ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975

PART IV - REVIEWS BY THE TRIBUNAL OF DECISIONS  

Division 1 - Applications for review of decisions  

SECTION 28   PERSON AFFECTED BY DECISION MAY OBTAIN REASONS FOR DECISION  

28(1)   Request for statement of reasons.  

Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant ) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.

Exceptions

28(1AAA)  


Subsection (1) does not apply in relation to:


(a) a decision that is reviewable in the Security Division; or


(b) a decision that is a decision on AAT first review within the meaning of any of the following:


(i) the A New Tax System (Family Assistance) (Administration) Act 1999 ;

(ii) the Child Support (Registration and Collection) Act 1988 ;

(iii) the Social Security (Administration) Act 1999 ;

(iv) the Student Assistance Act 1973 ;

(v) the Paid Parental Leave Act 2010 .

28(1AA)   What happens if decision-maker contests applicant ' s entitlement to statement of reasons.  

Where a person to whom a request for a statement in relation to a decision is made by an applicant under subsection (1) is of the opinion that the applicant is not entitled to be given the statement, that person shall, as soon as practicable but in any case within 28 days after receiving the request, give to the applicant notice in writing of his or her opinion.

28(1AB)  


A person who gives a notice under subsection (1AA) with respect to a request for a statement in relation to a decision is not required to comply with the request unless the Tribunal, on application under subsection (1AC), decides that the applicant was entitled to be given the statement, and, if the Tribunal so decides, the first-mentioned person shall prepare the statement and give it to the applicant within 28 days after the decision of the Tribunal is given.

28(1AC)  


On application by an applicant who has received a notice under subsection (1AA), the Tribunal must decide whether the applicant was or was not entitled to be given the statement concerned.

28(1A)   When decision-maker may refuse to give statement of reasons.  

A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and give the statement if -


(a) in the case of a decision the terms of which were recorded in writing and set out in a document that was given to the applicant - the request was not made on or before the twenty-eighth day after the day on which that document was given to the applicant; or


(b) in any other case - the request was not made within a reasonable time after the decision was made,

and in any such case the person to whom the request was made shall give to the applicant, as soon as practicable but in any case within 28 days after receiving the request, notice in writing stating that the statement will not be given to him or her and giving the reason why the statement will not be so given.

28(1B)  
For the purposes of paragraph (1A)(b), a request for a statement in relation to a decision shall be deemed to have been made within a reasonable time after the decision was made if the Tribunal, on application by the person who made the request, declares that the request was made within a reasonable time after the decision was made.

28(2)   Public interest certificate.  

If the Attorney-General certifies, by writing signed by him or her, that the disclosure of any matter contained in a statement prepared in accordance with subsection (1) would be contrary to the public interest -


(a) by reason that it would prejudice the security, defence or international relations of Australia;


(b) by reason that it would involve the disclosure of deliberations of the Cabinet or of a Committee of the Cabinet; or


(c) for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter should not be disclosed,

subsections (3) and (3A) have effect.

28(3)  
A person to whom a request for a statement in relation to a decision is made under subsection (1) -


(a) is not required to include in the statement any matter in relation to which the Attorney-General has given a certificate under subsection (2); and


(b) where the statement would be false or misleading if it did not include such matter - is not required by subsection (1) to give the statement to the applicant.

28(3A)  
Where a certificate is given under subsection (2) in relation to matter contained in a statement prepared in accordance with subsection (1) in relation to a decision -


(a) the person who made the decision shall notify the applicant in writing -


(i) in a case where the matter is not included in the statement - that the matter is not so included and giving the reason for not including the matter; or

(ii) in a case where the statement is not given - that the statement will not be given and giving the reason for not giving the statement; and


(b) subsections 36(2), (3), (3A) and (4) and 36D(1) to (6), inclusive, apply in relation to any statement referred to in paragraph 37(1)(a) in relation to that decision that is lodged with the Tribunal under section 37 as if the certificate were a certificate given under subsection 36(1) in relation to any such matter that is contained in the last-mentioned statement.

28(4)   When applicant not entitled to request statement of reasons.  

The applicant is not entitled to make a request under subsection (1) if -


(a) the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision, and a document setting out the terms of the decision has been given to him or her; or


(b) a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision has already been given to him or her.

Inadequate statement of reasons

28(5)  


An applicant who has been given a statement under subsection (1) may apply to the Tribunal for a declaration that the statement does not contain one or more of the following:


(a) adequate particulars of findings on material questions of fact;


(b) an adequate reference to the evidence or other material on which those findings were based;


(c) adequate particulars of the reasons for the decision.

28(6)  


If the Tribunal makes the declaration, the person to whom the request for the statement was made must, as soon as practicable and no later than 28 days after the day the declaration was made, give the applicant an additional statement containing further and better particulars in relation to the matters specified in the declaration.



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