A New Tax System (Family Assistance) (Administration) Act 1999

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).

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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

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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.)
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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.)
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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.)
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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 A - Review initiated by the Secretary

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SECTION 104

104 Decisions that may be reviewed by Secretary on own initiative

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Under section 105 , the Secretary may review any decision of an officer under the family assistance law except:

(a) a decision under section 67EB to pay an amount; or

(b) a decision to give a person a notice under section 199E (notice about effect of non-compliance by provider on eligibility for CCS or ACCS); or

(c)

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a decision under section 205A (business continuity payments - reports not given); or

(d)

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a decision under section 85GA of the Family Assistance Act (funding agreements) in relation to an agreement.

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History

S 104 amended by No 26 of 2021, s 3 and Sch 1 item 9, by inserting " - reports not given " in para (c), effective 27 March 2021. For application provisions, see note under s 205C .

S 104 substituted by No 22 of 2017, s 3 and Sch 1 item 115, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 104 formerly read:

SECTION 104 SECTION 104 Decisions that may be reviewed by the Secretary on own initiative
104
Under section 105, the Secretary may review a decision of any officer under the family assistance law except:

(a) a determination of entitlement under section 51B in respect of an individual in so far as it relates to:

(i) a rate certified by an approved child care service under subsection 76(1) of the Family Assistance Act; or

(ii) a certificate relating to a weekly limit of hours given by an approved child care service under subsection 54(10), 55(6) or 56(3) of the Family Assistance Act; or

(b) a determination of entitlement under section 54B in respect of an approved child care service in so far as it relates to:

(i) the service ' s eligibility under section 47 of the Family Assistance Act; or

(ii) a rate certified by the service under subsection 76(2) of the Family Assistance Act; or

(iii) a certificate relating to a weekly limit of hours given by the service under subsection 54(10), 55(6) or 56(4) of the Family Assistance Act; or

(ba) a decision to give a person a notice under section 204A; or

(c) a calculation of an amount of fee reduction under section 50Z or 50ZB, or a recalculation of such an amount under section 50ZA or 50ZC; or

(d) a decision by the Secretary under section 219Q or subsection 219QA(2) to pay an amount in respect of fee reduction; or

(da) a decision by the Secretary under section 219QC or subsection 219QD(2) to pay an amount in respect of child care rebate; or

(db) a decision under section 219RD (business continuity payments); or

(dc) a calculation of an amount of child care rebate for a week under section 65EAAA, or a recalculation of such an amount under section 65EAAD; or

(dd) a decision by the Secretary under subsection 65EAAAA(4) (allowing election after beginning of income year to be paid child care rebate weekly or quarterly) or under subsection 65EAAAB(3) (day on which new payment arrangement begins); or

(de) a calculation of an amount of child care rebate for a quarter under section 65EAA, or a recalculation of such an amount under section 65EAB; or

(e) a decision under Division 2 of Part 8C (infringement notices).
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History

S 104 amended by No 25 of 2011, s 3 and Sch 1 item 39, by substituting paras (d) to (de) for paras (d) to (da), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1) . Paras (d) to (da) formerly read:

(d) a decision by the Secretary under section 219Q or subsection 219QA(2) to pay an amount in respect of fee reduction; or

(daa) a decision under section 219RD (business continuity payments); or

(da) a calculation of an amount of child care rebate for a quarter under section 65EAA, or a recalculation of such an amount under section 65EAB; or

S 104 amended by No 34 of 2010, s 3 and Sch 1 item 9, by inserting para (daa), effective 13 April 2010.

S 104 amended by No 50 of 2009, s 3 and Sch 1 item 31, by substituting " child care rebate " for " child care tax rebate " in para (da), effective 24 June 2009.

S 104(1) amended by No 146 of 2006, s 3 and Sch 5 items 78, by substituting " Under " for " (1) Under " and deleting the heading in s 104(1), effective 1 July 2008.

S 104(1) amended by No 53 of 2008, s 3 and Sch 2 item 19, by inserting para (da), applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA .

S 104(1) amended by No 118 of 2007, s 3 and Sch 3 item 4, by inserting para (ba), effective 29 June 2007.

S 104(1) amended by No 118 of 2007, s 3 and Sch 2 item 2, by inserting para (e) at the end, effective 1 July 2007.

S 104(1) amended by No 118 of 2007, s 3 and Sch 1 item 53, by substituting paras (c) and (d) for para (c), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (c) formerly read:

(c) a decision by the Secretary under Division 2 of Part 8A (advances to approved child care services).

104(2)
(Repealed by No 146 of 2006)
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History

S 104(2) repealed by No 146 of 2006, s 3 and Sch 5 item 79, effective 1 July 2008. S 104(2) formerly read:

104(2)
Under section 105, the Secretary may also review a decision under subsection 91A(3) of the Child Support (Assessment) Act 1989 that is made on or after 1 July 2000.

S 104 substituted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69. For former wording of s 104 see history note under Div 1 heading.

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