FEDERAL COURT OF AUSTRALIA Evans v Superannuation Complaints Tribunal [2002] FCA 1449 SUPERANNUATION – application for late election to preserve superannuation benefits under Superannuation Act 1976 (Cth) s 157 – earlier application for late election refused – further application for late election – whether more than one election may be made under s 137 – whether power given to second respondent by s 157 to consider recognising late election may be exercised from time to time or only once Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Superannuation Act 1976 (Cth) ss 17, 27A, 27C, 137(1), 153AH, 153AM, 153AP, 154, 157 Superannuation Legislation Amendment Act 1984 (Cth) s 47 Superannuation Industry (Supervision) Act 1993 (Cth) Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14, 37 Acts Interpretation Act 1901 (Cth) s 33(1) Administrative Appeals Tribunal Act 1975 (Cth) s 29(7) Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333 cited Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 187 ALR 117 referred to Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269 cited Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 referred to Re Claasz and Commissioner for Superannuation (1995) 38 ALD 62 not followed ROGER KEITH EVANS v SUPERANNUATION COMPLAINTS TRIBUNAL AND CSS BOARD A 71 of 2001 BRANSON J 26 NOVEMBER 2002 SYDNEY (HEARD IN CANBERRA) IN THE FEDERAL COURT OF AUSTRALIA ACT DISTRICT REGISTRY A 71 of 2001 BETWEEN: ROGER KEITH EVANS APPLICANT AND: SUPERANNUATION COMPLAINTS TRIBUNAL FIRST RESPONDENT CSS BOARD SECOND RESPONDENT JUDGE: BRANSON J DATE OF ORDER: 26 NOVEMBER 2002 WHERE MADE: SYDNEY (HEARD IN CANBERRA) THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the second respondent. IN THE FEDERAL COURT OF AUSTRALIA ACT DISTRICT REGISTRY A 71 of 2001 BETWEEN: ROGER KEITH EVANS APPLICANT AND: SUPERANNUATION COMPLAINTS TRIBUNAL FIRST RESPONDENT CSS BOARD SECOND RESPONDENT JUDGE: BRANSON J DATE: 26 NOVEMBER 2002 PLACE: SYDNEY (HEARD IN CANBERRA) REASONS FOR JUDGMENT INTRODUCTION 1 By an application dated 11 March 2002 made under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) the applicant seeks judicial review of a 'decision' of the first respondent ('the Tribunal') dated 11 June 2001. By letter dated 14 November 2001 the Tribunal advised the applicant's lawyers that it lacked jurisdiction to entertain a complaint made by the applicant concerning a decision of the second respondent ('the Board'). The applicant further seeks the issue of a writ of mandamus directed to 'the Respondent' and certain declaratory relief. 2 The grounds upon which the application is made which were relied on at the hearing are: '(d) The Applicant contends that the Respondent [sic] erred in law in determining that if the application of 21 July 1996 is a valid application, then Comsuper is precluded from considering that application by reason of the doctrine of "functus officio"; (e) The Applicant contends that the Respondent [sic] erred in law in determining that any application of "functus officio" by Comsuper operated to deprive the Respondent [sic] of jurisdiction; (f) The Applicant contends that the Respondent [sic] erred in law in determining that it had power not to consider an application validly lodged by the Applicant with the Respondent.' 3 The references in the application to 'the Respondent' are to be understood as references to the Tribunal. It seems that the body of the application may have been drafted before Finn J ordered on 8 February 2002 that the Board be added as a second respondent to the proceeding. 4 The Tribunal has indicated that it will submit to such order as the Court may make in the proceeding. The Board appeared by counsel to support the decision of the Tribunal. 5 For the reasons set out below I have formed the view that the application should be dismissed. background facts 6 The applicant, who was born on 4 March 1939, became an 'eligible employee' within the meaning of the Superannuation Act 1976 (Cth) ('the Act') on 29 June 1967. He remained an 'eligible employee' until his resignation from a position in the Department of Prime Minister and Cabinet on 17 February 1981. On 18 February 1981 the applicant signed before a barrister as witness an application form whereby he applied for a refund of his accumulated contributions under the provisions of the Act. He deleted, by striking them through, the alternative options expressed on the form as: 'apply for payment of a lump sum benefit', and 'elect for preservation of superannuation rights'. 7 The applicant again became an 'eligible employee' on 14 November 1983. He remains an 'eligible employee'. 8 By letter dated 22 June 1989 addressed to the Australian Government Retirement Benefits Office the applicant indicated that he wished to make a late election to preserve his previous superannuation entitlements. On 9 May 1990 a delegate of the Commissioner for Superannuation ('the Commissioner') determined that he was not satisfied: 'that in all the circumstances of the case it is desirable that the election under subsection 137(1) made by Mr Evans on 22 June 1989 should be recognised.' 9 At the request of the applicant the decision of the delegate was reconsidered under s 154 of the Act. The decision was confirmed on 27 June 1991. The decision‑maker noted that while he would have preferred to delay reaching a decision on the reconsideration to obtain guidance from a pending decision of the Administrative Appeals Tribunal ('AAT') in a matter with points of similarity with the applicant's case, the applicant had insisted that he proceed to an immediate decision. 10 By letter dated 21 July 1996 addressed to the Commissioner the applicant indicated that he had learnt that the AAT hearing referred to above had resulted in a positive outcome for the applicant in that case thus setting a precedent for his own case. He requested that his application for late election be considered in the light of the decision of the AAT. The applicant received advice from an officer of the Board that the applicant should seek relief from the AAT and that this would involve him in seeking an extension of time to lodge an application for review. 11 On 5 January 2000 the applicant applied to the AAT for review of the decision of 27 June 1991 whereby the determination of the delegate of the Commissioner that he was not satisfied that in all of the circumstances it was desirable that the applicant's late election should be recognised was confirmed. He also applied for an extension of time within which to lodge his application for review. It appears that the application for an extension of time was not pursued. The applications were ultimately deemed to have been withdrawn. 12 By a letter dated 12 May 2000 the applicant's solicitors wrote to the Commissioner advising that the applicant's letter of 21 July 1996 did not seek reconsideration of the decision of 27 June 1991 but was rather a new primary application for a late election. The letter asserted: 'Mr Evans still awaits that decision and we are instructed to ask when he might expect to receive it.' 13 The response to the above letter, dated 25 May 2000, which is on the letterhead of 'Comsuper', asserted that the decision previously taken in the applicant's case was 'exhaustive and determinative of his rights' under the Act. The letter, pleasantries apart, concluded: 'The Commissioner, as well as the CSS Board, are therefore functus officio as regards the issue of Mr Evans' late election for preservation and no subsequent applications may be entertained.' 14 By letter dated 6 June 2000 addressed to Comsuper the applicant's solicitor advised that they took the view that Comsuper's refusal to consider the applicant's late election constituted a decision within the meaning of s 154 of the Act. They sought reconsideration of the decision. On 19 October 2000 the Board decided, on reconsideration of the earlier decision, to affirm the advice given to the applicant by the letter dated 25 May 2000 that, in effect, only one application to make a late election to preserve superannuation rights could be made under the Act. 15 On 7 March 2001 the applicant registered a complaint against Comsuper with the Tribunal. By letter dated 5 October 2001 the Tribunal advised the applicant's solicitors that it was unable to entertain the complaint as the decision of Comsuper of 9 May 1990 was taken before the fund became a regulated fund under the Superannuation Industry (Supervision) Act 1993 (Cth). The solicitors for the applicant replied to the Tribunal indicating that the decision which they sought to have reviewed was the decision of 25 May 2000. 16 The Tribunal by letter dated 14 November 2001 confirmed its view that it lacked jurisdiction to deal with the applicant's complaint. The letter indicated that the Tribunal did not accept that the impugned decision was that of 25 May 2000 but remained satisfied that it was 'the pre-regulation decision of 1991.' It is the 'decision' recorded in this letter which is the subject of the application to this Court. statutory provisions 17 The Act establishes a superannuation scheme for Commonwealth employees. Section 17 of the Act provides that there shall be a Commissioner for Superannuation. The Board is established by s 27A of the Act. Its functions include managing and investing the CSS Fund established by the Act ('the Fund'). 18 By the Superannuation Legislation Amendment Act 1994 (Cth) ('the Amending Act') the Act was amended to ensure that the rules of the superannuation scheme provided for by the Act were consistent with the Superannuation Industry (Supervision) Act 1993 (Cth). By the Amending Act, many sections of the Act were amended by substituting references to the Board for references to the Commissioner. Section 47(1) and (2) of the Amending Act provide: '(1) A reference in this section to anything done by the Commissioner or the Minister includes a reference to a determination made, or a direction, approval or delegation given, by the Commissioner or the Minister, as the case may be. (2) Anything done before the commencement of this section under a provision of the Principal Act referred to in subsection (4) by, or to or in respect of, the Commissioner has effect, after that commencement, for all purposes of the Principal Act as amended by this Act … as if it had been done by the Board under the corresponding provisions of the Principal Act as amended by this Division.' 19 The provisions of the Principal Act referred to in s 47(4) of the Amending Act include ss 137 and 157 but do not include s 154. 20 The Amending Act came into force on 23 June 1994. From that time the Commissioner under s 17(2) has been responsible for: '(a) the provision of administrative services to the Board; and (b) the general administration of the superseded Act [ie the 1922 Act]; and (c) any functions conferred on the Commissioner under s 154.' 21 From the coming into operation of the Amending Act the functions of the Board outlined in s 27C(1) have been: '(a) to manage and invest the Fund so as to maximise the return earned on the Fund, having regard to: (i) the need to make provisions for payments out of the Fund under this Act; and (ii) the need for equity among eligible employees; and (iii) the need to exercise reasonable care and prudence in order to maintain the integrity of the Fund; and (b) to be responsible for the general administration of the Act, other than section 154.' 22 Part IX of the Act (ss 125-146) is concerned with the preservation of rights of certain eligible employees. Section 137(1) relevantly provides: 'A person who: (a) ceases to be an eligible employee … and upon so ceasing, is not entitled to pension under this Act … ; or (b) … may, not later than 21 days after the person so ceases to be an eligible employee, elect, by notice in writing to the Board, that this Division apply in relation to the person.' 23 Elections of various kinds may also be made under numerous other provisions of the Act (see, for example, ss 51B, 62, 64, 68, 69, 71, 72, 83, 84, 86, 87, 128 and 244). 24 Section 157(1) provides: 'Notwithstanding anything contained in this Act, where an election under this Act is made by a person after the expiration of the period allowed by or under this Act for the making of the election, and the Board is satisfied that in all the circumstances of the case it is desirable that the election should be recognised, the Board may direct that the election be treated as if it had been made within the period allowed and the election shall have effect accordingly.' 25 Earlier than 1 July 1994 the references in s 137(1) and s 157(1) to 'the Board' were references to 'the Commissioner'. 26 Section 153AH(1) provides that '[a] person affected by a decision made by a delegate of the Board may apply to the Board for reconsideration of the decision'. Section 153AM(1) provides that '[a] person affected by a decision made by the Board may apply to the Board for a reconsideration of that decision'. Section 153AP provides: '(1) A decision is to be reconsidered only if there is evidence relevant to the decision that was not previously taken into account by the Board in making the decision. (2) If an application is not supported by evidence in accordance with subsection (1), the Board must dismiss the application. (3) The dismissal of an application in respect of a decision does not preclude the applicant from subsequently submitting another application in respect of the decision.' 27 Section 154 of the Act is concerned with the review of decisions of the Commissioner. Relevantly the section provides: '(1) In this section: "decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975 "reviewable decision" means a decision of the Commissioner, or a delegate of the Commissioner, under this Act, …. … (2) A person affected by a reviewable decision who is dissatisfied with the decision may, by notice in writing given to the Commissioner within the period of 30 days after the day on which the decision first comes to the notice of the person, or within such further period as the Commissioner allows, request the Commissioner to reconsider the decision. (3) There shall be set out in the request the reasons for making the request. (4) Upon receipt of the request, the Commissioner shall reconsider the decision and may confirm or revoke the decision or vary the decision in such manner as the Commissioner thinks fit. (5) Where the Commissioner confirms, revokes or varies a decision, the Commissioner must, by notice in writing served on the person who made the request, inform the person of the result of the reconsideration of the decision and the reasons for confirming, revoking or varying the decision, as the case may be. (6) Applications may be made to the Administrative Appeals Tribunal for review of reviewable decisions that have been confirmed or varied under subsection (4) … …' 28 The Superannuation (Resolution of Complaints) Act 1993 (Cth)('the SRC Act') provides for a system of external review of decisions made by the Board or its delegate under the Act. Section 6 of the Act establishes the first respondent, the Tribunal. 29 Section 14 of the SRC Act relevantly provides: '(1) This section applies if the trustee of a fund has made a decision … in relation to: (a) a particular member or a particular former member of a regulated superannuation fund; or (b) … … (2) … a person may make a complaint … to the Tribunal, that the decision is or was unfair or unreasonable.' 30 The powers of the Tribunal when reviewing a decision of a trustee of a fund that is the subject of a complaint are set out in s 37 of the SRC Act. I have recently given consideration to the nature and extent of those powers in Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333. decision of the tribunal 31 The Tribunal took the view, based on legal advice, that it lacked jurisdiction to deal with the applicant's complaint. The Tribunal was satisfied that the decision that was the subject of the applicant's complaint was the decision of the Commissioner made under s 154 of the Act on 27 June 1991, i.e. that the decision that was the subject of the complaint was a 'pre-regulation' decision. It did not accept that the decision that was the subject of the applicant's complaint was the 'decision' referred to in the letter from Comsuper dated 25 May 2000 which advised that: 'The Commissioner, as well as the CSS Board, are therefore functus officio as regards the issue of Mr Evans' late election for preservation ….' the issue 32 The central issue in this proceeding is one of statutory construction. It is whether on the proper construction of the Act the power given to the Board (and previously given to the Commissioner) by s 157 of the Act may be exercised from time to time or only once. consideration 33 Section 137(1) provides for a person who has ceased to be an eligible employee positively to elect that Division 3 apply in relation to him or her. It would therefore appear that the applicant did not on 18 February 1981 make an election under s 137(1) even though he deleted the option 'elect for preservation of superannuation rights' from the form that he signed on that day (see [6] above). 34 Had the applicant made the election for which s 137(1) provides within the period allowed no question of a second election could have arisen; the election would have automatically resulted in the preservation of his superannuation rights. However, where a late election under s 137(1) is made, the election will only be recognised where the Board so directs under s 157(1). Although s 157(1) of the Act allows a late election under s 137(1) to be treated as if it had been made within the period approved, the requirement of s 137(1) of the Act that an election under that section be made 'not later than 21 days after the person … ceases to be an eligible employee' is suggestive of a legislative intention that an election under the subsection may only be made once. Additionally, as Gleeson CJ observed in Minister for Immigration and Multicultural Affairs v Bhardwaj at [8]: 'The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. …' 35 Elections made under s 137(1) and other provisions of the Act have an impact on the Fund. While the impact of any one election is likely to be slight, a lack of certainty generally as to whether elections under the subsection are to be made could be expected to impact on the management and investment of the Fund. 36 I conclude that on the proper construction of the Act it is only open to a person to make one election under s 137(1) of the Act. That is, for present purposes, if an election is made later than 21 days after the person ceases to be an eligible employee and the Board determine that it does not have the satisfaction referred to in s 157(1) it is not open to the person to make a further late election; the election of which s 137(1) speaks has been made. 37 The question remains, however, whether a person who has made an election under s 137(1) can require the Commissioner or the Board, as the case may be, to consider on more than one occasion whether the Commissioner or the Board is satisfied that in all of the circumstances of the case it is desirable that the election be recognised. This question is unrelated to the issue of whether an administrative decision‑maker, on becoming aware that by reason of error it has failed to discharge its statutory function, may reconsider its earlier decision (see Minister for Immigration and Multicultural Affairs v Bhardwaj). No error touching on the decision of 27 June 1991 made under s 154 of the Act, which confirmed the earlier determination of a delegate of the Commissioner that he was not satisfied as required by s 157(1), was sought to be relied upon. 38 The power given to the Board (and previously the Commissioner), by s 157(1) is a power which may be exercised only if the Board (and previously the Commissioner) has the satisfaction identified in the subsection; that is, if 'the Board [previously the Commissioner] is satisfied that in all the circumstances of the case it is desirable that the election should be recognised'. As a matter of logic, the Board or the Commissioner might not have the necessary satisfaction at one particular time but, because of changes in 'the circumstances of the case', the Board or the Commissioner might have the satisfaction at a later time. 39 Nothing in the nature of the power compels a conclusion that a decision not to exercise the power exhausts the power (see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 187 ALR 117 per Gleeson CJ at [5]). Moreover, s 33(1) of the Acts Interpretation Act 1901 (Cth) ('the Acts Interpretation Act') provides: 'Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.' 40 It is therefore necessary to consider whether the Act discloses an intention that the power given to the Board, and previously the Commissioner, by s 157(1) should not be exercised from time to time with respect to an election made under the Act, or alternatively should not be exercised from time to time with respect to an election made under s 137(1) of the Act. 41 The decision of 27 June 1991 made under s 154 of the Act was capable of review by the AAT. Indeed, as is mentioned above, the applicant applied to the AAT on 5 January 2000 for review of that decision and for an extension of time within which to lodge his application for review. The Act by s 154(6) continues to provide for an application to the AAT for review of a decision of the Commissioner that has been confirmed or varied under s 154(4) provided that the application is made within twenty‑eight days or such further period as the AAT may allow under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). 42 Divisions 3 and 4 of Part XA of the Act provide for the reconsideration of decisions of the Board or its delegate. Section 153AH provides that a person affected by a decision made by a delegate of the Board may apply to the Board for reconsideration of the decision. Section 153AM provides that a person affected by a decision made by the Board may apply to the Board for reconsideration of the decision. Neither section prescribes a time limit for the application. However, an application under s 153AM must be dismissed unless there is evidence relevant to the decision that was not previously taken into account by the Board in making the decision (s 153AP). 43 The SRC Act provides for a system of external review of decisions made by the Board or by its delegate under the Act. Section 14(2) of the SRC Act has the effect of authorising a person to complain to the Tribunal that a decision of the Board or its delegate is or was unfair or unreasonable. Section 37 of the SRC Act authorises the Tribunal, on review under s 14 of a decision, to make a determination which affirms or varies the decision under review, remit the matter to which the decision relates for reconsideration or set aside the decision substituting another decision for that set aside. 44 In my view, the factors which suggest that on its proper construction s 137(1) of the Act does not authorise more than one election also suggest that on the proper construction of s 157(1) of the Act the power thereby given to the Board (and previously the Commissioner) may only be exercised once. 45 This suggestion is strengthened, in my view, by the comprehensive scheme of reconsideration and review which applies in respect of decisions under s 157(1). It would seem entirely inconsistent with the intended operation of this comprehensive scheme that a person should be free at any time to restart the process by requesting a fresh original determination. On this approach, a fresh original determination could be sought and granted even after an AAT decision on review (see Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269 at 277). 46 The interpretation of one statute provides only limited guidance with respect to another. However, I note that in Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 444 French J concluded that detailed statutory provisions in relation to the review of decisions contained in the Migration Act 1958 (Cth) tended: 'to suggest a legislative purpose of codifying and confining the bases upon which decisions made under the Act or Regulation are able to be reviewed'. 47 In Minister for Immigration and Multicultural Affairs v Bhardwaj at [8] Gleeson CJ acknowledged that a statutory right of review might disclose an intention inconsistent even with the right of self‑correction. 48 Counsel for the Board by their written submissions characterised s 157(1) as: 'an ameliorative power in an elaborate statutory scheme which enables contributors to elect, as prescribed, the manner in which their entitlements are calculated and paid.' I accept this characterisation. 49 The purpose of an election under the Act is to fix the entitlements of a contributor by reference to one of two or more inconsistent options. This purpose would be significantly undermined, in my view, if the power to recognise a late election under s 157(1) were available to be re‑exercised from time to time. Moreover the purpose behind the setting of time limits upon the making of elections would be undermined. In addition, the requirement contained in s 153AP that the Board must dismiss an application for it to reconsider a decision previously made by it, unless there is relevant evidence not previously taken into account by it, could be simply avoided if the Board were entitled to re-exercise its power afresh. 50 However, it is not necessary for the determination of this case to decide more than that whether on its proper construction the Act discloses an intention that the power given to the Board (and previously the Commissioner) by s 157(1) may not be exercised from time to time with respect to an election made under s 137(1) of the Act. In my view the Act does disclose such an intention. In this regard I respectfully disagree with the decision of the Administrative Appeals Tribunal in Re Claasz and Commissioner for Superannuation (1995) 38 ALD 623. The reaching of a concluded view as to whether the power given to the Board by s 157(1) may be exercised from time to time with respect to any other election can await a case that raises the issue directly. 51 I conclude that the 'application' lodged by the applicant with the Commissioner on 21 July 1996 was not a valid primary application for a late election. The applicant had made a late election by his letter dated 22 June 1989. The determination of a delegate of the Commissioner that he was not satisfied that in all of the circumstances of the case it was desirable that the election should be recognised was confirmed on 27 June 1991. Thereafter, in my view, neither the Commissioner nor the Board was empowered to recognise the late election. The only further review of the determination that could be undertaken was a review by the AAT. The view of the Tribunal, expressed in the letter of 14 November 2001 (see [16] above), that it lacked jurisdiction to deal with the applicant's complaint was soundly based. 52 The application will be dismissed with costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 26 November 2002 Counsel for the Applicant: Dr R G Flick SC and Mr A Anforth Solicitor for the Applicant: Elrington Boardman Allport Counsel for the Second Respondent: Mr P Hanks QC and Ms J Jagot Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 31 October 2002 Date of Judgment: 26 November 2002