Tribunals Amalgamation Act 2015 (60 of 2015)
Schedule 6 Paid parental leave amendments
Paid Parental Leave Act 2010
20 Sections 224 to 230
Repeal the sections, substitute:
224 AAT first review of employer decision - application for review
(1) An application may be made by an employer to the AAT for review ( AAT first review ) of an AAT reviewable employer decision that relates to the employer.
(2) However, if the AAT reviewable employer decision is an employer determination decision that relates to the employer and a person, an application referred to in subsection (1) may only be made if the employer believes that:
(a) both:
(i) a condition in paragraph 101(1)(b) or (c) is not satisfied in relation to the employer determination; and
(ii) the employer has not made an election under section 109 that applies to the person; or
(b) a condition in paragraph 101(1)(d) or (e) is not satisfied in relation to the employer determination.
Note 1: The conditions in paragraphs 101(1)(b) to (e) relate to the employment by an employer of someone to whom parental leave pay is payable.
Note 2: Section 109 allows an employer to elect to pay instalments to an employee, a class of employees or all employees of the employer. Subsection 101(2) deals with the application of paragraphs 101(1)(b) and (c) if the employer has made an election under section 109 that applies to the person.
(3) An application referred to in subsection (1):
(a) must be made in writing; and
(b) must be accompanied by a statutory declaration verifying the application; and
(c) if the application is for review of an employer determination decision - must:
(i) specify the condition or conditions that the employer believes are not satisfied; and
(ii) if paragraph (2)(a) applies to the application - state whether the employer believes that an election under section 109 applies to the person.
(4) An application referred to in subsection (1) may only be made within 14 days after the day on which the AAT reviewable employer decision was made.
(5) Paragraph (3)(a) and subsection (4) apply despite:
(a) subparagraph 29(1)(a)(ii) of the AAT Act (which deals with oral applications for review); and
(b) paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act (which deal with when applications for review may be made).
Division 4 - Other matters relating to AAT first reviews
224A 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 decision is taken to be a reference to:
(a) the Secretary; and
(b) either of the following, if applicable:
(i) if the decision was made by the Chief Executive Centrelink or an APS employee in the Human Services Department - the Chief Executive Centrelink;
(ii) if the decision was made by the Chief Executive Medicare - the Chief Executive Medicare.
225 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.
Note: Under subsection 41(2) of the AAT Act the AAT may make an order staying or otherwise affecting the operation or implementation of the decision on review.
226 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.
227 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 (which allows the AAT to shorten the deadline for lodging documents).
228 AAT summons power for AAT first review
Section 40A of the AAT Act does not apply in relation to an AAT first review.
Note: Section 40A of the AAT Act deals with the AAT's power to summon a person to give evidence or produce documents.
229 Secretary to provide further information for AAT first review
(1) The AAT may, in relation to an AAT first review, request the Secretary to provide the AAT with information or a document the Secretary has and that is relevant to the review of a decision.
(2) The Secretary must comply with a request under subsection (1) as soon as practicable and, in any event, not later than 14 days after the request is made.
230 AAT's power to obtain information for AAT first review
(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; or
(c) to attend before the AAT, at the time and place specified in the notice, and answer questions.
(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).
231 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 117 (which deals with the Secretary's general power to obtain information).
(2) The Secretary must comply with a request under subsection (1) as soon as practicable and, in any event, within 7 days after the request is made.
232 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.
Note: Subsections 35(1) and (2) of the AAT Act deal with when hearings of proceedings in the AAT are in public or private.
233 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 relation to 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 relation to 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.
234 When AAT decision on AAT first review comes into force
Claimant decision
(1) A decision of the AAT on AAT first review:
(a) to vary an AAT reviewable claimant decision; or
(b) to set aside an AAT reviewable claimant decision and substitute a new decision;
comes into force on the day that would give full effect to the decision of the AAT.
Employer decision
(2) A decision of the AAT on AAT first review:
(a) to vary an AAT reviewable employer decision; or
(b) to set aside an AAT reviewable employer decision and substitute a new decision;
comes into force immediately on the giving of the decision.
AAT Act
(3) Subsections (1) and (2) apply despite subsection 43(6) of the AAT Act (which deals with when AAT decisions take effect).
235 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 its 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 its 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.
Note: Subsections 43(2), (2A) and (2B) of the AAT Act are about the AAT giving reasons for its decisions.