Tribunals Amalgamation Act 2015 (60 of 2015)

Schedule 5   Family assistance amendments

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

23   Divisions 3 and 4 of Part 5

Repeal the Divisions, substitute:

Subdivision D - Application for AAT second review

128 Application for AAT second review

(1) Application may be made to the AAT for review ( AAT second review ) of a decision made by the AAT under subsection 43(1) of the AAT Act on AAT first review.

(2) For the purposes of subsection (1), the decision on AAT first review is taken to be:

(a) if the AAT affirmed a decision - the decision as affirmed; and

(b) if the AAT varied a decision - the decision as varied; and

(c) if the AAT set a decision aside and substituted a new decision - the new decision; and

(d) if the AAT set a decision aside and sent the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT - the directions or recommendations of the AAT.

129 Notice of application for AAT second review

The AAT Act applies in relation to an application for AAT second review of a decision as if the reference in paragraph 29AC(1)(b) of the AAT Act to the person who made the decision were a reference to each person who was a party to the relevant AAT first review, other than the applicant for AAT second review.

Subdivision E - Other matters relating to AAT second review

130 Parties to AAT second review

The AAT Act applies in relation to an application for AAT second review of a decision as if the reference in paragraph 30(1)(b) of the AAT Act to the person who made the decision were a reference to each party to the relevant AAT first review, other than the applicant for AAT second review.

131 Operation and implementation of decision subject to AAT second review

(1) The AAT Act applies in relation to an application for AAT second review of a decision as if the reference in subsection 41(2) of the AAT Act to the decision to which the relevant proceeding relates were a reference to:

(a) if, on AAT first review, the AAT affirmed the original decision - the original decision; and

(b) otherwise - both the original decision and whichever of the following is applicable in relation to the AAT first review:

(i) the original decision as varied by the AAT;

(ii) the decision substituted by the AAT;

(iii) the decision made as a result of reconsideration by the Secretary in accordance with any directions or recommendations of the AAT.

(2) For the purposes of subsection (1), the original decision is the decision that was the subject of the AAT first review.

(3) The AAT Act applies in relation to an application for AAT second review of a decision as if references in subsections 41(4) and (5) of the AAT Act to the person who made the decision to which the relevant proceeding relates were references to each party to the relevant AAT first review.

132 Variation of original decision after application is made for AAT second review

(1) If an officer varies or substitutes a decision after an application has been made for AAT second review in relation to the decision:

(a) the AAT is taken, on AAT first review, to have varied or substituted the decision under review in the way the officer did; and

(b) the application is taken to be an application for AAT second review of the decision as varied or substituted.

(2) If the person who made the application does not want a review of the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.

133 Failure of party to appear at AAT second review

The AAT Act applies in relation to an application for AAT second review of a decision as if the reference in subsection 42A(2) of the AAT Act to the person who made the decision were a reference to the Secretary.

134 Decision on AAT second review of care percentage decision

If:

(a) the AAT has reviewed a decision on application referred to in paragraph 96A(b) of the Child Support (Registration and Collection) Act 1988; and

(b) that review involved (wholly or partly) a review of a determination to which a care percentage decision relates;

then, despite subsection 43(1) of the AAT Act, the AAT must not, on AAT second review of the care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination referred to in paragraph (b).

135 Secretary may treat event as having occurred if decision set aside on AAT second review

If:

(a) on AAT second review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act; 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, treat the event as having occurred for the purposes of the family assistance law.

Subdivision F - Matters relating to both AAT first review and AAT second review

136 Notice by Secretary of certain AAT decisions on AAT first review or AAT second review

(1) This section applies if:

(a) the AAT makes a decision on AAT first review or AAT second review in respect of an individual claiming child care benefit by fee reduction for care provided by an approved child care service to a child; and

(b) the decision on review is to vary, or set aside and substitute a new decision for one of the following decisions:

(i) a determination of conditional eligibility;

(ii) a weekly limit of hours, CCB % or schooling % applicable to the individual;

(iii) a determination whether the individual is eligible for the special grandparent rate for the child;

(iv) a determination of rate under subsection 81(2) or (3) of the Family Assistance Act; and

(c) on the day that the AAT decision is made:

(i) the service is still providing care to the child; and

(ii) a determination of conditional eligibility is still in force in respect of the individual with effect that the individual is conditionally eligible.

(2) The Secretary:

(a) must give notice of an AAT decision mentioned in subparagraph (1)(b)(iv) to the service; and

(b) must state in the notice the effect of the decision; and

(c) may give the notice by making it available to the service using an electronic interface.

(3) The Secretary may make the notice of an AAT decision mentioned in paragraph (1)(b) (other than subparagraph (1)(b)(iv)) available to the service, including by making the notice available to the service using an electronic interface.

137 Settlement of proceedings before the AAT

(1) The Secretary may agree, in writing, with other parties to settle proceedings before the AAT if the proceedings are an AAT first review or AAT second review and they relate to the recovery of a debt.

(2) If proceedings are settled and the Secretary gives the AAT a copy of the agreement to settle the proceedings, the application for review of the decision the subject of the proceedings is taken to have been dismissed.

Subdivision G - AAT single review

138 Applications for AAT single review

Decisions of Secretary or authorised review officer

(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.

(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.

Decisions made personally by agency heads

(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.

Kinds of decisions

(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.

139 Variation of decision after application is made for AAT single review

(1) If an officer varies or substitutes a decision after an application has been made to the AAT for AAT single review of the decision, the application is taken to be an application for AAT single review of the decision as varied or substituted.

(2) If the person who made the application does not want the AAT to review the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.

140 Secretary may treat event as having occurred if decision to set aside on AAT single review

If:

(a) on AAT single review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act; 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, treat the event as having occurred for the purposes of the family assistance law.

141 Settlement of proceedings before the AAT

(1) The Secretary may agree, in writing, with other parties to settle proceedings before the AAT if the proceedings are an AAT single review and they relate to the recovery of a debt.

(2) If proceedings are settled and the Secretary gives the AAT a copy of the agreement to settle the proceedings, the application for review of the decision the subject of the proceedings is taken to have been dismissed.