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 6 - paid parental leave amendments

Overview

1666. Schedule 6 to the Bill would amend the PPL Act to support amalgamation.

1667. Key amendments proposed would:

·
transfer the merits review jurisdiction of the SSAT to the amalgamated Tribunal, with existing rights to merits review being preserved (including a right of second review by the AAT of SSAT decisions on review of reviewable claimant decisions)
·
create new defined terms of 'AAT first review' and 'AAT second review', corresponding to existing SSAT and AAT reviews of paid parental leave matters
·
preserve existing procedures for merits review of paid parental leave matters, including amendments to modify the procedures generally applicable under the AAT Act
·
modernise and simplify the drafting of the provisions of the PPL 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 Paid Parental Leave Act 2010

Item 1 - Section 4 (paragraphs relating to Chapter 5)

1668. Item 1 would repeal the paragraphs that relate to Chapter 5 ('Review of decisions') in the Guide to the Act in section 4, and substitute new paragraphs to explain the content to new Chapter 5 ('Administrative review of decisions'), as a result of the amendments to Chapter 5 in Schedule 6 of the Bill.

1669. The new paragraphs in the Guide would explain the process for review of administrative decisions under Chapter 5 of the PPL Act, including that:

·
Part 5 - 1 would allow the Secretary to conduct internal review of decisions, either on his or her own initiative or upon request by certain persons whose interests are affected by the decision.
·
Part 5 - 2 would allow a person to apply to the AAT for review of certain decisions. This would be referred to as 'AAT first review'.
·
Part 5 - 3 would allow a person to apply to the AAT for review of certain decisions made by the AAT on AAT first review. This would be referred to as 'AAT second review'.
·
Part 5 - 4 would contain miscellaneous provisions relating to reviews.

Item 2 - Section 6

1670. Item 2 would insert new definitions into section 6 of the Act:

·
'AAT first review'
·
'AAT reviewable claimant decision'
·
'AAT reviewable employer decision', and
·
'AAT second review'.

1671. 'AAT first review' would refer to:

·
review of AAT reviewable claimant decisions under new subsection 216(1) of the PPL Act (Item 17 of Schedule 6 to the Bill), or
·
review of AAT reviewable employer decisions under new subsection 224(1) of the PPL Act (Item 20 of Schedule 6 to the Bill).

1672. Collectively, 'AAT first review' would comprise those applications which may currently be made to the SSAT.

1673. 'AAT reviewable claimant decision' would refer to subsection 215(3) (as amended by Item 16 of Schedule 6 to the Bill), and 'AAT reviewable employer decision' would refer to subsection 223(2) (as amended by Item 19 of Schedule 6 to the Bill). These terms would define the types of decisions in respect of which an application may be made to the amalgamated Tribunal. These definitions would be the same in substance as the existing definitions of 'SSAT reviewable employer decision' and 'SSAT reviewable claimant decision' under the Act, but the reference to the SSAT would be updated to the AAT.

1674. 'AAT second review' would refer to review of decisions in respect of which applications may be made under new subsection 237(1) (Item 21 of Schedule 6 to the Bill). This would comprise those applications which may currently be made to the AAT for review of decisions of the SSAT.

1675. 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 paid parental leave matters, 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. This is consistent with existing policy, as in some respects the procedures of the AAT and the former SSAT in reviewing paid parental leave matters differ. There would be no policy change on the types of decisions that may be reviewed.

Item 3 - Section 6

1676. Item 3 would amend section 6 to repeal the definitions of: 'Principal Member', 'SSAT', 'SSAT member', 'SSAT reviewable claimant decision' and 'SSAT reviewable employer decision', in light of the abolition of the SSAT.

Item 4 - Subsection 108(6)

1677. Item 4 would repeal subsection 108(6) and substitute a new subsection 108(6).

1678. Existing subsection 108(6) provides that if the Secretary revokes an employer determination, when a person has applied to the SSAT for a review of the determination and the review is ongoing, the Secretary must notify the SSAT Principal Member in writing of his or her decision to revoke the determination.

1679. New subsection 108(6) would refer to the AAT and the AAT Registrar instead of the SSAT and the SSAT Principal Member. The amendments would ensure that the Tribunal still receives notification of a revocation of an employer determination. No other change to the effect of the existing provision is intended.

Item 5 - Section 130A (heading)

1680. Item 5 would repeal the existing heading to section 130A and substitute a new heading. The existing heading refers to disclosure of information by an SSAT member if the information concerns a threat to life, health or welfare. The substituted heading would refer to disclosure of information by an AAT member in the same circumstances.

Item 6 - Section 130A

1681. Item 6 would amend section 130A by omitting the term 'SSAT' and replacing it with the term 'AAT'. This amendment would ensure that the existing protections in section 130A (concerning the disclosure of protected information by an SSAT member) would apply to members of the amalgamated Tribunal. No other change to the effect of the existing provision is intended.

Item 7 - Paragraph 203(3)(b)

1682. Item 7 would amend paragraph 203(3)(b) by omitting the term 'the SSAT or'.

1683. Existing subsection 203(3) provides that a Secretary can choose to review a decision (excluding employer determination decisions) on his or her own initiative. The Secretary has this power even if a person whose interests are affected by the decision has applied to the SSAT or the AAT for review.

1684. Amended subsection 203(3) would refer only to an application that is made to the AAT for review, to reflect that the amalgamated Tribunal would undertake all reviews. No other change to the effect of the existing provision is intended.

Item 8 - Subsection 204(1) and Item 9-Subsection 204(2)

1685. Item 8 would repeal subsection 204(1). As a minor consequential amendment, Item 9 would omit the numbering '(2)' from subsection 204(2), leaving the provision simply as section 204.

1686. Existing subsection 204(1) provides that the Secretary must give the SSAT Principal Member written notice of a decision under subsection 203(4) that affirms, varies or substitutes a new decision, if an application has been made to the SSAT for review of the decision that was reviewed by the Secretary.

1687. Subsection 204(1) would no longer be necessary as existing subsection 204(2) is in equivalent terms but applies to the AAT. Subsection 204(2) would be sufficient to ensure the AAT Registrar is notified when the Secretary affirms, varies or substitutes a decision in respect of which an application for review is on foot. No other change to the effect of the existing provision is intended.

Item 10 - Subsection 211(4)

1688. Item 10 would repeal subsection 211(4) and substitute a new subsection 211(4).

1689. Existing section 211 requires a decision-maker to give notice of further review rights to any person whose interests are affected by a decision on internal review of a claimant decision:

·
Existing paragraph 211(4)(a) requires notification of the right to apply to the SSAT for review of the decision.
·
Existing paragraph 211(4)(b) requires notification of the further right to apply to the AAT for review of the SSAT decision.

1690. New subsection 211(4) would preserve the effect of paragraph 211(4)(a), but refer to the AAT instead of the SSAT. This would ensure that claimants continue to be notified of their right to review by the amalgamated Tribunal, at the conclusion of the internal review process.

1691. The repeal of existing paragraph 211(4)(b) 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 first review of a claimant decision, to notify persons of their right to second review by the AAT. This would ensure parties are aware of their review rights in all cases.

Item 11 - Subsection 211(5) (note)

1692. Item 11 would amend the note to subsection 211(5) by omitting the term 'SSAT review' and substituting 'AAT first review'.

Item 12 - Subsection 212(5)

1693. Item 12 would amend subsection 212(5) by omitting 'this Act, apply to the SSAT for review', and substituting, 'this Act and the AAT Act, apply to the AAT for review'.

1694. Existing section 212 requires a decision-maker to give notice to the employer concerned about further review rights available in relation to a decision on review of an employer related decision. Subsection 212(5) requires that the notification to the employer must include a statement to the effect that the employer may apply to the SSAT for review.

1695. Amended subsection 212(5) would refer to the AAT instead of the SSAT. This would ensure that employers continue to be notified of their right to review by the amalgamated Tribunal, at the conclusion of the internal review process.

Item 13 - Part 5 - 2 (heading)

1696. Item 13 would repeal the heading of Part 5-2 and substitute a new heading 'AAT first review of certain decisions'. The existing heading, which describes Part 5-2 as covering review by the SSAT, would no longer be accurate.

Item 14 - Sections 213 and 214

1697. Item 14 would repeal sections 213 and 214 and substitute a new section 213.

1698. Existing section 213 is the Guide to Part 5-2 on 'Review by the Social Security Appeals Tribunal'. New section 213 would provide a revised Guide that would explain the AAT merits review function in paid parental leave matters. The new Guide would assist readers by explaining a person's right to AAT first review. It would also explain the interaction between the Act and the AAT Act in relation to reviews by the AAT. In effect, the AAT Act applies unless it is modified by the PPL Act.

1699. Existing section 214 provides the objective of the SSAT. This may be repealed because the new objective of the amalgamated Tribunal would be set out in section 2A of the AAT Act (Item 1 of Schedule 1 of the Bill).

Item 15 - Division 2 of Part 5 - 2 (heading)

1700. Item 15 would repeal the heading of Division 2, Part 5-2 (which refers to 'Review by SSAT of claimant decisions') and substitute a new heading: 'Division 2-AAT first review of claimant decisions'.

Item 16 - Subsection 215(3)

1701. Item 16 would omit the term 'SSAT' in subsection 215(3) and substitute 'AAT'.

1702. Existing section 215 describes which claimant decisions may and may not be reviewed by the SSAT. Subsection 215(3) provides that a decision to which Division 2 applies is an 'SSAT reviewable claimant decision'. New subsection 215(3) would provide that a decision to which Division 2 applies is an 'AAT reviewable claimant decision'. Item 2 would insert a definition of 'AAT reviewable claimant decision' that would link to this subsection.

1703. The amendments would not change existing policy in relation to which decisions can be reviewed. The amendments would support the transfer of the review jurisdiction of the former SSAT to the amalgamated Tribunal.

Item 17 - Sections 216 to 222

1704. Item 17 would repeal sections 216 to 222 and substitute new section 216.

1705. Existing sections 216 to 222 set out the process for review of a claimant decision by the SSAT. They include:

·
application for review (section 216)
·
making of application (section 217)
·
review following application (section 218)
·
powers of the SSAT (section 219)
·
when SSAT decision comes into force (section 220)
·
variation of decision before review completed (section 221), and
·
parties to review (section 222).

1706. Sections 216 to 222 prescribe certain procedural aspects of SSAT review of reviewable claimant decisions. As a result of the amalgamation, it would no longer be necessary for the PPL Act to provide comprehensive procedural rules for external merits review. Part IV of the AAT Act provides a general procedural framework for merits review, which would apply to the review of claimant decisions by the amalgamated Tribunal unless otherwise modified or excluded by the PPL Act. To that end, the purpose of new Division 4 (Item 20 of Schedule 6 to the Bill) would be to modify or add to the AAT Act, to the extent necessary to preserve the procedures that currently apply in SSAT reviews of claimant decisions. Where an existing provision replicates the rules in the AAT Act, it is not necessary to include it in new Division 4, as the AAT Act rule would apply. New Division 4 would also provide certain additional rules on matters that are not covered in the AAT Act but support the effective conduct of merits review of paid parental leave decisions.

1707. New Division 4 would apply to all AAT first reviews-that is, reviews of reviewable claimant decisions and of reviewable employer decisions. The adoption of a single set of procedural rules will simplify the existing legislative framework, which currently has separate Divisions for claimant and employer reviews, despite the rules being for the most part the same.

1708. Existing section 217 of the PPL Act would be covered by sections 29-29A of the AAT Act (Items 46-51 of Schedule 1 to the Bill), except insofar as it deals with the delivery of applications to the Tribunal if lodged with the Department. This very rarely occurs in practice and can be handled administratively as the need arises. Sections 218 and 219 of the PPL Act would be covered by subsection 43(1) of the AAT Act. Sections 220 and 221 of the PPL Act would covered by new sections 234 and 226 respectively (in new Division 4 at Item 20 of Schedule 6 to the Bill).

New section 216

1709. Existing subsection 216(1) is the core provision conferring an entitlement on persons to apply to the SSAT for review of reviewable claimant decisions. New subsection 216(1) would maintain the policy effect of the existing section, but update the terminology to provide that a person may apply to the AAT for AAT first review of an AAT reviewable claimant decision.

1710. Existing subsection 216(2) provides that applications must be made to the SSAT within 28 days, unless the Tribunal otherwise allows. The AAT Act (paragraph 29(1)(d) read with subsection 29(2)) provides a standard 28 day time limit for applying for a review, as well as a process for applying for extensions of time (subsections 29(7) to (10)). As these rules would apply in claimant decision reviews, it is not necessary for new section 216 to deal with the time limit for applications.

1711. Existing subsection 216(3) provides that a person cannot make an application to the SSAT for review under subsection 216(1) in the person's capacity as an employer. New subsection 216(2) would preserve this exclusion.

1712. New subsection 216(3) would provide that, despite subsection 30(1A) of the AAT Act, a person cannot apply to be a party to proceedings for review of an AAT reviewable claimant decision in the person's capacity as an employer. This preserves the effect of existing subsection 222(2) of the PPL Act, which states that a person's interests as an employer do not entitle them to apply to be a party to claimant review proceedings. This would operate as an exception to the standard rule in subsection 30(1A) of the AAT Act that people whose interests are affected by a decision may apply to be a party to the review.

Item 18 - Division 3 of Part 5 - 2 (heading)

1713. Item 18 would repeal the heading of Division 3 of Part 5-2 and substitute a new heading. The existing heading refers to 'Review by SSAT of employer decisions'. The new heading for Division 3 would refer to 'AAT first review of employer decisions'.

1714. New Division 3 would comprise sections 223 and 224, dealing with applications for AAT first review of reviewable employer decisions (Items 19 and 20 of Schedule 6 to the Bill).

Item 19 - Subsection 223(2)

1715. Item 19 would amend subsection 223(2) by omitting the term 'SSAT' and substituting it with 'AAT'.

1716. Existing section 223 lists which employer decisions can and cannot be reviewed by the SSAT. Subsection 223(2) provides that a decision to which Division 3 applies is a 'SSAT reviewable employer decision'.

1717. New subsection 223(2) would provide that a decision to which Division 3 applies would be referred to as an 'AAT reviewable employer decision'. Item 2 of Schedule 6 to the Bill would insert a definition of 'AAT reviewable employer decision' that would link to subsection 223(2).

1718. The amendments would not change existing policy in relation to which decisions can be reviewed. The amendments would support the transfer of the review jurisdiction of the SSAT to the amalgamated Tribunal.

Item 20 - Sections 224 to 230

1719. Item 20 would repeal sections 224 to 230 and substitute:

·
a new section 224, dealing with applications for AAT first review of reviewable employer decisions
·
new Division 4, 'Other matters relating to AAT first reviews', and
·
new sections 224A to 235.

1720. Existing sections 224 to 230 deal with:

·
application for review to the SSAT (section 224)
·
making of application (section 225)
·
review following application (section 226)
·
powers of the SSAT (section 227)
·
when SSAT decision comes into force (section 228)
·
variation of decision before review completed (section 229), and
·
parties to review (section 230).

1721. Sections 224 to 230 prescribe certain procedural aspects of SSAT reviews of reviewable employer decisions. As a result of the amalgamation, it would no longer be necessary for the PPL Act to provide comprehensive procedural rules for external merits review. Part IV of the AAT Act provides a general procedural framework for merits review, which would apply to the review of employer decisions by the amalgamated Tribunal unless otherwise modified or excluded by the PPL Act. To that end, the purpose of new Division 4 would be to modify or add to the AAT Act to the extent necessary to preserve the procedures that currently apply in SSAT reviews of employer decisions. Where an existing provision replicates the rules in the AAT Act, it is not necessary to include it in new Division 4, as the AAT Act rule would apply. New Division 4 would also provide certain additional rules on matters that are not covered in the AAT Act but support the effective conduct of merits review of paid parental leave decisions.

1722. New Division 4 would apply to all AAT first reviews-that is, reviews of reviewable claimant decisions and of reviewable employer decisions. The adoption of a single set of procedural rules will simplify the existing legislative framework, in which there are separate Divisions for claimant and employer reviews despite the rules being for the most part the same.

1723. Existing sections 226 and 227 of the PPL Act would be covered by subsection 43(1) of the AAT Act. Existing sections 228 and 229 of the PPL Act would covered by new sections 234 and 226 respectively (in new Division 4 at Item 20 of Schedule 6 to the Bill). Existing section 230 of the PPL Act would be covered by section 30 of the AAT Act.

New section 224 - AAT first review of employer decision-application for review

1724. New section 224 would preserve the effect of existing sections 224 and 225.

1725. New subsection 224(1) would be the core provision conferring an entitlement on employers to apply for AAT first review of reviewable employer decisions.

1726. New subsection 224(2) would apply where the reviewable employer decision in question is an employer determination decision. It would preserve the rules in existing subsection 224(1) to the effect that an employer may only apply for review if the employer believes that certain conditions are not satisfied and, in some cases, if the employer has not made an election under section 109.

1727. New subsections 224(3)-(4) would set out requirements for making the application, including that it must be in writing, must be accompanied by a statutory declaration, and must be made within 14 days of the making of the decision. Further, in relation to employer determination decisions only, the application must specify the relevant particulars in paragraph 224(3)(c).

1728. New subsection 224(5) would address certain aspects of the relationship between the PPL Act and the AAT Act:

·
Paragraph 224(5)(a) confirms that the requirement that the application must be in writing (in paragraph 224(3)(a)) applies despite subparagraph 29(1)(a)(ii) of the AAT Act, which would otherwise permit oral applications.
·
Paragraph 224(5)(b) confirms that the requirement that applications be made within 14 days (in subsection 224(4)) applies despite paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act. Those provisions of the AAT Act would otherwise permit applications to be made within 28 days and allow the Tribunal to extend the time if reasonable to do so.

1729. The amendments would enable applications for review of reviewable employer decisions to be made to the amalgamated Tribunal, while preserving the existing time frames and other application requirements.

New Division 4 - other matters relating to AAT first reviews

1730. New Division 4 would set out other matters relating to AAT first reviews and would apply to both reviewable employer decisions and reviewable claimant decisions.

New section 224A-Person who made the decision

1731. New section 224A would define the term 'the person who made the decision' in the AAT Act for the purposes of AAT first reviews as:

·
the Secretary (within the meaning of the PPL Act), and
·
(if applicable) either the Chief Executive Centrelink (if the decision was made by him or her, or by an APS employee in the Human Services Department within the meaning of the PPL Act) or the Chief Executive Medicare (if the decision was made by him or her).

1732. The purpose of this definition is to ensure that the relevant Secretary and, where appropriate, the Chief Executive Centrelink or Chief Executive Medicare-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 PPL Act, including in determining who are the parties to a review (section 30) and in imposing a requirement to lodge documents with the Tribunal (section 37).

New section 225 - Operation and implementation of decisions under AAT first review

1733. New section 225 would ensure that subsection 41(2) of the AAT Act would not apply to AAT first reviews. Subsection 41(2) empowers the AAT to issue orders staying or otherwise affecting the operation or implementation of the decision under review. This would preserve existing policy, as the SSAT does not have the power to make stay orders.

New section 226 - Variation of original decision after application is made for AAT first review

1734. New section 226 would replicate existing sections 221 and 229 of the PPL Act, and would deal with the effect of variation by an officer of a decision under review by the AAT.

1735. New section 226 would preserve existing policy whereby if the officer varies or sets aside and substitutes a decision under review, 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 227 - Procedure on receipt of application for AAT first review

1736. New section 227 would replicate existing subsection 232(4) of the PPL Act. New section 227 would empower the AAT to request the Secretary to provide documents to the Tribunal earlier than the 28 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 227 would not affect, and would be additional to, the power of the amalgamated Tribunal to shorten the time frames for lodging documents under subsection 37(1A) of the AAT Act.

New sections 228 - 231 - Information gathering powers on AAT first review

1737. New section 228 would provide that section 40A of the AAT Act (the summons power) would not apply in relation to an AAT first review under the PPL Act. Instead, the AAT on AAT first review would be able to exercise the information gathering powers currently exercised by the SSAT under existing sections 242, 243 and 244, as amended to apply to the AAT on AAT first review. This would preserve existing policy.

1738. New section 229 would preserve the effect of existing section 242. It 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 within 14 days.

1739. New section 230 would preserve the effect of existing section 244. It would permit the AAT to issue a notice requiring any person it give such information, produce such documents or attend to answer questions.

1740. While the privilege against self-incrimination applies in common law, for the avoidance of doubt, new subsection 230(3) would insert a specific defence of self-incrimination to the offence in subsection 230(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.

1741. The note to subsection 230(3) states that a defendant bears an evidential burden in relation to the matter in subsection 230(3) - 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.

1742. 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.

1743. New section 231 would preserve the effect of existing section 243. It would permit the AAT to require the Secretary to exercise the Secretary's power under section 117 to obtain information if the AAT is satisfied that person has information or a document relevant to an AAT first review. The Secretary must comply with such a request as soon as practicable, and no later than within 7 days.

New section 232 - Hearing of AAT first review in private

1744. New section 232 would preserve the effect of existing section 248.

1745. New subsections 232(1)-(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.

1746. New subsection 232(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 information disclosed in paid parental leave reviews may be of a sensitive and personal nature. This makes private hearings a key feature of the SSAT that should be preserved in AAT first review in the amalgamated Tribunal, as one means of ensuring that it is accessible and responsive to the needs of applicants.

New section 233 - Costs of AAT first review

1747. New section 233 would deal with costs incurred by the parties in connection with AAT first reviews. Subject to the general rule in new subsection 233(1) that parties must bear their own expenses, subsections 233(2)-(4) would permit the amalgamated Tribunal to 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 AAT, in relation to an AAT first review.

1748. The ability of the Tribunal to order payment of these costs in appropriate cases promotes access to justice. New section 233 would replace existing section 256.

New section 234 - When AAT decision on AAT first review comes into force

1749. New section 234 would preserve the effect of existing sections 220 and 228:

·
Existing section 220 applies in relation to reviewable claimant decisions. It provides that a decision of the SSAT to vary the decision under review, or to set it aside and substitute a new decision, comes into force on the day that would give full effect to the SSAT's decision. New subsection 234(1) provides for the same rule with respect to AAT first reviews of reviewable claimant decisions.
·
Existing section 228 applies in relation to reviewable employer decisions. It provides that a decision of the SSAT comes into force immediately on the giving of the decision. New subsection 234(2) would ensure that the same rule applies with respect to AAT first reviews of reviewable employer decisions.

1750. New subsection 234(3) would provide that subsections (1) and (2) apply despite subsection 43(6) of the AAT Act, which provides that (unless the Tribunal orders otherwise), a decision by the AAT to vary, or set aside and substitute, the decision under review has effect from the same day that the decision under review had effect.

1751. New section 234 maintains existing policy on the date of effect of decisions on review of paid parental leave matters.

New section 235 - Notification of decisions and reasons for AAT first review

1752. New section 235 would modify subsections 43(2) and (2A) of the AAT Act so as to preserve the effect of existing section 257 of the PPL Act, which concerns the notification to the parties of the Tribunal's decision and reasons. Subsections 43(2), (2A) and (3) of the AAT Act deal with the same issue. New section 235 would preserve the following key differences that currently exist between the SSAT and AAT, and apply them to AAT first review in the amalgamated Tribunal:

·
the AAT would be required to issue reasons within 14 days after making the decision on AAT first review
·
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, the timeframes for a party to request written reasons, and for the Tribunal to respond, are 14 days (as opposed to 28 days in the AAT Act).

1753. The timeframes in section 235 would promote the expeditious conduct of review, which is an important feature of the SSAT. The requirement for written reasons where the decision under review is not affirmed promotes sound administrative decision-making by providing a clear record of why the decision under review was not the correct or preferable one.

Item 21 - Parts 5 - 3 and 5 - 4

1754. Item 21 would repeal Parts 5 - 3 and 5-4 and substitute a new Part 5-3, comprising:

·
a heading for new Part 5-3, 'AAT second review of claimant decisions'
·
a heading for new Division 1, 'Guide to this Part'
·
a new section 236, being a Guide to new Part 5-3
·
a heading for new Division 2, 'Applications for AAT second review'
·
a new section 237, dealing with applications for AAT second review
·
a heading for new Division 3, 'Other matters relating to AAT second review',
·
new sections 238 to 243, dealing with various matters related to AAT second review, and
·
a heading for new Part 5-4, 'Other matters relating to review'.

1755. Existing Part 5 - 3 (comprising sections 231 to 259) contains:

·
the Guide to Part 5 - 3 (Division 1)
·
preliminary procedures (Division 2)
·
submissions from parties other than PPL agency representatives (Division 3)
·
submission from PPL agency representatives (Division 4)
·
other evidence provisions (Division 5)
·
directions hearings (Division 6)
·
the hearing (Division 7)
·
other procedural matters (Division 8)
·
notice of decisions (Division 9)
·
correction of errors in decisions or statement of reasons (Division 10), and
·
appeals and references of questions of law from the SSAT to the Federal Court (Division 11).

1756. Divisions 1 to 10 of Part 5 - 3 contain the procedures for review by the SSAT (other than those matters covered in existing Part 5-2: see Items 15 to 20 of Schedule 6 to the Bill). These Divisions would be repealed, as their effect would be preserved by the standard procedural rules in the AAT Act, as well as the provisions in new Division 4 of Part 5-2.

1757. Division 11 of Part 5 - 3 comprises section 259. Section 259 currently permits parties to SSAT proceedings for review of reviewable employer decisions to appeal to the Federal Court on a question of law from any decision of the SSAT. Existing subsection 259(2) of the PPL Act provides that the object of section 259 is to allow SSAT employer proceedings to be subject to judicial review as if they were proceedings before the AAT. Following the amalgamation, employer proceedings would be proceedings before the AAT, and Part IVA of the AAT Act (which concerns judicial review) would apply. Subsection 259(5) of the PPL Act currently provides that certain provisions of Part IVA of the AAT Act do not apply. With the repeal of section 259, this will no longer be the case. The repeal of Division 11 of the PPL Act will accordingly promote a consistent approach to judicial review of proceedings before the amalgamated Tribunal.

1758. Existing Part 5 - 4 (sections 260 to 269) deals with the review of claimant decisions by the AAT. This includes:

·
right to review by AAT (Division 2), and
·
modification of AAT Act in relation to applications for further review by the AAT (Division 3).

1759. The effect of existing Part 5 - 4 would be preserved by new Divisions 2 and 3 of Part 5-3.

New Part 5 - 3

1760. New Part 5 - 3 would deal with AAT second review of claimant decisions.

New Division 1 - section 236 - Guide to Part 5-3

1761. The Guide at new section 236 would assist readers by explaining that AAT second review is the review of decisions made on AAT first review. AAT second review is only available in relation to claimant decisions and is not available in relation to employer decisions.

1762. The Guide would also explain that the majority of the rules relating to review by the AAT are in the AAT Act, but that Part 5-3 modifies the operation of some of them.

1763. The Guide further explains that 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.

New Division 2 - Applications for AAT second review

1764. New Division 2 would set out the application process for second review of claimant decisions in the AAT.

New section 237 - Applications for AAT second review

1765. New section 237 would provide that an application may be made to the AAT for review of a decision of the AAT under subsection 43(1) of the AAT Act on AAT first review in relation to a claimant decision. This is the core provision conferring an entitlement on persons to apply to the AAT for second review of reviewable claimant decisions. This would preserve the policy effect of existing section 261.

New Division 3 - Matters relating to AAT second review

1766. New Division 3 would set out matters relating to AAT second review. With the exception of existing sections 266-267, all of the provisions in existing Division 3 would be replicated for the amalgamated Tribunal. The purpose of new Division 3 would be to modify certain provisions of the AAT Act in relation to AAT second review of decisions under the paid parental law. This is necessary since the AAT Act is not primarily 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. New Division 3 would perform the same function as existing Division 3 in this respect.

1767. Existing sections 266 - 267, which concern the provision of documents to the Tribunal on second review, would no longer be necessary. This is because sections 37 and 38 of the AAT Act, which concern the provision of documents, would be amended so as to make their application on AAT second review clear on the face of the AAT Act.

New section 238 - Application of this Division

1768. New section 238 would limit the application of Division 3 to AAT second reviews.

New section 239 - Notice of application for AAT second review

1769. New section 239 would preserve the effect of existing section 264.

1770. Existing section 264 modifies the application of subsection 29(11) of the AAT Act in relation to a review by the AAT of an SSAT decision on review of a claimant decision. 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. The purpose of the modification in the PPL Act is to ensure that parties to the first review are notified of the application for second review.

1771. New section 239 would apply in relation to applications for AAT second review of a decision on AAT first review concerning a claimant decision under this Act. It would modify paragraph 29AC(1)(b)-which is the equivalent of subsection 29(11) as amended by Item 51 of Schedule 1 to the Bill-with the effect that each party to the AAT first review would be notified of the application for second review.

New section 240 - Parties to an AAT second review

1772. New section 240 would preserve the effect of existing section 265.

1773. Existing section 265 modifies the application of paragraph 30(1)(b) of the AAT Act-which provides for the parties to a review-in relation to a review by the AAT of an SSAT decision on review of a claimant 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.

1774. New section 240 would apply in relation to applications for AAT second review of a decision on AAT first review concerning claimant decisions under the PPL Act. It would modify paragraph 30(1)(b) of the AAT Act with the effect that the parties to the AAT first review would be parties to the AAT second review.

New section 241 - Operation and implementation of the AAT decision on AAT second review

1775. New section 241 would preserve the effect of existing section 268.

1776. Existing section 268 modifies the application of section 41 of the AAT Act-which provides the Tribunal's power to make stay orders-in relation to a review by the AAT of an SSAT decision on review of a claimant decision.

1777. To this end, new section 241 would modify section 41 of the AAT Act to ensure 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 242 - Variation of original decision after application made for AAT second review

1778. New section 242 would preserve the effect of existing section 262, and would deal with the effect of variation by an officer of a decision under second review by the AAT.

1779. New section 242 would preserve existing policy whereby if an officer 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 Tribunal, 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 243 - Failure to appear

1780. New section 243 would preserve the effect of existing section 269.

1781. Existing section 269 modifies the application of subsection 42A(2) of the AAT Act-which provides the Tribunal's power to dismiss an application if a party fails to appear-in relation to a review by the AAT of an SSAT decision on review of a claimant decision. The purpose of modification is to ensure that the dismissal power only applies to parties other than the Secretary.

1782. New section 243 would make the same modification in relation to AAT second review.

Item 22 - Part 5 - 5 (heading)

1783. Item 23 would repeal the existing heading to Part 5-5, 'Other matters relating to review'. No substitution is necessary as Item 20 would insert a new Part 5-4 with the same heading.

Item 23 - Subsection 272(1)

1784. Item 23 would omit the phrase 'the SSAT or the AAT (the review body) is reviewing a decision under this Chapter' and substitute 'or the AAT (the review body) is reviewing a decision for the purposes of this Chapter' in subsection 272(1).

1785. Existing section 272 applies to review bodies, being the Secretary, the SSAT and the AAT. It permits review bodies to determine that the PPL Act should apply as if certain events happened, or did not happen.

1786. New section 272 would have the same effect, however, the review bodies would be only the Secretary and the AAT. No other change to the section is intended.

Item 24 - Subsection 273(1)

1787. Item 25 would omit 'the SSAT' where it occurs in subsection 273(1). Section 273 provides that certain income test determinations are not to be changed on review. No change to existing policy is intended. Section 273 would continue to apply to the amalgamated Tribunal.

Item 25 - Sections 273A, 273B and 273C

1788. Item 26 would repeal section 273A, 273B and 273C and substitute a new section 273A.

1789. Existing sections 273A to 273C concern the powers of the SSAT to make non-disclosure orders. These provisions are no longer necessary as there is an equivalent power to make non-disclosure orders in subsections 35(3) and (4) of the AAT Act. It is also noted that existing section 273B, which provides for the variation or revocation of non-disclosure orders, is unnecessary in light of subsection 33(3) of the Acts Interpretation Act.

1790. New section 273A would preserve existing section 263 of the PPL Act, which empowers the Secretary to settle debt proceedings in the AAT. New section 273A would apply on AAT first review and on AAT second review. This provides the flexibility to the Secretary to settle matters at any stage of external review proceedings.


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