Explanatory Memorandum
(Circulated by the authority of the Minister for Social Services, the Hon Kevin Andrews MP)Schedule 2 - Review of decisions
Summary
This Schedule will bring provisions of the Student Assistance Act relating to the Social Security Appeals Tribunal (SSAT) into line with similar provisions in the social security and related laws.
Background
The Social Security and Other Legislation Amendment (Further Budget and Other Measures) Act 2012 made various amendments, to the Social Security Administration Act, the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act), the Child Support (Registration and Collection) Act 1988 and the Paid Parental Leave Act 2010, affecting the operation of the SSAT. However, parallel amendments were not made to the Student Assistance Act. This Schedule amends the Student Assistance Act to bring the provisions affecting the operation of the SSAT into line with the Acts mentioned above.
The Schedule also clarifies a provision in each of the Family Assistance Administration Act, the Social Security Administration Act and the Student Assistance Act to ensure a statement of reasons for an SSAT decision is given to the Administrative Appeals Tribunal (AAT) if there is to be a review of the SSAT's decision.
The amendments in this Schedule commence on the day after Royal Assent.
Explanation of the changes
Amendments to the Family Assistance Administration Act and the Social Security Administration Act
Item 1 amends subsection 149(2) of the Family Assistance Administration Act.
Current subsection 149(2) provides that, if a person applies to the AAT for review of an SSAT decision, the Secretary is to give to the AAT copies of the statement of reasons prepared by the SSAT under paragraph 141(1)(a) of the Act. However, paragraph 141(1)(a) applies only where the SSAT varies decisions or sets decisions aside. Where the SSAT affirms a decision, the SSAT would give the statement of reasons under subparagraph 141(1A)(c)(ii).
The effect of the proposed amendment is that, if a person applies to the AAT for a review of an SSAT decision, the Secretary is to give the AAT copies of the statement of reasons prepared by the SSAT under either subparagraph 141(1A)(c)(ii) or paragraph 141(1)(a).
In the same way, item 2 amends subsection 186(2) of the Social Security Administration Act. The effect of the proposed amendment is that, if a person applies to the AAT for a review of an SSAT decision, the Secretary is to give the AAT copies of the statement of reasons prepared by the SSAT under either subparagraph 177(1A)(c)(ii) or paragraph 177 (1)(a).
Amendments to the Student Assistance Act
Items 3 to 10, 12 to 15 and 18 to 27 make various minor and technical amendments to Part 9 of the Student Assistance Act, including amendments to reflect the change of title from National Convener to Principal Member.
Item 11 makes a consequential amendment to subsection 321(3) to refer to new sections 322A and 322B, rather than section 1274 of the Social Security Act, which no longer exists.
Item 16 inserts new sections 322A, 322B and 322C at the end of Division 2 of Part 9 of the Student Assistance Act.
New section 322A gives the Principal Member of the SSAT the power to dismiss an application for review of a decision under any of the circumstances listed in paragraphs 322A(1)(a) to (e). It also gives the Principal Member the power to reinstate an application that has been dismissed in certain circumstances.
New section 322B provides that an applicant for review may notify the SSAT at any time that the application is discontinued or withdrawn. If the Principal Member has dismissed an application under section 322A, the applicant may also request that the dismissed application be reinstated.
New section 322C replaces existing section 328, which is being repealed by item 17. Existing section 328 provides that section 28 of the Administrative Appeals Tribunal Act 1975 applies. The effect is that an applicant to an AAT proceeding has the right to request that the SSAT provide a statement setting out the reasons for its decision. This will be replaced by new section 322C, which sets out the requirements for the SSAT to notify parties of its decision.
New subsection 322C(1) sets out the requirement on the SSAT to notify parties of its decision where the SSAT affirms the decision on review. It provides that the SSAT must prepare a written statement of the decision, and either give reasons for the decision orally, or give a written statement setting out the reasons, findings on material questions of fact and a reference to the evidence or other material on which the findings were based.
New subsection 322C(2) provides that, if the SSAT did not give a written statement of reasons to a party, the party may make a written request of the SSAT for such a statement, within 14 days after the written statement of decision is given.
New subsection 322C(4) sets out the requirement on the SSAT to notify parties of its decision where the SSAT varies or sets decisions aside. It provides that the SSAT must give each party a written statement that sets out the decision on review, the reasons, findings on material questions of fact and a reference to the evidence or other material on which the findings were based.
New subsection 322C(5) requires the SSAT to give notice to each party advising them of their further review rights.
New sections 322A, 322B and 322C align the rules in the Student Assistance Act relating to dismissals of applications, withdrawal of applications and the notification of decisions with similar rules in other legislation that confers jurisdiction upon the SSAT - namely, the Child Support (Registration and Collection) Act 1988, the Family Assistance Administration Act, the Paid Parental Leave Act 2010 and the Social Security Administration Act.
Item 28 provides for how the changes are intended to apply.
Items 11 and 16 (to the extent that the latter inserts new sections 322A and 322B) will apply in relation to an application to the SSAT for review of a decision that is made on or after the commencement of the items.
Item 16 (to the extent that it inserts new section 322C) and items 17 and 18 will apply in relation to a decision of the SSAT that is made on or after commencement of the items.