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 5 - family assistance amendments

Overview

1520. Schedule 5 to the Bill would amend the FA Act and the FAA Act to support amalgamation.

1521. The amendments to the FAA Act are minor consequential amendments in light of the abolition of the SSAT.

1522. Key amendments proposed to the FAA Act include:

·
Amendments to transfer the merits review jurisdiction of the SSAT to the AAT, with existing rights to merits review being preserved (including second review by the AAT of SSAT decisions).
·
New defined terms of 'AAT first review', 'AAT second review' and 'AAT single review' corresponding to existing SSAT and AAT reviews.
·
Amendments to preserve existing procedures for merits review of family assistance matters, including amendments to modify the procedures generally applicable under the AAT Act.
·
Amendments to modernise and simplify the drafting of the provisions of the FAA Act relating to external merits review, without altering existing policy.
·
Consequential amendments, including replacing references to the SSAT with references to the AAT.

Amendments to A New Tax System (Family Assistance) Act 1999

Item 1 - Subsection 35U(1) and Item-2 Subsections 35U(2) and (3)

1523. Items 1 and 2 would amend section 35U to replace references to the SSAT with the AAT.

1524. Existing section 35U ensures that reviews of care percentage decisions under child support law will apply for family assistance purposes. Subsection 35U(2) deals with when the SSAT reviews such a decision. Subsection 35U(3) deals with when the AAT reviews a decision under the AAT Act. The provisions are otherwise identical. Following amalgamation only one provision would be needed.

1525. Item 2 would insert new subsection 35U(2) as a single provision to ensure that an AAT review of a care percentage decision under the child support law would apply for family assistance purposes. Item 1 would renumber the subsections in section 35U. No policy change is intended.

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

Item 3 - Subsection 3(1)

1526. Item 3 would insert new definitions into section 3 of:

·
'AAT first review'
·
'AAT second review', and
·
'AAT single review'.

1527. 'AAT first review' would refer to review of decisions in respect of which applications may be made under new section 111 (Items 16-20 of Schedule 5 to the Bill). This would comprise those applications which may currently be made to the SSAT.

1528. 'AAT second review' would refer to review of decisions in respect of which applications may be made under new section 128 (Item 23 of Schedule 5 to the Bill). This would comprise those applications which may currently be made to the AAT for review of decisions of the SSAT.

1529. 'AAT single review' would refer to review of decisions in respect of which applications may be made under new section 138 (Item 23 of Schedule 5 to the Bill). This would comprise those applications which may currently be made to the AAT directly, namely certain decisions in relation to child care services and registered carers that have been made on internal review, and certain decisions made by agency heads personally or in the exercise of a delegated power.

1530. 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 certain family assistance matters, but with this process occurring within the amalgamated Tribunal. The definition of 'AAT single review' would ensure that existing policy with respect to review of decisions under section 138 would remain unchanged. The definitions would also facilitate the preservation of differentiated procedures on AAT first review and AAT second review, as the AAT Act and the FAA 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 SSAT in reviewing family assistance matters differ. There would be no change to the types of decisions that may be reviewed.

Item 4 - Subsection 3(1)

1531. Item 4 would repeal the definitions of 'SSAT',' SSAT member' and 'Principal Member' from subsection 3(1), in light of the abolition of the SSAT.

Item 5 - Paragraph 73(a)

1532. Item 5 would omit the words 'under section 142 for review' in paragraph 73(a) and substitute the words 'for AAT second review'.

1533. Existing section 73 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 family assistance payment that has been paid is greater than should have been paid, then the difference is a debt due to the Commonwealth.

1534. The amendment would be consequential to the insertion of 'AAT second review' as a defined term in the Act (see Item 3 of Schedule 5 to the Bill). No change to existing policy is intended.

Item 6 - Subsection 105(2)

1535. Item 6 would repeal existing subsection 105(2) and substitute a new subsection 105(2).

1536. Existing subsection 105(2) provides that the Secretary may review certain decisions on his or her own initiative even if an application for review of the decision has been made to the SSAT or the AAT. New subsection 105(2) would only refer to review of decisions by the AAT. No policy change is intended.

Item 7 - Subsection 106(6)

1537. Item 7 would repeal existing subsection 106(6) and substitute a new subsection 106(6).

1538. Existing subsection 106(6) has the effect that if the Secretary varies a decision, or sets it aside and substitutes a new decision, and an application for review of the decision has been made to the SSAT or AAT, the Secretary must give written notice of the decision as varied or substituted to the Principal Member of the SSAT or the Registrar of the AAT.

1539. New subsection 106(6) would preserve the policy of the existing provision but omit references to the SSAT and SSAT Principal Member.

Item 8 - Subsection 109A(4)

1540. Item 8 would amend subsection 109A(4) to omit reference to the 'SSAT' and substitute 'AAT'.

1541. Existing subsection 109A(4) provides that if a person who may apply to the Secretary or Child Support Registrar for review of a decision has not done so, and the person applies to the SSAT for a review of the decision, the person is taken to have applied to the Secretary or the Child Support Registrar for review on the day on which they applied to the SSAT.

1542. The amendment would not change the existing policy that a person must seek internal review before external merits review.

Item 9 - Subsection 109D(6) (paragraph (c) of the definition of excepted decision ) and Item 10-Section 109DA

1543. Items 9 and 10 would amend subsection 109D(6) and section 109DA to remove references to subsection 144(1) and substitute references to subsection 138(4).

1544. Existing subsection 109D(6) provides a definition for 'excepted decision' which includes reference to decisions of a kind mentioned in subsection 144(1).

1545. Existing section 109DA provides a time limit for applications for internal review under subsection 109A(1) of decisions of a kind mentioned in subsection 144(1).

1546. The amendments would reflect the renumbering of section 144. Section 144 describes decisions (in relation to child care services and registered carers) in respect of which applications for AAT single review may be made. No change to existing policy is intended.

Item 11 - Paragraph 109H(1)(a)

1547. Item 11 would omit 'subject to this Part, apply to the SSAT' from paragraph 109H(1)(a), substituting 'subject to this Part and the AAT Act, apply to the AAT'.

1548. Existing paragraph 109H(1)(a) provides that if a decision reviewer gives an applicant notice under section 109B of a decision reviewed under section 109A (internal review initiated by the applicant), the notice must include a statement that the applicant may, subject to section 109H, apply to the SSAT for review of the decision.

1549. The amendment would ensure that persons continue to be notified of their right to merits review by the amalgamated Tribunal.

Item 12 - Subparagraph 109H(1)(b)(iii) and Item 13-Paragraph 109H(1)(c)

1550. Item 13 would repeal paragraph 109H(1)(c).

1551. Existing paragraph 109H(1)(c) provides that if a decision reviewer gives an applicant notice under section 109B of a decision reviewed under section 109A (internal review initiated by the applicant), the notice must include a statement to the effect that if the applicant applies to the SSAT for review and is dissatisfied with the SSAT's decision on review, the person may apply to the AAT for review of the SSAT's decision.

1552. The repeal of paragraph 109H(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 118 of Schedule 1 to the Bill) would require the Tribunal, upon completion of AAT first review, to notify persons of their right to second review. This would ensure parties are aware of their further review rights in all cases.

1553. Item 12 would omit the words 'based; and' and substitute 'based' in subparagraph 109H(1)(b)(iii). This minor consequential amendment follows from Item 13.

Item 14 - Division 2 of Part 5 (heading)

1554. Item 14 would repeal the heading of Division 2, substituting 'Division 2-Review by Administrative Appeals Tribunal'. The existing heading of Division 2, 'Review by the Social Security Appeals Tribunal' is no longer required.

Item 15 - Section 110

1555. Item 15 would repeal section 110, substituting:

·
a new heading 'Subdivision A-Simplified outline of this Division'
·
a new section 110, being a simplified outline of Division 2, and
·
a new heading 'Subdivision B-Application for AAT first review'.

1556. Existing section 110, which provides the objective of the SSAT, is unnecessary. The objective for the amalgamated Tribunal would be provided in amended section 2A of the AAT Act (Item 1, Schedule 1 of the Bill).

1557. New section 110 would assist readers by explaining the right to AAT first review, AAT second review and AAT single review. It would also explain the interaction between the AAT Act and the FAA Act in relation to reviews by the AAT. In effect, the AAT Act applies unless it is modified by the FAA Act. New section 110 would also inform readers that the AAT Act provides for judicial review from AAT decisions in some circumstances.

Item 16 - Section 111 (heading)

1558. Item 16 would repeal the heading of section 111 'Application for review by SSAT', substituting a new heading 'Application for AAT first review'.

Item 17 - Subsection 111(1), Item 18-Subsection 111(1) (note) and Item 19-Subsection 111(1A)

1559. Item 17 would amend subsection 111(1) to omit 'a person affected by the decision may apply to the Social Security Appeals Tribunal for review' and substitute 'application may be made to the AAT for review (AAT first review)'.

1560. Item 19 would amend subsection 111(1A) to omit 'a person whose interests are affected by the decision may apply to the SSAT for review' and substitute 'an application be made to the AAT for review (also AAT first review)'.

1561. Existing section 111 is the core provision conferring an entitlement on a person to make an application for review to the SSAT in respect of:

·
certain decisions on internal review to affirm, vary or set aside a decision under Division 1 of Part 5, and
·
decisions made by the Secretary personally (other than decisions made under Division 2 of Part 8C of the FAA Act) or by another agency head, the Chief Executive Centrelink or the Chief Executive Medicare in the exercise of a delegated power.

1562. New section 111 would not change existing policy in relation to who may apply for review, or the types of decisions in respect of which applications for review may be made. The purpose of the amendments is to transfer the review jurisdiction of the SSAT to the AAT.

1563. Item 18 would make a minor consequential amendment to omit 'under this section' in the note under subsection 111(1).

Item 20 - Paragraph 111(2)(c) and Item 21-Paragraph 111(2)(e)

1564. Item 20 would omit '112', substituting '113' in paragraph 111(2)(c).

1565. Item 21 would omit references to 'section 146', substituting 'section 137 or 141' in paragraph 111(2)(e).

1566. The amendments would be necessary as a consequence of renumbering the provisions in new Subdivision B and would not affect the substance of the provisions.

Items 21A and 22 - Sections 111A to 118

1567. Items 21A and 22 would repeal sections 111A to 118, which form part of existing Division 2 of Part 5 of the FAA Act, and would substitute:

·
a new section 111A
·
a new heading 'Subdivision C-Other matters relating to AAT first review', and
·
new sections 111B to 127.

1568. The repeal of sections 111A to 118 is appropriate in light of the amalgamation. Part IV of the AAT Act provides a general procedural framework for external merits review. It would no longer be necessary for the FAA Act to provide comprehensive procedural rules for external merits review, since Part IV of the AAT Act would apply, unless otherwise modified or excluded by the FAA Act. To that end, new Subdivision C of Division 2 of the FAA Act would add to or modify certain provisions of the AAT Act in relation to AAT first review of decisions which are reviewable under the family assistance law. This would have the effect of preserving existing procedures applicable to SSAT reviews, where necessary, to support the conduct of merits review by the amalgamated Tribunal.

1569. The effect of existing sections 111A to 118 would be preserved either through provisions of the AAT Act, or provisions in new Subdivision C as inserted by this item, as follows:

·
section 111A-Time limits applicable to review by the SSAT of certain decisions-would be covered by new section 111A
·
section 111B-Date of effect of certain SSAT decisions relating to payment of family tax benefit instalment-would be covered by new section 125
·
section 112 - Payment pending outcome of SSAT review-would be covered by new section 113
·
section 113 - SSAT review powers-would be covered by subsection 43(1) of the AAT Act and new sections 123 and 124
·
section 114 - Powers of the SSAT-would be covered by the standard rules in subsection 43(1) AAT Act
·
section 116 - SSAT application requirements-would be covered by the standard rules in subsection 29(1) and 29AA of the AAT Act
·
section 117 - Variation of decision before SSAT review completed-would be covered by new section 115, and
·
section 118 - Parties to SSAT review-would be covered by new section 116A.

New section 111A

1570. Existing subsection 111A(1) provides that applications for review of decisions under section 111 by the SSAT must be made no later than 13 weeks after the person is notified of the decision, except for those decisions described in subsection 111A(3) ('excepted decisions'). Pursuant to subsection 111A(2), the SSAT may extend the time limit for applications to be made, in special circumstances.

1571. In the amalgamated Tribunal, section 29 of the AAT Act would govern applications for AAT first review. Paragraph 29(1)(d) of the AAT Act has the effect that applications must generally be made within 28 days of the person receiving notice of the relevant decisions. Subsections 29(7) to (10) have the effect that the Tribunal may extend time for making an application.

1572. Accordingly, new section 111A would modify the standard rules in the AAT Act so as to preserve the effect of existing section 111A. Specifically:

·
new subsection 111A(1) would provide that an application for AAT first review (other than for an excepted decision) must be made no later than 13 weeks after the person is notified of the decision
·
new subsection 111A(2) would provide that the AAT may permit a person to make an application outside of the required 13 week period if it determines there are special circumstances that prevented that person from making the application in time
·
new subsection 111A(3) would provide that subsections (1) and (2) apply despite paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act, and
·
new subsection 111A(4) would provide that paragraph 29(1)(d) does not apply in relation to an application for AAT first review of an excepted decision (as defined in subsection 111A(5)). This would preserve the existing position that there are no time limits for applying for review of excepted decisions.

1573. New section 111A would ensure that existing timeframes for applying for review of family assistance matters would be preserved in the amalgamated Tribunal for AAT first review.

Subdivision C-Other matters relating to AAT first review

New section 111B-Person who made the decision

1574. New section 111B would define the term 'the person who made the decision' in the AAT Act for the purposes of AAT first reviews to mean the Secretary (within the meaning of the FAA Act).

1575. The purpose of this definition is to ensure that the relevant Secretary (rather than the individual officer who made the decision) is a party to AAT first reviews and bears 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 FAA 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).

New section 112 - Operation and implementation of decision under AAT first review

1576. New section 112 would ensure that subsection 41(2) of the AAT Act, which empowers the AAT to issue orders staying or otherwise affecting the operation or implementation of the decision under review, would not apply to AAT first reviews. This would preserve existing policy, as the SSAT does not have the power to make stay orders.

New section 113 - Secretary may continue certain matters pending outcome of application for AAT first review

1577. New section 113 would preserve the effect of existing section 112, which allows for the Secretary to declare that entitlements to family assistance are to continue, pending the outcome of an application for SSAT review. 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.

New section 114 - Arrangements for AAT first review if section 113 declaration in force

1578. New section 114 would preserve the effect of existing subsection 121(2).

1579. New section 114 would provide that if a payment pending review declaration under new section 113 is in force in relation to a decision for which an application for AAT first review has been made, the President of the AAT must take reasonable steps to ensure the decision is reviewed as quickly as possible.

1580. The amendment would preserve the effect of the existing provision and aligns with the objectives of the Tribunal as stated in new section 2A of the AAT Act (Item 1 of Schedule 1 to the Bill).

New section 115 - Variation of original decision after application is made for AAT first review

1581. New section 115 would preserve the effect of existing section 117.

1582. New section 115 would preserve existing policy whereby if an officer varies a decision, or substitutes a new decision, and an application for review of the decision has been made to the Tribunal, the application for review is taken to be an application for the decision 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 116 - Procedure on receipt of application for AAT first review

1583. New section 116 would replicate existing subsection 119(4) and 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. The power in section 116 would not affect, and would be additional to, the power of the amalgamated Tribunal to shorten the time frames for lodging documents under section 37(1A) of the AAT Act.

New section 116A-Parties to AAT first review

1584. New section 116A would provide that the parties to an AAT first review of a care percentage decision include, in addition to the persons mentioned in subsection 30(1) of the AAT Act, each person who is a responsible person (within the meaning of the CSRC Act) for the child to whom the decision relates. New section 116A would replicate existing section 118 of the FAA Act and would ensure that the interests of all affected persons are considered during the review process.

New sections 117 to 120 - Information gathering powers

1585. New section 117 would provide that section 40A of the AAT Act (the summons power) would not apply in relation to an AAT first review. Instead, new sections 118, 119 and 120 would preserve the effect of existing sections 128, 128A and 129, which set out the information gathering powers of the SSAT.

1586. New section 118 would permit the AAT to request the Secretary to provide information or documents relevant to an AAT first review. The Secretary must comply with such a request as soon as practicable, and no later than 14 days after the request is made.

1587. New section 119 would permit the AAT to issue a notice requiring any person it reasonably believes has information or a document relevant to an AAT first review to give such information or produce such documents. Consistent with existing subsection 128A(2), subsection 119(2) would make it an offence for the person to fail to comply with such a notice. While the privilege against self-incrimination applies in common law, for the avoidance of doubt, new subsection 119(3) would insert a specific defence of self-incrimination to the offence in subsection 119(2). This provides certainty that the privilege would not be abrogated. The defence does not preclude or remove the power to compel information that is not self-incriminatory from an individual. The defence also does not preclude the individual from having to provide information or produce documents that may incriminate others.

1588. The note to subsection 119(3) states that a defendant bears an evidential burden in relation to the matter in subsection 119(2)-see subsection 13.3(3) of the Criminal Code Act. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The person who is being compelled to provide information or produce a document will be best placed to know whether complying might tend to incriminate the person.

1589. In relation to section 119, it is noted also that legal professional privilege applies in common law and has an equivalent in the Evidence Act. As no express abrogation is applied to this provision, legal professional privilege is intended to apply.

1590. Finally, the penalty for the offence would be increased from 6 months imprisonment to imprisonment for 12 months or 60 penalty units. This would be consistent with other offence provisions in the Bill and reflects the seriousness of conduct that undermines the Tribunal's statutory review function.

1591. New section 120 would permit the AAT to require the Secretary to exercise the Secretary's power under section 154 of the FAA Act to obtain information from a person if the AAT is satisfied that person has information or a document relevant to an AAT first review. The Secretary must comply with a request as soon as practicable, and no later than within 7 days.

1592. The powers in new sections 118, 119 and 120 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 rules (for example, the Australian Taxation Office). The specific timeframes in sections 118 and 120 would also promote the expeditious conduct of reviews.

New section 121 - Hearing of AAT first review in private

1593. New section 121 would preserve the effect of existing section 131. New subsections 121(1) to (3) would require that hearings of an AAT first review be held in private, with the AAT 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.

1594. New subsection 121(4) 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. The sensitive and personal nature of the information which may be disclosed in family assistance matters makes privacy a major concern of the parties. Private hearings are accordingly a key feature that should be preserved in AAT first reviews in the amalgamated Tribunal as one means of ensuring that it is accessible and responsive to the needs of applicants.

New section 122 - Costs of AAT first review

1595. New section 122 would preserve the effect of existing section 140, which 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.

1596. The amendments would preserve existing policy by permitting the AAT to make such a determination in relation to AAT first reviews. The ability of the Tribunal to order payment of these costs in appropriate cases promotes access to justice.

New section 123 - Decision on AAT first review of care percentage decision

1597. New section 123 would preserve the effect of existing subsection 113(1A).

1598. Subsection 43(1) of the AAT Act empowers the AAT to affirm, vary, or set aside (and substitute or remit) the decision under review. New section 123 would impose a limitation on the amalgamated Tribunal's powers under subsection 43(1) in respect of AAT first reviews. If the AAT has reviewed a decision on an application under section 89 or paragraph 96A(b) of the CSRC Act, and the decision involved a review of a determination to which a care percentage decision relates, the AAT must not, on AAT first 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 that has been reviewed under the CSRC Act. This rule manages the interaction between child support law and family assistance law. It provides certainty to the parties that a previous decision on review which applies for the purposes of both laws will not be later varied by the Tribunal in another review at the equivalent level.

New section 124 - Certain other decisions on AAT first review

1599. New section 124 would preserve the effect of existing subsection 113(2), which provides for what must be done by the AAT on AAT first review of decisions relating to payments and conditional eligibility for child care benefit fee reduction where the decision under review is set aside. The amendment would maintain existing policy.

New section 125 - Date of effect of certain AAT first review decisions relating to payment of family tax benefit

1600. New section 125 would modify the effect of subsection 43(6) of the AAT Act so as to preserve the effect of existing section 111B, which provides for the date of effect of a decision relating to the payment of a family tax benefit instalment. 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.

1601. Existing section 111B of the FAA Act deals with the circumstance where a person applies to the SSAT for review of a decision more than 13 weeks after receiving notice of the decision. It prescribes rules for determining the date of effect of the SSAT's decision that apply where the SSAT varies the decision, or sets it aside and substitutes a new decision, with the result that the person is entitled to a particular payment or benefit.

1602. New section 125 would provide for the same rule in relation to AAT first review, despite subsection 43(6) of the AAT Act. This would preserve existing policy, which provides an incentive for persons to make timely applications for review.

New section 126 - Notification of decisions and reasons for AAT first review

1603. New section 126 would modify the effect of subsections 43(2) and (2A) of the AAT Act to preserve the effect of existing section 141. Subsections 43(2),(2A) and (3) of the AAT Act provide the regime for the Tribunal to notify parties of its decision to affirm, vary, or set aside a decision (and remit the matter or substitute a new decision) and provide reasons either orally or in writing. The modifications in new section 126 would preserve the following key differences between the SSAT and the AAT in relation to AAT first review:

·
the AAT on first review would be required to issue a written decision within 14 days after making the decision
·
where the AAT on first review affirms the decision under review, it may give reasons either orally or in writing
·
where the AAT on first review 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 on AAT first review, a party may request written reasons within 14 days, and the Tribunal must respond within 14 days.

1604. New section 126 would promote the quick conduct of reviews, which is an important feature of the SSAT.

1605. It is noted that the requirement in existing subsection 141(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 of Schedule 1 to the Bill).

New section 127 - Secretary or AAT may treat an event as having occurred if decision set aside on AAT first review

1606. New section 127 would preserve the effect of existing subsection 142(4). New section 127 would provide that if, on AAT first review, the AAT sets aside the decision under review under subsection 43(1) of the AAT Act and the Secretary, or the AAT, is satisfied that an event that did not occur would have occurred if the decision 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 family assistance law.

1607. 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 family assistance payment.

1608. The amendment would maintain existing policy.

Item 23 - Divisions 3 and 4 of Part 5

1609. Item 23 would repeal Divisions 3 and 4 of Part 5 and substitute:

·
a new heading 'Subdivision D-Application for AAT second review'
·
new sections 128 to 129
·
a new heading 'Subdivision E-Other matters relating to AAT second review'
·
new sections 130 to 135
·
a new heading 'Subdivision F-Matters relating to both AAT first review and AAT second review'
·
new sections 136 and 137
·
a new heading 'Subdivision G-AAT single review', and
·
new sections 138 to 141.

Existing Division 3

1610. Existing Division 3 comprises sections 119 to 141E (Subdivisions A to G). These provisions (together with those in existing Division 2 of Part 5: see Item 22 of Schedule 5 to the Bill) form a comprehensive set of procedural rules for external merits review of family assistance matters by the SSAT. Their repeal is appropriate in light of the amalgamation. Part IV of the AAT Act provides a general procedural framework for external merits review. Part IV would apply to reviews by the amalgamated Tribunal of family assistance matters, unless otherwise modified or excluded by the FAA Act. To that end, new Subdivision C of Division 2 of the FAA Act (Item 22 of Schedule 5 to the Bill) would add to or modify certain provisions of the AAT Act in relation to AAT first review of decisions which are reviewable under the family assistance law. This would have the effect of preserving existing procedures applicable to SSAT reviews, where necessary to support the conduct of AAT first review by the amalgamated Tribunal. The matters in existing Division 3 would be provided for as follows.

1611. Subdivision A of Division 3:

·
existing sections 119-120 and 122 concern the notification of applications, including to other persons whose interests may be affected, and the provision of documents to the Tribunal. These matters would be covered by sections 29AC and 37-38AA of the AAT Act, as amended (Items 50, 54 and 73-89 of Schedule 1 to the Bill), and
·
existing section 121 (arrangements for hearings) is unnecessary to retain in legislation and may be dealt with administratively, with the exception of existing subsection 121(2) (concerning payment pending review arrangements) which would be new section 114 of the FAA Act.

1612. Subdivisions B and BA of Division 3 concern the making of submissions by agency and non-agency parties, and the conduct of reviews on the papers. Their effect would be preserved in section 34J and new section 39AA of the AAT Act (Item 90 of Schedule 1 to this Bill).

1613. Subdivision BB of Division 3 contains other evidence provisions:

·
existing section 127 (the taking of evidence on oath or affirmation) would be covered by subsection 40(1) of the AAT Act
·
existing sections 128, 128A and 129 (powers to obtain information and documents) would be retained in the FAA Act as new sections 118 to 120, and
·
existing sections 128B and 128C (concerning the inspection and retention of documents) 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.

1614. Subdivision BC concerns directions hearings. Existing section 129A (power to hold directions hearings) would be covered by section 33 of the AAT Act. Existing section 129B (decision by consent following directions hearing) would be covered by section 42C of the AAT Act.

1615. Subdivision C concerns hearings. Existing section 130 (procedure on hearings) would be covered by section 33 of the AAT Act. Existing section 131 (private hearings) would be retained in the FAA Act as new section 121.

1616. Subdivision D provides for other procedural matters:

·
existing section 134 (adjournments) would be covered by subsection 40(1) of the AAT Act
·
existing sections 135 to 136 (dismissal powers) would be covered by sections 42A and 42B of the AAT Act
·
existing section 137 (presiding member) would be covered by amended section 19A of the AAT Act (Item 27 of Schedule 1 to the Bill)
·
existing section 138 (resolution of disagreements between members) would be covered by amended section 42 of the AAT Act (Item 107 of Schedule 1 to the Bill)
·
existing section 139 (directions as to procedure at hearings) would be covered by section 33 of the AAT Act, and
·
existing section 140 (costs of review) would be covered by new section 122 of the FAA Act.

1617. Subdivision E concerns notification of decisions. Existing section 141 would be covered by new section 126 of the FAA Act. Existing 141A would be covered by new section 136 of the FAA Act.

1618. Subdivision F, comprising existing section 141B, provides for correction of errors in decisions or statements of reasons. This would be covered by the equivalent power in section 43AA of the AAT Act.

1619. Subdivision G provides for restrictions on disclosure of information. Existing sections 141C, 141D and 141E would be covered by the AAT's power to make non-disclosure orders in subsections 35(3) to (4) of the AAT Act.

Existing Division 4

1620. Existing Division 4 deals with review by the AAT of SSAT decisions and of other decisions made under the family assistance law. Its effect would be preserved by the AAT Act and by the provisions in new Subdivisions D, E, F and G of Part 5 of the FAA Act.

1621. Subdivision A would be preserved as follows:

·
existing section 142 (review of decisions by the AAT) would be covered by new section 134 of the FAA Act
·
existing sections 143 and 145 (variation of decisions before the AAT review is completed) would be covered by new sections 132 and 139 respectively of the FAA Act
·
existing section 144 (review of other decisions) would be covered by new section 138 of the FAA Act, and
·
existing section 146 (settlement of proceedings before the AAT) would be covered by new section 141 of the FAA Act.

1622. Subdivision B would be preserved as follows:

·
existing section 147 (notice of application for review) would be covered by new section 129 of the FAA Act
·
existing section 148 (parties to a review by the AAT) would be covered by new section 130 of the FAA Act
·
existing section 149 (lodgement of documents with the AAT) would be covered by the standard rules in amended section 37 of the AAT Act (Items 74 to 86 of Schedule 1 to the Bill)
·
existing section 150 (power of AAT to obtain additional information) would be covered by the standard rules in amended section 38 of the AAT Act (Item 87 of Schedule 1 to the Bill)
·
existing section 151 (operation and implementation of the decision under review) would be covered by new section 131 of the FAA Act, and
·
existing section 152 (failure of a party to appear) would be covered by new section 133 of the FAA Act.

New Subdivision D-Application for AAT second review

1623. New Subdivision D would contain provisions dealing with applications for AAT second review.

New section 128 - Application for AAT second review

1624. New subsection 128(1) would be the core provision entitling persons to apply for second review of a decision of the AAT made under subsection 43(1) of the AAT Act on first review. It would preserve the effect of existing section 142 of the FAA Act. There would be no change to the types of decisions in respect of which a person can apply for AAT second review.

New section 129 - Notice of application for AAT second review

1625. New section 129 would preserve the effect of existing section 147.

1626. Existing section 147 modifies the application of existing subsection 29(11) of the AAT Act (subsection 29(11) of the AAT Act imposes an obligation on the Tribunal to give notice of an application for review to the person who made the decision) in relation to a review by the AAT of an SSAT decision. The purpose of the modification is to ensure parties to the SSAT review are notified of the application for AAT review.

1627. New section 129 would modify the effect of paragraph 29AC(1)(b) of the AAT Act, which would replace subsection 29(11) (see Item 51 of Schedule 1 to the Bill). This would ensure the parties to an AAT first review are notified of an application for AAT second review.

New Subdivision E-Other matters relating to AAT second review

1628. New Subdivision E would contain provisions dealing with other matters relating to AAT second review. The purpose of such provisions is to modify the AAT Act so that its intended operation on AAT second review is clear, given that the rules in the AAT Act are not drafted to cover the situation where the decision under review is one of its own decisions or a decision by another Tribunal, as opposed to an agency decision-maker. The FAA Act currently provides for such modifications. The amendments for the most part make minor terminology changes to reflect the new defined term 'AAT second review'.

New section 130 - Parties to AAT second review

1629. New section 130 would preserve the effect of existing section 148.

1630. Existing section 148 modifies the application of paragraph 30(1)(b) of the AAT Act-which provides that the person who made the decision is a party to the review-in relation to a review by the AAT of an SSAT decision. The purpose of the modification is to ensure that the SSAT is not a party to the AAT review, and that the parties to the SSAT review are parties to the AAT review.

1631. New section 130 would apply in relation to applications for AAT second review of a decision on AAT first review. It would modify paragraph 30(1)(b) of the AAT Act so as to ensure that the parties to an AAT first review are parties to an AAT second review.

New section 131 - Operation and implementation of decisions subject to AAT second review

1632. New section 131 would preserve the effect of existing section 151.

1633. New section 131 would modify section 41 of the AAT Act-stay orders-so that it would have 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.

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

1634. New section 132 would preserve the effect of existing section 143.

1635. New section 132 would provide that if an officer varies or substitutes a decision reviewable by the AAT, after an application for AAT second review has been made, the application would be treated as an application for review of the decision as varied or substituted. If the person who made the application does not want to proceed with the application, they may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.

New section 133 - Failure of party to appear at AAT second review

1636. New section 133 would preserve the effect of existing section 152, which modifies the application of subsection 42A(2) of the AAT Act in relation to a review by the AAT of an SSAT decision. Subsection 42A(2) provides the Tribunal's power to dismiss an application or remove a party if a party fails to appear.

1637. New section 133 would modify subsection 42A(2) of the AAT Act so that the reference to the 'person who made the decision' is a reference to the Secretary. This would ensure that the dismissal power only applies to parties other than the Secretary.

New section 134 - Decision on AAT second review of care percentage decision

1638. New section 134 would modify subsection 43(1) of the AAT Act to preserve the effect of existing subsection 142(5). It would impose a limitation on the amalgamated AAT's powers under subsection 43(1) in respect of AAT second reviews. Subsection 43(1) of the AAT Act empowers the AAT to issue a decision on review that affirms, varies, or sets aside a decision (and either remits the matter to the decision-maker with such directions as the AAT considers appropriate, or substitutes a new decision).

1639. New section 134 would apply if the AAT has reviewed a decision on an application under paragraph 96A(b) of the CSRC Act, and the decision involved a review of a determination to which a care percentage decision relates. It would provide that the AAT must not, on AAT second review of the care percentage decision under the FAA Act, vary or substitute the decision in a way that would have the effect of varying or substituting the determination that has been reviewed under the CSRC Act.

1640. This rule manages the interaction between child support law and family assistance law. It provides certainty to the parties that a previous decision on AAT second review which applies for the purposes of both laws will not be later varied by the Tribunal in another AAT second review (that is, at an equivalent level).

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

1641. New section 135 would preserve the effect of existing subsection 142(4).

1642. New section 135 would provide that if, on AAT second review, the AAT sets aside the decision under review under subsection 43(1) of the AAT Act, and 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 it is reasonable to do so, treat the event as having occurred for the purposes of family assistance law.

1643. 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 family assistance payment.

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

1644. New Subdivision F would contain provisions that apply in both AAT first and second review.

New section 136 - Notice by Secretary of certain AAT decision on AAT first review or AAT second review

1645. New section 136 would preserve the effect of existing section 141A.

1646. Existing section 141A provides that the Secretary must give notice to a child care service if:

·
the SSAT makes a decision in respect of an individual claiming child care benefit by fee reduction for care provided by an approved child care service
·
the decision on review is to vary, or set aside and substitute a new decision, and
·
on the day the SSAT decision is made the service is still providing care for the child and a determination of continuing eligibility is still in force.

1647. Notice of the decision may be given electronically.

1648. The amendment would maintain the existing policy with respect to notification but would extend the provision to cover both AAT first review and AAT second review.

New section 137 - Settlement of proceedings before the AAT

1649. New section 137 would preserve the effect of existing section 146. New section 137 would provide that the Secretary may settle debt proceedings before the AAT, with the result that the application for review would be dismissed. New section 137 would apply on both AAT first review and AAT second review. This provides flexibility to the Secretary to settle matters at any stage of external merits review proceedings.

New Subdivision G-AAT single review

1650. New subdivision G would contain provisions dealing with AAT single review.

New section 138 - Applications for AAT single review

1651. New section 138 would be the core provision entitling persons to apply to the AAT for review of a decision in relation to a child care service or registered carer. It would replace existing section 144, which describes the decisions in respect of which applications for single review can be made. There would be no policy change on the types of decisions that may be reviewed.

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

1652. New section 139 would preserve the effect of existing section 145.

1653. New section 139 would provide that if an officer varies a decision, or sets it aside and substitutes a new decision, and at the time an application for review of the decision has been made to the AAT, the application for review is taken to be an application for review of the decision 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 140 - Secretary may treat event as having occurred if decision to set aside on AAT single review

1654. New section 140 would preserve the effect of existing subsection 144(3).

1655. New section 140 would provide that if, on AAT single review, the AAT sets aside the decision under review under subsection 43(1) of the AAT Act, and 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 it is reasonable to do so, treat the event as having occurred for the purposes of family assistance law.

New section 141 - Settlement of proceedings before the AAT

1656. New section 141 would preserve the effect of existing section 146 for AAT single reviews.

1657. New section 141 would provide that the Secretary may settle debt proceedings before the AAT on single review, with the result that the application for review would be dismissed. This provides flexibility to the Secretary to settle matters at any stage of external merits review proceedings.

Item 24 - Paragraphs 152(A)(a) and 152B(a)

1658. Item 24 would omit references in paragraphs 152(A)(a) and 152B(a) to '142', substituting '128'.

1659. The amendment would be a consequence of the renumbering of existing section 142.

Item 25 - Section 152D (heading) and Item 26-Paragraph 152D(1)(a)

1660. Item 25 would repeal the heading at section 152D ('Date of effect of SSAT reviews under child support law that apply for family law assistance purposes'), substituting the heading ('Date of effect of AAT reviews under the child support law that apply for family assistance purposes').

1661. Item 26 would omit reference to 'SSAT' in paragraph 152D(1)(a), substituting 'AAT'

1662. The amendment would not otherwise change the effect of existing section 152D.

Item 27 - Paragraph 235(4)(b)

1663. Item 27 would omit reference to 'the Social Security Appeals Tribunal' at paragraph 235(4)(b).

1664. Existing section 235 confers power on the Governor-General to make regulations. Paragraph 235(4)(b) allows regulations to provide for the date of effect of specified decisions of an authorised officer, the SSAT or the AAT.

1665. The amendment would preserve existing policy that regulations may provide for the date of effect of specified decisions of the amalgamated Tribunal.


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