Chapter 5 Process for review of reviewable decisions

Part 1 Overview of the review process

47   Summary of the review process for reviewable decision

(1)  The following is a summary of the process involved in the review of a reviewable decision:

Making of decision

An administrator makes a reviewable decision and (where appropriate) gives notice to an interested person of the decision and of review rights in accordance with Division 1 of Part 2.

Seeking reasons and/or internal review

An interested person may seek either or both of the following:

(a)  reasons for the decision under Division 2 of Part 2,

(b)  an internal review of the decision under Division 3 of Part 2.

External review by Tribunal

An interested person may (generally after an internal review) make an application to the Tribunal under Part 3 for a review of the decision.

Arrangements with Ombudsman

A reviewable decision may also be the subject of an inquiry by the Ombudsman under the Ombudsman Act 1974. Section 39 provides that the Ombudsman and the Tribunal may make arrangements for the transfer of matters between them.

Appeal to Appeal Panel of Tribunal

If the Tribunal has reviewed a reviewable decision, a party to the proceedings may appeal to an Appeal Panel of the Tribunal under Part 1 of Chapter 7.

Appeal to Supreme Court

A party to proceedings before an Appeal Panel may appeal against the Panel’s decision to the Supreme Court under Part 2 of Chapter 7 on a question of law.

Part 3 of Chapter 7 preserves the inherent jurisdiction of the Supreme Court to conduct a judicial review of any decision of the Tribunal.

(2)  This section does not affect the provisions of this or any other Chapter that it summarises.

Part 2 Role of administrators

Division 1 Information concerning decision and review rights

48   Notice of decision and review rights to be given by administrators

(1)  An administrator who makes a reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following:

(a)  the decision, and

(b)  the right of the person to have the decision reviewed.

(2)  However, an administrator does not have to give a notice under subsection (1) in relation to:

(a)  a decision that is taken by this or any other Act to be made because the administrator has failed to make a decision within the time limit for making the decision, or

(b)  any of the following decisions, but only if the decision concerned does not adversely affect the interests of any interested person:

(i)  a decision not to impose a liability, penalty or any kind of limitation on a person,

(ii)  a decision making an adjustment to the level of periodic payments to be made to a person as a member of a class of persons where a similar adjustment is being made to the level of such payments to the other members of the class,

(iii)  if an enactment establishes several categories of entitlement to a monetary or other benefit—a decision that determines a person to be in the most favourable of those categories, or

(c)  a decision made by an administrator following an internal review, or

(d)  any other decision or class of decisions prescribed by the regulations for the purposes of this paragraph.

(3)  A contravention of this section does not affect the validity of any decision.

Division 2 Duty to give reasons on request

49   Duty of administrator to give reasons on request

(1)  If an administrator makes a reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision.

(2)  As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons.

(3)  The statement of reasons is to set out the following:

(a)  the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b)  the administrator’s understanding of the applicable law,

(c)  the reasoning processes that led the administrator to the conclusions the administrator made.

(4)  The regulations may:

(a)  exclude any class of reviewable decisions from the application of this section, or

(b)  alter the period within which a statement of reasons under this section must be given.

50   Administrator may refuse reasons in certain cases

(1)  An administrator may refuse to prepare and provide a statement of reasons requested by a person under this Division if:

(a)  the administrator is of the opinion that the person is not entitled to be given the statement, or

(b)  in the case of a decision the terms of which were recorded in writing and set out in a document that was provided to the person—the request was not made within 28 days after the person was provided with the document, or

(c)  in any other case—the request was not made within a reasonable time after the decision was made.

(2)  An administrator who refuses under subsection (1) to prepare and provide a statement of reasons must notify the person requesting the statement, in writing, of the administrator’s refusal and the reasons for the refusal as soon as practicable (and in any event within 28 days) after the request.

(3)  The administrator is not to refuse to prepare and provide a statement of reasons if:

(a)  in the case of a refusal based on subsection (1) (a)—the Tribunal declares, on an application made under section 51 (1), that the person who made the request was entitled to make the request, or

(b)  in the case of a refusal based on subsection (1) (c)—the Tribunal declares, on an application made under section 51 (2), that the person who made the request did so within a reasonable time.

(4)  If an administrator cannot refuse to comply with a request for a statement of reasons because of a decision of the Tribunal referred to in subsection (3), the administrator must prepare the written statement of reasons that was originally requested and provide it to the person who requested it as soon as practicable (and in any event within 28 days) after the Tribunal’s decision.

51   Tribunal may determine whether person entitled to reasons or made request within reasonable time

(1)  The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (a), make an order declaring that the person was, or was not, entitled to make the request to which the notice relates.

(2)  The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (c) on the basis that the person did not make the request within a reasonable time, make an order declaring that the person did make the request within a reasonable time.

52   Tribunal may order administrator to provide a statement of reasons or an adequate statement of reasons

(1)  If an interested person has requested a statement of reasons under section 49 but has not received it within the period specified by or under that section, the Tribunal may (on the application of the person) order the administrator concerned to provide the statement of reasons within such time as may be specified in the order.

(2)  If an interested person who requested a statement of reasons under section 49 is given an inadequate statement of reasons, the Tribunal may (on the application of the person) order the administrator concerned to provide an adequate statement of reasons within such time as may be specified in the order.

(3)  For the purposes of this section, a statement of reasons is an adequate statement of reasons only if it sets out the matters referred to in section 49 (3).

Division 3 Internal reviews

53   Internal reviews

(1) Who may apply for an internal review
If an administrator makes a reviewable decision, an interested person may apply for an internal review of that decision under this section.

(2) Requirements for an application
An application for an internal review is:

(a)  to be in writing, and

(b)  to be addressed to the administrator concerned, and

(c)  to specify an address in Australia to which a notice under subsection (6) may be sent, and

(d)  to be lodged at the office (or an office) of the administrator within 28 days (or such later date as the administrator may allow) after the person:

(i)  if the person has requested reasons under section 49—was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or

(ii)  if the person has not requested reasons under section 49—was notified of the making of the reviewable decision, and

(e)  to comply with such other requirements as may be prescribed by the regulations in respect of the making of applications for internal reviews.

(3) Who is to deal with an application?
An application for an internal review of a decision is to be dealt with by an individual (other than the administrator) who is directed to do so by the administrator (the internal reviewer). The internal reviewer directed to deal with an application must be, as far as is practicable, an individual:

(a)  who was not substantially involved in the process of making the decision under review, and

(b)  who is an employee of the administrator or is an employee of the same agency or organisation within which the administrator is employed, and

(c)  who is otherwise suitably qualified to deal with the issues raised by the application.

(4) Material to be considered
In reviewing a decision, the internal reviewer is to consider any relevant material submitted by the applicant.

(5) Review of the application
Following the internal review of the decision, the internal reviewer may:

(a)  affirm the decision, or

(b)  vary the decision, or

(c)  set aside the decision and make a decision in substitution for the decision that is set aside.

(5A) Reviewer has functions of administrator
In exercising a function under subsection (5), an internal reviewer is taken for all purposes to have the right to exercise the same functions under any relevant enactment or other law that the administrator had in making the decision being reviewed.

(5B) Reviewer to notify administrator of decision
An internal reviewer must notify the administrator of the result of, and the reasons for, his or her decision under subsection (5) as soon as is practicable after making the decision.

(6) Notice of result of review and appeal rights
Within 21 days after the application for the internal review is lodged (or such other period as the administrator and person agree on), the administrator must notify the applicant in writing of:

(a)  the outcome of the internal review, and

(b)  the reasons for the decision in the internal review, and

(c)  the right of the person to have the decision reviewed by the Tribunal.

(7) Statement of reasons
For the purposes of subsection (6), an applicant is notified of the reasons for a decision in an internal review only if the applicant is given a statement of reasons setting out the following:

(a)  the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b)  the understanding of the internal reviewer of the applicable law,

(c)  the reasoning processes that led the internal reviewer to the conclusions the reviewer made.

(8) Status of decisions made on internal review
For the purposes of this Act, a reviewable decision that is affirmed, varied or set aside and substituted under subsection (5) is:

(a)  taken to have been made by the administrator (as affirmed, varied or substituted by the internal reviewer), and

(b)  taken to have been made on the date on which the applicant is given a notice under subsection (6).

(9) When an internal review is finalised
An internal review is taken to be finalised if:

(a)  the applicant is notified of the outcome of the review under subsection (6), or

(b)  the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).

Note. Section 55 provides that an interested person may apply for a review of a reviewable decision once an internal review of the decision is taken to be finalised under this subsection.

(10) No internal reviews of decisions previously reviewed under this section
A person is not entitled to a review under this section of any decision previously reviewed under this section or a decision made under subsection (5).

(11) Regulation-making powers
The regulations may:

(a)  prescribe requirements to be observed in relation to the conduct of an internal review under this section, or

(b)  exclude any class of reviewable decisions from the application of this section, or

(c)  alter the period within which an internal review must be conducted or a notice given under this section.

Division 4 Guidelines

54   Guidelines for notices, reasons and internal reviews

(1)  The regulations may prescribe guidelines with respect to any of the following:

(a)  the giving of notices for the purposes of Division 1,

(b)  the giving of reasons under Division 2,

(c)  the conduct of internal reviews under Division 3.

(2)  A person, in taking action under this Part, must have regard to any such guidelines as are then in force.

Part 3 Role of the Tribunal

Division 1 Applications for review

55   When can an application for a review be made?

(1)  A person may apply to the Tribunal for a review of a reviewable decision only if:

(a)  the application is made by an interested person, and

(b)  where the person was entitled to seek an internal review of the decision—the person has duly applied for such a review and the review is taken to have been finalised under section 53 (9), and

(c)  the application is made in the manner prescribed by the rules of the Tribunal, and

(d)  the application is made within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, by the end of the default application period for the decision.

Note. 

1   Section 4 defines interested person to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).

2   Section 53 (9) provides that an internal review is taken to be finalised if:

(a)  the applicant for the review is notified of the outcome of the review, or

(b)  the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).

3   A person may not have an entitlement to seek an internal review because such an entitlement has been excluded by regulations made for the purposes of section 53 (11) or by an enactment.

(2)  The default application period for a reviewable decision is:

(a)  in the case where the applicant has duly applied for an internal review of the reviewable decision—the period of 28 days after the day on which the internal review is taken to have been finalised under section 53 (9), or

(b)  in any other case—the period of 28 days after:

(i)  if the applicant has requested reasons under section 49 for the reviewable decision—the day on which the applicant was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or

(ii)  if the applicant has not requested reasons under section 49—the day on which the applicant was notified of the making of the reviewable decision.

(3)  The Tribunal may deal with an application for the review of a reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(a)  the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned, or

(b)  it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned.

(4)  In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (3), the Tribunal is to have regard to:

(a)  the time when the applicant became aware of the making of the decision, and

(b)  in a case to which subsection (3) (a) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c)  such other matters as it considers relevant.

(5)  The Tribunal may deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests.

56   Fees for applications

(1)  An application to the Tribunal cannot be made unless the fee prescribed by the regulations (if any) in respect of the application is paid.

(2)  An application in respect of which a fee is waived under the regulations (whether at the time of lodgment or otherwise) is taken to be made at the time the application is lodged with the Tribunal.

(3)  This section does not apply to an application made under the Community Services (Complaints, Reviews and Monitoring) Act 1993 for a review of a reviewable decision made under community welfare legislation within the meaning of that Act.

57   Late applications to Tribunal

(1)  Despite section 55 (1) (d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

(1A)  An application by an interested person under subsection (1) must be in writing unless the Tribunal dispenses with the requirement.

(2)  The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired.

(3)  In this section, late application means an application not made within the period or time referred to in section 55 (1) (d).

58   Duty of administrator to lodge material documents with Tribunal where decision reviewed

(1)  An administrator whose reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:

(a)  a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and

(a1)  a copy of any statement of reasons for a decision in an internal review conducted in respect of the reviewable decision, and

(b)  a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

(2)  If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs.

(3)  If the Tribunal or President considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Tribunal or President may, at the request of the party, make an order directing that the copies referred to in that subsection be lodged with the Tribunal within such shorter or extended period as is specified in the order.

(4)  If the Tribunal or President considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator:

(a)  stating that the Tribunal or President is of that opinion, and

(b)  directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator.

(5)  The Registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours.

(6)  If a party to proceedings before the Tribunal seeks a summons under section 84 against an administrator for the production of any document and a copy of that document has been lodged with the Tribunal under subsection (1) or (4), the Tribunal may (on such conditions as it considers appropriate) direct the Registrar to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons.

(7)  Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following:

(a)  an order made under section 59 (Objections to lodgment),

(b)  an order made under section 75 (Proceedings on hearing to be conducted in public),

(c)  section 124 (Effect of Government Information (Public Access) Act 2009),

(d)  section 125 (Privileged documents).

(8)  For the purposes of this section, a reference to a document in the possession of an administrator includes a reference to a document to which the administrator has an immediate right of access.

59   Objections to lodgment

(1)  An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58.

(2)  On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:

(a)  it is satisfied that section 125 operates so as not to require the disclosure of the document, or

(b)  it considers that, if an application were made under section 75 (2), it would be appropriate to make an order under that subsection prohibiting or restricting the publication or disclosure of evidence of the document.

Division 2 Effect of pending applications on reviewable decisions

60   Operation and implementation of decisions pending applications for review

(1)  Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2)  On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3)  The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a)  the interests of any persons who may be affected by the determination of the application, and

(b)  any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c)  the public interest.

(4)  While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

61   Restrictions on ordering stay of proceedings

(1)  The Tribunal may not:

(a)  make an order under section 60 unless the administrator who made the decision to which such an order would relate has been given a reasonable opportunity to make submissions in relation to the matter, or

(b)  make an order varying or revoking an order in force under section 60 (including an order as varied) unless the following persons have been given a reasonable opportunity to make submissions in relation to the matter:

(i)  the administrator who made the decision to which such an order would relate,

(ii)  the person who requested the making of the order,

(iii)  if the order has previously been varied by an order or orders under section 60—the person or persons who requested the making of the only, or the later or latest, such order.

(2)  This section does not prevent the Tribunal from making an order under section 60 without giving to any person referred to in that section a reasonable opportunity to make submissions in relation to a matter if the Tribunal is satisfied that, because of the urgency of the case or otherwise, it is not practicable to give the person such an opportunity.

(3)  If an order under this section is made without giving such an opportunity to the administrator who made the decision to which the application relates, the order does not take effect until a notice setting out the terms of the order is served on the administrator.

62   Conditions of stay order

(1)  An order in force under section 60 (including an order that has previously been varied on one or more occasions) is subject to such conditions as are specified in the order.

(2)  Any such order has effect:

(a)  if a period for the operation of the order is specified in the order—until the expiration of that period or, if the application is decided by the Tribunal before the expiration of that period, until the decision of the Tribunal on the application takes effect, or

(b)  if no period is so specified—until the decision of the Tribunal on the application takes effect.

Division 3 Powers on review

63   Determination of review by Tribunal

(1)  In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)  any relevant factual material,

(b)  any applicable written or unwritten law.

(2)  For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3)  In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a)  to affirm the reviewable decision, or

(b)  to vary the reviewable decision, or

(c)  to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d)  to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

64   Application of Government policy

(1)  In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

(2)  The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.

(3)  The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.

(4)  In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

(5)  In this section:

Government policy means a policy adopted by:

(a)  the Cabinet, or

(b)  the Premier or any other Minister,

      that is to be applied in the exercise of discretionary powers by administrators.

65   Power to remit matters to administrator for further consideration

(1)  At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

(2)  If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a)  affirm the decision, or

(b)  vary the decision, or

(c)  set aside the decision and make a new decision in substitution for the decision set aside.

(3)  If the administrator varies the decision:

(a)  the application is taken to be an application for review of the decision as varied, and

(b)  the person who made the application may either:

(i)  proceed with the application for review of the decision as varied, or

(ii)  withdraw the application.

(4)  If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:

(a)  the application is taken to be an application for review of the new decision, and

(b)  the person who made the application may either:

(i)  proceed with the application for review of the new decision, or

(ii)  withdraw the application.

66   Effect of a review decision

(1)  A decision determining an application for a review of a reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision.

(2)  If any such decision varies, or is made in substitution for, an administrator’s decision, the decision of the Tribunal is taken:

(a)  to be the decision of the administrator (other than for the purposes of a review under this Chapter), and

(b)  to have had effect as the decision of the administrator on and from the date of the administrator’s actual decision, unless the Tribunal orders otherwise.