349Chief of the Defence Force initiating reconsideration of determinations

#### 349 Chief of the Defence Force initiating reconsideration of determinations 8 Subsections 349(1) to (3) Repeal the subsections. 9 Subsection 352(2) Repeal the subsection. 10 After subsection 354(1A) Insert: (1B) If: (a) a person applies to the Tribunal for review of a decision (the reviewable decision) that is a reviewable determination made by the Board; and (b) that reviewable determination is a determination affirming an original determination made by the Commission; and (c) in the course of the review by the Tribunal, the person provides to the Tribunal a document relevant to the review; and (d) the Tribunal is satisfied that, at the time when the Board made the reviewable determination, the Board did not have the document and the person could have provided the document to the Board without unreasonable expense or inconvenience; and (e) the Tribunal is satisfied that, if the Board had the document at the time when the Board made the reviewable determination, the Board would have made a determination more favourable to the claimant than the reviewable determination; then section 42D of the Administrative Appeals Tribunal Act 1975 applies in relation to the review by the Tribunal of the reviewable decision as if references in that section to the person who made the decision were instead references to the Commission. (1C) If, under subsection 42D(1) of the Administrative Appeals Tribunal Act 1975 (as modified by subsection (1B) of this section), the Tribunal remits the reviewable decision to the Commission for reconsideration of that decision by the Commission: (a) subsections 42D(2), (5), (6) and (7) of that Act do not apply in relation to that remittal; and (b) the Commission must reconsider that decision, and do one of the following things, within the period of 28 days beginning on the day on which that decision was remitted to the Commission: (i) affirm that decision; (ii) vary that decision; (iii) set aside that decision and make a new decision in substitution for the decision set aside; and (c) if the Commission has not reconsidered that decision, and done one of those things, within that 28‑day period, the Commission is taken to have affirmed that decision; and (d) subsections 42D(3), (4) and (8) of that Act apply in relation to that remittal. > Note: Section 42D of the Administrative Appeals Tribunal Act 1975 applies normally in respect of other kinds of reviewable determinations. 11 After subsection 357(6) Insert: (6A) If, in any proceedings, the Tribunal varies or sets aside a reviewable determination made by the Board, the Tribunal must not make an order under subsection (2) or (4) in favour of a claimant in relation to the costs of those proceedings if: (a) in the course of the review by the Tribunal, the claimant provided to the Tribunal a document relevant to the review; and (b) the Tribunal is satisfied that, at the time when the Board made the reviewable determination, the Board did not have the document and the claimant could have provided the document to the Board without unreasonable expense or inconvenience; and (c) the Tribunal is satisfied that, if the Board had the document at the time when the Board made the reviewable determination, the Board would have made a determination more favourable to the claimant than the reviewable determination. (6B) If, in any proceedings, the Tribunal varies or sets aside a reviewable determination made by the Board, the Tribunal must not make an order under subsection (2) or (4) in favour of a claimant in relation to the costs of those proceedings if the Tribunal is satisfied that: (a) in connection with the review by the Tribunal or Board, the claimant was granted legal aid under a Commonwealth, State or Territory legal aid scheme or service; or (b) the claimant failed, without reasonable excuse, to appear at the hearing of the review by the Board; or (c) in connection with the review by the Board, the claimant failed to comply with a direction under subsection 148(4B) of the Veterans’ Entitlements Act 1986; or (d) the claimant failed to comply with a notice under section 330 before the Commission made the original determination in relation to which the reviewable determination was made. (6C) If, in any proceedings, the Tribunal remits a reviewable determination made by the Board to the Commission as mentioned in subsection 354(1C), the Tribunal must not make an order under subsection (2) or (4) in favour of a claimant in relation to the costs of those proceedings. 12 Section 359 Omit “Sections 356, 357 and 358 do”, substitute “Section 356 does”. 13 Application provision The amendments made by this Schedule apply in relation to original determinations made on or after the commencement of this item.