AAT Appeals are handled only in the National Office of the MRCC in Canberra.
Applications for review of a 'reviewable decision' (that is, a decision resulting from a reconsideration) must be made to the AAT within 60 days of the date on which the reviewable decision is furnished (provided to) the employee, the claimant or the Commonwealth. In practical terms, the 60 day time limit runs from the day on which the reviewable decision is received.
A compensation claimant under the SRC Act (or the Commonwealth) does not have access to the AAT until a reviewable decision (a decision by a RD) is made.
There is provision for the AAT to extend the time in which an application for review can be made. Where a claimant seeks to lodge a late application for review, the MRCC is consulted (in relation to the cases it determines) as to whether they have any objection to late lodgement of an application for review. Whether a late application can be accepted as a valid request for review is ultimately a matter for the AAT to decide.
Various decisions of the AAT and of the Federal Court of Australia have discussed what are the powers of the AAT in the compensation matters it deals with.
It would be fair to say that the weight of relevant decisions on this issue indicates that the AAT exercises the powers and discretions of the original decision maker; in this context, the RD.
If the RD did not address a matter in the reviewable decision, then the AAT does not have the discretion to consider that matter. To all intents and purposes, the AAT 'stands in the shoes' of the RD and decides the issue(s) which were before the RD and no more.
For example, a matter might come before a RD which relates to an employee's entitlement to weekly incapacity for work benefits. However, when considering that matter, the RD might conclude that liability to pay compensation has in fact ceased and that there is no entitlement to compensation benefits (including incapacity benefits) after a certain date.
In such a case, natural justice would demand that the employee is afforded an opportunity to provide evidence to support continuing liability. Assuming that the RD was satisfied that it was justifiable to cease liability to pay compensation, a reviewable decision might be issued finding that the Commonwealth is not liable to pay compensation to the employee after a certain date. In such a case, the RD has appropriately gone beyond the scope of the original decision in finding that liability has ceased.
Were the matter to become the subject of an application to the AAT, it would be open to the AAT to consider the correctness of the decision to cease liability to pay compensation. If the AAT concluded that the decision to cease liability was incorrect, it would also be open to the AAT to make a finding accordingly and to remit the matter to the MRCC for determination of the employee's actual entitlements under the SRC Act. Arguably, however, it would not be open to the AAT to make any findings regarding the employee's actual entitlement to benefits, except possibly the incapacity for work benefits to which the original (primary) decision related.
Ultimately, the AAT has a responsibility to come to the correct and/or preferable decision in relation to a particular matter that it is asked to consider.
1.The employee, claimant or the Commonwealth applies to the AAT for review of a specific reconsideration decision (a reviewable decision). Applications should be made within 60 days of the date on which the reconsideration decision was received. However, as mentioned, there is provision for the AAT to extend the time allowed in which to apply for review by the AAT.
2.The AAT notifies the MRCC that an application for review has been lodged, to which decision the application relates and the matter(s) to which the AAT application relates.
3.The MRCC has a period of 28 days in which to provide the AAT with a statement in accordance with Section 37 of the Administrative Appeals Tribunal Act 1975. The statement has to set out a history of the case and the reasons why the reviewable decision was made.
4.Since the AAT does not encourage matters to proceed to a full hearing, there is a desire to try to resolve matters between the parties to the AAT application (usually the employee or claimant and the MRCC) without the necessity for a hearing.
5.For this reason, there will usually be one or more conciliation conferences before a matter is set down for a formal hearing. Conciliation conferences are usually conducted by conference telephone with the parties to the conference being the employee, claimant or his/her legal or other representative such as an ex-service organisation member, the legal representatives of the Department who are briefed by National Office Appeals Section staff and, finally, a member or Senior Member of the AAT.
6.If it is not possible to resolve a matter without a formal hearing by the AAT, a hearing date will be scheduled and the matter will be heard at the appointed time. The parties to proceedings are as in 5. above.
7.When the hearing is finalised, the AAT reserves judgement and, after a period of usually weeks, hands down a decision regarding the matters that have been considered.
8.The parties to the AAT's decision are bound by that decision unless an appeal against the AAT's decision is made to the Federal Court of Australia.
9.An appeal to the Federal Court can only be made on a point of law; that is, on an interpretation of the relevant legislation. In other words, there is no provision for the Federal Court to review an AAT decision on the basis of the facts of a case.
If the AAT makes a decision which is favourable to the employee or claimant, the AAT may order that the employee or claimant's costs (legal and other) or part of those costs should be met by the Department.
Such matters are dealt with by the National Office Appeals Section and its legal representatives and need not concern MRCC State and Territory office staff.
If, for example, the AAT decides, contrary to the result of the MRCC's internal reconsideration, that an injured employee is entitled to be paid an amount of compensation for a permanent whole person impairment, the MRCC is obliged to implement the AAT's decision as quickly as possible by finding liability to pay the appropriate amount of compensation.
However, if the MRCC does not agree with the AAT's decision and wishes to appeal to the Federal Court, it is necessary that an application for a stay of payment be lodged with the Federal Court as soon as possible. There is no guarantee that the Federal Court will grant the stay of payment. If it does not, the MRCC is obliged to determine the employee's entitlement to lump sum compensation for permanent impairment without delay. This would normally involve the National Office Appeals Section's referring a copy of the AAT's decision to the relevant MRCC State or Territory office with a request that the employee's entitlement be determined as quickly as possible.
It is also notable that the AAT itself has a right to issue an order for a stay of payment, although in practice this is a power which is rarely applied, either by the AAT, or by the Federal Court.
While the AAT and the Federal Court have similar powers in relation to compensation matters arising under the SRC Act, the two bodies operate in different ways.
The AAT is intended to be an informal 'administrative' means of resolving disputes not only in compensation matters arising under the SRC Act, but also in relation to a great many other pieces of Commonwealth legislation which involve administrative decisions; often decisions by Australian Government administrative officers such as MRCC Delegates.
Although those whose claims are heard in the AAT are most often legally represented, there is certainly no requirement, for example, that a compensation claimant who is aggrieved by a MRCC reconsideration decision must be legally or otherwise represented. The AAT has shown over many years that it is prepared to do everything possible to assist claimants who cannot afford legal representation, or who choose not to be legally represented, in presenting their case to the AAT so that the correct or preferable decision is made.
Therefore, compensation claimants who indicate to MRCC staff that they wish to apply to the AAT for review of a reconsideration decision should be neither encouraged nor discouraged from engaging the services of a solicitor or of any other representative who may be able to help the claimant if a matter proceeds to consideration by the AAT. The employee or claimant should simply be advised that whether he/she chooses to be legally or otherwise represented in an application to the AAT is a matter for the employee or claimant's decision. No further opinion or information should be offered in such circumstances.
However, the same is not true in the case of an employee or claimant who may indicate an intention to appeal an AAT decision to the Federal Court. In such circumstances, the employee or claimant should be advised that any application to the Federal Court would necessitate legal representation and that any costs associated with obtaining legal advice would be obtained at the employee or claimant's own expense.
Any enquiries regarding reconsiderations or review by the AAT or the Federal Court of Australia should first be directed to the local MRCC Manager or Assistant Manager. National Office or Brisbane Office Reconsiderations and Appeals Section can also be contacted as necessary if an appeal related question cannot be answered locally.
25/06/07 — Page 1
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