21] Section 26(2).

[22] Section 21(3).

[23] Section 32(3).

[24] It was the CEO's decision to approve the SPS that the applicant requested to review.

[25] Section 48(1).

[26] Section 99, item 6.

[27] Section 100(2).

[28] Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 726; Commr of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 723 - 724 (Kirby P); and Maroondah City Council v Fletcher [2009] VSCA 250; (2009) 169 LGERA 407 at [85].

[29] See Further Submissions of the Respondent Regarding Jurisdiction at [21] (21 May 2019); Applicant's Further Submissions at [20] (3 June 2019).

[30] [2001] FCA 1514 at [26].

[31] Submissions of the Respondent Regarding Jurisdiction at [38] (3 May 2019).

[32] Transcript of proceedings, page 71, lines 12 - 23.

[33] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[34] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78] (McHugh, Gummow, Kirby and Hayne JJ); and SAS Trustee Corporation v Miles [2018] HCA 55 at [20]; [2018] HCA 55; (2018) 92 ALJR 1064 at 1071 (Kiefel CJ, Bell and Nettle JJ).

[35] [1986] HCA 88; (1986) 161 CLR 278 at 283 (Gibbs CJ).

[37] [1988] NTSC 58; (1988) 91 FLR 436 at 439 (Gakkio J).

[38] [2004] HCA 37; (2004) 219 CLR 562 at 608, [121].

[39] [2014] FCAFC 156; (2014) 230 FCR 82 at 103, [116].

[40] [2014] FCAFC 156; (2014) 230 FCR 82 at 103, [116].

[41] Ibid at 102, [109]. See also at 103, [117] where the Full Court (Middleton and Wigney JJ) in Sneddon said that a determination of a reasonably practicable period "will depend on a consideration of all the relevant circumstances of the particular case at hand."

[42] See Trajkovski v Telstra Corporation Ltd [1998] FCA 169; (1998) 81 FCR 459, at 468 (Tamberlin J).

[43] [2018] AATA 1294 at [46].

[44] [1947] SAStRp 4; [1947] SASR 4 at 8-9.

[45] See Scott v Commercial Hotel Merbein Pty Ltd [1929] ArgusLawRp 75; [1930] VLR 25 at 30 (Irvine CJ).

[46] [2014] FCAFC 156; (2014) 230 FCR 82 at 101, [107].

[47] Ibid at 102 - 103, [114 - [115]; Submissions of the Respondent Regarding Jurisdiction at [26] (3 May 2019).

[48] Muller v Dalgety & Co Ltd [1909] HCA 67; (1909) 9 CLR 693 at 696 (Griffith CJ).

[49] [1891] 60 LJQB 379 at 380.

[50] Commissioner of Taxation v Comber [1986] FCA 92; (1986) 10 FCR 88 at 96.

[52] T-documents, T5, Plan Review Request Form, dated 10 September 2018, page 19.

[53] [2018] AATA 1294 at [46].

[54] [2001] FCA 1514 at [26].

[55] Shi v Migration Agents [2008] HCA 31; (2008) 235 CLR 286 at 324-325; and Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 93 ALJR 629 at 64 [51].

[56] [2018] AATA 1294 at [64].

[57] Transcript of proceedings, page 61.

[58] The Queen v County Council of Norfolk [1891] 60 LJQB 379 at 380 (Cave J).

[59] Submissions of the Respondent Regarding Jurisdiction at [38] (3 May 2019); Transcript of proceedings, page 71, lines 12 - 23.

[60] T-documents, T8, NDIS Plan (27.06.2018 - 27.06.2019), dated 28 June 2018, pages 47 - 53.

[61] Submissions of the Respondent Regarding Jurisdiction at (3 May 2019).

[62] As a matter of practicality, it is my experience that, in each case of this nature, the NDIA has proceeded to a review of the decision very quickly and applicants have had a substantive and considered decision under s 100(6) of the NDIS Act. They have either been satisfied with that decision or made a further application to the Tribunal.

[63] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T8 at 47-53

[64]T documents; T5 at 18-25. Although the request was made for review of the plan, the request has been taken as a request for review of the statement of participant supports. This reflects the substance of the request made by NNXF's sister and is appropriate.

[65] This document is not included in the T documents but reference is made to it in the statement of reasons of the reviewer dated 9 April 2019 and lodged in the Tribunal.

[67] [1986] HCA 88; (1986) 161 CLR 278; (1986) 66 ALR 385; Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ

[68] [2018] AATA 1294

[69] [2018] AATA 1294 at [64]

[70] [1986] AATA 257

[71] [2013] HCA 2; (2013) 252 CLR 1 at [98]; [2013] HCA 2; 294 ALR 608; Heydon, Crennan, Kiefel and Bell JJ; Gageler J dissenting

[72] [2006] HCA 5; (2006) 225 CLR 130; 224 ALR 238; Gleeson CJ, Gummow, Hayne and Callinan JJ; Kirby J dissenting

[73] [2019] AATA 631

[74] Administrative Appeals Tribunal Act 1975; s 25

[75] [1979] FCA 38; (1979) 40 FLR 462; 25 ALR 403 per Sweeney, Evatt and Northrop JJ

[76] [1979] FCA 38; (1979) 40 FLR 462; 25 ALR 403 at [9]; 467; 409

[77] [2019] AATA 631 at [5][&]

[79] AAT Act; s 24Z(1) Only ss 25 and 42 apply in relation to a proceeding in relation to a proceeding in the MRD: AAT Act; s 24Z(2)

[80] AAT Act; s 25(1). Regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment: AAT Act; s 25(2).

[84] AAT Act; s 26(1)(b) Sections 26(1)(a) and (aa) provide for alterations in relation to certain decisions made under Norfolk Island enactments.

[85] This will follow a hearing where oral, as well as written, material is considered or on the papers. In making its decision, the Tribunal "... may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ...": AAT Act; s 43(1)

[86] The outcome is the same whether parties may do this by themselves or in the course of an alternative dispute resolution process but, in the first instance, is achieved by means of s 42C and, in the second, by s 34D of the AAT Act.

[87] An applicant may withdraw the application with the outcome that the matter is taken to be dismissed AAT Act; s 42A(1A). The Tribunal may dismiss an application on various grounds: AAT Act; ss 42A(1), (1A), (2), (4), (5) and (7) and s 42B.

[89] An express exception is made for a proceeding in the Tribunal's Security Appeals Division: AAT Act; s 35(1AA)

[90] AAT Act; s 35A(1) although an express exception is made for a proceeding in the Tribunal's Security Appeals Division: AAT Act; s 35A(2)

[91] Most noticeably any confidentiality issues arising under s 35 in Divisions other than the Security Appeals Division: AAT Act; s 39(1)

[92] See, for example, ss 28(1AAA), 30, 31(2), 33A(2) and 34.

[93] [2013] AATA 822; (2013) 96 ATR 967; (2013) 140 ALD 436

[94] [2013] AATA 822; (2013) 96 ATR 967; (2013) 140 ALD 436 at [18]; 971; 439

[95] [2018] FCAFC 228; McKerracher, Reeves and Thawley JJ

[97] [2018] FCAFC 228 at [62]

[98] [2018] FCAFC 228 at [71]

[99] [2018] FCAFC 228 at [73]

[100] AAT Act; s 3(1), paragraph (a) of the definition of "enactment"

[102] Director-General of Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571; 47 FLR 80; 3 ALD 161; Northrop, Deane and Fisher JJ at 591; 101; 178-179 per Deane J with whom Fisher J agreed

[103] Paragraph (g) of the definition of "decision" in s 3(3) of the AAT Act.

[104] [1983] FCA 81; (1983) 47 ALR 281; 5 ALN N162; Lockhart and Sheppard JJ; McGregor J dissenting

[105] [1983] FCA 81; (1983) 47 ALR 281; 5 ALN N162 at 305-306; N164