Part 3Division 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) an internal 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 such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).Note. 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) However, subsection (1) (b) or (d) does not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under section 53 if the Tribunal is satisfied that:(a) the person was not at any time entitled to apply for an internal review of the decision, or(b) the person made a late application for an 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 decision of the administrator concerned, or(c) it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned.(3) 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 (2), 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 (2) (b) 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.
(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 in writing 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.(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 time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).
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(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 (Application of Act to exempt documents under Freedom of Information Act 1989),(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.
(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.
(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.
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.