Secretary, Department of Employment, Education, Training & Youth Affairs v Mackay, Murray [1998] FCA 1786

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – Administrative appeals – social security appeal to Administrative Appeals Tribunal – whether "inappropriate" for SSAT to affirm delegate's decision for different reason – whether AAT misconceived review function of SSAT and AAT – function of tribunals not limited to deciding whether error in original decision but extends to making correct and preferable decision.

Administrative Appeals Tribunal Act 1977 (Cth) s 44(1), s 43(1) Employment Services Act 1994 s 45(5)(b), s 45(6) Social Security Act s 41, s 660I, s 1247(1), s 1253(1), s 1283(1), s 1283(2)

Secretary, Department of Employment, Education and Training Youth Affairs v Ferguson (1997) 48 ALD 593 referred Secretary, Department of Employment, Education, Training and Youth Affairs v Messenger (1997) 48 ALD 26 referred Secretary, Department of Employment, Education, Training and Youth Affairs v O'Connell (unreported, Mansfield J, 15 May 1997) referred Secretary, Department of Social Security v Hodgson (1992) 39 FCR 32 followed Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 followed Fletcher v Commissioner of Taxation (1988) 19 FCR 442 followed Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 followed SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS v MURRAY MACKAY VG 177 of 1998

KENNY J 2 DECEMBER 1998

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 177 of 1998

BETWEEN: SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS

Applicant

AND: MURRAY MACKAY

Respondent

JUDGE: KENNY j

DATE OF ORDER: 2 december 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the AAT made 31 March 1998 be set aside. 3. The case be remitted to the Administrative Appeals Tribunal for hearing and determination according to law. 4. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.