Wales and Secretary, Department of Defence

[2010] AATA 1009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1009

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4153

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MARK WALES

Applicant

And SECRETARY, DEPARTMENT OF DEFENCE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date9 December 2010

PlaceCanberra

Decision The application is dismissed.

.....................[sgd].........................

Mr S. Webb, Member

CATCHWORDS

JURISDICTION - administrative decision - internal departmental processes - no power to review decision - no jurisdiction - application dismissed

Administrative Appeals Tribunal Act 1975 s 42A

Isaacs v Commissioner of Taxation [2006] FCAFC 105

REASONS FOR DECISION

9 December 2010 Mr S. Webb, Member         

1.      Mark Wales has applied for review of a decision made by an officer of the Department of Defence concerning an administrative inquiry.[1] The officer determined that further investigations would be conducted into complaints made by a third party against Mr Wales – “the allegations warrant further inquiry before a final position is reached”.[2] At the time Mr Wales was a Defence Contractor.

[1] 28 September 2010.

[2] Letter by Peter Jones, 27 August 2010.

2.      In response to Mr Wales’ application, a Deputy District Registrar of the Tribunal wrote to Mr Wales, requiring him to show, within 14 days, that the decision is reviewable by the Tribunal. Mr Wales responded within the required time and set out issues that are of concern to him, especially in relation to natural justice and procedural fairness. In part, he says

“I am not sure what legislation, policy, guideline, instruction or other authority the Department is and has conducted its investigations under and, as a result, I am unclear what the implications of any decisions it makes might be and I don’t know what review rights I have pursuant to the legislation, policy, guidelines, instruction or other authority.” [3]

[3] Written submissions by Mr Wales, 12 October 2010, p2.

3.      On 9 November 2010 a District Registrar of the Tribunal wrote to the Secretary of the Department of Defence in order to obtain a response from the Department to the question of jurisdiction raised by Mr Wales’ application for review. The Secretary’s response was filed on 22 November 2010. In part, the Secretary said

“The decision to initiate the administrative inquiry was part of an administrative process and was not initiated under a statute which provides for the jurisdiction of the Administrative Appeals Tribunal.” [4]

[4] Letter by Dr I J Watt AO, 17 November 2010.

4.      I have carefully considered Mr Wales’ submissions[5] and the character of the decision he has asked the Tribunal to review. There are three things to say about this.

[5] 12 October 2010 and 6 December 2010.

5.      Firstly, the decision is of an administrative character within an administrative inquiry process in relation to a complaint. One may expect that such processes and the related exercise of powers are conducted in accordance with lawful requirements that are expressed by instruments and policies in conformity with statutory requirements or provisions. Furthermore, one may expect that these processes are conducted in a manner that adheres to principles of procedural fairness. Mr Wales is unhappy with the conduct of the administrative inquiry and, apparently, has taken his concerns to the Defence Ombudsman.

6.      Secondly, Mr Wales asserts that the Defence Ombudsman referred him to this Tribunal. If that is correct, the reasons for the referral remain opaque. The particular legal framework under which the administrative processes are being conducted is not clear on the present materials. It appears that Mr Wales does not understand his legal rights in respect of the decision in issue. He has asked for advice from the Tribunal. But that is not the role of the Tribunal. If Mr Wales wants advice on this point it is open to him to consult a lawyer.

7.      Thirdly, the Tribunal does not exercise power at large and may only exercise the powers and discretions that were conferred upon the person who made the decision under review for the purpose of reviewing that decision.[6] The Tribunal’s jurisdiction is conferred upon it by enactments other than the Administrative Appeals Tribunal Act 1975 (the AAT Act) concerning, but not limited to, the review of a decision pursuant to subsection 43(1) of that Act. The terms of subsection 25(4) of the AAT Act are very clear – ‘The Tribunal has power to review any decision in respect of which an application is made to it under any enactment’.

[6] Isaacs v Commissioner of Taxation [2006] FCAFC 105 at para 36.

8. In conclusion, Mr Wales has not persuaded me that this Tribunal has any power to review the decision with which he cavils. The Tribunal has no jurisdiction to review the decision that is the subject of Mr Wales’ application. That being so, the application is dismissed pursuant to subsection 42A(4) of the AAT Act.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         .....................[sgd]...........................................................
           H. Choi (Associate)

Date of Hearing  9 December 2010
Date of Decision  9 December 2010
Solicitor for the Applicant          Self Represented
Solicitor for the Respondent     Self Represented