Scheme guidance - Extent of power of the Administrative Review Tribunal when reviewing reviewable decisions

Background

The SRC Act outlines a three tiered decision making process. A first tier decision is referred to as a ‘determination’ which is defined under section 60 of the SRC Act and means a determination, decision or requirement made under a specific section or division of the SRC Act.^[1]

A first tier determination can be reviewed under section 38^[2] or section 62 of the SRC Act. Second tier decision making arises from a request from an employee or Commonwealth employer^[3] for a reconsideration of a first tier determination. A decision maker can also choose to reconsider a first tier determination on their own motion.

A second tier decision is referred to as a ‘reviewable decision’ which is defined in section 60 of the SRC Act.

The ART conducts independent reviews of administrative decisions made under Commonwealth laws. Under section 64 of the SRC Act, the ART is only able to review reviewable decisions. The ART does not have the authority to exercise any powers which would not have been available to the decision maker at the second tier decision making stage.

Relevant cases

Two-tier decision making

In a joint decision in the cases of Lees v Comcare and Comcare v O’Donohue^[4], the Full Federal Court held that it is only after the two-tiered internal review process has been completed that the Administrative Appeals Tribunal (now ART) is able to review a decision. The ART’s powers under section 54 of the Administrative Review Tribunal Act 2024 (ART Act)^[5] are powers to review the reviewable decision, not powers that can be exercised at large.

In O’Donohue, the Court found that even though Comcare had made a determination on compensation for injury under section 14 of the SRC Act and the reviewable decision affirmed that finding, the Administrative Appeals Tribunal (AAT) did not have jurisdiction to allow it to determine any entitlement to compensation under section 24 of the SRC Act as those matters had not been through the two-tier decision making process of determination and reconsideration.

Refusal or failure to make a decision

In Semunigus v Minister for Immigration and Multicultural Affairs^[6] the Federal Court found that to make a determination, a decision maker must reach a conclusion following some form of consideration or analysis. A clear and specific refusal to make a decision on an issue may be taken to be a determination and therefore reviewable, but failure to give any consideration or analysis of the facts is unlikely to be a determination.

Refusal to make a decision should be distinguished from a failure to make a decision. In Kennedy v Comcare^[7] the Federal Court (citing Telstra Corporation Ltd v Kotevski^[8] and Irwin v Military Rehabilitation and Compensation Commission^[9])  found that if a request for reconsideration is before a decision maker and they do not deal with it expressly, the decision maker might be taken to have implicitly rejected it. If a decision maker fails to address part of a claim that is before them, it may be found that an implicit decision has been made and that the ART has jurisdiction to consider the claim.

Scope of the decision under review

In Szabo v Comcare^[10] the Full Federal Court acknowledged the AAT’s finding that the notice of injury and claim for compensation were in respect of a specific aggravation of a pre-existing condition and not in respect of the ‘nature and conditions’ of the employee’s employment. The Court upheld the AAT’s finding that it did not have jurisdiction to consider further notices of injury and medical opinions supporting a ‘nature and conditions’ claim that were given after the claim for a specific aggravation was determined.

In Ellison v Comcare^[11], the applicant raised a new medical condition at reconsideration following a determination of no present liability. The Federal Court found that the AAT had jurisdiction to consider liability in respect of a new injury raised at the reconsideration stage even if that injury had not been subject to a primary determination by Comcare. The Court was satisfied that a medical report provided at the reconsideration stage which identified a new or different injury was sufficient to constitute notice and a claim for compensation in respect of that new injury for the purpose of sections 53^[12] and 54^[13] of the SRC Act.

Guidance

Considerations when refusing to make a decision

Where a decision maker refuses to make a decision on a claim, the decision maker should provide clear and considered reasoning for that decision. A refusal to make a decision may be a determination for the purposes of section 60(1) of the SRC Act which can be subject to review, so long as the refusal complies with the formal requirements for a determination under section 61(1).^[14]

Considerations for additional injuries that are outside the scope of the claim

In most circumstances, an applicant who already has a reviewable decision before the ART cannot add another issue unless it has been the subject of a claim, determination and a reviewable decision.

The findings in Ellison highlight the importance of ensuring that the scope of the claim at the initial determination and reconsideration stage is clear. Where the available evidence suggests additional injuries may have a causal nexus with employment (but are outside the scope of the claim made or accepted), decision makers should invite employees to submit a further claim for compensation. Decision makers should not assume that an employee wants liability assessed and determined for a particular injury. Inviting an employee to make further claims in respect of additional injuries can be done at any time (including during the reconsideration process or ART proceedings) and Comcare or the licensee would be required to determine the subsequent claim.  Where the relevant authority has engaged with evidence in respect of additional injuries at first or second tier review, the ART may have jurisdiction to make decisions in respect of those injuries even if they have not been the subject of a determination.

Where an applicant seeks to reformulate their claim to raise new conditions or substantially new issues of causation for the first time in proceedings before the ART, Comcare and licensees are entitled to investigate those matters raised and may take either of the following actions:

• seek an adjournment of the matter to allow new evidence to be considered/obtained, or
• assert that the employee is required to submit a new claim for compensation in respect of any new conditions or substantially new issues of causation in accordance with sections 53 and 54 of the SRC Act and section 105 of the ART Act.^[15]

Where ART litigation is resolved by consent agreement, section 103 of the ART Act^[16] requires the ART to be satisfied that the agreement of the parties would be within the powers of the ART. Therefore, such agreements cannot relate to matters that were not within the jurisdiction of the ART initially (i.e. matters must have been the subject of a determination and reviewable decision by the relevant authority).

Further information

Scheme guidance on considerations in the reconsideration process can be found on the Comcare website.

For further information, please contact Comcare’s Scheme Policy and Design team on 1300 366 979 or
email schemepolicyanddesign@comcare.gov.au.