Tribunals Amalgamation Act 2015 (60 of 2015)
Schedule 7 Student assistance amendments
Part 1 Main amendments
Student Assistance Act 1973
11 Divisions 2, 3 and 4 of Part 9
Repeal the Divisions, substitute:
Division 2 - Review by Administrative Appeals Tribunal
Subdivision A - Preliminary
309 Simplified outline of this Division
If a person is dissatisfied with a decision made on internal review under Division 1, the person may apply to the AAT for review of the decision (an "AAT first review") (certain decisions are excepted).
If a person is dissatisfied with a decision of the AAT on AAT first review, the person may apply to the AAT for further review (an "AAT second review").
The rules relating to reviews by the AAT are mainly in the AAT Act, but the operation of that Act is modified in some ways by this Division.
The AAT Act allows a person to appeal to a court on a question of law from a decision of the AAT on AAT second review.
310 Application of Division
(1) Unless otherwise stated, this Division applies to:
(a) all decisions of an officer under this Act relating to the Student Financial Supplement Scheme; or
(b) all decisions of an officer under this Act relating to the recovery of amounts paid under a current or former special educational assistance scheme.
Note: For officer see subsection 3(1).
(2) However, despite any other provision of this Division, the AAT cannot review a decision:
(a) under section 305 or 314 (continuation of payment pending review of adverse decision); or
(b) under section 343 or 345 (notice requiring information from any person).
Subdivision B - AAT first review
311 Application for AAT first review
(1) Subject to subsection 310(2), if:
(a) a decision has been reviewed by the Secretary or an authorised review officer under section 306; and
(b) the decision has been affirmed, varied or set aside;
application may be made to the AAT for review ( AAT first review ) of that decision.
(2) For the purposes of subsection (1), the decision made by the Secretary or authorised review officer is taken to be:
(a) if the Secretary or authorised review officer affirms a decision - the decision as affirmed; and
(b) if the Secretary or authorised review officer varies a decision - the decision as varied; and
(c) if the Secretary or authorised review officer sets a decision aside and substitutes a new decision - the new decision.
311A Person who made the decision
For the purposes of AAT first review of a decision, a reference in the AAT Act to the person who made the decision is taken to be a reference to the Secretary.
312 Time limit for application for AAT first review
(1) An application for AAT first review must be made within:
(a) 3 months; or
(b) such longer period as the AAT, in special circumstances, allows;
after the original decision was affirmed, varied or set aside by the Secretary or an authorised review officer.
(2) This section applies despite paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act.
313 Operation and implementation of decision under AAT first review
Subsection 41(2) of the AAT Act does not apply in relation to an application for AAT first review.
314 Secretary may continue payment pending outcome of application for AAT first review
Secretary may declare payment to continue
(1) If:
(a) a decision to which this Division applies is an adverse decision; and
(b) the adverse decision depends on:
(i) the exercise of a discretion by a person; or
(ii) the holding of an opinion by a person; and
(c) a person makes an application for AAT first review of the adverse decision;
the Secretary may declare that payment of financial supplement to which the decision relates is to continue, pending the determination of the AAT first review, as if the adverse decision had not been made.
Written declaration
(2) A declaration under subsection (1) is to be in writing.
Act applies as if decision not made
(3) While a declaration under subsection (1) 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.
Start and cessation of declaration
(4) A declaration under subsection (1) in relation to an adverse decision:
(a) starts to have effect on the day on which the declaration is made or on the earlier day (if any) stated in the declaration; and
(b) stops having effect if:
(i) the AAT dismisses the application for AAT first review of the adverse decision; or
(ii) the AAT determines the AAT first review of the adverse decision; or
(iii) the Secretary revokes the declaration.
Holding of an opinion
(5) A reference in subsection (1) to a person's holding of an opinion is a reference to the person's holding that opinion whether or not this Act expressly requires the opinion to be held before making the decision concerned.
Adverse decision
(6) In this section:
adverse decision means a decision under section 12R or 12T to stop the payment of financial supplement to a person.
315 Variation of original decision after application is made for AAT first review
(1) If an officer varies or substitutes a decision after an application has been made for AAT first review of the decision, the application is taken to be an application for AAT first 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.
316 Powers of AAT for purposes of AAT first review
Despite subsection 43(1) of the AAT Act, the AAT must not, for the purposes of an AAT first review, exercise a power or discretion conferred by any of the following provisions of this Act:
(a) a provision dealing with the form and place of lodgement of a claim;
(b) a provision dealing with the manner of payment of financial supplement;
(c) subsection 42(3) (notice requiring payment to the Commonwealth);
(d) sections 343 to 345 (notice requiring information from any person);
(e) section 305 or 314 (continuation of payment pending review of adverse decision).
317 Certain decisions on AAT first review
If, on AAT first review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act and substitutes for it a decision that the person is entitled to financial supplement, the AAT must:
(a) assess the rate at which financial supplement is to be paid to the person; or
(b) ask the Secretary to assess the rate at which financial supplement is to be paid to the person.
318 Notification of decisions and reasons for AAT first review
(1) If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act to affirm the decision under review, the AAT must, within 14 days of making the decision:
(a) give a written notice to the parties that sets out the decision; and
(b) either:
(i) give reasons for the decision orally to the parties and explain that they may request a written statement of reasons; or
(ii) give the parties a written statement of reasons for the decision.
(2) If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act that is other than to affirm the decision under review, the AAT must, within 14 days of making the decision:
(a) give a written notice to the parties that sets out the decision; and
(b) give the parties a written statement of reasons for the decision.
(3) A failure to comply with subsection (1) or (2) does not affect the validity of the decision.
(4) A party to whom oral reasons are given may, within 14 days after the oral reasons are given, request a written statement of reasons for the decision. If the party does so, the AAT must give the party the statement requested within 14 days after receiving the request.
(5) Subsections 43(2) and (2A) of the AAT Act do not apply in relation to an AAT first review. However, any written statement of reasons given must comply with subsection 43(2B) of that Act.
319 Secretary or AAT may treat event as having occurred if decision set aside on AAT first review
If:
(a) on AAT first review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act; and
(b) the Secretary or the AAT, as the case may be, is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary or the AAT may, if satisfied that it is reasonable to do so, treat the event as having occurred for the purposes of this Division.
Subdivision C - AAT second review
320 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 affirms a decision - the decision as affirmed; and
(b) if the AAT varies a decision - the decision as varied; and
(c) if the AAT sets a decision aside and substitutes a new decision - the new decision; and
(d) if the AAT sets a decision aside and sends 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.
321 Notice of application for AAT second review
The AAT Act applies in relation to an application under section 320 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.
322 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 person who was a party to the relevant AAT first review, other than the applicant for AAT second review.
323 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.
324 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 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.
325 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.
326 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 this Division.
Subdivision D - Matters relating to both AAT first review and AAT second review
327 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 the 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 that was the subject of the proceedings is taken to have been dismissed.