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 109B
Notice to be given of decisions under section 109A
Decision reviewer to give notice of section
109A
decision
109B(1)
The decision reviewer of a decision reviewed under section
109A
must give notice of the review decision as set out in this section.
Notice of decisions relating to CCS or ACCS
109B(2)
If a review decision is a decision to affirm, vary or substitute a child care decision in relation to section
67CC
that an individual is or is not eligible for CCS for a child by fee reduction, the decision reviewer:
(a)
must give written notice of the review decision to the individual; and
(b)
may give written notice of the review decision to the provider of any approved child care service at which the child has been enrolled since the determination under section
67CC
first took effect.
History
S 109B(2) substituted by No 22 of 2017, s 3 and Sch 1 item 137, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading. S 109B(2) formerly read:
109B(2)
If:
(a)
a review decision concerns an individual in respect of whom a determination of conditional eligibility for child care benefit by fee reduction is, or was, in force (the
applicant
); and
(b)
the review decision is to:
(i)
vary an original decision in respect of the applicant; or
(ii)
set aside an original decision in respect of the applicant and substitute a new decision; and
(c)
the review decision relates to one of the following decisions:
(i)
a determination decision in respect of conditional eligibility (a determination of conditional eligibility is made under section 50F);
(ii)
a determination decision in respect of a weekly limit of hours (a determination of a weekly limit of hours is made under section 50H);
(iii)
a determination decision in respect of CCB % (a determination of CCB % is made under section 50J);
(iv)
a determination decision in respect of schooling % (a determination of schooling % is made under section 50K);
(iva)
a determination decision in respect of eligibility for the special grandparent rate (a determination of this eligibility is made under subsection 50T(1));
(v)
a determination decision in respect of rate under subsection 81(2) of the Family Assistance Act;
(vi)
a determination decision in respect of no entitlement hours (a determination of no entitlement is made under section 50G);
the decision reviewer must give notice of the review decision to:
(d)
in all cases mentioned in paragraph (c)
-
the applicant; and
(e)
in the case mentioned in subparagraph (c)(v)
-
the approved child care service, or services, providing care to the child concerned.
S 109B(2) amended by No 118 of 2007, s 3 and Sch 1 item 57, by substituting paras (d) and (e), effective 29 June 2007. For application and transitional provisions see note under Pt
8A
heading. Paras (d) and (e) formerly read:
(d)
the applicant; and
(e)
the approved child care service, or services, providing care to the child concerned.
S 109B(2) amended by No 132 of 2004, s 3 and Sch 4 item 28, by inserting para (c)(iva), applicable to sessions of care provided in a week that commences after 1 January 2005.
109B(2A)
If a review decision is a decision to affirm, vary or substitute a child care decision in relation to section
67CD
(entitlement to be paid CCS or ACCS) for an individual in relation to sessions of care, the decision reviewer:
(a)
must give written notice of the review decision to the individual; and
(b)
if the review decision is a fee reduction decision
-
must give written notice of the decision and the fee reduction amount for the decision to the provider of the approved child care service that provided the sessions of care; and
(c)
if the review decision is not a fee reduction decision
-
may give written notice of the decision to the provider of the approved child care service that provided the sessions of care.
History
S 109B(2A) substituted by No 22 of 2017, s 3 and Sch 1 item 137, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading. S 109B(2A) formerly read:
109B(2A)
The Secretary may make notice of a review decision mentioned in paragraph (2)(c) (other than subparagraph (2)(c)(v)) available to the approved child care service, or services, providing care to the child concerned, including by making the notice available to the service using an electronic interface.
S 109B(2A) inserted by No 118 of 2007, s 3 and Sch 1 item 58, effective 29 June 2007.For application and transitional provisions see note under Pt
8A
heading.
History
S 109B(2A) inserted by No 118 of 2007, s 3 and Sch 1 item 58, effective 29 June 2007.For application and transitional provisions see note under Pt
8A
heading.
109B(2B)
If the review decision is a fee reduction decision, and the Secretary has decided to pay the fee reduction amount directly to the individual under subsection
67EC(2)
, a notice under subsection (2A) of this section must include a statement to that effect.
History
S 109B(2B) substituted by No 22 of 2017, s 3 and Sch 1 item 137, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading. S 109B(2B) formerly read:
109B(2B)
The Secretary may give notice of a review decision mentioned in subparagraph (2)(c)(v) by making the notice available to the service using an electronic interface.
S 109B(2B) inserted by No 118 of 2007, s 3 and Sch 1 item 58, effective 29 June 2007. For application and transitional provisions see note under Pt
8A
heading.
109B(2C)
A notice under subsection (2) or (2A) may be given to a provider by making the notice available to the provider using an electronic interface.
History
S 109B(2C) inserted by No 22 of 2017, s 3 and Sch 1 item 137, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading.
Notice to be given of other review decisions
109B(3)
If a review decision is in respect of any other original decision that may be reviewed under section
109A
, other than an original decision referred to in subsection (2) or (2A), the decision reviewer must give the applicant written notice of his or her decision:
(a)
to affirm or vary the decision reviewed; or
(b)
to set it aside and substitute a new decision.
History
S 109B(3) amended by No 22 of 2017, s 3 and Sch 1 item 138, by inserting
"
or (2A)
"
after
"
subsection (2)
"
, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading.
S 109B(3) substituted by No 146 of 2006, s 3 and Sch 5 item 83, effective 1 July 2008. S 109B(3) formerly read:
Notice to be given of other review decisions
109B(3)
If a review decision is in respect of any other original decision that may be reviewed under section 109A other than an original decision referred to in subsection (2), the decision reviewer must:
(a)
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; and
(b)
if the decision is a decision under subsection 91A(3) of the
Child Support (Assessment) Act 1989
about an agreement and the other party to the agreement has made a submission in relation to the review
-
also give the other party written notice of his or her decision.
109B(4)
(Repealed by No 22 of 2017)
History
S 109B(4) repealed by No 22 of 2017, s 3 and Sch 1 item 139, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading. S 109B(4) formerly read:
Meaning of determination decision
109B(4)
In this section:
determination decision
means a decision that is a determination as originally made or, if varied, the variation of the determination.
History
S 109B 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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