7.4 Guidance & appeals panel reviews

Introduction

The guidance and appeals panel (1.1.G.30) is a way of constituting the ART for a review at a more senior level. The guidance and appeals panel is able to conduct reviews of some administrative decisions made by agencies and re-review decision made by the ART.

The guidance and appeals panel will broadly be constituted to consider matters where there is either an issue of significance to administrative decision-making, or the ART decision contains an error of fact or law that materially affects the decision.

Applications for review of PPL claimant decisions cannot be made directly to the guidance and appeals panel, as the ART already accommodates for two reviews of such decisions (ART review and ART second review). However, the President of the ART may refer an application for an ART review or second review of an eligible ART reviewable claimant decision to the guidance and appeals panel on their own initiative.

Note: Some elements of ART reviews relevant to reviewing PPL decisions, presented in pages under chapter 7.2 of this Guide, do not apply when in relation to a guidance and appeals panel application. Where the below contradicts information on ART reviews presented elsewhere, the below is correct in relation to guidance and appeals panel applications.

Own-initiative reviews

The president of the ART can refer an application for ART review of a PPL decision to the guidance and appeals panel on their own initiative where they are satisfied that the application raises an issue of significance to administrative decision-making or that it is appropriate in the interests of justice.

In making a referral for an issue of significance, the President of the ART must consider the circumstances of all of the parties to the ART review.

Applications for referral to the guidance and appeals panel for employer decisions

A person who was a party to the ART review of certain reviewable employer determination decisions (1.1.E.70) and employer funding amount decisions (1.1.E.80) may apply to the President of the ART to refer an ART decision to the guidance and appeals panel.

Exception: An application cannot be made for a guidance and appeals panel review of:

• a previous guidance and appeals panel decision
• a decision where at least one of the ART members making the decision is a Judge, or
• a decision made along the terms of a signed written agreement between the parties to the ART review.

Making an application

An application can be made in writing to the President of the ART using the form available on the ART website. The application should include an explanation of why the person considers that the Tribunal decision raises an issue of significance to administrative decision making or may contain an error of fact or law materially affecting the decision. An application must be made within 28 days after the ART gives a statement of reasons for the decision to the parties in the ART review, although the President of the ART may allow for a longer period in special circumstances.

Once an application is received the President of the ART decides whether to refer the Tribunal decision to the guidance and appeals panel or refuse the application. A decision will only be referred where the President is satisfied that the Tribunal decision raises an issue of significance to administrative decision-making or may contain an error of fact or law materially affecting the decision. The President of the ART must also have regard to the circumstances of the parties to the initial ART review and any other matters they consider relevant. The decision will not be referred where there is an outstanding application fee.

Notification

Once an application to refer a Tribunal decision to the guidance and appeals panel is made, the ART must give written notice of the application to:

• the applicant
• the decision-maker of the original reviewable decision made by Centrelink
• any other party to the ART review.

Note: The decision-maker does not refer to the individual Centrelink officer who made the decision.

Once the President of the ART makes their decision on whether to refer the Tribunal decision or refuse the application, they must also give oral or written notice of this decision to the above persons.

Operation and implementation of the ART review decision on application

Applying for referral to the guidance and appeals panel 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 ART review, may make an order staying (or otherwise affecting) the operation or implementation of the 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 either 14 days after the President of the ART refers the decision or until they refuse the application if they do so.

Note: Once the ART decision has been referred to the guidance and appeals panel, the Tribunal may further stay the operation or implementation of the reviewable decision for the purpose of ensuring the effectiveness of the review

The Tribunal 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.

Decision being reviewed

If the President of the ART decides to refer an employer determination or employer funding amount decision to the guidance and appeals panel in response to an application, then the person making the decision is taken to have applied for an ART review of the following decision:

• for an original decision that has been affirmed by the ART-the original decision
• for an original decision that has been varied by the ART-the original decision as varied
• for an original decision that has been set aside and remade by the ART-the new decision, or
• for an original decision that has been set aside and remitted to the decision maker by the ART-the original decision.

Note: References to original decision refer to the decision made by Centrelink.

Parties to the review

If the President of the ART decides to refer a Tribunal decision to the guidance and appeals panel in response to an application, each of the following are parties to the guidance and appeals panel review:

• the applicant for the review
• the decision maker of the original decision (Centrelink)
• any other parties to the original ART review (unless they have withdrawn from being a party or been removed as a party by the ART)
• any other person, if
  • the person applies to the ART to become a party
  • the ART is satisfied that the person’s interests are affected by the decision, and
  • the ART considers it appropriate that the person become a party to the proceeding.

As with the ART review, the Attorney-General of the Commonwealth may become, on written notice, a party to the guidance and appeals panel review.

Records & documents from initial ART Review

If the President of the ART decides to refer a Tribunal decision to the guidance and appeals panel in response to an application, the guidance and appeals panel may have regard to:

• any record of the ART review (including a record of any evidence taken)
• any document or item given to the ART relating to the ART review, and
• any order or recommendation of the ART during the ART review.

Remitting decisions to the decision-maker for reconsideration

At any time during the ART review, the ART may remit the decision being reviewed to the decision-maker asking them to reconsider the decision.

If the ART does so the decision-maker must reconsider the decision and either:

• affirm the decision
• vary the decision, or
• set aside the decision and make a new decision in substitution for the decision set aside.

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.

Tribunal guidance decisions

Decisions of the ART on guidance and appeals panel reviews are Tribunal guidance decisions.

When making future decisions on ART reviews with similar facts or issues to the Tribunal guidance decision, the ART must have regard to the relevant Tribunal guidance decision. However, a failure to have regard to previous Tribunal guidance decisions does not affect the validity of the ART review decision.