(a) the second determination does not become void from the time when it was made; and
(b) the mere setting aside of the second determination does not of itself revive the first determination.
(6) For the purposes of this section, a person is taken to have applied for review of a determination (the primary determination) if:
(a) the person applies for review of another determination or decision; and
(b) a review of the primary determination is necessary to resolve the issues raised by the review of that other determination or decision.
138 Notification of further rights of review
(1) If a person (the decision‑maker) gives another person notice under section 136, the notice must include:
(a) a statement to the effect that the other person may, subject to the social security law and the ART Act, apply to the ART for review of the decision‑maker’s decision; and
(b) a statement about the decision‑maker’s decision that:
(i) sets out the reasons for the decision; and
(ii) sets out the findings by the decision‑maker on material questions of fact; and
(iii) refers to the evidence or other material on which those findings were based.
(2) A contravention of subsection (1) in relation to notice of a decision does not affect the validity of the decision.
(3) Paragraph (1)(a) does not apply in relation to a decision that is not reviewable by the ART (see section 144).
Division 2A—Internal review of certain Commissioner decisions relating to student start‑up loans
138A Decisions reviewable under this Division
Each of the following is a reviewable decision for the purposes of this Division:
(a) a decision by the Commissioner under section 1061ZVHE of the 1991 Act (Commissioner may defer making assessments);
(b) a decision by the Commissioner under section 1061ZVHF of the 1991 Act (Commissioner may amend assessments).
138B Commissioner must give reasons for reviewable decisions
(1) The Commissioner’s notice to a person of the making of a reviewable decision must include reasons for the decision.
(2) Subsection (1) does not affect an obligation, imposed upon the Commissioner by any other law, to give reasons for a decision.
138C Reviewer of decisions
(1) The Commissioner is the reviewer of a reviewable decision for the purposes of this Division, subject to subsection (2).
(2) If:
(a) the reviewable decision was made by a delegate of the Commissioner; and
(b) the decision is to be reconsidered by a delegate of the Commissioner;
then the delegate who reconsiders the decision must be a person who:
(c) was not involved in making the decision; and
(d) occupies a position that is senior to that occupied by any person involved in making the decision.
138D Reviewer may reconsider reviewable decisions
(1) The reviewer of a reviewable decision may reconsider the decision if the reviewer is satisfied that there is sufficient reason to do so.
(2) The reviewer may reconsider the decision even if:
(a) an application for reconsideration of the decision has been made under section 138F; or
(b) the decision has been confirmed, varied or set aside under section 138F and an application has been made under section 138H for review of the decision.
(3) After reconsidering the decision, the reviewer must:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(4) The reviewer’s decision (the decision on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the decision on review; or
(b) if a day is not specified—on the day on which the decision on review was made.
(5) The reviewer must give written notice of the decision on review to the person to whom that decision relates.
(6) The notice:
(a) must be given within a reasonable period after the decision is made; and
(b) must contain a statement of the reasons for the reviewer’s decision on review.
Note: Section 266 of the ART Act requires the person to be notified of the person’s review rights.
138E Notice to ART Principal Registrar
If:
(a) a reviewer makes a decision under subsection 138D(3); and
(b) at the time of the reviewer’s decision, a person has applied to the ART for review of the decision reviewed by the reviewer;
the reviewer must give the ART Principal Registrar written notice of the reviewer’s decision under subsection 138D(3).
138F Reconsideration of reviewable decisions on request
(1) A person whose interests are affected by a reviewable decision may request the reviewer to reconsider the decision.
(2) The person’s request must be made by written notice given to the reviewer within 28 days, or such longer period as the reviewer allows, after the day on which the person first received notice of the decision.
(3) The notice must set out the reasons for making the request.
(4) After receiving the request, the reviewer must reconsider the decision and:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(5) The reviewer’s decision (the decision on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the decision on review; or
(b) if a day is not specified—on the day on which the decision on review was made.
(6) The reviewer must give the person written notice of the decision on review.
(7) The notice:
(a) must be given within a reasonable period after the decision on review is made; and
(b) must contain a statement of the reasons for the decision on review.
Note: Section 266 of the ART Act requires the person to be notified of the person’s review rights.
(8) The reviewer is taken, for the purposes of this Division, to have confirmed the decision if the reviewer does not give notice of a decision to the person within 45 days after receiving the person’s request.
138G Withdrawal of request
(1) A person who has requested the reviewer to reconsider a reviewable decision may, by written notice given to the reviewer, withdraw the request at any time before the review has been completed.
(2) If a request is withdrawn, the request is taken never to have been made.
138H ART review of reviewable decisions
Applications may be made to the ART for review of reviewable decisions that have been confirmed, varied or set aside under section 138D (Reviewer may reconsider reviewable decisions) or 138F (Reconsideration of reviewable decisions on request).
138J Decision changed before ART review completed
Decision varied
(1) If the reviewer varies a reviewable decision under subsection 138D(3) after an application has been made to the ART for review of that decision but before the determination of the application, the application is taken to be an application for review of the decision as varied.
Decision set aside and a new decision substituted
(2) If the reviewer sets aside a reviewable decision under subsection 138D(3) and substitutes a new decision, after an application has been made to the ART for review of the reviewable decision but before the determination of the application, the application is taken to be an application for review of the new decision.
Part 4A—Review by the ART
Division 1—Preliminary
139 Simplified outline of this Part
If a person is dissatisfied with a decision of an officer under the social security law, the person may apply to the ART for a review (an “ART review”) of the decision.
If a person is dissatisfied with a decision of the ART on ART review, the person may apply to the ART for second review.
The rules relating to ART review of decisions are mainly in the ART Act, but the operation of that Act is modified in some ways by this Part for the purposes of those reviews.
The ART Act allows a person to appeal to the Federal Court on a question of law from a decision of the ART.
Division 2—ART review
Subdivision A—Preliminary
140 Application of Division
(1) This Division applies to the review by the ART of a decision of an officer under the social security law, including an employment pathway plan decision.
Note: A review for which an application may be made in accordance with this Division is an ART review (see section 142).
(2) A reference in this section to a decision of an officer under the social security law includes a reference to a determination that the Secretary is taken, by virtue of a provision of the social security law, to have made.
140A Definition of employment pathway plan decision
For the purposes of this Act, an employment pathway plan decision is:
(a) a decision of the Employment Secretary under subsection 40A(3) to notify a person of the requirement to enter into an employment pathway plan, where the notification does not give the person the option of entering into the plan under section 40E; or
(b) a decision of the Employment Secretary under subsection 40D(4) to approve requirements in an employment pathway plan; or
(c) a decision of the Employment Secretary under subsection 40V(1) to vary an employment pathway plan; or
(d) a decision of the Employment Secretary under paragraph 40V(3)(b) to refuse to vary an employment pathway plan.
Subdivision B—ART review: applications
142 Reviewable decisions
(1) Subject to section 144, application may be made to the ART for review (ART review) of:
(a) a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or
(b) a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.
(4) For the purposes of subsection (1), the decision made by the Secretary, the Chief Executive Centrelink or the authorised review officer is taken to be:
(a) if the Secretary, the Chief Executive Centrelink or the authorised review officer affirms a decision—that decision as affirmed; and
(b) if the Secretary, the Chief Executive Centrelink or the authorised review officer varies a decision—that decision as varied; and
(c) if the Secretary, the Chief Executive Centrelink or the authorised review officer sets a decision aside and substitutes a new decision—the new decision.
142A Person who made the decision
For the purposes of ART review of a decision, a reference in the ART Act to the decision‑maker for the decision is taken to be a reference to:
(a) the Secretary; and
(b) if the decision was made by the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) as a delegate of the Secretary or the Employment Secretary—the Chief Executive Centrelink.
142B Decision‑maker taken to have elected not to participate in ART review proceeding
For the purposes of ART review of a decision, the decision‑maker for the decision is taken to have given the ART an election notice (within the meaning of the ART Act) in relation to a kind of proceeding that is a proceeding for ART review of the decision.
143 Application requirement—employment pathway plan decisions
The ART may only carry out an ART review of an employment pathway plan decision if the application for ART review is expressed to be for that decision.
144 Non‑reviewable decisions
The ART cannot review any of the following decisions:
(d) a decision under section 36 or 36A of the 1991 Act;
(da) a decision under section 1061ZZGC of the 1991 Act;
(e) a decision under a provision dealing with the approval by the Secretary of a course, labour market program, program of work for income support payment or rehabilitation program;
(f) a decision under section 16 of this Act;
(faa) a decision under subsection 42AM(1) of this Act;
(fa) a decision under subsection 42P(3) of this Act;
(g) a decision under section 58 or 59 to pay an amount to a person;
(h) a decision to make a payment under section 75 of this Act;
(i) a decision, under subsection 59(3) of this Act, to grant a claim for a pension bonus after the claimant has died;
(k) a decision to give a notice under Subdivision B of Division 6 of Part 3 of this Act;
(l) a decision to give a notice under subsection 123SE(3) or 123SIA(2);
(laa) a decision to give a notice under subsection 123UO(3A);
(lab) a decision to make a payment under subsection 123UP(2);
(m) a decision under section 131 or 145 of this Act;
(n) a decision under Division 1 of Part 5 of this Act;
(o) a decision under section 238 of this Act;
(p) a decision of the Secretary:
(i) determining, under subsection 1100(2) of the 1991 Act, that it is not appropriate for that subsection to apply in respect of a payment or a class or kind of payments; or
(ii) determining, in accordance with section 1100 of the 1991 Act, that a rate of exchange is appropriate for the calculation of the value in Australian currency of an amount (the foreign amount) received by a person in a foreign currency if that rate does not differ by more than 5% from the rate of exchange that was applied when the person received Australian currency for the foreign amount;
(s) a decision relating to the Secretary’s power under section 181 of this Act to settle proceedings before the ART.
145 Secretary may continue payment pending outcome of application for review
(1) If:
(a) an adverse decision is made in relation to a social security payment; and
(aa) the adverse decision is not made under Division 3AA of Part 3 (compliance with participation payment obligations: persons other than declared program participants); and
(b) the adverse decision:
(i) depends on the exercise of a discretion by a person or the holding of an opinion by a person; or
(ii) would result in the application of a compliance penalty period; and
(c) a person applies for ART review of the adverse decision;
the Secretary may declare that payment of the social security payment is to continue, pending the determination of the review, as if the adverse decision had not been made.
(2) A declaration must be by notice in writing.
(3) While a declaration under subsection (1) is in force in relation to an adverse decision, the social security law (other than this Division) applies as if the adverse decision had not been made.
(4) A declaration under subsection (1) in relation to an adverse decision:
(a) takes effect on the day on which the declaration is made or on such earlier day (if any) as is specified in the declaration; and
(b) ceases to have effect:
(i) if the application for ART review is dismissed—on the day the application is dismissed; or
(ii) if the ART makes a decision on ART review of the adverse decision—at the end of the period of 13 weeks beginning on the day the ART’s decision is made, or on an earlier day specified by the Secretary; or
(iii) if the declaration is revoked by the Secretary—on the day the declaration is revoked.
(4A) If:
(a) an adverse decision results in a serious failure period or an unemployment non‑payment period; and
(b) a declaration in relation to the decision ceases to have effect under subsection (4); and
(c) after the declaration ceases, the serious failure period or the unemployment non‑payment period, or the balance of that period, remains to be served;
the period or the balance of the period continues from the day the declaration ceases.
(5) A reference in subsection (1) to a person’s holding of an opinion is a reference to the person’s holding that opinion, whether or not the social security law expressly requires the opinion to be held before the decision concerned is made.
(5A) If a declaration under subsection (1) is in force in relation to a decision for which an application for ART review has been made, the President of the ART must take reasonable steps to ensure the decision is reviewed as quickly as possible.
(6) In this section:
adverse decision, in relation to a social security payment, means:
(a) a decision to cancel or suspend the social security payment; or
(b) a decision to reduce the rate of the social security payment.
146 Guidelines for exercise of Secretary’s power to continue payment
The Minister, by legislative instrument:
(a) is to set guidelines for the exercise of the Secretary’s power to make a declaration under subsection 145(1) affecting payments to persons who are subject to a compliance penalty period; and
(b) may revoke or vary those guidelines.
Subdivision C—ART review: relationship with ART Act
147 Application and modification of ART Act
(1) For the purposes of ART review under this Division, a provision of the ART Act listed in an item of the following table is disapplied or modified as set out in that item, in relation to the decision or matter under this Act set out in that item.