House of Representatives

Tribunals Amalgamation Bill 2014

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)
This memorandum takes account of amendments made by the Senate to the bill as introduced and supersedes the explanatory memorandum tabled in the Senate

Schedule 3 - social security amendments

Overview

1116. Schedule 3 to the Bill would amend the SS Act and the SSA Act to support amalgamation.

1117. The amendments to the SS Act are minor consequential amendments, including amendments to omit references to the SSAT and insert new definitions that would be used in the SSA Act to describe the amalgamated Tribunal's review function. Apart from reflecting the transfer of the SSAT's review function to the amalgamated Tribunal, no policy change to the operation of the SS Act is intended.

1118. Key amendments to the SSA Act would:

·
repeal provisions continuing the existence of the SSAT and providing for its organisation and membership
·
transfer the merits review jurisdiction of the SSAT to the AAT, with existing rights to review of decisions under the social security law being preserved (including a right of second review within the amalgamated Tribunal)
·
create new defined terms of 'AAT first review' and 'AAT second review', corresponding to existing SSAT review and AAT review of social security matters respectively
·
modify the application of the AAT Act in order to preserve existing procedures for merits review of social security matters
·
modernise and simplify the drafting of the provisions of the SSA Act relating to external merits review, without altering existing policy, and
·
make consequential amendments, including to replace references to the SSAT with references to the AAT.

Amendments to the Social Security Act 1991

Item 1 - Section 22

1119. Item 1 would repeal section 22. Section 22 provides definitions of the terms 'AAT', 'AAT Act', 'review' and 'SSAT', which would no longer be necessary:

·
the terms 'AAT' and 'AAT Act' would be defined in subsection 23(1) (see Items 2 and 3 of Schedule 3)
·
the term 'review' is defined for the purposes of existing Schedule 3 of the SSA Act, which is being repealed (see Item 72 of Schedule 3), and
·
the SSAT would be abolished.

Item 2 - Subsection 23(1) (definition of AAT) and Item 3-Subsection 23(1) (definition of AAT Act)

1120. Items 2 and 3 would repeal the existing definitions of 'AAT' and 'AAT Act' in subsection 23(1) and substitute new definitions. 'AAT' would mean the Administrative Appeals Tribunal and 'AAT Act' would mean the Administrative Appeals Tribunal Act 1975.

1121. These amendments would be necessary because the existing definitions refer back to section 22, which would be repealed (see Item 1 of Schedule 3).

Item 4 - Subsection 23(1)

1122. Item 4 would insert new definitions of 'AAT first review' and 'AAT second review' into subsection 23(1). These terms would have the same meaning as in the SSA Act (Item 68 of Schedule 3):

·
'AAT first review' would refer to review of decisions in respect of which applications may be made under section 142 of the SSA Act (Item 68 of Schedule 3). This would comprise those applications which may be made to the former SSAT.
·
'AAT second review' would refer to review of decisions in respect of which applications may be made under section 179 of the SSA Act (Item 68 of Schedule 3). This would comprise those applications which may be made to the AAT for review of decisions of the former SSAT.

1123. The new definitions of 'AAT first review' and 'AAT second review' would facilitate the maintenance of the existing two-tiered review process in respect of social security decisions, but with this process occurring within the amalgamated Tribunal. The definitions would also facilitate the preservation of differentiated procedures on AAT first review and AAT second review, as the AAT Act and the SSA Act would prescribe procedural rules specific to each category. This is consistent with existing policy, as in some respects the procedures of the AAT and the former SSAT in reviewing social security matters differ, based on the particular characteristics of the SSAT's caseload. There would be no change to the types of decisions that may be reviewed.

Item 4A - Subsection 23(1) (paragraphs (a) and (b) of the definition of Secretary )

1124. Item 4A would amend the definition of 'Secretary' in subsection 23(1), by substituting the words 'Division 4 of Part 4' with 'Subdivision D of Division 2 of Part 4A'. This is a technical amendment arising from the proposed amendments in the Bill, since the provisions in what is now Division 4 of Part 4 of the SSA Act would be moved to Subdivision D of Division 2 of Part 4A of that Act.

Item 5 - Subsection 23(1) (definition of SSAT)

1125. Item 5 would repeal the definition of SSAT in subsection 23(1) in light of the abolition of the SSAT.

Item 6 - Subsections 27(2) and (4)

1126. Item 6 would amend subsections 27(2) and (4) by omitting ', the SSAT' wherever it occurs in these subsections. As these subsections also refer to the AAT, the effect of the provisions would remain unchanged.

Item 7 - Paragraph 1184L(2)(a)

1127. Item 6 would make a minor consequential amendment to paragraph 1184L(2)(a) to omit reference to the SSAT and to insert the new defined term 'AAT first review' which describes those applications which may be made to the amalgamated Tribunal for review under section 142 of the SSA Act. No change to existing policy is intended.

Item 8 - Paragraph 1223AB(a); Item 9-Paragraph 1223AB(b); and Item 10- Section 1223AB (note)

1128. Items 8 to 10 would amend section 1223AB. Section 1223AB has the effect that if a person applies to the AAT for review of a decision and the AAT makes a stay order under subsection 41(2) of the AAT Act, and as a result the amount of a social security payment that has been paid is greater than should have been paid, then the difference is a debt due to the Commonwealth.

1129. Item 8 would amend paragraph 1223AB(a) by omitting reference to the 'AAT' and substituting a reference to 'AAT second review'. Item 9 would repeal paragraph 1223AB(b) and substitute a new paragraph 1223AB(b) with minor updates to terminology. Item 10 would repeal the note to section 1223AB, which describes the effect of subsection 43(6) of the AAT Act, and is not necessary.

1130. These amendments would confine the operation of section 1223AB to AAT second review, which would preserve existing policy, as the SSAT has no power to make stay orders. Therefore, new section 147 of the SSA Act (Item 42 of Schedule 3 to the Bill) would provide that subsection 41(2) of the AAT Act (the power to make stay orders) does not apply on AAT first review. However, it is noted that the Secretary can declare that a person's payment is to continue pending the conclusion of review by the SSAT (section 145 of the SSA Act, amended by Items 38-41 of Schedule 3 to the Bill).

Amendments to the Social Security (Administration) Act 1991

Item 11 - Paragraph 8(f)

1131. Item 11 would amend paragraph 8(f) by omitting 'and the Social Security Appeals Tribunal'.

1132. Paragraph 8(f) requires the Secretary, in administering the social security law, to have regard to the need to apply government policy in accordance with the law and with due regard to relevant decisions of the AAT and the SSAT. Amended paragraph 8(f) would continue to refer to the AAT, which would be sufficient to preserve existing policy.

Item 12 - Section 9

1133. Item 2 would repeal section 9.

1134. Section 9 provides that if the Minister prepares, and lays before Parliament, a written statement of government policy on the administration of social security law, the Secretary and the SSAT must have regard to the statement in exercising powers under the social security law.

1135. In practice, the Minister does not lay statements of government policy before the Parliament. Section 9 is unnecessary as the Minister may prepare policy statements in the absence of express legislative authorisation. It is standard practice for the AAT to have regard to government policy when conducting merits review.

Item 13 - Subsection 10(1)

1136. Item 13 would repeal subsection 10(1).

1137. Subsection 10(1) provides that the Secretary and the Principal Member of the SSAT may agree on administrative arrangements to further the objectives of Part 4 of the Act.

1138. No such arrangements exist. Subsection 10(1) is unnecessary as the Secretary and the AAT would be entitled to agree on administrative arrangements to further the proper conduct of merits review in the absence of express legislative authorisation, should such arrangements be appropriate.

Item 14 - Paragraph 124E(2)(d)

1139. Item 14 would amend paragraph 124E(2)(d) by omitting 'Part 4' and substituting 'Parts 4 and 4A'.

1140. This would be a minor consequential amendment to reflect the renumbering of Parts in the Act as a result of the amalgamation. Existing Part 4 concerns the review of decisions. New Part 4 would concern internal review, while new Part 4A would concern review by the AAT. No policy change to section 124E is intended.

Item 15 - Part 4 (heading)

1141. Item 15 would repeal the existing heading to Part 4, and substitute a new heading, 'Part 4-Internal review of decisions'.

Item 16 - Paragraph 126(2)(b)

1142. Item16 would repeal paragraph 126(2)(b) and substitute a new paragraph 126(2)(b).

1143. Existing paragraph 126(2)(b) provides that the Secretary may review a decision even though an application has been made to the SSAT or the AAT for review of the decision. New paragraph 126(2)(b) would only refer to review of decisions by the AAT. No policy change is intended.

Item 17 - Section 128 (heading)

1144. Item 17 would repeal the heading at section 128 and substitute a new heading, 'Notice to AAT Registrar'. This amendment is necessary as the existing heading refers to the SSAT Principal Member.

Item 18 - Subsection 128(1)

1145. Item 18 would repeal subsection 128(1).

1146. Subsection 128(1) provides that if the Secretary makes a decision under subsection 126(3) to affirm, vary or set aside a decision and substitute a new decision, and a person has applied to the SSAT for review of the decision that was reviewed by the Secretary, the Secretary must give the Principal Member written notice of the decision as varied or substituted.

1147. Subsection 128(1) may be repealed, as new subsection 128(2) (Item 19) would provide for appropriate notification to the AAT.

Item 19 - Subsection 128(2)

1148. Item 19 would repeal subsection 128(2) and substitute a new subsection 128(2).

1149. Existing subsection 128(2) requires that if the Secretary makes a decision under subsection 126(3) to affirm, vary or set aside a decision and substitute a new decision, and a person has applied to the AAT for review of the decision that was reviewed by the Secretary, the Secretary must give the Registrar of the AAT written notice of the new decision.

1150. New subsection 128(2) would require that the Secretary give written notice to the Registrar of the AAT if the Secretary makes a review decision to vary or set aside and substitute a decision after an application for review has been made to the AAT. It is not considered necessary for the Secretary to notify the AAT where the outcome of the Secretary's review is to affirm the decision in respect of which an application has been made for review.

Item 20 - Subsection 135(3)

1151. Item 20 would omit '182' in subsection 135(3) and substitute '181'. This would be a minor consequential amendment to reflect the renumbering of section 182 to section 181.

Item 21 - Paragraphs 137(1)(f) and (3)(f)

1152. Item 21 would amend paragraphs 137(1)(f) and (3)(f) by omitting ', the Social Security Appeals Tribunal or the Administrative Appeals Tribunal' and substituting 'or the AAT'.

1153. Section 137 concerns when certain determinations by the Secretary will not be revived following internal review or review by the SSAT or AAT. In referring to the review process, paragraphs 137(1)(f) and 137(3)(f) mention the SSAT and the AAT. The amended paragraphs would refer only to the AAT. No other policy change is intended.

Item 22 - Paragraph 138(1)(a), Item 23- Subparagraph 138(1)(b)(iii), Item 24- Paragraph 138(c) and Item 25- Subsection 138(3)

1154. Items 22, 23, 24 and 25 amend section 138. Section 138 concerns notification of further rights of review when the decision-maker gives another person notice of a decision on internal review.

1155. Item 22 would amend paragraph 138(1)(a) to omit ', apply to the Social Security Appeals Tribunal' and substitute 'and the AAT Act, apply to the AAT'. Paragraph 138(1)(a) provides that when a decision-maker gives another person notice of a decision on internal review, the notice must state that the person may apply to the SSAT for review of the decision. The amendment would ensure that persons continue to be notified of their right to merits review by the amalgamated Tribunal.

1156. Item 23 would make a minor consequential amendment to subparagraph 138(1)(b)(iii) as a result of the repeal of paragraph 138(1)(c) at Item 24.

1157. Item 24 would repeal paragraph 138(1)(c). Paragraph 138(1)(c) provides that when a decision-maker gives another person notice of a decision on internal review, the notice must include a statement to the effect that if the person applies to the SSAT for review and is dissatisfied with the SSAT's decision, the person may apply to the AAT for of the SSAT decision.

1158. The repeal of paragraph 138(1)(c) is appropriate in light of the amalgamation. It is not necessary to give notice of rights to AAT second review prior to a person making an application to the Tribunal for AAT first review. New subsections 43(5AA)-(5AC) of the AAT Act (Item 119 of Schedule 1 to the Bill) would require the Tribunal, upon completion of AAT first review, to notify persons of their right to AAT second review. This would ensure parties are aware of their further review rights in all cases.

1159. Item 25 would repeal subsection 138(3), substituting a new subsection 138(3). Existing subsection 138(3) provides that paragraphs 138(1)(a) and (c) do not apply in relation to a decision that is not reviewable by the SSAT. New subsection 138(3) would provide the same exception but refer to the AAT.

Item 26 - Division 3 of Part 4 (heading)

1160. Item 26 would repeal the heading of Division 3 of Part 4 and substitute a new heading, 'Part 4A-Review by the AAT'. This would be necessary as the existing heading refers to 'Review by the SSAT'. The amendment reflects the creation of new Part 4A in the SSA Act, which would deal with AAT review, as distinct from Part 4, which would deal with internal review.

Item 27 - Subdivision A of Division 3 of Part 4

1161. Item 27 would repeal Subdivision A of Division 3 of Part 4. Subdivision A contains only section 139, which provides for the SSAT to be continued in existence by the Act. This provision would no longer be necessary given the abolition of the SSAT.

Item 28 - Subdivision B of Division 3 of Part 4 (heading)

1162. Item 28 would repeal the heading of Subdivision B of Division 3 of Part 4, 'Review by the SSAT', and substitute a new heading, 'Division 1-Preliminary'.

Item 29 - Before section 140

1163. Item 29 would insert:

·
a new section 139, which would be a simplified outline for the new Part 4A
·
a new heading 'Division 2-AAT first review', and
·
a new heading 'Subdivision A-Preliminary'.

1164. New section 139 would assist readers by explaining the right to AAT first review and AAT second review of decisions under the social security law. It would also explain the interaction between the AAT Act and the SSA Act in relation to reviews by the AAT. In effect, the AAT Act applies unless it is modified by the SSA Act. New section 139 would also inform readers that the AAT Act provides for judicial review of AAT decisions in some circumstances.

Item 30 - Subsection 140(1) and Item 31-Section 141

1165. Item 30 would repeal subsection 140(1), substituting new subsection 140(1). Item 31 would repeal section 141, substituting new section 140A.

1166. Existing subsection 140(1) defines the decisions to which Division 2 (as it is currently numbered) applies. These are the decisions which are reviewable by the SSAT. No policy change would be made to the types of decisions reviewable. However, in order to simplify the drafting, rather than listing the various types of decision, new subsection 140(1) would state that the Division applies to the review by the AAT of decisions under the social security law, including an employment pathway plan decision and a section 525B decision. New section 140A would insert definitions of 'employment pathway plan decision' and 'section 525B decision'.

1167. Existing section 141, which provides for the objective of the SSAT, is no longer necessary. The objectives of the amalgamated Tribunal as stated in new section 2A of the AAT Act (Item 1 of Schedule 1 to the Bill) would apply.

Item 32 - Before section 142

1168. Item 32 would insert a new heading before section 142, 'Subdivision B-AAT first review: applications'.

Item 33 - Section 142 (heading)

1169. Item 33 would repeal the heading to section 142 and substitute a new heading, 'Reviewable decisions'. This is necessary as the existing heading to section 142 refers to applications for review by the SSAT.

Item 34 - Subsections 142(1) and (2)

1170. Item 34 would repeal subsections 142(1) and (2) and substitute a new subsection 142(1).

1171. Section 142 is the core provision conferring an entitlement on persons to apply to the SSAT for merits review of decisions under the social security law. Subsection 142(1) provides for applications to the SSAT in respect of decisions made on internal review under section 126 or 135. Subsection 142(2) provides for applications to the SSAT in respect of decisions made personally by the Secretary or the Chief Executive Centrelink. Both provisions are subject to section 144, which identifies certain decisions as non-reviewable.

1172. The amendments would not change existing policy on the types of decisions that may be reviewed. New subsection 142(1) preserves the substance of existing subsection 142(1) and (2), but with simplified drafting and updated terminology to refer to applications being made to the AAT for AAT first review.

Item 35 - Subsection 142(5)

1173. Item 35 would repeal subsection 142(5). Subsection 142(5) purports to deal with circumstances where a decision made personally by the Secretary or Chief Executive Centrelink is the subject of an application for internal review under subsection 129(1). However, as subsection 129(4) provides that decisions made personally by the Secretary or Chief Executive Centrelink may not be the subject of applications under subsection 129(1), subsection 142(5) has no legal purpose.

Item 35A - After section 142 - (definition of person who made the decision )

1174. Item 35A would insert new section 142A, which would define the term 'person who made the decision' in the AAT Act for the purposes of AAT first reviews as:

·
the Secretary (within the meaning of the SSA Act), and
·
if the decision was made by the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) as a delegate of the Secretary or the Employment Secretary-the Chief Executive Centrelink.

1175. The purpose of this definition is to ensure that the relevant Secretary, and, where appropriate, the Chief Executive Centrelink-rather than the individual officer who made the decision- are parties to AAT first reviews and bear the other rights and obligations afforded to decision makers under the AAT Act. The term 'the person who made the decision' would be used in various places throughout the AAT Act in relation to AAT first reviews under the SSA Act, including in determining who are the parties to a review (section 30) and in imposing requirements to lodge documents with the Tribunal (section 37).

Item 36 - Section 143

1176. Item 36 would repeal section 143 and substitute a new section 143.

1177. Existing section 143 provides that the SSAT may only review an employment pathway plan decision if the application for review is expressed to be an application for review of that decision. New section 143 would preserve the effect of the existing provision, but refer to the AAT instead of the SSAT.

Item 37 - Section 144

1178. Item 37 would amend section 144 by omitting 'SSAT' and substituting 'AAT'.

1179. Section 144 provides a list of decisions that are not reviewable by the SSAT. The amendment would not affect existing policy on which decisions are not reviewable, but would simply update the provision to refer to the AAT.

Item 38 - Paragraph 145(1)(c); Item 39-Subparagraph 145(4)(b)(i); Item 40-Subparagraph 145(4)(b)(ii); Item 41-After subsection 145(5)

1180. Items 38 to 41 would amend section 145, which empowers the Secretary to declare, in certain circumstances, that a person who has applied to the SSAT for review of a decision may continue to receive a social security payment that was cancelled or reduced, pending the outcome of the review by the SSAT.

1181. Item 38 would amend paragraph 145(1)(c) by omitting the phrase 'to the SSAT under subsection 142(1) or (2) for review' and substituting 'for AAT first review'. The amendment would clarify that the power of the Secretary to make a payment pending review declaration is to be preserved in respect of AAT first review only.

1182. Paragraph 145(4)(b) concerns when a payment pending review declaration ceases to have effect:

·
Item 39 would amend subparagraph 145(4)(b)(i) by inserting 'AAT first' before the term 'review'. This would ensure that a payment pending review declaration ceases to have effect if an application for AAT first review is dismissed.
·
Item 40 would repeal subparagraph 145(4)(b)(ii) and substitute a new subparagraph 145(4)(b)(ii), with the effect that a payment pending review declaration ceases to have effect 13 weeks after the AAT makes a decision on AAT first review, unless the Secretary specifies an earlier day within that 13 week period for the declaration to cease.

1183. The amendments would not change the existing policy underlying paragraph 145(4)(b).

1184. Item 41 would insert a new subsection (5A) after subsection 145(5). New subsection 145(5A) would preserve the effect of existing subsection 159(2), which would be repealed (see Item 45 of Schedule 3). Subsection 159(2) provides that if a payment pending review declaration is in force in relation to a decision for which an application for review has been made, the SSAT Principal Member must take reasonable steps to ensure that the decision is reviewed as quickly as possible. New subsection 145(5A) would have the same effect, but would impose this obligation on the President of the AAT.

1185. The Secretary's power to declare that payment is to continue pending review is important to prevent potential disadvantage to applicants. The amendments would preserve this power in relation to AAT first reviews, as per existing policy.

Item 42 - After section 146

1186. Item 42 would insert:

·
a new heading 'Subdivision C-AAT first review: relationship with AAT Act'
·
a new section 147 concerning the application and modification of the AAT Act with respect to new Division 2 (AAT first review)
·
a new heading 'Subdivision D-AAT first review: other matters', and
·
a new section 148 concerning procedure on receipt of application for AAT first review.

Subdivision C of Division 2 - AAT first review: relationship with the AAT Act

New section 147 - Application and modification of the AAT Act

1187. New Subdivision C of Division 2 would comprise new section 147, which would define the relationship between the AAT Act and AAT first review under the SSA Act. Part IV of the AAT Act provides a general procedural framework for merits review. As a result of the amalgamation, it would no longer be necessary for the SSA Act to provide comprehensive procedural rules for external merits review. Part IV of the AAT Act would apply to the review of decisions made under the social security law by the amalgamated Tribunal, unless otherwise modified or excluded by another Act such as the SSA Act. To that end, new section 147 would include a table with 8 items, each of which would disapply or modify certain provisions of the AAT Act in relation to AAT first review of decisions which are reviewable under the social security law.

1188. The purpose of the table would be to ensure that key procedures that currently apply to review of social security decisions by the SSAT would continue to apply to review of social security decisions by the amalgamated Tribunal.

1189. Item 1 in the table would provide that paragraph 29(1)(d) of the AAT Act does not apply in respect of decisions to which Division 2 applies-that is, decisions subject to AAT first review. Paragraph 29(1)(d), read with subsection 29(2), imposes a standard time limit of 28 days for persons to apply for review to the AAT. There is currently no time limit for persons to apply for review by the SSAT (although the timeframe within which a person applies for review may have bearing on the date of effect of the Tribunal's decision on review-see Item 8 of the table in new section 147 at Item 42 of Schedule 3 to the Bill). Accordingly, Item 1 in the table would preserve the existing policy, which promotes the accessibility of the Tribunal.

1190. Item 2 in the table would provide that subsections 35(1) and (2) of the AAT Act-which provide the general rule that hearings must be in public-do not apply in respect of decisions subject to AAT first review. This would preserve the policy behind existing section 168, which requires SSAT hearings to be in private. Section 168 would be amended by Items 54 to 57 of Schedule 3 to apply to the AAT on AAT first review.

1191. Item 3 in the table would provide that the summons power in section 40A of the AAT Act does not apply in respect of decisions subject to AAT first review. Instead, the AAT on AAT first review would be able to exercise the information gathering powers currently exercised by the SSAT under existing sections 165, 165A and 166, as amended at Items 48 to 50 of Schedule 3 to apply to the AAT on AAT first review. This would preserve existing policy.

1192. Item 4 in the table would provide that the power to make stay orders in subsection 41(2) of the AAT Act does not apply in respect of decisions subject to AAT first review. This would preserve existing policy, as the SSAT does not have the power to make stay orders. This is appropriate given that the Secretary may declare in certain cases that payment is to continue pending review under amended section 145 (Items 38 to 41 of Schedule 3).

1193. Item 5 in the table concerns the application of subsection 43(1) of the AAT Act in respect of decisions subject to AAT first review (other than an 'employment pathway plan decision' or a 'section 525B decision'), to the extent that subsection 43(1) empowers the AAT to exercise all the powers and discretions conferred on the person who made the decision which is under review. Item 5 would have the effect that the AAT on AAT first review may not exercise the powers conferred on the Secretary by the social security law under the provisions listed in paragraphs (a) to (i) in that Item. This would preserve the effect of existing section 151 of the SSA Act. Items 68 and 70 of Schedule 3 to the Bill would insert definitions of 'employment pathway plan decision' and 'section 525B decision' (which would link to new section 140A, at Item 31 of Schedule 3 to the Bill).

1194. Item 6 of the table would modify the application of subsection 43(1) of the AAT Act in relation to AAT first review of an 'employment pathway plan decision' or a 'section 525B decision'. Item 6 would have the effect that the AAT on AAT first review of an 'employment pathway plan decision' or a 'section 525B decision':

·
may not exercise all the powers and discretions conferred on the person who made the decision which is under review, and
·
may not vary the decision under review, or set it aside and substitute a new decision (that is, the AAT would only be empowered to affirm the decision, or set it aside and remit it to the original decision-maker).

1195. Item 6 in the table would preserve the effect of existing section 150 and subsection 151(4) of the SSA Act.

1196. Item 7 in the table would provide that subsections 43(2) and (2A) of the AAT Act-which concern the notification by the Tribunal of its decision on review and reasons-do not apply in respect of decisions subject to AAT first review. Instead, new section 178 would preserve the effect of the existing powers of the SSAT in this respect (Item 64 of Schedule 3). Those powers are currently set out in Subdivision E of Division 4 of Part 4 (section 177) of the SSA Act.

1197. Item 8 in the table would modify the application of subsection 43(6) of the AAT Act in relation to the date of effect of an AAT decision on AAT first review, other than an AAT decision in relation to an employment pathway plan decision. Subsection 43(6) of the AAT Act provides that where the AAT varies the decision under review, or sets it aside and substitutes a new decision, the Tribunal's decision will take effect from the date on which the original decision had effect, unless the Tribunal orders otherwise. Existing section 152 of the SSA Act has the result that where a person applies to the SSAT for review of a decision more than 13 weeks after receiving notice of a decision, if the SSAT varies the decision, or sets it aside and substitutes a new decision with the result that a person is entitled to a particular payment or benefit, the SSAT's decision will only take effect from the date on which the application is made (unless the Tribunal orders otherwise). This policy provides an incentive for persons to make timely applications for review. Item 8 of the table would preserve the existing policy and apply it in relation to AAT decisions on AAT first review.

Subdivision D of Division 2 - AAT first review: other matters

1198. New Subdivision D of Division 2 would deal with other procedural matters which are not provided for in the AAT Act, but which should be retained for the purposes of AAT first review of social security decisions.

Section 148 - Procedure on receipt of application for AAT first review

1199. New section 148 would replicate the substance of existing subsection 157(4) of the SSA Act. It would empower the AAT to request the Secretary to provide documents to the Tribunal earlier than the 28 day period required under subsection 37(1) of the AAT Act. The Secretary would be required to take reasonable steps to comply with such a request. New section 148 would not affect, and would be additional to, the power of the AAT to shorten the time frames for lodging documents under section 37(1A) of the AAT Act.

Item 43 - Sections 149 to 156

1200. Item 43 would repeal sections 149 to 156. Existing sections 149 to 156 provide for:

·
SSAT review powers-section 149
·
SSAT review powers for Employment Pathway Decisions-section 150
·
the powers of the SSAT-section 151
·
the date of effect of SSAT decisions (other than Employment Pathway decisions)-section 152
·
the date of effect of SSAT decisions (Employment Pathway decisions)-section 153
·
application requirements-section 154
·
variation of decision before review completed-section 155, and
·
parties to SSAT review-section 156.

1201. Following the amalgamation, the content of existing sections 149 to 156 would be substantially covered by Part IV of the AAT Act, modified as necessary by the table in new section 147 (Item 42 of Schedule 3) and the new and amended provisions in the SSA Act as set out in Schedule 3 to the Bill. This would ensure that existing procedures with respect to SSAT reviews would apply to AAT first review of social security decisions.

1202. Existing section 149 would be covered by the standard rules in subsection 43(1) of the AAT Act, as well as new sections 177 and 183 of the SSA Act (Items 64 and 66 of Schedule 3).

1203. Existing section 150 would be covered by subsection 43(1) of the AAT Act as modified by Item 6 of the table in new section 147 of the SSA Act.

1204. Existing section 151 would be covered by Items 5 and 6 of the table in new section 147 of the SSA Act.

1205. Existing section 152 would be covered by covered by the standard rules in subsections 43(5A) and (5B) of the AAT Act and by Item 8 of the table in new section 147 of the SSA Act.

1206. Existing section 153 would be covered by the standard rules in section 43 of the AAT Act.

1207. Existing section 154 would be covered by sections 29 and 29AA of the AAT Act as amended or inserted (Items 46 to 51 of Schedule 1 of the Bill).

1208. Existing section 155 would be covered by new section 182 of the SSA Act (Item 66 of Schedule 3).

1209. Existing section 156 would be covered by the standard rules in section 30 of the AAT Act.

Item 44 - Division 4 of Part 4 (heading)

1210. Item 44 would repeal the heading 'Division 4-Procedures for review by the SSAT' as it is no longer necessary.

Item 45 - Subdivisions A, B and BA of Division 4 of Part 4

1211. Item 45 would repeal Subdivisions A, B and BA of Division 4 of Part 4. These Subdivisions currently provide for the following matters in respect of SSAT review:

·
preliminary procedures for SSAT review (Subdivision A, sections 157 to 160)
·
submissions from parties other than the Secretary (Subdivision B, sections 160A to 163), and
·
submissions from the Secretary (Subdivision BA, section 163A).

1212. Sections 157, 158 and 160 in Subdivision A provide requirements around the receipt of applications, including notification to persons whose interests are affected; the obligations on the Secretary to provide the SSAT with the statement of reasons for the decision under review and other relevant documents; and the provision of documents to the parties to the review. Sections 29-29AC, 37 and 38AA of the AAT Act, as amended (Items 46-51 and 74-87 of Schedule 1 to the Bill), would cover the essential elements of Subdivision A. Certain more minor aspects of Subdivision A -such as the delivery of applications to the Tribunal if lodged with the Department, and the making of arrangements for hearings-would not be replicated as these matters can be handled administratively.

1213. The requirements in Subdivisions B and BA around the making of submissions by agency and non-agency parties would be preserved in new section 39AA of the AAT Act (Item 90 of Schedule 1 to the Bill).

Item 46 - Subdivision BB of Division 4 of Part 4 (heading)

1214. Item 46 would repeal the heading of Division 4 of Part 4 'Subdivision BB-Other evidence provisions' as it would no longer be necessary in Part 4 as restructured.

Item 47 - Section 164

1215. Item 47 would repeal section 164, which provides that the SSAT may take evidence on oath or affirmation for the purposes of a review decision. Section 164 would no longer be necessary as this matter would be covered by subsection 40(1) of the AAT Act.

Item 48 - Subsection 165(1)

1216. Item 48 would repeal subsection 165(1), substituting a new subsection 165(1).

1217. Existing subsection 165(1) provides that the Principal Member may ask the Secretary to provide the SSAT with information or a document that the Secretary has and that is relevant to the review of a decision. New subsection 165(1) would retain the substance of the existing provision but update the terminology to refer to the AAT instead of the Principal Member of the SSAT.

1218. The purpose of Items 48 to 50 would be to preserve the existing information gathering powers of the SSAT, which are currently found in sections 165, 165A and 166 of the SSA Act. These information gathering powers are more appropriate to the conduct of AAT first reviews than the summons power in section 40A of the AAT Act. In particular, it would assist the amalgamated Tribunal to continue to have access to the compulsory information gathering powers of the Secretary, especially in circumstances where information is held by third parties subject to strict confidentiality requirements (for example, the Australian Taxation Office).

Item 49 - Sections 165A to 165C

1219. Item 49 would repeal sections 165A, 165B and 165C and insert a new section 165A.

1220. Existing section 165A empowers the SSAT Principal Member to require a person to provide information or documents relevant to a review of a decision, and makes it an offence to fail to comply with a notice to give information or produce documents.

1221. New section 165A would provide the same power to the AAT. New section 165A would similarly make it an offence to fail to comply with a notice under section 165A. While the privilege against self-incrimination applies in common law, for the avoidance of doubt, new subsection 165A(3) would insert a specific defence relating to self-incrimination to ensure that the privilege would not be abrogated. The defence would not preclude or remove the power to compel information that is not self-incriminatory from an individual. The defence also would not preclude the individual from having to provide information or produce documents that may incriminate others. It is noted also that legal professional privilege applies in common law and has an equivalent in the Evidence Act. New section 165A is not intended to abrogate legal professional privilege. Finally, the penalty for the offence would be increased to imprisonment for 12 months or 60 penalty units. This penalty would be amended, consistently with other offence provisions in the Bill, to reflect the seriousness of conduct that undermines the Tribunal's statutory review function.

1222. The note to new section 165A refers to Item 3 of the table in section 147 (Item 42 of Schedule 3). Item 3 provides that the summons power in section 40A of the AAT Act does not apply to AAT first review. New section 165A would provide an equivalent power.

1223. Sections 165B and 165C, which deal with the inspection and copying of documents, and the retention of documents respectively, are unnecessary. To the extent these provisions cover Tribunal members, they do not add to the Privacy Act. To the extent they concern access to documents by the persons who produced the documents to the Tribunal, this can be dealt with administratively.

Item 50 - Subsection 166(1)

1224. Item 50 would repeal subsection 166(1) and substitute a new subsection 166(1). Existing subsection 166(1) provides that the Principal Member may request the Secretary to exercise the Secretary's power under section 192 to obtain information or documents relevant to a review from another person. New subsection 166(1) would preserve the existing power, but update the terminology to refer to the AAT acting in relation to AAT first review.

Item 51 - Subdivision BC of Division 4 of Part 4

1225. Item 51 would repeal Subdivision BC of Division 4 of Part 4, which comprises section 166A (directions hearings) and section 166B (power to make decisions by consent following a directions hearing). Subdivision B is unnecessary, as these matters would be covered by sections 33 and 42C of the AAT Act, respectively.

Item 52 - Subdivision C of Division 4 of Part 4 (heading)

1226. Item 52 would repeal the heading of Subdivision C of Division 4 of Part 4 ('The hearing') as it is no longer necessary.

Item 53 - Section 167

1227. Item 53 would repeal section 167, which concerns the procedure at a hearing, since the same matters would be covered by section 33 of the AAT Act.

Item 54 - Subsection 168(1); Item 55-Subsection 168(2); Item 56-Subsection 168(3); Item 57-At the end of section 168

1228. Items 54 to 57 would amend section 168. Existing section 168 requires that SSAT hearings must be held in private, with the Principal Member empowered to give directions as to who may be present, having regard to the wishes of the parties and the need to protect their privacy.

1229. Item 54 would insert the term 'AAT first review' into subsection 168(1), which would limit the scope of the provision accordingly. Items 55 and 56 would update the terminology in subsections 168(2) and (3) to refer to the AAT rather than the Principal Member.

1230. Item 57 would insert a note to section 168 which would refer to Item 2 of the table in section 147 (Item 42 of Schedule 3). Item 2 would provide that subsections 35(1) and (2) of the AAT Act (which provide the general rule that hearings must be in public) do not apply.

1231. The amendments would preserve existing policy. The personal nature of the information typically disclosed in social security proceedings means applicants may be concerned to protect their privacy. Private hearings accordingly should be preserved in AAT first reviews as one means of ensuring that the amalgamated Tribunal is accessible and responsive to the needs of applicants.

Item 58 - Subdivision D of Division 4 of Part 4 (heading)

1232. Item 58 would repeal the heading of Subdivision D of Division 4 of Part 4 ('Other procedural matters'), as it is no longer necessary.

Item 59 - Sections 170 to 175

1233. Item 59 would repeal sections 170 to 175, since the same matters would be adequately covered by the AAT Act:

·
section 170 (adjournment of hearings) would be covered by paragraph 40(1)(c) of the AAT Act
·
sections 171 and 172 (dismissal of applications) would be covered by amended section 42A and section 42B of the AAT Act (Items 108-115 of Schedule 1 to the Bill)
·
section 173 (presiding member) would be covered by amended section 19A of the AAT Act (Item 27 of Schedule 1 to the Bill)
·
section 174 (resolving disagreements) would be covered by amended section 42 of the AAT Act (Item 107 of Schedule 1 to the Bill), and
·
section 175 (directions as to procedure for hearings) would be covered by section 33 of the AAT Act.

Item 60 - Subsection 176(1); Item 61-Subsection 176(2); Item 62-Subsection 176(3); Item 63-Subsections 176(3) and (4)

1234. Items 60 to 63 would amend section 176 to omit references to the SSAT and replace them with the AAT, as well as to confine the scope of section 176 to AAT first reviews.

1235. Existing section 176 provides that, notwithstanding the general rule that parties to a review must bear their own expenses, the SSAT may determine that the Commonwealth is required to pay reasonable travel or accommodation costs incurred by a party, or the cost of provision of a medical service arranged by the SSAT, in relation to a review.

1236. The amendments would preserve existing policy by permitting the AAT to make such a determination in relation to AAT first reviews.

Item 64 - After section 176

1237. Item 164 would insert new sections 177 and 178 after section 176.

1238. New section 177 would require the Tribunal on AAT first review to assess the rates at which social security entitlements are payable to a person following a decision on review, or request the relevant agency head to do so. This would preserve the effect of existing subsections 149(2)-(3), which apply to the SSAT.

1239. New section 178 would deal with the notification of decisions and reasons for AAT first review. It would largely preserve the effect of existing Subdivision E of Division 4 of Part 4 (section 177). It would apply instead of subsections 43(2)-(2A) of the AAT Act (see Item 7 of the table at new section 147, as inserted by Item 42 of Schedule 3 to the Bill).

1240. New section 178 would preserve the following key requirements applicable to the SSAT, but would apply them to the AAT making a decision on AAT first review:

·
the AAT would be required to issue a written decision within 14 days after making the decision
·
where the AAT affirms the decision under review, it may give reasons either orally or in writing.
·
where the AAT makes a decision that is other than to affirm the decision under review, it must provide written reasons within 14 days, and
·
where oral reasons are provided, a party may request written reasons within 14 days, and the Tribunal must respond within 14 days.

1241. By maintaining 14 day timeframes for decisions and reasons, new section 178 would promote the quick conduct of review on AAT first review, which is an important feature of the SSAT.

1242. The requirement in existing subsection 177(2) for the Tribunal to provide notice of further review rights would be covered by new subsections 43(5AA) to (5AC) of the AAT Act (Item 119 to Schedule 1 of the Bill).

Item 65 - Subdivisions E, F and G of Division 4 of Part 4

1243. Item 65 would repeal Subdivisions E, F and G of Division 4 of Part 4.

1244. Subdivision E, comprising section 177, which concerns the notification of decisions and reasons for SSAT review, would be preserved to the extent appropriate by new section 178 (Item 64 of Schedule 3).

1245. Subdivision F, comprising section 177A, which concerns correction of errors in decisions or statements of reasons, would be covered by the equivalent power in section 43AA of the AAT Act.

1246. Subdivision G, comprising sections 177B to 177D, which concern non-disclosure orders, would be covered by the equivalent power in subsections 35(3)-(4) of the AAT Act.

Item 66 - Division 5 of Part 4

1247. Item 66 would repeal Division 5 of Part 4 and substitute:

·
a new heading 'Division 3-AAT second review'
·
a new heading 'Subdivision A-AAT second review: applications'
·
a new section 179 concerning applications for AAT second review
·
a new heading 'Subdivision B-AAT second review: relationship with AAT Act'
·
a new section 180 with a table that would modify the AAT Act in relation to second review
·
a new heading 'Division 4-Matters relating to AAT first review and AAT second review', and
·
new sections 181 to 183.

1248. Existing Division 5 concerns review by the AAT. It would be repealed, as its effect would be preserved in new Divisions 3 and 4, which concern AAT second review.

New section 179 - Application for AAT second review

1249. Existing section 179 is the core provision conferring an entitlement on persons to apply to the AAT for review of a decision of the SSAT under the social security law. New section 179 would provide that an application may be made for AAT second review of a decision on AAT first review under subsection 43(1) of the AAT Act.

1250. The amendments would not change existing policy on the types of decisions that may be reviewed. New section 179 preserves the substance of existing subsections 179(1)-(3), but with simplified drafting and updated terminology to refer to applications being made to the AAT for AAT first review.

New section 180 - Application and modification of AAT Act

1251. New section 180 would insert a table with 5 items, each of which would modify certain provisions of the AAT Act in relation to AAT second review of decisions under the social security law. The purpose of the table would be to preserve the effect of existing Subdivision C of Division 5 of the SSA Act. The provisions in existing Subdivision C modify the AAT Act so that its intended operation in respect of review of SSAT decisions is clear. This is necessary since the AAT Act is not primarily drafted to cover the situation where the decision under review is a decision by another Tribunal, as opposed to an agency decision-maker.

1252. Item 1 in the table would modify paragraph 29AC(1)(b) of the AAT Act-notice of applications-so that it has the effect that parties to an AAT first review (including the Secretary) are notified of an application for AAT second review. This would preserve the effect of existing section 184 of the SSA Act.

1253. Item 2 in the table would modify paragraph 30(1)(b) of the AAT Act-parties to proceedings-so that it has the effect that parties to an AAT first review (including the Secretary) are parties to an AAT second review. This would preserve the effect of existing section 185 of the SSA Act.

1254. Items 3 and 4 in the table would modify section 41 of the AAT Act-stay orders-so that it has the effect that:

·
the AAT on AAT second review may stay the decision that was the subject of AAT first review and/or the decision made by the AAT on AAT first review, and
·
all of the parties to the AAT first review have the opportunity to be heard under section 41 in relation to an application to the AAT for a stay order on AAT second review.

1255. Items 3 and 4 in the table would preserve the effect of existing section 188 of the SSA Act.

1256. Item 5 in the table would modify subsection 42A(2) of the AAT Act-dismissal of application for failure to appear-so that it has the effect that an application for AAT second review is not dismissed because of the failure of the Secretary to appear. This would preserve the effect of existing section 189 of the SSA Act.

1257. The table would not preserve the effect of existing sections 186 and 187 of Subdivision C of Division 5 of the SSA Act, since sections 37, 38 and 38AA of the AAT Act (as amended at Items 73-87 of Schedule 1 to the Bill) would prescribe appropriate requirements around the provision of documents on AAT second review.

New section 181 - Settlement of proceedings before the AAT

1258. New section 181 would provide that the Secretary may settle debt proceedings before the AAT, with the result that the application for review would be dismissed. This provision is intended to replace existing section 182. New section 181 would apply on AAT first review and on AAT second review. This provides the flexibility to the Secretary to settle matters at any stage.

New section 182 - Variation or substitution of decision before AAT review determined

1259. New section 182 would preserve the effect of existing section 155 and would deal with the effect of variation by an officer of a decision under review by the AAT. New section 182 would provide that if the officer varies a decision, or sets it aside and substitutes a new decision, the application for review is taken to be an application for the review as varied or substituted. The applicant may choose to continue with the review or may notify the AAT (under subsections 42A(1A) or (1AA) of the AAT Act) that the application is discontinued or withdrawn.

New section 183 - Secretary or AAT may treat event as having occurred

1260. New section 183 would preserve the effect of existing subsections 159(4) and 179(4).

1261. New subsection 183(1) would apply on AAT first review. It would provide that if the AAT sets aside a decision, and the Secretary, or the AAT, is satisfied that an event that did not occur would have occurred if the decision under review had not been made, the Secretary or AAT may, if satisfied it is reasonable to do so, treat the event as having occurred for the purposes of the social security law.

1262. New subsection 183(2) would apply on AAT second review. It would provide that if the AAT sets aside a decision, and the Secretary is satisfied that an event that did not occur would have occurred if the decision under review had not been made, the Secretary may, if satisfied it is reasonable to do so, treat the event as having occurred for the purposes of the social security law.

1263. While not typically used in practice, this power might be used, for example, to deem that a particular application was lodged by a person so that the Secretary could then determine whether the person was entitled to some other social security law payment.

Item 67 - Sections 253 and 254

1264. Item 67 would repeal sections 253 and 254, which are savings provisions in relation to reviews in respect of which applications were made prior to 20 March 2000. These sections no longer serve any purpose.

Item 68 - Subclause 1(1) of Schedule 1

1265. Item 68 would insert new definitions into the SSA Act:

·
'AAT Act'
·
'AAT first review'
·
'AAT second review', and
·
'employment pathway plan decision'.

1266. 'AAT first review' would refer to review of decisions in respect of which applications may be made under section 142 (Items 33-35 of Schedule 3 to the Bill). This would comprise those applications which may currently be made to the SSAT.

1267. 'AAT second review' would refer to review of decisions in respect of which applications may be made under section 179 (Item 68 of Schedule 3). This would comprise those applications which may currently be made to the AAT for review of decisions of the SSAT.

1268. The new definitions of 'AAT first review' and 'AAT second review' would facilitate the maintenance of the existing two-tiered review process in respect of social security decisions, but with this process occurring within the amalgamated Tribunal. The definitions would also facilitate the preservation of differentiated procedures on AAT first review and AAT second review, as the AAT Act and the SSA Act would prescribe procedural rules specific to each category. This is consistent with existing policy, as in some respects the procedures of the AAT and the former SSAT in reviewing social security matters differ, based on the particular characteristics of the SSAT's caseload. There would be no policy change on the types of decisions that may be reviewed.

1269. The term 'employment pathway plan decision' would have the meaning given in section 140A (Item 31 of Schedule 3).

Item 69 - Subclause 1(1) of Schedule 1 (definition of Principal Member)

1270. Item 69 would repeal the definition of 'Principal Member', which would no longer be necessary.

Item 70 - Subclause 1(1) of Schedule 1

1271. Item 70 would insert a definition of 'section 525B decision'. This term would have the meaning given in section 140A (Item 31 of Schedule 3).

Item 71 - Subclause 1(1) of Schedule 1 (definition of SSAT)

1272. Item 71 would repeal the definition of 'SSAT', which would no longer be necessary.

Item 72 - Schedules 3 and 4

1273. Item 72 would repeal Schedules 3 and 4 of the SSA Act.

1274. Schedule 3 concerns the constitution and membership of the SSAT, including matters such as appointments and terms and conditions of members, the constitution of the Tribunal for reviews, and the staff of the Tribunal. Schedule 4 contains forms of oath or affirmation to be taken by SSAT members.

1275. These Schedules would no longer be necessary in light of the abolition of the SSAT.


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