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 109E
Date of effect of certain decisions relating to payment of family tax benefit by instalment
109E(1)
If:
(a)
a person applies under section
109A
for review of a decision (the
original decision
) relating to the payment to the person of family tax benefit by instalment; and
(b)
the application is made more than 52 weeks after the person was given notice of the original decision; and
(c)
the Secretary or an authorised review officer decides, under subsection
109A(2)
, to vary the original decision or to set aside the original decision and substitute a new decision; and
(d)
the decision of the Secretary or authorised review officer (the
review decision
) will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment;
the date of effect of the review decision is the first day of the period to which the original decision relates.
(e)
(Repealed by No 85 of 2016)
(f)
(Repealed by No 85 of 2016)
History
S 109E(1) amended by No 85 of 2016, s 3 and Sch 1 item 6, by substituting
"
is the first day of the period to which the original decision relates
"
for all the words after
"
date of effect of the review decision
"
, applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph
109E(1)(a)
of the
A New Tax System (Family Assistance) (Administration) Act 1999
) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year. All the words after
"
date of effect of the review decision
"
formerly read:
is:
(e)
unless paragraph (f) applies
-
the date that would give full effect to the review decision; 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 was made
-
that first day.
S 109E(1) amended by No 65 of 2010, s 3 and Sch 2 item 30, by substituting
"
under section 109A
"
for
"
to the Secretary, under subsection 109A(1),
"
in para (a), effective 1 July 2010.
109E(2)
The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under section
109A
for review of the original decision within 52 weeks, determine that subsection
(1)
applies as if the reference to 52 weeks were a reference to such longer period as the Secretary determines to be appropriate.
History
S 109E(2) amended by No 65 of 2010, s 3 and Sch 2 item 31, by substituting
"
section 109A
"
for
"
subsection 109A(1)
"
, effective 1 July 2010.
109E(2AA)
If:
(a)
paragraphs
(1)(a)
,
(b)
,
(c)
and
(d)
apply; and
(b)
the first day of the period to which the original decision relates is earlier than the first day (the
cut-off day
) of the income year before the income year in which the application referred to in paragraph
(1)(b)
was made;
then, despite subsection
(1)
, the person cannot be paid any entitlement created or increased as mentioned in paragraph
(1)(d)
(including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement) in relation to any day earlier than the cut-off day.
[
CCH Note:
S 109E(2AA) will be amended by No 85 of 2016, s 3 and Sch 2 item 2, by omitting
"
(including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement)
"
, effective at the same time as Part 3 of Schedule 3 to the
Social Services Legislation Amendment (Family Payments Structural Reform and Participation Measures) Act 2016
commences. For saving provision, see note under s
107(1AA)
.]
History
S 109E(2AA) inserted by No 85 of 2016, s 3 and Sch 1 item 7, applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph
109E(1)(a)
of the
A New Tax System (Family Assistance) (Administration) Act 1999
) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year.
109E(2A)
Subsection
(2AA)
does not apply in relation to a decision by the Secretary or by an authorised review officer on an application by a person under section
109A
for review of the original decision if:
(a)
as a result of the original decision, the person was entitled to be paid family tax benefit by instalment at a particular rate in respect of a period (the
same-rate benefit period
) that consists of, or is included in, a particular income year (the
relevant income year
); and
(aa)
the original decision is not a decision made under subsection
105(4)
(including because of the operation of section
105A
) or
109A(2)
; and
(b)
either:
(i)
if the same-rate benefit period to which the original decision relates is the only same-rate benefit period for the person for the relevant income year
-
the person satisfies the FTB reconciliation conditions for the same-rate benefit period; or
(ii)
if the same-rate benefit period to which the original decision relates is one of 2 or more same-rate benefit periods for the person for the relevant income year
-
the person satisfies the FTB reconciliation conditions for each of those same-rate benefit periods.
Note:
To work out when the person satisfied the FTB reconciliation conditions, see section
32B
.
[
CCH Note:
S 109E(2A) will be amended by No 85 of 2016, s 3 and Sch 2 item 3, by omitting
"
(including because of the operation of section 105A)
"
from para (aa), effective at the same time as Part 3 of Schedule 3 to the
Social Services Legislation Amendment (Family Payments Structural Reform and Participation Measures) Act 2016
commences. For saving provision, see note under s
107(1AA)
.]
History
S 109E(2A) amended by No 85 of 2016, s 3 and Sch 1 items 8 and 9, by substituting
"
Subsection (2AA) does not apply in relation to
"
for
"
Subsection (1) does not limit the date of effect of
"
and inserting para (aa), applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph
109E(1)(a)
of the
A New Tax System (Family Assistance) (Administration) Act 1999
) related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the 2015-16 income year or a later income year.
S 109E(2A) inserted by No 46 of 2016, s 3 and Sch 2 item 17, applicable in relation to a review decision made on or after 6 May 2016, where the original decision related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the income year in which this Schedule commences or in a later income year.
109E(3)
Subsection
(2AA)
does not apply in relation to a decision by the Secretary or by an authorised review officer on an application under section
109A
for review of the original decision if:
(a)
(Repealed by No 46 of 2016)
(b)
the application for review is made:
(i)
because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income for a particular income year of any relevant person made on the basis of an income tax return for that person and that particular income year lodged in accordance with subsection
(3A)
; and
(ii)
within 90 days after the relevant person was notified by the Commissioner of the outcome of the review; or
(c)
the application for review is made:
(i)
because of a review, by the Child Support Registrar, of a previous decision by the Registrar about the child support entitlement of any relevant person; and
(ii)
within 90 days after the relevant person was notified by the Registrar of the outcome of the review.
(d)
-
(g)
(Repealed by No 36 of 2018)
History
S 109E(3) amended by No 38 of 2024, s 3 and Sch 3 item 12, by substituting
"
90 days
"
for
"
13 weeks
"
in para (b)(ii) and (c)(ii), effective 14 October 2024.
S 109E(3) amended by No 36 of 2018, s 3 and Sch 2 items 20 and 21, by substituting
"
review.
"
for
"
review; or
"
in para (c)(ii) and repealing para (d) to (g), effective 1 July 2018. For application provision, see note under s
107(3A)
. Para (d) to (g) formerly read:
(d)
the following apply:
(i)
under section 61A of the Family Assistance Act, the Secretary disregarded clause 38A of Schedule 1 to that Act in relation to the person mentioned in paragraph (1)(a) of this section, an FTB child of the person and a day;
(ii)
the Secretary is satisfied the application for review is made because the person considers that section 61A of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day;
(iii)
the application for review is made before the end of the first income year after the income year in which that FTB child turned 4 or of the further period (if any) allowed by the Secretary under paragraph 61A(2A)(a) of that Act; or
(e)
the application for review is made because of subsections 61A(1), (2) and (2A) of the Family Assistance Act not applying in relation to the person mentioned in paragraph (1)(a) of this section because of the operation of subsection 61A(3) of that Act; or
(f)
the following apply:
(i)
under section 61B of the Family Assistance Act, the Secretary disregarded clause 38A of Schedule 1 to that Act in relation to the person mentioned in paragraph (1)(a) of this section, an FTB child of the person and a day;
(ii)
the Secretary is satisfied the application for review is made because the person considers that section 61B of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day;
(iii)
the application for review is made before the end of the first income year after the income year in which that FTB child turned 1, 2 or 5 (as the case requires) or of the further period (if any) allowed by the Secretary under paragraph 61B(3)(a) of that Act; or
(g)
the application for review is made because of subsections 61B(1), (2) and (3) of the Family Assistance Act not applying in relation to the person mentioned in paragraph (1)(a) of this section because of the operation of subsection 61B(4) of that Act.
S 109E(3)amended by No 85 of 2016, s 3 and Sch 1 item 10, by substituting
"
Subsection (2AA) does not apply in relation to
"
for
"
Subsection (1) does not limit the date of effect of
"
, applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph
109E(1)(a)
of the
A New Tax System (Family Assistance) (Administration) Act 1999
) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year.
S 109E(3) amended by No 46 of 2016, s 3 and Sch 2 item 18, by repealing para (a), applicable in relation to a review decision made on or after 6 May 2016, where the original decision related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the income year in which this Schedule commences or in a later income year. Para (a) formerly read:
(a)
the application for review is made because of an assessment, by the Commissioner of Taxation, of taxable income for a particular income year of any relevant person made on the basis of an income tax return for that person and that particular income year lodged in accordance with subsection (3A); or
S 109E(3) amended by No 14 of 2014, s 3 and Sch 12 items 23 and 24, by substituting
"
in accordance with subsection (3A)
"
for
"
before the end of the next income year
"
in para (a) and (b)(i), applicable in relation to an income year referred to in paragraph
107(3)(d)
,
109D(4)(a)
or
109E(3)(a)
or subparagraph or
109E(3)(b)(i)
of the
A New Tax System (Family Assistance) (Administration) Act 1999
that is the 2013-14 income year or a later income year.
S 109E(3) amended by No 70 of 2013, s 3 and Sch 2B items 52 and 53, by substituting
"
first income year after the income year in which that FTB child turned 4 or of the further period (if any) allowed by the Secretary under paragraph 61A(2A)(a) of that Act
"
for
"
second income year after the income year in which that FTB child turned 4
"
in para (d)(iii) and
"
first income year after the income year in which that FTB child turned 1, 2 or 5 (as the case requires) or of the further period (if any) allowed by the Secretary under paragraph 61B(3)(a) of that Act
"
for
"
second income year after the income year in which that FTB child turned 1, 2 or 5 (as the case requires)
"
in para (f)(iii), applicable in relation to an income year referred to in subsection
61A(1)
or
(2)
or
61B(1)
or
(2)
of the
A New Tax System (Family Assistance) Act 1999
that is the 2012-13 income year or a later income year.
S 109E(3) amended by No 49 of 2012, s 3 and Sch 6 item 32, by substituting
"
subsections 61A(1), (2) and (2A)
"
for
"
subsection 61A(1) or (2)
"
in para (e), effective 1 July 2012.
S 109E(3) amended by No 49 of 2012, s 3 and Sch 1 item 6, by inserting para (f) and (g), effective 1 July 2012. For transitional and application provisions see note under s
107(3C)
.
S 109E(3) amended by No 53 of 2011, s 3 and Sch 2 item 8, by inserting paras (d) and (e) at the end, effective 1 July 2011.
S 109E(3) amended by No 65 of 2010, s 3 and Sch 2 item 31, by substituting
"
section 109A
"
for
"
subsection 109A(1)
"
, effective 1 July 2010.
109E(3A)
For the purposes of subparagraph
(3)(b)(i)
, the income tax return of a person in respect of a particular income year (the
base year
) must be lodged before the end of:
(a)
the first income year after the base year; or
(b)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the return before the end of that first income year.
History
S 109E(3A) amended by No 46 of 2016, s 3 and Sch 2 item 19, by omitting
"
paragraph (3)(a) or
"
after
"
purposes of
"
, applicable in relation to a review decision made on or after 6 May 2016, where the original decision related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the income year in which this Schedule commences or in a later income year.
S 109E(3A) inserted by No 14 of 2014, s 3 and Sch 12 item 25, applicable in relation to an income year referred to in paragraph
107(3)(d)
,
109D(4)(a)
or
109E(3)(a)
or subparagraph
109D(4)(b)(i)
or
109E(3)(b)(i)
of the
A New Tax System (Family Assistance) (Administration) Act 1999
that is the 2013-14 income year or a later income year.
109E(3B)
The further period under paragraph
(3A)(b)
must end no later than the end of the second income year after the base year.
History
S 109E(3B) inserted by No 14 of 2014, s 3 and Sch 12 item 25, applicable in relation to an income year referred to in paragraph
107(3)(d)
,
109D(4)(a)
or
109E(3)(a)
or subparagraph
109D(4)(b)(i)
or
109E(3)(b)(i)
of the
A New Tax System (Family Assistance) (Administration) Act 1999
that is the 2013-14 income year or a later income year.
109E(4)
In subsection
(3)
, a reference to a relevant person, in relation to the person first-mentioned in that subsection, is a reference:
(a)
so far as paragraph
(3)(b)
is concerned
-
to any person (including the first-mentioned person) whose taxable income is relevant in determining the first-mentioned person
'
s eligibility for, or rate of, family tax benefit; and
(b)
so far as paragraph
(3)(c)
is concerned
-
to any person (including the first-mentioned person) whose entitlement to child support is relevant in determining the first-mentioned person
'
s rate of family tax benefit.
History
S 109E(4) amended by No 46 of 2016, s 3 and Sch 2 item 20, by substituting
"
paragraph (3)(b)
"
for
"
paragraph (3)(a) or (b)
"
in para (a), applicable in relation to a review decision made on or after 6 May 2016, where the original decision related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the income year in which this Schedule commences or in a later income year.
History
S 109E inserted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69.
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