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 2
-
Review by ART
History
Div 2 heading amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting
"
ART
"
for
"
Administrative Appeals Tribunal
"
, effective 14 October 2024.
Div 2 heading substituted by No 60 of 2015, s 3 and Sch 5 item 14, effective 1 July 2015. The heading formerly read:
Division 2
-
Review by the Social Security Appeals Tribunal
Subdivision C
-
Other matters relating to ART review
History
Subdiv C heading amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting
"
ART review
"
for
"
AAT first review
"
, effective 14 October 2024.
Subdiv C heading inserted by No 60 of 2015, s 3 and Sch 5 item 22, effective 1 July 2015.
SECTION 113
Secretary may continue certain matters pending outcome of application for ART review
113(1)
If:
(a)
an adverse family assistance decision 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 ART 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.
History
S 113(1) amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting
"
ART review
"
for
"
AAT first review
"
in para (c), effective 14 October 2024.
S 113(1) amended by No 22 of 2017, s 3 and Sch 1 item 168, by omitting
"
referred to in paragraph (a) or (b) of the definition of
adverse family assistance decision
in subsection (5)
"
after
"
an adverse family assistance decision
"
from para (a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading.
113(2)
(Repealed by No 22 of 2017)
History
S 113(2) repealed by No 22 of 2017, s 3 and Sch 1 item 169, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading. S 113(2) formerly read:
113(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.
113(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.
113(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 ART dismisses the application for ART review of the adverse decision; or
(ii)
the ART determines the ART review of the adverse decision; or
(iii)
the Secretary revokes the declaration.
History
S 113(4) amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting
"
the ART dismisses the application for ART review
"
for
"
the AAT dismisses the application for AAT first review
"
in para (b)(i) and
"
the ART determines the ART review
"
for
"
the AAT determines the AAT first review
"
in para (b)(ii), effective 14 October 2024.
113(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.
(c)
-
(e)
(Repealed by No 22 of 2017)
History
S 113(5) amended by No 22 of 2017, s 3 and Sch 1 items 170 and 171, by substituting
"
reduced.
"
for
"
reduced; or
"
in para (b) and repealing para (c) to (e) in the definition of
"
adverse family assistance decision
"
, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading. Para (c) to (e) formerly read:
(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.
S 113 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. No 60 of 2015, s 3 and Sch 9 item 15BQ contains the following transitional and saving provision:
15BQ Continuation of payment declarations
(1)
If, immediately before the commencement day, a declaration under section 112 of the
A New Tax System (Family Assistance) (Administration) Act 1999
was in effect in connection with a person
'
s application for review of a decision, the declaration continues in effect on and after the commencement day, as if the declaration had been made:
(a)
under section 113 of that Act as amended by this Act; and
(b)
in connection with the application as continued in the AAT by item 15AB of this Schedule.
…
S 113 formerly read:
SECTION 113 SSAT review powers
113(1)
If a person applies to the SSAT for review of a decision, the SSAT 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 SSAT.
113(1A)
If:
(a)
the review involves (wholly or partly) a review of a decision (the
original decision
) that is a care percentage decision; and
(b)
a review of a decision carried out under Part VIIA of the
Child Support (Registration and Collection) Act 1988
has involved (wholly or partly) a review of the determination to which the care percentage decision relates;
the SSAT 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 113(1A) inserted by No 65 of 2010, s 3 and Sch 2 item 35, effective 1 July 2010.
113(2)
If the SSAT sets a decision aside and substitutes for it a decision that:
(a)
a person is entitled to have a payment made under this Act; or
(b)
a person is conditionally eligible for child care benefit by fee reduction; or
(c)
the weekly limit of hours, the CCB % or the schooling % applicable to a person is to be increased;
the SSAT must:
(d)
in the case of paragraph (a):
(i)
assess the amount of the payment; or
(ii)
ask the Secretary to assess the amount; and
(e)
in the case of paragraph (b):
(i)
ask the Secretary to determine the weekly limit of hours, CCB % and schooling % applicable to the person; and
(ii)
if the limit or percentage affects the amount of the entitlement of the person
-
assess that amount; and
(f)
in the case of paragraph (c):
(i)
determine what the limit or percentage is to be; or
(ii)
ask the Secretary to assess the limit or percentage.
History
S 113(2) substituted by No 45 of 2000, s 3 Sch 2 item 113, effective 1 July 2000. For transitional provisions see note under s 69. S 113(2) formerly read:
113(2)
If the SSAT sets a decision aside and substitutes for it a decision that a person is entitled to have a payment made under this Act, the SSAT must:
(a)
assess the amount of the payment; or
(b)
ask the Secretary to assess the amount.
113(3)
If:
(a)
the SSAT sets a decision aside under subsection (1); and
(b)
the Secretary or the SSAT, 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 SSAT, as the case requires, may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.
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