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 G
-
ART child care provider review
History
Subdiv G heading substituted by No 38 of 2024, s 3 and Sch 3 item 209, effective 14 October 2024. The heading formerly read:
Subdivision G
-
AAT single review
Subdiv G heading inserted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015.
SECTION 138
Applications for ART child care provider review
Decision of Secretary or authorised review officer
138(1)
If:
(a)
a child care provider decision (other than a decision made under section
197H
or
197J
) has been reviewed under section
109A
; and
(b)
the decision has been affirmed, varied or set aside and substituted by the Secretary or authorised review officer under subsection
109A(2)
;
the provider may apply to the ART for review (
ART child care provider review
) of the decision of the Secretary or authorised review officer.
History
S 138(1) amended by No 38 of 2024, s 3 and Sch 3 item 44, by substituting
"
ART for review (
ART child care provider review
)
"
for
"
AAT for review (
AAT single review
)
"
, effective 14 October 2024.
S 138(1) amended by No 26 of 2021, s 3 and Sch 1 item 23, by substituting
"
a child care provider decision
"
for
"
a decision made under Part 8 (approval of providers of child care services) in relation to a provider
"
in para (a), applicable in relation to decisions made on or after 27 March 2021. For application provisions, see note under s
205C
.
S 138(1) amended by No 125 of 2019, s 3 and Sch 2 item 9, by inserting
"
(other than a decision made under section 197H or 197J)
"
in para (a), effective 13 December 2019. No 125 of 2019, s 3 and Sch 2 item 29 contains the following application provision:
29 Application
-
decisions for which AAT single review may be sought
29
The amendments of section 138 of the
A New Tax System (Family Assistance) (Administration) Act 1999
made by this Schedule do not apply in relation to a decision made under section
197H
or
197J
of that Act if the provider applies to the AAT for review of the decision under section 138 of that Act before 13 December 2019.
S 138(1) substituted by No 22 of 2017, s 3 and Sch 1 item 179, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading. S 138(1) formerly read:
Decisions of Secretary or authorised review officer
138(1)
If:
(a)
a decision of the kind mentioned in subsection (4) has been reviewed under section 109A; and
(b)
the decision has been affirmed, varied or set aside and substituted by the Secretary or authorised review officer under subsection 109A(2);
applications may be made to the AAT for review (
AAT single review
) of the decision of the Secretary or an authorised review officer.
138(2)
For the purposes of subsection
(1)
, the decision of the Secretary or authorised review officer is taken to be:
(a)
if the Secretary or authorised review officer affirmed a decision
-
that decision as affirmed; or
(b)
if the Secretary or authorised review officer varied a decision
-
that decision as varied; or
(c)
if the Secretary or authorised review officer set aside a decision and substituted a new decision
-
the new decision.
Decision made personally by agency head
138(3)
If a child care provider decision (other than a decision under section
197H
or
197J
) is made by:
(a)
the Secretary personally; or
(b)
another agency head personally in the exercise of a delegated power; or
(c)
the Chief Executive Centrelink in the exercise of a delegated power; or
(d)
the Chief Executive Medicare in the exercise of a delegated power;
the provider may apply to the ART for review (also an
ART child care provider review
) of the decision.
History
S 138(3) amended by No 38 of 2024, s 3 and Sch 3 item 45, by substituting
"
ART for review (also an
ART child care provider review
)
"
for
"
AAT for review (also an
AAT single review
)
"
, effective 14 October 2024.
S 138(3) amended by No 26 of 2021, s 3 and Sch 1 item 24, by substituting
"
a child care provider decision
"
for
"
a decision under Part 8 (approval of providers of child care services) in relation to a provider
"
, applicable in relation to decisions made on or after 27 March 2021. For application provisions, see note under s
205C
.
S 138(3) amended by No 125 of 2019, s 3 and Sch 2 item 10, by inserting
"
(other than a decision under section 197H or 197J)
"
, effective 13 December 2019. For application provision, see note under s
138(1)
.
S 138(3) substituted by No 22 of 2017, s 3 and Sch 1 item 180, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading. S 138(3) formerly read:
Decisions made personally by agency heads
138(3)
Applications may also be made to the AAT for review (also an
AAT single review
) of a decision of the kind mentioned in subsection (4) made by:
(a)
the Secretary personally; or
(b)
another agency head personally in the exercise of a delegated power; or
(c)
the Chief Executive Centrelink in the exercise of a delegated power; or
(d)
the Chief Executive Medicare in the exercise of a delegated power.
Referral to guidance and appeals panel
138(3A)
If a guidance and appeals panel application is taken to have been made because the ART
'
s decision on ART child care provider review is referred to the guidance and appeals panel, review of the decision to which that application relates is also an
ART child care provider review
.
History
S 138(3A) inserted by No 38 of 2024, s 3 and Sch 3 item 46, effective 14 October 2024.
Meaning of
child care provider decision
138(4)
Each of the following is a
child care provider decision
:
(a)
a decision under Part
4
(overpayments and debt recovery) in relation to a debt of an approved provider;
(b)
a decision under Part
8
(approval of provider of child care services) in relation to a provider;
(c)
a decision under section
205C
(business continuity payments
-
emergency or disaster).
History
S 138(4) inserted by No 26 of 2021, s 3 and Sch 1 item 25, applicable in relation to decisions made on or after 27 March 2021. For application provisions, see note under s
205C
.
Former s 138(4) repealed by No 22 of 2017, s 3 and Sch 1 item 181, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
3A
heading. S 138(4) formerly read:
Kind of decisions
138(4)
For the purposes of subsections (1) and (3), the following are the kinds of decisions:
(a)
a decision under section 195 not to approve a child care service for the purposes of the family assistance law or to approve the service from a particular day;
(b)
a decision under subsection 199(2) to impose another condition for the continued approval of an approved child care service;
(c)
a decision under subsection 200(1) to do one or more of the things mentioned in paragraphs (a) to (h) of that subsection in relation to an approved child care service;
(d)
a decision under subsection 200(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(e)
a decision under subsection 201A(1) to suspend the approval of an approved child care service from a particular day;
(f)
a decision under subsection 201A(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(g)
a decision under subsection 202(2) not to cancel an approved child care service
'
s approval;
(h)
a decision under subsection 202(3) to cancel an approved child care service
'
s approval;
(i)
a decision under subsection 202(4) to cancel an approved child care service
'
s approval, but only if the service made submissions under paragraph 203(1)(e) in relation to the cancellation;
(j)
a decision under paragraph 205(3)(a) not to exempt a specified child care service from a specified eligibility rule;
(k)
a decision under section 207 to:
(i)
refuse to allocate any child care places to an approved child care service; or
(ii)
refuse to allocate the number of child care places an approved child care service has applied for under that section;
unless the decision is based on guidelines of the Minister of the kind mentioned in paragraph 206(c);
(l)
a decision under section 207A to reduce the number of child care places allocated to an approved child care service;
(m)
a decision under subsection 210(1) not to approve an individual as a registered carer for the purposes of the family assistance law;
(n)
a decision under subsection 212(1) as to when the approval of an applicant as a registered carer is taken to have come into force;
(o)
a decision under subsection 212(3) as to when the approval of an applicant as a registered carer is taken not to have been in force;
(p)
a decision under subsection 213(2) to impose another condition for the continued approval of an individual as a registered carer;
(q)
a decision under subsection 214(1) to do one or more of the things mentioned in paragraphs (a) to (d) of that subsection in relation to a registered carer;
(r)
a decision under subsection 216(3) to cancel a registered carer
'
s approval;
(s)
a decision under subsection 219TSQ(1) to suspend an approved child care service
'
s approval;
(t)
a decision under subsection 219TSQ(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(u)
a decision under subsection 57(1) of the Family Assistance Act.
History
S 138 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div
3
heading.
View history note
Hide history note