Tribunals Amalgamation Act 2015 (60 of 2015)

Schedule 5   Family assistance amendments

A New Tax System (Family Assistance) (Administration) Act 1999

21A   Before section 112

Insert:

111B Person who made the decision

For the purposes of AAT first review of a decision, a reference in the AAT Act to the person who made the decisionis taken to be a reference to the Secretary.

112 Operation and implementation of decision under AAT first review

Subsection 41(2) of the AAT Act does not apply in relation to an application for AAT first review.

113 Secretary may continue certain matters pending outcome of application for AAT first review

(1) If:

(a) an adverse family assistance decision referred to in paragraph (a) or (b) of the definition of adverse family assistance decision in subsection (5) is made; and

(b) the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person; and

(c) a person makes an application for AAT first review of the adverse decision;

the Secretary may declare that entitlement to the family assistance is to continue, pending the determination of the review, as if the adverse decision had not been made.

(2) If:

(a) an adverse family assistance decision referred to in paragraph (c), (d) or (e) of the definition of adverse family assistance decision in subsection (5) is made; and

(b) the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person; and

(c) a person makes an application for AAT first review of the adverse decision;

the Secretary may declare:

(d) in the case of an adverse family assistance decision referred to in paragraph (c) of the definition in subsection (5) - that the conditional eligibility to which the decision relates is to continue as if the adverse decision had not been made; and

(e) in the case of an adverse family assistance decision referred to in paragraph (d) of the definition in subsection (5) - that the limit or percentage to which the decision relates is to continue as if the adverse decision had not been made; and

(f) in the case of an adverse family assistance decision referred to in paragraph (e) of the definition in subsection (5) - that the eligibility for the special grandparent rate to which the decision relates is to continue as if the adverse decision had not been made.

(3) While the declaration is in force in relation to the adverse decision, this Act (other than this Part) applies as if the adverse decision had not been made.

(4) The declaration:

(a) starts to have effect on the day it is made or on the earlier day (if any) specified in the declaration; and

(b) stops having effect if:

(i) the AAT dismisses the application for AAT first review of the adverse decision; or

(ii) the AAT determines the AAT first review of the adverse decision; or

(iii) the Secretary revokes the declaration.

(5) In this section:

adverse family assistance decision , in relation to a person, means any decision having the effect that:

(a) the person ceases to be entitled to family assistance; or

(b) the person's entitlement to family assistance is reduced; or

(c) the person ceases to be conditionally eligible for child care benefit by fee reduction; or

(d) the weekly limit of hours, the CCB % or the schooling % applicable to the person is reduced; or

(e) the person ceases to be eligible for the special grandparent rate for a child.

114 Arrangements for AAT first review if section 113 declaration in force

If a declaration under section 113 is in force in relation to a decision for which an application for AAT first review has been made, the President of the AAT must take reasonable steps to ensure that the decision is reviewed as quickly as possible.

115 Variation of original decision after application is made for AAT first review

(1) If an officer varies or substitutes a decision after an application has been made for AAT first review of the decision, the application is taken to be an application for AAT first review of the decision as varied or substituted.

(2) If the person who made the application does not want the AAT to review the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.

116 Procedure on receipt of application for AAT first review

(1) The AAT may, in relation to an application for AAT first review, request the Secretary to lodge with the AAT the statement and other documents referred to in subsection 37(1) of the AAT Act before the end of the period that otherwise applies under that subsection.

(2) If the AAT does so, the Secretary must take reasonable steps to comply with the request.

(3) Nothing in this section prevents the operation of subsection 37(1A) of the AAT Act.

116A Parties to AAT first review

The parties to an AAT first review of a care percentage decision include, in addition to the parties referred to in subsection 30(1) of the AAT Act, each person who is a responsible person (within the meaning of the Child Support (Assessment) Act 1989) for the child to whom the decision relates.

117 AAT summons power for AAT first reviews

Section 40A of the AAT Act does not apply in relation to an AAT first review.

118 Provision of further information by Secretary for AAT first reviews

(1) The AAT may request the Secretary to provide the AAT with information or a document that the Secretary has and that is relevant to an AAT first review.

(2) The Secretary must comply with the request as soon as practicable and no later than 14 days after the request is made.

119 Power to obtain information for AAT first reviews

(1) If the AAT reasonably believes that a person has information or a document that is relevant to an AAT first review, the AAT may, by written notice given to the person, require the person:

(a) to give to the AAT, within the period and in the manner specified in the notice, any such information; or

(b) to produce to the AAT, within the period and in the manner specified in the notice, any such documents.

(2) A person commits an offence if:

(a) the AAT gives the person a notice under subsection (1); and

(b) the person fails to comply with the notice.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(3) Subsection (2) does not apply if complying with the notice might tend to incriminate the person.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

120 AAT may require Secretary to obtain information for AAT first review

(1) If the AAT is satisfied that a person has information, or custody or control of a document, that is relevant to an AAT first review, the AAT may, for the purposes of the review, request the Secretary to exercise the Secretary's powers under section 154.

(2) The Secretary must comply with the request as soon as practicable and no later than 7 days after the request is made.

121 Hearing of AAT first review in private

(1) The hearing of an AAT first review must be in private.

(2) The AAT may give directions, in writing or otherwise, as to the persons who may be present at any hearing of an AAT first review.

(3) In giving directions, the AAT must have regard to the wishes of the parties and the need to protect their privacy.

(4) Subsections 35(1) and (2) of theAAT Act do not apply in relation to the hearing of an AAT first review.

122 Costs of AAT first review

(1) Subject to subsection (4), a party to an AAT first review must bear any expenses incurred by the party in connection with the review.

(2) The AAT may determine that the Commonwealth is to pay the reasonable costs that are:

(a) incurred by a party for travel and accommodation in connection with an AAT first review; and

(b) specified in the determination.

(3) If the AAT arranges for the provision of a medical service in relation to a party to an AAT first review, the AAT may determine that the Commonwealth is to pay the costs of the provision of the service.

(4) If the AAT makes a determination under subsection (2) or (3), the costs to which the determination relates are payable by the Commonwealth.

123 Decision on AAT first review of care percentage decision

If:

(a) the AAT has reviewed a decision on application referred to in section 89 or paragraph 96A(b) of the Child Support (Registration and Collection) Act 1988; and

(b) that review involved (wholly or partly) a review of a determination to which a care percentage decision relates;

then, despite subsection 43(1) of the AAT Act, the AAT must not, on AAT first review of the care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination referred to in paragraph (b).

124 Certain other decisions on AAT first review

(1) If, on AAT first review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act and substitutes for it a decision that a person is entitled to have a payment made under this Act, the AAT must:

(a) assess the amount of the payment; or

(b) ask the Secretary to assess the amount of the payment.

(2) If, on AAT first review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act and substitutes for it a decision that a person is conditionally eligible for child care benefit by fee reduction, the AAT must:

(a) ask the Secretary to determine the weekly limit of hours, CCB % and schooling % applicable to the person; and

(b) if the limit or percentage affects the amount of the entitlement of the person - assess that amount.

(3) If, on AAT first review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act and substitutes for it a decision that the weekly limit of hours, the CCB % or the schooling % applicable to a person is to be increased, the AAT must:

(a) determine what the limit or percentage is to be; or

(b) ask the Secretary to assess the limit or percentage.

125 Date of effect of certain AAT first review decisions relating to payment of family tax benefit

(1) If:

(a) a person makes an application for AAT first review of a decision (the original decision ) relating to the payment to a person of family tax benefit by instalment; and

(b) the application is made more than 13 weeks after the person was given notice of the original decision; and

(c) the AAT makes a decision under subsection 43(1) of the AAT Act to vary or substitute the original decision; and

(d) the decision of the AAT will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment;

then, despite subsection 43(6) of the AAT Act, the date of effect of the decision of the AAT is:

(e) unless paragraph (f) applies - the date that would give full effect to the decision of the AAT; or

(f) if the date referred to in paragraph (e) is earlier than the first day of the income year before the income year in which the application to the AAT for review was made - that first day.

(2) The AAT may, if satisfied that there are special circumstances that prevented the applicant from making an application within 13 weeks, determine that subsection (1) applies as if the reference to 13 weeks were a reference to such longer period as the AAT determines to be appropriate.

126 Notification of decisions and reasons for AAT first review

(1) If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act to affirm the decision under review, the AAT must, within 14 days of making the decision:

(a) give a written notice to the parties that sets out the decision; and

(b) either:

(i) give reasons for the decision orally to the parties and explain that they may request a written statement of reasons; or

(ii) give the parties a written statement of reasons for the decision.

(2) If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act that is other than to affirm the decision under review, the AAT must, within 14 days of making the decision:

(a) give a written notice to the parties that sets out the decision; and

(b) give the parties a written statement of reasons for the decision.

(3) A failure to comply with subsection (1) or (2) does not affect the validity of the decision.

(4) A party to whom oral reasons are given may, within 14 days after the oral reasons are given, request a written statement of reasons for the decision. If the party does so, the AAT must give the party the statement requested within 14 days after receiving the request.

(5) Subsections 43(2) and (2A) of the AAT Act do not apply in relation to an AAT first review. However, any written statement of reasons given must comply with subsection 43(2B) of that Act.

127 Secretary or AAT may treat event as having occurred if decision set aside on AAT first review

If:

(a) on AAT first review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act; and

(b) the Secretary or the AAT, as the case may be, is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary or the AAT may, if satisfied that it is reasonable to do so, treat the event as having occurred for the purposes of the family assistance law.