External

EXTENT OF POWER OF THE AAT WHEN REVIEWING DECISIONS MADE BY DETERMINING AUTHORITIES

 

Introduction

 

  1. The Lees v Comcare and Comcare v O'Donohue decisions by the Full Federal Court have an impact on the review powers of the AAT.

 

  1. The issue before the Court in both matters was whether the AAT had jurisdiction to determine compensation entitlements under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) before those entitlements had been determined by the determining authority.

 

  1. The two matters were heard by the same Bench of the Full Federal Court on consecutive days.

Court decision

 

  1. The Court handed down a joint decision on 7 June 1999.  They found that it is only after the determining authority has completed the two tiered internal review process that the AAT is able to review a decision.

 

  1. The decision held that the AAT is authorised by s64 of the SRC Act to review only reviewable decisions; that is, second tier decisions made under s62 of the SRC Act.  The AAT does not have the authority to exercise any powers which would not have been available to the determining authority at the second tier decision-making stage.  It found that the AAT's powers under s43(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) are powers to review the reviewable decision, not powers that can be exercised at large.

 

Policy Advice

 

  1. Both cases involved the question of whether the AAT had jurisdiction to determine entitlement to permanent impairment under s24 of the SRC Act, when the determining authority had not made a determination nor a reviewable decision in relation to that section.

 

  1. The decision gives strong support for the SRC Act's review processes by maintaining that there is a three tiered decision-making process. For each determination, the first two tiers are within the determining authority and the third is with the AAT.

 

  1. This means that a claimant who already has a reviewable decision before the AAT cannot add another issue unless it has been the subject of a determination and a reviewable decision by the determining authority.

 

  1. While the practice of allowing the introduction of new issues to matters already before the AAT had become increasingly common, especially regarding consideration of entitlement to permanent impairment, the Court's decision is authority that the AAT does not have jurisdiction to consider issues on which the determining authority has not previously made a determination and a reviewable decision.

 

Issues

 

  1. Regulatory Services Division is concerned that the practice of introducing a new issue into proceedings before the AAT to facilitate settlements goes against the Court's decisions in these cases.  Settlements authorised under s42C of the AAT Act require the AAT to be satisfied that the decision agreed to by the parties would be within the powers of the AAT.  Given the limit to the review powers of the AAT held by the Court in the Lees and O'Donohue decisions, such settlements should not include issues which have not been the subject of a determination and reviewable decision by the determining authority.

 

  1. There may be occasions when a matter is before the AAT and the determining authority wishes to have a new issue reviewed by the AAT as part of the same AAT proceedings.  It is open to the determining authority to determine and reconsider the new issue.  The reconsideration may well be on the determining authority's own motion.  This would bring the issue within the jurisdiction of the AAT and, subject to the agreement of all parties, the matters could then be joined.

 

Facts of Cases

 

  1. Ms Lees applied to the AAT for review of Comcare's refusal to pay her taxi fares to attend medical treatment and when the matter came before the AAT, she requested a review by the AAT of her entitlements under s24 of the SRC Act.  Comcare had not made an initial determination on this issue.  In Mr O'Donohue's case, Comcare had rejected his claim for compensation under s14 but had not specifically considered s24 in its initial determination and reviewable decision.

 

  1. In the matter of Lees, Comcare had determined under s14 of the SRC Act that it was liable to pay compensation and that determination was not under review.  The reviewable decision concerned entitlement under s16 of the SRC Act for compensation for taxi fares to attend medical treatment.  However the applicant requested a review by the AAT of entitlement to compensation under s24.  The Court found that the issues under s24 which required determination were whether the applicant had a permanent impairment; and if so, the amount of compensation payable.  Neither of those issues had been determined at the first tier decision-making stage by the determining authority.  Therefore the AAT did not have authority to review the issues under s24.

 

  1. In addressing the facts of the O'Donohue matter, the Court found that even though Comcare had made a determination under s14 of the SRC Act and the reviewable decision affirmed that finding, the AAT did not have jurisdiction to allow it to determine any entitlement to compensation under s24 of the SRC Act.  This would be the case, even if the decision by the determining authority had been that there was liability to pay compensation in respect of the injury.  A decision by the AAT about entitlement to compensation under s24 of the SRC Act would “require the AAT to consider issues not determined at either the first or second tier of the decision-making process established by the Act.”

 

  1. Any issues relevant to this policy advice may be discussed with the Policy & Co-ordination Group on 1300 366 979.

 

 

 

 

 

Regulatory Services Division

Comcare

21 December 1999

 

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