PART 5
-
REVIEW OF DECISIONS
Note:
This Part does not apply in relation to any decision of the Secretary under Division
5
of Part
4
(about departure prohibition orders).
History
Pt 5 amended by No 55 of 2016, s 3 and Sch 13 item 4, by inserting the note, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
CCH Note:
No 53 of 2008, s 3 and Sch 1 item 64 contains the following transitional provision:
Transitional
-
varying CCB % determinations
Secretary may vary CCB % determinations between commencement and 6 July 2008
(1)
If:
(a)
at the commencement of this item, a determination of CCB % under section
50J
of the Family Assistance Administration Act is in force in respect of a claimant who is an individual; and
(b)
the Secretary considers that, if the Secretary were making the determination of CCB % on 7 July 2008, the CCB % determined on 7 July (the
new CCB %
) would be different from the CCB % at commencement (the
current CCB %
);
the Secretary may, in writing, vary the determination of CCB % so that the claimant
'
s CCB % is the new CCB %.
(2)
A variation under subitem (1) has effect for the purposes of the Family Assistance Administration Act from 7 July 2008.
(3)
A variation under subitem (1) cannot be made after 6 July 2008.
Decisions to vary are reviewable
(4)
For the purposes of Part
5
of the Family Assistance Administration Act, a decision of the Secretary to vary a determination under subitem (1) is taken to be a decision of an officer under the family assistance law.
Division 1
-
Internal review
History
Div 1 substituted by No 45 of 2000, s 3 Sch 2 item 103(2), effective 1 July 2000. For transitional provisions see note under s 69. Div 1 formerly read:
104 Review initiated by Secretary
(1)
The Secretary may, if satisfied that there is sufficient reason to do so, review a decision of any officer under the family assistance law.
(2)
The Secretary may review the decision even if an application has been made to the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for review of the decision.
(3)
The Secretary must not review the decision under this section while any review of the decision is taking place under section
105
.
(4)
The Secretary may:
(a)
affirm the decision; or
(b)
vary the decision; or
(c)
set the decision aside and substitute a new decision.
(5)
If the Secretary makes a decision to do one of the things in paragraph (4)(b) or (c), the Secretary must give notice of the decision to the person whose entitlement, or possible entitlement, to family assistance is affected by the decision. The notice must state the effect of the decision and that the person may apply for review of the decision involved in the manner set out in this Part.
(6)
A contravention of subsection (5) in relation to a decision does not affect the validity of the decision.
(7)
If:
(a)
the Secretary makes a decision to do one of the things in paragraph (4)(b) or (c); and
(b)
by the time the Secretary makes that decision, a person has applied to the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for review of the decision that was reviewed by the Secretary;
the Secretary must give written notice of the Secretary's decision under that paragraph to the Executive Director or the Registrar of the Administrative Appeals Tribunal, as the case requires.
(8)
If:
(a)
the Secretary sets a decision aside under subsection (4); and
(b)
the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.
105 Review initiated by applicant
(1)
A person affected by a decision of an officer under the family assistance law (other than a decision made by the Secretary personally) may apply to the Secretary for review of the decision.
(2)
If the person does so, the Secretary must either:
(a)
review the decision and:
(i)
affirm the decision; or
(ii)
vary the decision; or
(iii)
set the decision aside and substitute a new decision; or
(b)
arrange for an authorised review officer (see section
106
) to do so.
(3)
Whoever reviews the decision in accordance with subsection (2) (the
decision reviewer
) must, after conducting the review, give the applicant written notice of his or her decision to affirm or vary the decision reviewed, or to set it aside and substitute a new decision.
(4)
If:
(a)
the decision reviewer sets the decision aside after reviewing the decision under subsection (2); and
(b)
the decision reviewer is satisfied that an event that did not occur would have occurred if the decision had not been made;
the decision reviewer may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.
(5)
If:
(a)
a person who may apply to the Secretary for a review of a decision under subsection (1) has not done so; and
(b)
the person applies to the Social Security Appeals Tribunal for review of the decision (despite not being entitled to do so);
the person is taken to have applied to the Secretary for review of the decision under subsection (1) on the day on which the person applied to the Social Security Appeals Tribunal.
106 Authorised review officers
(1)
The Secretary must authorise officers to be authorised review officers for the purposes of this Division.
(2)
The Secretary must not authorise an officer of an agency other than the Department unless the head of the agency has agreed to the authorisation.
107 Review applications
-
withdrawal
(1)
(Repealed by No 192 of 1999.)
History
S 107(1) repealed by No 192 of 1999, s 3 and Sch 4 item 1, effective 1 July 2000. S 107(1) formerly read:
(1)
Application to be made within 52 weeks of notification of decision
Subject to subsections (2) and (3), an application for review under section 105 must be made no later than 52 weeks after the applicant is notified of the decision concerned.
(2)
(Repealed by No 192 of 1999.)
History
S 107(2) repealed by No 192 of 1999, s 3 and Sch 4 item 1, effective 1 July 2000. S 107(2) formerly read:
(2)
Exception
-
Secretary determines special circumstances exist
The Secretary may determine special circumstances in which an application may be made after the 52 weeks mentioned in subsection (1). The determination is a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901
.
(3)
(Repealed by No 192 of 1999.)
History
S 107(3) repealed by No 192 of 1999, s 3 and Sch 4 item 1, effective 1 July 2000. S 107(3) formerly read:
(3)
Exception
-
making of regulations
The regulations may prescribe circumstances in which an application may be made after the 52 weeks mentioned in subsection (1).
Withdrawal of application
(4)
An applicant for review under section
105
may, in writing or in any other manner approved by the Secretary, withdraw the application at any time before the decision reviewer does any of the things in subsection
105(2)
.
(5)
If an application is so withdrawn, it is taken never to have been made.
108 Secretary may continue payment pending outcome of application for review
(1)
If:
(a)
an adverse family assistance decision (see subsection (4)) 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 applies to the Secretary under section
105
for 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)
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.
(3)
The declaration:
(a)
starts to have effect on the day on which it is made or on the earlier day (if any) specified in the declaration; and
(b)
stops having effect if:
(i)
the application for review of the adverse decision is withdrawn; or
(ii)
the review of the adverse decision is determined by the Secretary or an authorised review officer; or
(iii)
the declaration is revoked by the Secretary.
(4)
In this section:
adverse family assistance decision
means any decision having the effect that an entitlement to family assistance under a determination is reduced or ceases.
109 Notification of further rights of review
(1)
If the decision reviewer gives an applicant a notice under subsection
105(3)
, the notice must include:
(a)
a statement to the effect that the applicant may, subject to this Part, apply to the Social Security Appeals Tribunal for review of the decision reviewer's decision mentioned in the notice; and
(b)
a statement about the decision reviewer's decision that:
(i)
sets out the reasons for the decision; and
(ii)
sets out the findings by the decision reviewer on material questions of fact; and
(iii)
refers to the evidence or other material on which those findings were based; and
(c)
a statement to the effect that, if the applicant is dissatisfied with the Social Security Appeals Tribunal's decision on any application for review as mentioned in paragraph (a), the applicant may, subject to the
Administrative Appeals Tribunal Act 1975
, apply to the Administrative Appeals Tribunal for review of the Social Security Appeals Tribunal's decision.
(2)
A contravention of subsection (1) in relation to a decision does not affect the validity of the decision.
Subdivision B
-
Review initiated by the applicant
History
Subdiv B inserted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 109A
Review of certain decisions may be initiated by applicant
109A(1)
A person affected by a decision (the
original decision
):
(a)
that is not a care percentage decision; and
(b)
that is not a decision under Part
8
(approval of providers of child care services); and
(c)
that, under section
108
, must be reviewed under this section;
may apply to the Secretary for review of the original decision.
History
S 109A(1) substituted by No 22 of 2017, s 3 and Sch 1 item 133, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading. S 109A(1) formerly read:
109A(1)
A person affected by a decision (the
original decision
):
(a)
that is not a care percentage decision; and
(b)
that, under section 108, must be reviewed under this section;
may apply to the Secretary for review of the original decision.
Note:
If an application is made under this section for review of a decision about a person
'
s entitlement to child care benefit, and a decision has also been made about the person
'
s entitlement to child care rebate, that decision about rebate may be automatically reviewed: see Division 5.
S 109A(1) and (1A) substituted for s 109A(1) by No 65 of 2010, s 3 and Sch 2 item 24, effective 1 July 2010. S 109A(1) formerly read:
109A(1)
A person affected by a decision (the
original decision
) that, under section 108, must be reviewed under this section, may apply to the Secretary for review of the decision.
Note:
If an application is made under this section for review of a decision about a person
'
s entitlement to child care benefit, and a decision has also been made about the person
'
s entitlement to child care rebate, that decision about rebate may be automatically reviewed: see Division 5.
S 109A(1) amended by No 50 of 2009, s 3 and Sch 2 item 15, by substituting the note, applicable in relation to each application made on or after 24 June 2009:
(a) under section
109A
,
111
or
142
of the
A New Tax System (Family Assistance) (Administration) Act 1999
; and
(b) for review of a decision relating to an individual
'
s entitlement to child care benefit.
The note formerly read:
Note:
If an application is made for review of a decision relating to a person
'
s child care benefit entitlement for an income year under this section and the review affects the person
'
s entitlement to child care tax rebate for the year, the person
'
s entitlement to that rebate is automatically reviewed: see Division 5.
S 109A(1) amended by No 53 of 2008, s 3 and Sch 5 item 13, applicable to decisions made after 25 June 2008.
109A(1A)
A person affected by a decision (the
original decision
):
(a)
that is a care percentage decision; and
(b)
that, under section
108
, must be reviewed under this section;
may apply to the Secretary, or the Child Support Registrar, for review of the original decision.
History
S 109A(1) and (1A) substituted for s 109A(1) by No 65 of 2010, s 3 and Sch 2 item 24, effective 1 July 2010.
109A(1B)
If a decision (the
original decision
):
(a)
is made under Part
8
(approval of providers of child care services) in relation to a provider; and
(b)
under section
108
, must be reviewed under this section;
the provider may apply to the Secretary for review of the original decision.
History
S 109A(1B) inserted by No 22 of 2017, s 3 and Sch 1 item 134, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading.
109A(2)
If the person makes an application under subsection
(1)
,
(1A)
or
(1B)
, the Secretary must either:
(a)
review the original decision and decide (the
review decision
) to:
(i)
affirm it; or
(ii)
vary it; or
(iii)
set it aside and substitute a new decision; or
(b)
arrange for an authorised review officer (see section
109C
) to do so.
History
S 109A(2) amended by No 22 of 2017, s 3 and Sch 1 item 135, by substituting
"
, (1A) or (1B)
"
for
"
or (1A)
"
, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading.
S 109A(2) amended by No 65 of 2010, s 3 and Sch 2 item 25, by substituting
"
makes an application under subsection (1) or (1A)
"
for
"
does so
"
, effective 1 July 2010.
109A(2A)
If:
(a)
the review involves (wholly or partly) a review of an original decision that is a care percentage decision; and
(b)
a consideration of an objection to a decision carried out under Part
VII
of the
Child Support (Registration and Collection) Act 1988
has involved (wholly or partly) the consideration of the determination to which the care percentage decision relates;
the Secretary must not vary the original decision, or set the original decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.
History
S 109A(2A) inserted by No 65 of 2010, s 3 and Sch 2 item 26, effective 1 July 2010.
109A(3)
If:
(a)
the person who reviews the decision (the
decision reviewer
) makes a review decision to set aside an original decision; and
(b)
the decision reviewer is satisfied that an event that did not occur would have occurred if the original decision had not been made;
the decision reviewer may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.
109A(4)
If:
(a)
a person who may apply to the Secretary or Child Support Registrar for review of a decision under subsection
(1)
,
(1A)
or
(1B)
has not done so; and
(b)
the person applies to the ART for review of the decision (despite not being entitled to do so);
the person is taken to have applied to the Secretary or Child Support Registrar for review of the decision under that subsection on the day on which the person applied to the ART.
History
S 109A(4) amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting
"
ART
"
for
"
AAT
"
(wherever occurring), effective 14 October 2024.
S 109A(4) amended by No 22 of 2017, s 3 and Sch 1 item 136, by substituting
"
, (1A) or (1B)
"
for
"
or (1A)
"
in para (a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading.
S 109A(4) amended by No 60 of 2015, s 3 and Sch 5 item 8, by substituting
"
AAT
"
for
"
SSAT
"
(wherever occurring), effective 1 July 2015.
S 109A(4) amended by No 65 of 2010, s 3 and Sch 2 items 27 and 28, by substituting
"
Secretary or Child Support Registrar for review of a decision under subsection (1) or (1A)
"
for
"
Secretary for review of a decision under subsection (1)
"
in para (a) and substituting
"
Secretary or Child Support Registrar for review of the decision under that subsection
"
for
"
Secretary for review of the decision under subsection (1)
"
, effective 1 July 2010.
History
S 109A inserted by No 45 of 2000. For transitional provisions see note under s
69
.
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