K. Code of Practice for Notification of Reviewable Decisions and Rights of Review by the Administrative Appeals Tribunal

The Administrative Appeals Tribunal (Code of Practice) Determination 2017 (Code of Practice), published by the Administrative Appeals Tribunal, sets out the requirements of notices of review of rights.

The Code of Practice is available.

Reviewable decisions

The following decisions are subject to review [HESA section 206-1]:

Item Decision Provision under which decision is made Decision-maker<
1AA A decision to impose a condition on the approval of a provider. subsection 16-60(1) The Minister
1AB A decision to vary a condition imposed on the approval of a provider. subsection 16-60(2) The Minister
1A A decision that section 36‑20 does not apply to a person. section 36‑20 (a) the higher education provider with whom the student was enrolled in the unit; or
(b) if the *Secretary made the decision the section does not apply – the Secretary
2 Refusal to re‑credit a person’s *FEE‑HELP balance. subsection 104‑25(1) (a) the higher education provider with whom the student was enrolled in the unit; or
(b) if the *Secretary made the decision to refuse the re‑crediting – the Secretary
2A Refusal to re‑credit a person’s *FEE‑HELP balance. subsection 104‑25(2) (a) *Open Universities Australia; or
(b) if the *Secretary made the decision to refuse the re‑crediting – the Secretary
3 Deferral of making an assessment or refusal to defer the making of an assessment. section 154‑45 The *Commissioner
4 Amending the assessment or refusal to amend an assessment. section 154‑50 The *Commissioner

* To find definitions of asterisked terms, see the Dictionary in Schedule 1 to HESA.

The decisions referred to in items 1A and 2 of the table are made by the provider on the Secretary’s behalf. The decisions referred to in item 2A of the table are made by OUA on the Secretary’s behalf.

The provider must provide a person with a Notice of Review Rights if they make a reviewable decision.

An example of a notice is as follows:

“THIS TYPE OF NOTICE SHOULD ONLY BE PROVIDED WHEN A REVIEWABLE DECISION HAS BEEN MADE"

If you think this decision is wrong, you may request reconsideration by someone who was not involved in making this decision. You will need to make your request in writing and must include the following information:

  • the date of this decision; and
  • the reasons why you are requesting reconsideration.

You should also include any additional evidence that you think is relevant.

Send or deliver the reconsideration request to: [INSERT POSTAL ADDRESS]

Time limits apply. Your application must be made within 28 days [or insert greater time period – but no less than 28 days: Higher Education Support Act 2003 section 209-10 and subsection 209-10(2)].

[INSERT NAME, POSITION] will:

  • review the original decision
  • assess any new evidence provided by you; and
  • provide you with a written notice of the decision.

If, after [INSERT NAME, POSITION] has reconsidered the decision, you are dissatisfied with the outcome, you may apply to the Administrative Appeals Tribunal (AAT) for a Review of Decision. The application must be lodged at the AAT within 28 days of receiving notice of [INSERT NAME, POSITION]’s decision. You will be provided with further information about this process at the time you are notified of that decision.

See the Administrative Appeals Tribunal website for further information on this process.”

A provider’s decision not to re-credit a person’s FEE‑HELP balance under HESA section 104-25 is an example of a ‘reviewable decision’. The person has a right to have this decision reconsidered by the provider.

Reconsideration of a reviewable decision

The Secretary has delegated the power to reconsider decisions made by providers to review officers of providers. Accordingly, upon receipt of a request for reconsideration, the provider should arrange for a review officer of the provider (other than the first decision-maker) to reconsider the decision and make a decision (under HESA section 209-10) either confirming, varying or setting aside the reviewable decision. A 28-day time limit applies to a request for reconsideration of a decision but the person reconsidering the matter can grant an extension of time [HESA subsection 209-10(2)].

A reconsideration of a reviewable decision occurs when:

  • after the reviewable decision is made, the person seeks to have that decision reconsidered internally and that decision is confirmed, varied or set-aside under HESA section 209-10. This is done by an officer of the provider other than the first decision-maker; or
  • a reviewer* decides to reconsider the reviewable decision internally on their own motion and have that decision confirmed, varied or set-aside under HESA section 209-5.

* ‘Reviewer’ defined in section 209-1 and clause 94 of Schedule 1A of HESA.

Where a reviewable decision has been reconsidered, the person is able to apply to the AAT for a further review of that decision. These cases are managed by the department. See HESA section 209-1.

The provider must provide a person with a Notice of Review Rights if a decision is made under the following sections of HESA:

  • 209-5: Reviewer may reconsider reviewable decisions and
  • 209‑10: Reconsideration of reviewable decisions on request.

An example of this notice is as follows:

THIS TYPE OF NOTICE SHOULD ONLY BE PROVIDED WHEN A REVIEWABLE DECISION HAS BEEN RECONSIDERED

If you disagree with this decision, you may apply to the Administrative Appeals Tribunal (AAT) for review. The application must be lodged at the AAT within 28 days of receiving this notice.

This time limit may be extended in limited circumstances by order of the AAT. The AAT’s address is: [INSERT POSTAL ADDRESS OF NEAREST AAT REGISTRY LOCATION].

If you apply to the AAT for review of a decision, you must pay an application fee of $920 (as at June 2019). In certain circumstances a reduced fee of $100 can be paid. These circumstances include where a person receives youth allowance, Austudy or ABSTUDY Centrelink payments or if the fee would cause the person financial hardship. You must provide the AAT with evidence that you are eligible to pay a reduced fee.

To ask for a fee reduction due to financial hardship you must fill in the Request for fee reduction form. You should send the Tribunal this form when you lodge you lodge your application if you are seeking an application fee reduction.

This standard application fee is subject to change and you should confirm the fee with the Tribunal Registry before you lodge an application. Your application cannot proceed until you pay the application fee. In certain limited circumstances you can receive a refund or partial refund of the application fee. The AAT can provide you with further information about the basis on which you may qualify for a refund or partial refund of the application fee.

See www.aat.gov.au for further information on this process”.

Review by the AAT

A person may make an application to the AAT for a review of a provider’s decision to refuse to re‑credit, remit and/or repay (which has been confirmed, varied or set aside on reconsideration), and may supply additional information to the AAT they did not previously supply to the provider, including the provider's reviewer.

The Secretary of the Department is the respondent for cases that are before the AAT. When the department receives notification of an application to the AAT, it may choose to review the original decision under HESA paragraph 209-5(2)(b).

Once the department has received notification from the AAT that the person has applied for the review under section 27 of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Secretary must lodge, in accordance with section 37 of the AAT Act, the following documents with the AAT within 28 days:

  • a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
  • every document or part of a document that is in the decision-maker’s possession or under the decision-maker’s control and is considered by the decision-maker to be relevant to the review of the decision by the AAT.

Upon receipt of a notification from the AAT that a person has filed an application for review of decision, the department will notify the provider(s), in writing, that a request for review has been lodged. To enable the department to meet the statutory timeframe for lodging relevant documents with the AAT, a provider must give the department copies of all the documents it holds that are relevant to the appeal within five business days of them being requested. The provider should keep any originals and copies of the documents in accordance with their normal record-keeping practices.

Subject to there being a current delegation of powers by the Secretary of the department to enable review officers of providers to review original decisions of providers, a provider may, in accordance with HESA paragraph 209-5(2)(b), reconsider a decision for which review is being sought by the AAT. The provider must advise the department if a decision is made to re‑credit, remit and/or repay following reconsideration. However, until a person withdraws their AAT appeal, or the appeal is dismissed or otherwise closed by the AAT, the department must comply with section 37 of the Administrative Appeals Tribunal Act 1975. Therefore, a provider must still review all relevant documents to the department within the five business days, unless the department advises otherwise. The department will manage the progress of the proceedings before the AAT and advise the provider of the outcome. The department may seek assistance from the provider throughout the course of the proceedings, if required, in terms of, for example, requests for further information or evidence which the provider may hold which is relevant to the proceedings.

Review by review officer

A person has the right to apply for a review of a decision to not re-credit their FEE-HELP balance [HESA Schedule 1A subclause 96(1)]. The person’s request must be made in writing and given to the review officer within 28 days from the day the person first received notice of the original decision, or a longer period as allowed by the review officer [HESA Schedule 1A subclause 96(2)]. In the written request, the person must state the reasons why they are asking for a review [HESA Schedule 1A subclause 96(3)].

If a full fee-paying student has paid their fees up-front, and did not request VET FEE-HELP assistance, the review procedures under HESA do not apply. In this instance, the student cannot under HESA, request a review or refer the matter to the Administrative Appeals Tribunal (AAT).

In deciding whether to grant an extension of the 28-day period, the review officer should take into consideration any matters they consider appropriate, such as explanations provided as to why the person has not applied for the review within 28 days.

After receiving the request, the review officer must:

  • reconsider the decision and either:
    • confirm the decision
    • vary the decision; or
    • set the decision aside and substitute a new decision [HESA Schedule 1A subclause 96(4)]; and
  • notify the person in writing of the decision [HESA Schedule 1A subclause 96(6)], and if applicable, of the day the decision takes effect [HESA Schedule 1A subclause 96(5)]; and
  • the notice under HESA Schedule 1A subclause 96(6) must contain the reasons for making the decision [HESA Schedule 1A subclause 96(7)]; and
  • advise the person of their right to appeal to the AAT for a review of the reviewer’s decision if the person is unsatisfied with the outcome [Administrative Appeals Tribunal Act 1975 section 27A and HESA Schedule 1A clause 97]; and
  • advise the person that any such appeals to the AAT must be lodged within 28 days of the date of the reviewer’s decision [Administrative Appeals Tribunal Act 1975 section 29(2) and HESA Schedule 1A clause 97]; and
  • provide the applicant with the contact details and address of the nearest AAT registry and the approximate costs of lodging an appeal.

If the reviewer does not give the person a notice of the decision within 45 days after receiving the person’s request, it is taken that the reviewer has confirmed the decision [HESA Schedule 1A subclause 96(8)].