7.3 Second review of claimant decisions

Introduction

A person has the right to seek a review if they are not satisfied with a decision of Centrelink. Where an individual does not understand a decision, they can request an explanation of the decision, which will be provided by a subject matter expert within Centrelink. Where an individual does not agree with a decision, they can apply for a formal review of the decision which will be undertaken by an ARO.

Following a review by an ARO, an external review of a decision can be undertaken by the ART. A person whose interests are affected by an ART reviewable claimant decision can apply for a second review of the decision.

Exception: An application for second review cannot be made if the ART reviewable claimant decision was made in accordance with a signed written agreement between the parties to the ART review.

Decision to be reviewed

The ART reviewable claimant decision being reviewed in a second review is for an ART reviewable claimant decision that has been:

• affirmed by the ART - the decision as affirmed
• varied by the ART - the decision as varied
• set aside and remade by the ART - the decision as remade, or
• set aside and remitted to the decision maker by the ART- the decision as set aside.

Features of a second review

An application for second review proceeds largely the same as an ART review (7.2.1) with some modifications and clarifications.

• References to the decision maker should be taken to mean the decision maker of the initially reviewed decision rather than the ART itself. In most cases this would mean 'the Secretary' is considered the decision maker for the second review.
• The decision maker is not required to give the ART a statement of reasons and relevant documents within 28 days after being notified of the second review application (7.2.3).
• An application for second review of a claimant decision cannot be made by a person in their capacity as an employer.
• An application for second review must be made within 28 days after the ART review decision is made, unless a longer period has been set out in ART rules or a person has applied to the ART to extend the period and the ART has ordered the period extended.
• The parties to the second review include the persons who were parties to the initial ART review (7.2.1) unless they have given written notice to the ART of their wishes to withdraw from being a party (and are neither the applicant nor decision maker) or the ART has removed them as a party for failing to appear or not complying. Employers are also not able to apply to be a party to a second review of a claimant decision. The President of the ART must give written notice to each participating party to the second review that the second review has commenced.
• Once an application has been made for ART review or second review, the decision being reviewed cannot be altered except by the Tribunal, unless the variation has been consented to by all parties to the review and the ART, and the decision has been remitted to Centrelink.
• Generally, although listed as a party to an ART review, Centrelink has elected not to participate in an ART review (although they can still be required to participate by the Tribunal). However, for a second review, Centrelink is not taken to have automatically provided an election notice not to participate and will generally participate in ART second review proceedings.
• The ART may have regard to any records of the initial ART review as well as any evidence taken or documents/things given to the ART or any order or recommendation of the ART made during the earlier review.
• At any time during the second review, the ART may remit the decision being reviewed to the decision maker asking them to reconsider the decision. Once the decision has been reconsidered the ART review will resume with the reviewable decision being reviewed now being the decision as affirmed, varied or substituted rather than the decision the application was originally about.
• A person party to the ART review cannot make an application to refer either the ART's decision in the ART review or the second review decision to the guidance and appeals panel (1.1.G.30). However, the ART President may still, on their own initiative, refer an application to the guidance and appeals panel.
• Generally, a party to the ART review wishing to refer the ART's decision to the Federal Court has 28 days from the ART providing a statement of its reasons for its decision to do so. However, any day between the day the second review application is made and the ART responds to the application is not counted towards this 28 day period. This ensures a person’s ability to refer a decision to the Federal Court is not affected by the ART's administration.

Operation & implementation of the ART review decision on second review

Applying for second review does not automatically affect the operation of the Tribunal's decision or prevent the taking of action to implement the decision. However, once the application has been made, the Tribunal, on application by a party to the second review, may make an order staying (or otherwise affecting) the operation or implementation of either decision if it considers it is desirable to do so. Such an order is subject to any conditions specified and, unless a different period is stated in the order, has effect until the decision of the Tribunal on second review comes into operation.

The Tribunal on second review will not make, vary or revoke a stay order until all parties to the ART review are given a reasonable opportunity to make submissions in relation to the matter and taken into account the interests of affected persons, unless the Tribunal is satisfied it is not practicable to give a party the opportunity. In such a case, the order, variation or revocation does not take effect until a notice setting out its terms is given to the party not given the opportunity.

ART decisions on second review

The ART has the same decision making powers to resolve a second review as they have in relation to the initial ART review. These include:

• dismissing the application (and subsequently reinstating it if neccesary)
• making a decision agreed to by the parties
• affirming the reviewable decision
• varying the reviewable decision
• setting aside the reviewable decision, and
  • making a decision in substitution for the reviewable decision, or
  • remitting the matter to the decision maker for reconsideration in accordance with any orders or recommendations of the Tribunal.