APPLICANT SEEKS FURTHER JUDICIAL REVIEW REGARDLESS OF REINSTATEMENT OF ALLOWANCE AND FULL-ON INTERNAL REVIEW BY THE REVIEW OFFICER
Ambrose v Commonwealth of Australia [2020] FCA 1439 (8 October 2020)
This case involves an application for review for reinstated allowance under the Newstart Employment Pathway which had been suspended for non-compliance with the mutual obligation requirements. The applicant seeks for review even if the allowance has been reinstated and there had been a full-on internal review by the review officer.
Facts:
The application relates to the temporary suspension of the applicant’s Newstart allowance with effect from 1 August 2019 under s 42AF (1) of the Social Security (Administration) Act 1999 because he had failed to attend a scheduled meeting with his Employment Services Provider (ESP) which formed part of his mutual obligation requirements under his Newstart Employment Pathway (employment plan).
The decision to suspend his allowance was made by the applicant’s ESP pursuant to a delegation by the Secretary under s 234 of the Administration Act. The allowance was reinstated on 20 August 2019 and the applicant was repaid in full the amount of the allowance for the duration of the suspension period.
The applicant seeks to challenge the alleged refusal by Centrelink to review the decision to suspend his Newstart allowance. The amended originating application alleges that the applicant is aggrieved by the conduct on the following grounds:
- The [Department of Employment, Skills, Small and Family Business (DESSFB)] delegated power under social security law to employment service provider (ESP). ESP acting as delegate of DES made decision to suspend [Newstart Allowance (NSA)].
- Centrelink required to review ESP decision to suspend NSA. Centrelink refuses to review ESP decision suspend NSA.
- In refusing to review the ESP decision, Centrelink blocks access to the Administrative Appeals Tribunal (AAT) to review decision to suspend NSA.
- AAT refuses to review decision to suspend NSA until a Centrelink Authorized Review Officer has reviewed the decision to suspend NSA.
The applicant seeks a declaration “that all actions taken in relation to the conduct be invalid” and an order directing the respondent “to observe the procedures that are required by law to be followed in respect to the conduct.”
Issue: Should the court grant the application for judicial review under the Administrative Decision (Judicial Review) Act?
Law:
- Section 10(2)(b)(ii) provides that the Federal Court has a discretion to refuse to grant relief under the ADJR Act where adequate provision is made by any law other than the ADJR Act for review of the decision in question by, relevantly, a tribunal.
- A decision under s 42AF of the Administration Act can be reviewed by an authorized review officer under s.29 of the Administration Act (subject to exceptions not presently relevant) and is subject to two tiers of review in the Administrative Appeals Tribunal (the Tribunal): see ss 142 and 179, Administration Act.
Analysis:
It follows that the short point is that the proceedings lack any utility in circumstances where the suspension has ended and full repayment has occurred without penalty. In this regard, as a matter of general principle, “a Court should refuse to address an advisory opinion in respect of issues of which there is no longer a controversy between the parties...” (Bonan v Hadgkiss). There is no reason why this general principle should not be applied.
In this case, the internal review undertaken by the review officer was subject to two tiers of review in the Tribunal under the Administration Act. Those avenues of review clearly constitute “adequate provision” for review capable of attracting the discretion in s 10(2) (b)(ii). Furthermore, these avenues would have been better suited to the efficient resolution of the dispute and enabled a full merit review to be undertaken, if there had indeed been any issues remaining between the parties to resolve.
Conclusion: The application must be dismissed.
