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Student Assistance Act 1973

Part 9 - Review of Decisions

Division 2 - Review by ART

History

Div 2 heading amended by No 38 of 2024, s 3 and Sch 3 item 219, by substituting " ART " for " Administrative Appeals Tribunal " , effective 14 October 2024.

Div 2 substituted by No 60 of 2015, s 3 and Sch 7 item 11, effective 1 July 2015. Div 2 formerly read:

Division 2 - Review by Social Security Appeals Tribunal

SECTION 309 SECTION 309 APPLICATION OF DIVISION
309
Unless otherwise stated, this Division applies to:

(b) all decisions of an officer under this Act relating to the Student Financial Supplement Scheme; or

(c) all decisions of an officer under this Act relating to the recovery of amounts paid under a current or former special educational assistance scheme.
Note:

For officer see subsection 3(1) .

SECTION 310 SECTION 310 SSAT OBJECTIVES
310
The Social Security Appeals Tribunal must, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. SECTION 311 APPLICATION FOR REVIEW BY SSAT
311(1) People who may apply for review
Subject to section 313 , if:

(a) a decision has been reviewed by the Secretary or an authorised review officer under section 306 ; and

(b) the decision has been affirmed, varied or set aside;
a person whose interests are affected by the decision of the Secretary or the authorised review officer may apply to the Social Security Appeals Tribunal for review of that decision.

311(2) Decision made by Secretary or review officer
For the purposes of subsection (1), the decision made by the Secretary or the authorised review officer is taken to be:

(a) if the Secretary or the authorised review officer affirms a decision - the decision as affirmed; and

(b) if the Secretary or the authorised review officer varies a decision - the decision as varied; and

(c) if the Secretary or the authorised review officer sets a decision aside and substitutes a new decision-the new decision.

311(3) Period within which application for review by SSAT to be sought
An application under subsection (1) to the Social Security Appeals Tribunal for review of a decision must be made within:

(a) 3 months; or

(b) within such longer period as the Secretary, in special circumstances, allows;
after the original decision was affirmed, varied or set aside by the Secretary or an authorised review officer.

SECTION 313 SECTION 313 NON-REVIEWABLE DECISIONS
313
The Social Security Appeals Tribunal cannot review a decision:

(a) under section 343 or 345 (notice requiring information from any person); or

(b) under section 305 or 314 (continuation of payment pending review of adverse decision). SECTION 314 SECRETARY MAY CONTINUE PAYMENT PENDING OUTCOME OF APPLICATION FOR REVIEW
314(1) Secretary may declare payment to continue
If:

(a) a decision to which this Division applies is an adverse decision; and

(b) the adverse decision depends on:

(i) the exercise of a discretion by a person; or

(ii) the holding of an opinion by a person; and

(c) a person applies to the Social Security Appeals Tribunal under subsection 311(1) for review of the adverse decision;
the Secretary may declare that payment of Financial Supplement to which the decision relates is to continue, pending the determination of the review, as if the adverse decision had not been made.

314(2) Written declaration
A declaration under subsection (1) is to be in writing.

314(3) Act applies as if decision not made
While a declaration under subsection (1) 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.

314(4) Start and cessation of declaration
A declaration under subsection (1) in relation to an adverse decision:

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

(b) stops having effect if:

(i) the application to the Social Security Appeals Tribunal for review of the adverse decision is withdrawn; or

(ii) the review of the adverse decision is determined by the Social Security Appeals Tribunal; or

(iii) the declaration is revoked by the Secretary.

314(5) Holding of an opinion
A reference in subsection (1) to a person ' s holding of an opinion is a reference to the person ' s holding that opinion whether or not this Act expressly requires the opinion to be held before making the decision concerned.

314(6) Adverse decision
In this section:
adverse decision
means a decision under section 12R or 12T to stop the payment of Financial Supplement to a person.
SECTION 316 SSAT REVIEW POWERS
316(1) Powers of SSAT
If a person applies to the Social Security Appeals Tribunal for review of a decision, the Tribunal must:

(a) affirm the decision; or

(b) vary the decision; or

(c) set the decision aside; and

(i) substitute a new decision; or

(ii) send the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the Tribunal.

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S 316(1) amended by No 98 of 2014, s 3 and Sch 2 items 8 and 9, by omitting " (other than a decision referred to in subsection (7)) " after " for review of a decision " and repealing the note, effective 12 September 2014. The note formerly read:

Note:

This subsection is subject to section 1274 of the Social Security Act (which allows an applicant to withdraw the application) and 1275 of the Social Security Act (which allows the National Convener to dismiss an application for review in certain circumstances).

316(2)
If the Social Security Appeals Tribunal sets a decision aside and substitutes for it a decision that a person is entitled to Financial Supplement, the Tribunal must:

(a) assess the rate at which Financial Supplement is to be paid to the person; or

(b) ask the Secretary to assess the rate at which Financial Supplement is to be paid to the person.

316(4) Tribunal may exercise Secretary ' s powers
Subject to subsection (5), the Social Security Appeals Tribunal may, for the purpose of reviewing a decision under this Act, exercise all the powers and discretions that are conferred by this Act on the Secretary.

316(5) Certain powers of Secretary not exercisable by Tribunal
The reference in subsection (4) to powers and discretions conferred by this Act does not include a reference to powers and discretions conferred by:

(a) a provision dealing with the form and place of lodgment of a claim; or

(b) a provision dealing with the manner of payment of Financial Supplement; or

(c) subsection 42(3) (notice requiring payment to the Commonwealth); or

(f) sections 343 to 346 (notice requiring information from any person); or

(g) section 305 or 314 (continuation of payment pending review of adverse decision).

316(6) Event taken to have occurred
If:

(a) the Social Security Appeals Tribunal sets a decision aside under subsection (1); and

(b) the Secretary, or the Tribunal, is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary or the Tribunal (as the case may be) may, if satisfied that it is reasonable to do so, treat the event as having occurred for the purposes of this Division.
SECTION 318 DATE OF EFFECT OF SSAT DECISIONS
318(1) General rule
Subject to subsections (2) and (3), a decision by the Social Security Appeals Tribunal comes into operation immediately on the giving of the decision.

318(2) Tribunal may nominate later date
The Tribunal may provide in a decision that the decision is not to come into operation until a later day stated in the decision and, if it does so, the decision comes into operation on that later day.

318(3) Decision varied or substituted
Subject to subsection (5), if the Tribunal:

(a) varies the decision under review; or

(b) sets aside the decision under review and substitutes a new decision for the decision under review;
the decision as varied or the new decision (as the case may be) has effect, or is taken to have had effect, on and from the day on which the decision under review has or had effect.

318(5) Tribunal may vary rule under subsection (3)
The Tribunal may order:

(a) that subsection (3) not apply to a decision to which this Division applies by the Tribunal on a review; and

(b) that subsections (1) and (2) apply instead.
SECTION 320 APPLICATION REQUIREMENTS
320(1) Methods of applying for review
A person may apply to the Social Security Appeals Tribunal for review of a decision by:

(a) sending or delivering a written application to:

(i) an office of the Tribunal; or

(ii) an office of the Department; or

(b) going to an office of the Tribunal and making an oral application; or

(c) telephoning an office of the Tribunal and making an oral application.

320(2) Written record of oral application
If a person makes an oral application under paragraph (1)(b) or (c), the person receiving the oral application must make a written record of the details of the oral application and note on the record the date on which the application is made.

320(3) Written record taken to be application
If a written record of an oral application is made under subsection (2), the written record is taken to be a written application by the applicant and to be delivered to an office of the Tribunal on the day on which the oral application is made.

320(4) Statement of reasons
An application may include a statement of the reasons for seeking a review of the decision.
SECTION 321 VARIATION OF DECISION BEFORE REVIEW COMPLETED
321(1) Application for review of decision as varied
If an officer varies a decision after an application has been made to the Social Security Appeals Tribunal for review of the decision but before determination of the review, the application for review is to be treated as if it were an application for review of the decision as varied.

321(2) Application for review of substituted decision
If an officer sets a decision aside and substitutes a new decision after an application has been made to the Social Security Appeals Tribunal for review of the decision set aside but before determination of the review, the application for review is to be treated as if it were an application for review of the new decision.

321(3) Procedure if variation or substitution before determination
If:

(a) a person applies to the Social Security Appeals Tribunal for a review of a decision; and

(b) before determination of the review, an officer varies the decision or sets the decision aside and substitutes a new decision;
the person may:

(c) proceed with the application for review of the decision as varied or the new decision; or

(d) request the Principal Member to dismiss the application under section 322A ; or

(e) notify, under section 322B , the Social Security Appeals Tribunal that the application is discontinued or withdrawn.
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History

S 321(3) amended by No 98 of 2014, s 3 and Sch 2 item 11, by substituting para (d) and (e) for para (d), applicable in relation to an application to the Social Security Appeals Tribunal for a review of a decision, where the application is made on or after 12 September 2014. Para (d) formerly read:

(d) withdraw the application under section 1274 of the Social Security Act.

S 321(3) amended by No 98 of 2014, s 3 and Sch 2 item 10, by omitting " either " after " the person may " , effective 12 September 2014.

SECTION 322 PARTIES TO SSAT REVIEW
322(1) Parties to review
The parties to a review by the Social Security Appeals Tribunal of a decision are:

(a) the applicant; and

(b) the Secretary; and

(c) any other person who has been made a party to the review under subsection (5).

322(3) Application to be made a party
If a person has applied under subsection 311(1) for review of a decision, any other person whose interests are affected by the decision may apply to the Principal Member to be made a party to the review.
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S 322(3) amended by No 98 of 2014, s 3 and Sch 2 item 12, by substituting " Principal Member " for " National Convener " , effective 12 September 2014.

322(4) Written application
An application under subsection (3) must be in writing.

322(5) Principal Member may make order
The Principal Memberr may order that a person who has applied under subsection (3) be made a party to the review.
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S 322(5) amended by No 98 of 2014, s 3 and Sch 2 items 14 and 15, by substituting " Principal Member " for " National Convener " and repealing the note, effective 12 September 2014. The note formerly read:

Note:

For role of National Convener see section 1323 of the Social Security Act .

SECTION 322A DISMISSAL OF APPLICATION FOR REVIEW BY SSAT
322A(1)
The Principal Member may, on the request of a party or on his or her own initiative, dismiss an application for review of a decision if:

(a) the decision is not reviewable under this Division; or

(b) the application is frivolous or vexatious; or

(c) all of the parties consent; or

(d) the Principal Member is satisfied:

(i) after having communicated with each party; or

(ii) after having made reasonable attempts to communicate with each party and having failed to do so;
or a combination of both, that none of the parties intends to proceed with the application; or

(e) all of the parties fail to attend the hearing.

322A(2)
The Principal Member may dismiss an application under paragraph (1)(b) only if:

(a) one of the following applies:

(i) the Principal Member has received and considered submissions from the applicant for review;

(ii) the Principal Member has otherwise communicated with the applicant in relation to the grounds of the application;

(iii) the Principal Member has made reasonable attempts to communicate with the applicant in relation to the grounds of the application and has failed to do so; and

(b) all of the parties (other than the applicant) consent to the dismissal.

322A(3)
If the Principal Member dismisses an application under subsection (1) (other than under paragraph (1)(b)), a party to the review may:

(a) within 28 days after receiving notification that the application has been dismissed; or

(b) within such longer period as the Principal Member, in special circumstances, allows;
request that the Principal Member reinstate the application.

322A(4)
If the Principal Member considers it appropriate to do so, he or she may reinstate the application and give such directions as he or she considers appropriate in the circumstances.

322A(5)
If it appears to the Principal Member that an application has been dismissed under subsection (1) in error, he or she may, on the request of a party to the review or on his or her own initiative, reinstate the application and give such directions as he or she considers appropriate in the circumstances.
SECTION 322B APPLICANT FOR REVIEW MAY DISCONTINUE OR WITHDRAW APPLICATION
322B(1)
An applicant for review may notify the Social Security Appeals Tribunal at any time that the application for review is discontinued or withdrawn.

322B(2)
If the applicant orally notifies the Social Security Appeals Tribunal, the person who receives the notification must make a written record of the day on which the notification was given.

322B(3)
If notification is given under subsection (1), the Principal Member is taken to have dismissed the application.

322B(4)
If the Principal Member dismisses an application under subsection (3), the applicant may:

(a) within 28 days after receiving notification that the application has been dismissed; or

(b) within such longer period as the Principal Member, in special circumstances, allows;
request that the Principal Member reinstate the application.

322B(5)
If the Principal Member considers it appropriate to do so, he or she may reinstate the application and give such directions as he or she considers appropriate in the circumstances.
SECTION 322C NOTIFICATION OF DECISIONS
322C(1) Social Security Appeals Tribunal affirms decisions
If the Social Security Appeals Tribunal makes a decision on a review and the decision is of a kind mentioned in paragraph 316(1)(a) , the Tribunal must:

(a) prepare a written statement (the initial statement ) that sets out the decision of the Tribunal on the review; and

(b) give each party to the review a copy of the initial statement within 14 days after making the decision; and

(c) within 14 days after making the decision, either:

(i) give reasons for the decision orally to each party to the review and explain that the party may make a written request for a statement under subparagraph (ii) within 14 days after the copy of the initial statement is given to the party; or

(ii) give each party to the review a written statement (whether or not as part of the initial statement) that sets out the reasons for the decision, sets out the findings on any material questions of fact and refers to evidence or other material on which the findings of fact are based; and

(d) return to the Secretary any document that the Secretary has provided to the Tribunal in connection with the review; and

(e) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact are based.

322C(2)
If the Social Security Appeals Tribunal does not give a written statement to a party under subparagraph (1)(c)(ii), the party may, within 14 days after the copy of the initial statement is given to the party, make a written request of the Tribunal for such a statement.

322C(3)
The Social Security Appeals Tribunal must comply with a request under subsection (2) within 14 days after the day on which it receives the request.

322C(4) Social Security Appeals Tribunal varies decisions or sets decisions aside
If the Social Security Appeals Tribunal makes a decision on a review and the decision is of a kind mentioned in paragraph 316(1)(b) or (c), the Tribunal must:

(a) prepare a written statement that:

(i) sets out the decision of the Tribunal on the review; and

(ii) sets out the reasons for the decision; and

(iii) sets out the findings on any material questions of fact; and

(iv) refers to evidence or other material on which the findings of fact are based; and

(b) give each party to the review a copy of the statement referred to in paragraph (a) within 14 days after the making of the decision in relation to the review; and

(c) return to the Secretary any document that the Secretary has provided to the Tribunal in connection with the review; and

(d) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact are based.

322C(5) Notice of further review right
After the Social Security Appeals Tribunal determines a review, the Principal Member must give each party to the review (except the Secretary) a written notice stating that, if the party is dissatisfied with the Tribunal ' s decision, application may, subject to the Administrative Appeals Tribunal Act 1975 , be made to the Administrative Appeals Tribunal for review of the decision.

322C(6)
A failure to comply with subsection (5) in relation to a decision of the Social Security Appeals Tribunal does not affect the validity of the decision.

Subdivision A - Preliminary

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SECTION 310 APPLICATION OF DIVISION

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310(1)
Unless otherwise stated, this Division applies to:

(a) all decisions of an officer under this Act relating to the Student Financial Supplement Scheme; or

(b) all decisions of an officer under this Act relating to the recovery of amounts paid under a current or former special educational assistance scheme.