Secretary, Department of Employment, Education Training & Youth Affairs v Allen, Mason, Senior Member, Administrative Appeals Tribunal [1998] FCA 165

FEDERAL COURT OF AUSTRALIA ADMINISTRATIVE LAW - preliminary point decided by AAT - unavailability of appeal under s 44 of Administrative Appeals Tribunal Act 1975 - availability of judicial review under Judiciary Act s 39B and Administrative Decisions (Judicial Review) Act - discretionary considerations - circumstances in which judicial review was appropriate of a preliminary decision of the AAT upon an appeal from the SSAT - effect on application to SSAT and AAT of section denying them, in reviewing on the merits, the discretions and powers of the original decision maker - availability nevertheless of power to determine sum due and power of waiver. SOCIAL SECURITY - ABSTUDY scheme - effect of garnishee and waiver provisions of Student and Youth Assistance Act 1973 in picking up non-statutory scheme - administrator's task under statute of deciding what overpayment there was before applying garnishee provision - rights of internal review and review by SSAT - appeal to AAT - effect on application to SSAT and AAT of section denying them, in reviewing on the merits, the discretions and powers of the original decision maker - availability nevertheless of power to determine sum due and power of waiver. WORDS AND PHRASES - "relating to". Administrative Appeals Tribunal Act 1975, ss 43, 44 Administrative Decisions (Judicial Review) Act 1977, s 5 Judiciary Act 1903, s 39B Student and Youth Assistance Act 1973, ss 3, 42, 43, 302, 304, 309, 316, 323, 324 Social Security Act 1991, ss 1233, 1253 Lamb v Moss (1983) 49 ALR 533, referred to Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523, referred to Bogaards v McMahon (1988) 80 ALR 342, referred to Federal Commissioner of Taxation v McMahon (1997) 149 ALR 159, followed Walker v Secretary, Department of Social Security (1997) 147 ALR 263, followed Lee v Secretary, Department of Social Security (1996) 139 ALR 57, referred to Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32, referred to Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, referred to Re Dingjan; Ex parte Wagner (1995) 183 CLR 323, referred to PMT Partners Pty Ltd v Australian National Parks and Wildlife Service (1995) 131 ALR 377, applied Otter Gold Mines Ltd v Australian Securities Commission (1997) 25 ACSR 382, applied Commissioner of Taxation v Beddoe (1996) 23 AAR 408, referred to Australian Postal Commission v Hayes (1989) 23 FCR 320 at 323, referred to SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION TRAINING AND YOUTH AFFAIRS v MASON ALLEN, SENIOR MEMBER, ADMINISTRATIVE APPEALS TRIBUNAL and DOMINIC KANAK NG 859 of 1996 Burchett J Sydney