House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

Schedule 7 - student assistance amendments

Overview

1791. Schedule 7 to the Bill would amend the SA Act to support amalgamation.

1792. Key amendments proposed would:

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transfer the merits review jurisdiction of the SSAT to the AAT, with existing rights to merits review being preserved (including second review by the AAT of SSAT decisions for student assistance)

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create new defined terms of 'AAT first review' and 'AAT second review' corresponding to existing SSAT and AAT reviews of student assistance matters respectively

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preserve existing procedures for merits review of student assistance decisions, including amendments to modify the procedures generally applicable under the AAT Act

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modernise and simplify the drafting of the provisions of the SA Act relating to external merits review, without altering existing policy

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make consequential amendments to replace references to the SSAT with references to the AAT.

Part 1 - Main amendments

Item 1 - Subsection 3(1)

1793. Item 1 would insert new definitions into subsection 3(1):

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'AAT'

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'AAT Act'

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'AAT first review', and

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'AAT second review'

1794. 'AAT' would be defined to mean the Administrative Appeals Tribunal. This would be the amalgamated Tribunal.

1795. 'AAT Act' would be defined to mean the Administrative Appeals Tribunal Act 1975.

1796. 'AAT first review' would refer to the review of decisions in respect of which applications may be made under new section 311 (Item 11 of Schedule 7 to the Bill). This would comprise those applications which may currently be made to the SSAT.

1797. 'AAT second review' would refer to review of decisions in respect of which applications made may be made under new section 320 (Item 11 of this Schedule). This would comprise those applications which may currently be made to the AAT to review a decision of the SSAT.

1798. The new definitions would facilitate the maintenance of the existing two-tiered review process in respect of certain student assistance decisions, but with this process occurring within the amalgamated Tribunal. The definitions would also facilitate the preservation of differentiated procedures on AAT first review and AAT second review, as the AAT Act and the SA Act would prescribe procedural rules specific to each category. This is consistent with existing policy, as in some respects the procedures of the AAT and the SSAT in reviewing student assistance decisions differ. There would be no policy change to the types of decisions in respect of which applications may be made for review.

Item 2 - Subsection 3(1) (definition of Principal Member )

1799. Item 2 would amend subsection 3(1) to repeal the definition of 'Principal Member', in light of the abolition of the SSAT.

Item 3 - Paragraph 5C(e)

1800. Item 3 would omit the phrase 'and the Social Security Appeals Tribunal'.

1801. Existing paragraph 5C(e) requires the Secretary, in administering the SA Act, to have regard to the need to apply government policy in accordance with the law and with due regard to relevant decisions of the AAT and SSAT. Amended paragraph 5C(e) would continue to refer to the AAT, which would be sufficient to preserve existing policy.

Item 4 - Subsection 303(2)

1802. Item 4 would omit 'section 326A' and substitute 'section 327'. This would be a minor consequential amendment to reflect the renumbering of section 326A of the SA Act to section 327.

Item 5 - Subsection 303(3)

1803. Item 5 would repeal subsection 303(3), and substitute a new subsection 303(3).

1804. Existing subsection 303(3) provides that the Secretary may review a decision even if an application has been made to the SSAT or the AAT for review of the decision. New subsection 303(3) would provide that the Secretary may review a decision even if an application has been made to the AAT. This would apply to applications for both AAT first review and AAT second review. No policy change is intended.

Item 6 - Subsections 303(5) and (6)

1805. Item 6 would repeal subsections 303(5) to (6) and substitute a new subsection 303(6).

1806. Existing subsection 303(5) provides that if the Secretary makes a decision under subsection 303(4) to affirm, vary or set aside a decision and substitute a new decision, and a person has applied to the SSAT for review of the decision that was reviewed by the Secretary, the Secretary must give the Principal Member of the SSAT written notice of the decision made under subsection 303(4).

1807. Existing subsection 303(6) provides an equivalent requirement for applications made to the AAT.

1808. New subsection 303(6) would provide that the Secretary is required to notify the AAT Registrar if he or she makes a decision under subsection 303(4) in relation to a decision in respect of which a person has applied to the AAT for review. This would apply to applications for both AAT first review and AAT second review. No other change to existing policy is intended.

Item 7 - Subsection 304(5)

1809. Item 7 would repeal subsection 304(5) and substitute a new subsection 304(5).

1810. Existing subsection 304(5) provides that an application for review will be taken to have been made to the Secretary if the person has applied for review at the SSAT prior to applying for internal review.

1811. New subsection 304(5) would substitute references to the SSAT with references to the AAT. This reflects the abolition of the SSAT and transfer of roles to the amalgamated Tribunal. No policy change is intended.

Item 8 - Paragraph 308(1)(a), Item 9- Subparagraph 308(1)(b)(iii) and Item 10-Paragraph 308(1)(c)

1812. Item 8 would amend paragraph 308(1)(a) to omit 'subject to this Act, apply to the Social Security Appeals Tribunal' and substitute 'subject to this Act and the AAT Act, apply to the AAT'. Item 10 would repeal paragraph 308(1)(c).

1813. Existing section 308 requires the Secretary or an authorised review officer to notify a person of their further external review rights to the SSAT and AAT when notifying the person of the outcome of an internal review undertaken by the Secretary or authorised review officer.

1814. Existing paragraph 308(1)(a) requires that the notice contain a statement to the effect that a person may apply, subject to the SA Act, to the SSAT for review of the Secretary's or authorised review officer's decision.

1815. Existing subsection 308(1)(c) requires that the notice also contain a statement to the effect that if a person is dissatisfied with the decision of the SSAT, the person may apply, subject to the AAT Act, to the AAT for a review of the decision by the SSAT.

1816. New paragraph 308(1)(a) would substitute references to the SSAT with references to the AAT. The amendment would ensure that persons continue to be notified of their right to merits review by the amalgamated Tribunal.

1817. The repeal of existing subsection 308(1)(c) is appropriate in light of the amalgamation. It is not necessary to give notice of rights to AAT second review prior to a person making an application to the Tribunal for AAT first review. New subsections 43(5AA) to (5AC) of the AAT Act (Item 119 of Schedule 1 to the Bill) would require the Tribunal, upon completion of AAT first review, to notify persons of their right to second review. This would ensure parties are aware of their further review rights in all cases.

1818. Item 9 would omit 'based; and' and substitute 'based' in subparagraph 308(1)(b)(iii). This minor consequential amendment would follow from Item 10.

Item 11 - Divisions 2, 3 and 4 of Part 9

1819. Item 11 would repeal Divisions 2, 3, and 4 of Part 9 and substitute a new 'Division 2-Review by Administrative Appeals Tribunal', comprising:

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Subdivision A- Preliminary (new sections 309-310)

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Subdivision B-AAT first review (new sections 311-319)

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Subdivision C-AAT second review (new sections 320-326), and

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Subdivision D-Matters relating to both AAT first review and AAT second review (new section 327).

1820. Existing Divisions 2, 3 and 4 provide for:

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Division 2 - Review by Social Security Appeals Tribunal

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Division 3 - Right to review by Administrative Appeals Tribunal, and

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Division 4 - Modifications of the Administrative Appeals Tribunal Act 1975

1821. Part IV of the AAT Act provides a general procedural framework for external merits review by the AAT. Following the amalgamation, Part IV would apply to the review of student assistance decisions by the amalgamated Tribunal, unless otherwise modified or excluded by the SA Act. To that end, new Division 2 of the SA Act would add to or modify certain provisions of the AAT Act. This would have the effect of preserving existing procedures applicable to SSAT reviews as necessary.

1822. The content of existing Division 2 would be substantially covered by new Subdivisions A and B. The content of existing Divisions 3 and 4 would be substantially covered by new Subdivision C.

1823. Certain provisions in Divisions 2 and 4 would be rendered unnecessary by the amalgamation, as follows:

Existing Division 2

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Section 310 - SSAT objectives: this section would no longer be necessary because section 2A of the AAT Act (Item 1 of Schedule 1 to the Bill) would provide the objectives for the amalgamated Tribunal.

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Subsection 316(1)-Powers of the SSAT: this subsection would no longer be necessary because subsection 43(1) of the AAT Act would provide an equivalent set of powers for first reviews by the amalgamated Tribunal.

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Section 318 - Date of effect of SSAT decisions: this section would no longer be necessary because existing subsections 43(5A)-(6) of the AAT Act would provide equivalent rules for AAT first reviews by the amalgamated Tribunal.

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Section 320 - Application requirements: this section would no longer be necessary because Item 46 of Schedule 1 to the Bill would amend existing section 29 of the AAT Act so as to preserve the effect of existing section 320 insofar as it permits oral applications to be made. Insofar as existing section 320 provides for the delivery of applications to the Tribunal if lodged with the Department, it is not necessary to retain, as this rarely occurs and may be handled administratively if it does.

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Section 322 - Parties to SSAT review: this section would no longer be necessary because existing section 30 of the AAT would provide an equivalent process for persons to become parties to AAT first reviews by the amalgamated Tribunal.

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Sections 322A-322B-Dismissal and discontinuance of SSAT matters: this section would no longer be necessary because sections 42A and 42B of the AAT Act, as amended by Items 108 to 116 of Schedule 1 of this Bill, would provide a comprehensive set of powers to dismiss applications for AAT first review by the amalgamated Tribunal.

Existing Division 4

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Section 327 - Modification of the Administrative Appeals Tribunal Act: this section sets out the purpose and scope of existing Division 4. As Division 4 is being repealed, section 327 would not be required.

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Section 331 - Lodging documents with the AAT: this section would no longer be necessary because Items 74 to 87 of Schedule 1 of this Bill would modify existing section 37 of the AAT Act to provide rules with respect to lodging documents for second review by the AAT.

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Section 332 - Power of the AAT to obtain additional statements: this section modifies the operation of section 38 of the AAT Act so as to clarify that the Principal Member of the SSAT is responsible for providing additional statements to the AAT during the review of an SSAT decision under the SA Act by the AAT. This section would be unnecessary as amalgamation would allow for such additional information to be provided administratively within the Tribunal.

1824. The remaining provisions in existing Divisions 2, 3 and 4 would be preserved in new Division 2.

New Division 2 - Review by the Administrative Appeals Tribunal

Subdivision A of Division 2 - Preliminary

New section 309 - Simplified outline of this Division

1825. New section 309 would provide a simplified outline to explain that new Division 2 provides for the right to AAT first review and AAT second review. It would also explain the interaction between the AAT Act and the SA Act in relation to reviews by the AAT. In effect, the AAT Act applies unless it is modified by the SA Act. New section 309 would also inform readers that the AAT Act provides for judicial review of AAT decisions on AAT second review.

New section 310 - Application of Division

1826. New section 310 sets out the scope of the application of new Division 2. New subsection 310(1) preserves the effect of existing sections 309 and 323 which are in equivalent terms. Existing sections 309 and 323 provide that unless otherwise stated, existing Divisions 2 and 3 apply to all decisions made by an officer under the SA Act relating to:

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the Student Financial Supplement Scheme, or

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the recovery of amounts paid under a current or former special educational assistance scheme.

1827. In effect, this describes the decisions in respect of which applications for review may be made to the SSAT and AAT.

1828. New subsection 310(1) would provide that new Division 2-which covers both AAT first review and AAT second review-applies to these same decisions.

1829. New subsection 310(2) would preserve the effect of existing section 313, which excludes decisions made under sections 305 or 314 (continuation of payment pending review of adverse decision) and sections 343 or 345 (notice requiring information from any person) from review by the SSAT. New subsection 310(2) would apply this exclusion to both AAT first review and AAT second review.

1830. New section 310 would accordingly be a complete statement of the decisions in respect of which applications for external merits review may be made under the SA Act. It would not change existing policy, as provided in existing sections 309, 313 and 323.

Subdivision B of Division 2 - AAT first review

New section 311 - Application for AAT first review

1831. New section 311 would preserve the effect of existing subsections 311(1) and (2), which is the core provision conferring an entitlement on persons to apply to the SSAT for review of certain student assistance decisions. Existing subsection 311(1) has the effect that, subject to section 313 (non-reviewable decisions), persons whose interest are affected by a decision may apply to the SSAT, if the decision has been reviewed by the Secretary or an authorised review officer and the decision has been affirmed, varied or set aside.

1832. New subsection 311(1) would provide that subject to new subsection 310(2) (non-reviewable decisions), if a decision has been reviewed by the Secretary or an authorised officer and the decision has been affirmed, varied or set aside, an application may be made to the AAT for AAT first review of that decision.

1833. New section 311 would be silent on who may apply for AAT first review. This is because standing requirements would be covered by section 27 of the AAT Act, which permits persons whose interests are affected by a decision to apply for review.

1834. New section 311 would accordingly maintain existing policy, but would provide for applications to be made to the AAT for AAT first review, rather than to the SSAT.

New section 311A-Person who made the decision

1835. New section 311A would define the term 'the person who made the decision' in the AAT Act for the purposes of AAT first reviews to mean the Secretary (within the meaning of the SA Act). The purpose of this definition is to ensure that the relevant Secretary (rather than the individual officer who made the decision) is a party to AAT first reviews and bears the other rights and obligations afforded to decision makers under the AAT Act. The term 'the person who made the decision' would be used in various places throughout the AAT Act in relation to AAT first reviews under the SA Act, including in determining who are the parties to a review (section 30) and in imposing requirements to lodge documents with the Tribunal (section 37).

New section 312 - Time limit for application for AAT first review

1836. New section 312 would preserve the effect of existing subsection 311(3).

1837. Existing subsection 311(3) sets out the time limits for applying for SSAT review. It provides that an application for review to the SSAT must be made within 3 months of the decision, or within such longer period as the Secretary, in special circumstances, allows.

1838. New subsection 312(1) would provide for the same rule, except that it would be the AAT rather than the Secretary to decide whether special circumstances warrant an extension of time. New subsection 312(2) would provide that subsection (1) applies despite paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act. This exclusion would be necessary because following amalgamation, section 29 of the AAT Act would govern applications for AAT first review under the SA Act:

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paragraph 29(1)(d) has the effect that applications must generally be made within 28 days of the person receiving notice of the relevant decision, and

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subsections 29(7) to (10) deal with the Tribunal's power to extend time for making an application for review.

1839. By excluding the operation of these provisions of the AAT Act in relation to applications under the SA Act for AAT first review, new subsection 312(2) would ensure that existing timeframes for applying for review would not be affected.

New section 313 - Operation and implementation of decision under AAT first review

1840. New section 313 would ensure that subsection 41(2) of the AAT Act, which empowers the AAT to issue orders staying or otherwise affecting the operation or implementation of the decision under review, would not apply to AAT first reviews. As the SSAT does not have the power to make stay orders, this would preserve existing policy. However, new section 314 would ensure that the Secretary can declare that a person's payment is to continue pending the conclusion of AAT first review.

1841. Item 105 of Schedule 1 to the Bill inserts a note at the end of subsection 41(2) of the AAT Act to clarify that it would not apply to proceedings in the Social Services and Child Support Division. New section 313 would provide for the exclusion.

New section 314 - Secretary may continue payment pending outcome of application for AAT first review

1842. New section 314 would preserve the effect of existing section 314, which empowers the Secretary to declare that student assistance payments may continue while the outcome of a review by the SSAT is pending. The Secretary's power to make payment pending review declarations is important to prevent potential disadvantage to applicants. The amendments would preserve this power in relation to AAT first reviews, as per existing policy.

New section 315 - Variation of original decision after application is made for AAT first review

1843. New section 315 would replicate existing section 321, and would deal with the effect of variation by an officer of a decision under first review by the AAT.

1844. New section 315 would preserve existing policy whereby if the officer varies or sets aside and substitutes a decision that is under review, the application for review is taken to be an application for the review of the decision as varied or substituted. The applicant may choose to continue with the review or may notify the AAT under subsections 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.

New section 316 - Powers of AAT for AAT first review

1845. New section 316 would modify subsection 43(1) of the AAT Act to preserve the effect of existing subsections 316(4) and (5). Subsection 43(1) of the AAT Act provides that the Tribunal may exercise all of the powers and discretions conferred on the original decision-maker. The modification in new section 316 would limit subsection 43(1) such that in relation to AAT first reviews, the AAT would not be permitted to exercise a power or discretion conferred on the Secretary that is listed in section 316.

New section 317 - Certain decisions on AAT first review

1846. New section 317 would preserve the effect of existing subsection 316(2). New section 317 would provide that if, on AAT first review, the AAT sets aside a decision under review and substitutes a new decision that the person is entitled to financial supplement, the AAT must:

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assess the rate at which financial supplement is to be paid to the person, or

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ask the Secretary to assess the rate at which financial supplement is to be paid.

New section 318 - Notification of decisions and reasons for AAT first review

1847. New section 318 would preserve the effect of existing section 322C.

1848. New section 318 would modify subsections 43(2) and (2A) of the AAT Act. Subsections 43(2), (2A) and (3) of the AAT Act provide the regime for the Tribunal to notify parties of its decision to affirm, vary or set aside a decision (and remit the matter or substitute a new decision) and provide reasons either orally or in writing. The modifications in new section 318 would preserve the following key differences between the SSAT and the AAT, such that on AAT first review:

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the AAT would be required to issue a written decision within 14 days after making the decision

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the AAT would be required to issue reasons within 14 days after making the decision if the decision is to affirm the decision

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if the decision is other than to affirm, a written notice and statement of reasons must be issued within 14 days, and

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where oral reasons are provided, the timeframes for a party to request written reasons, and for the Tribunal to respond, are 14 days (as opposed to 28 days in the AAT Act).

1849. New section 318 would promote the quick conduct of reviews, which is an important feature of the SSAT that should be preserved in the amalgamation.

New section 319 - Secretary or the AAT may treat event as having occurred if decision set aside on AAT first review

1850. New section 319 would preserve the effect of existing subsection 316(6).

1851. New section 319 would provide that if the AAT sets aside a decision on AAT first review, and the Secretary or the AAT is satisfied that an event that did not occur would have occurred if the original decision had not been made, the Secretary or the AAT may treat the event has having occurred for the purposes of new Division 2.

1852. While not typically used in practice, this power might be used, for example, to deem that a particular application was lodged by a person so that the Secretary could then determine whether the person was entitled to some other payment. The amendment would maintain existing policy.

Subdivision C of Division 2 - AAT second review

New section 320 - Application for AAT second review

1853. New section 320 would preserve the effect of existing section 324, which is the core provision conferring entitlement on persons to apply to the AAT for second review of student assistance decisions (other than decisions that are not reviewable by virtue of existing section 313).

1854. New section 320 would provide that an application may be made to the AAT for review of a decision made under subsection 43(1) of the AAT Act on AAT first review in relation to a student assistance decision. This would preserve the existing right to second review of decisions of the SSAT relating to student assistance.

New section 321 - Notice of application for AAT second review

1855. New section 321 would preserve the effect of existing section 329.

1856. Existing section 329 modifies the application of subsection 29(11) of the AAT Act in relation to a review by the AAT of an SSAT decision. Subsection 29(11) of the AAT Act imposes an obligation on the Tribunal to give notice of an application for review to the person who made the decision. The purpose of the modification is to ensure that the parties to the SSAT review are notified of the application to the AAT for second review.

1857. New section 329 would modify the effect of paragraph 29AC(1)(b) of the AAT Act, which would replace subsection 29(11) (see Item 51 of Schedule 1 to the Bill). This would ensure the parties to an AAT first review are notified of an application for AAT second review.

New section 322 - Parties to AAT second review

1858. New section 322 would preserve the effect of existing section 330.

1859. Existing section 330 modifies the application of paragraph 30(1)(b) of the AAT Act-which provides that the person who made the decision is a party to the review- in relation to a review by the AAT of an SSAT decision. The purpose of the modification is to ensure that the SSAT is not a party to the AAT review, and that the parties to the SSAT review are parties to the AAT review.

1860. New section 322 would apply in relation to applications for AAT second review of a decision on AAT first review. It would modify paragraph 30(1)(b) of the AAT Act so as to ensure that the parties to an AAT first review are parties to an AAT second review.

New section 323 - Operation and implementation of decision subject to AAT second review

1861. New section 323 would preserve the effect of existing section 333. New section 323 would modify section 41 of the AAT Act-stay orders-so that it has the effect that:

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the AAT on AAT second review may stay the decision that was the subject of AAT first review and/or the decision on AAT first review, and

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all of the parties to the AAT first review have the opportunity to be heard under section 41 in relation to an application to the AAT for a stay order on AAT second review.

New section 324 - Variation of original decision after application is made for AAT first review

1862. New section 324 would preserve the effect of existing section 325.

1863. New section 324 would provide that if an officer varies or substitutes a decision reviewable by the AAT, after an application for AAT second review has been made, the application would be treated as an application for review of the decision as varied or substituted. If the person who made the application does want to proceed with the application, they may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.

New section 325 - Failure of party to appear at AAT second review

1864. New section 325 would replicate the policy of existing section 334, which modifies the application of subsection 42A(2) of the AAT Act in relation to a review by the AAT of an SSAT decision. Subsection 42A(2) provides the Tribunal's power to dismiss an application or remove a party if a party fails to appear.

1865. New section 325 would modify subsection 42A(2) of the AAT Act so that the reference to the 'person who made the decision' is a reference to the Secretary. This would ensure that the power only applies to parties other than the Secretary.

New section 326 - Secretary may treat event as having occurred if decision set aside on AAT second review

1866. New section 326 would provide that if the AAT sets aside a decision on AAT first review, and the Secretary is satisfied that an event that did not occur would have occurred if the original decision had not been made, the Secretary may treat the event has having occurred for the purposes of new Division 2. As with the equivalent provision in relation to AAT first review (new section 319), this power might be used, for example, to deem that a particular application was lodged by a person so that the Secretary could then determine whether the person was entitled to some other payment.

Subdivision D of Division 2 - Matters relating to both AAT first review and AAT second review

New section 327 - Settlement of proceedings before the AAT

1867. New section 327 would preserve the effect of existing section 326A which permits the Secretary to settle proceedings before the AAT. However, new section 327 would apply on AAT first review and on AAT second review. This would provide flexibility to the Secretary to settle matters at any stage.

Item 12 - Sections 335 and 336

1868. Item 12 would repeal sections 335 and 336.

1869. Section 335 provides that if the Minister prepares, and lays before Parliament, a written statement of government policy on the administration of the SA Act, officers and the SSAT must have regard to the statement in exercising powers under the SA Act.

1870. In practice, the Minister does not lay statements of government policy before the Parliament. Section 335 is unnecessary as the Minister may prepare policy statements in the absence of express legislative authorisation. It is standard practice for the AAT to have regard to government policy when conducting merits review.

1871. Section 336 provides that the Secretary and Principal Member of the SSAT may agree on administrative arrangements to assist in the provision of SSAT review of SA Act decisions.

1872. No such arrangements exist. Section 336 is unnecessary as the Secretary and the AAT would be entitled to agree on administrative arrangements to further the proper conduct of merits review in the absence of express legislative authorisations, should such arrangements be required.

Part 2 - Contingent amendments

Item 13 - Subsection 310(2)

1873. Item 13 would provide a contingent amendment for new subsection 310(2), as inserted by Item 11 of this Schedule. New subsection 310(2) would replace existing section 313, which provides that certain decisions are not reviewable by the SSAT.

1874. The contingent amendment is required because Item 94 of Schedule 2 to the Social Services and Other Legislation Amendment (Student Measures) Act 2014 (SSOLA Act) would expand the list of decisions made under the SA Act that are not reviewable by the SSAT, as provided by existing section 313.

1875. Item 13 would provide for the inclusion of these decisions in new subsection 310(2), with the effect that these decisions would not be subject to AAT review.