1. Internal Merits Review

1.1 Internally reviewable decisions

An internal review gives a person the opportunity to have a decision reconsidered by the regulatory authority. An internal review is a merits review, which means it allows a new decision-maker to take a fresh look at the matter, with full consideration of all relevant facts, policies and law. This may involve a review of the entire decision, including evidence.

The National Law sets out which decisions made by regulatory authorities are internally reviewable. These are outlined in the table below.

Internally reviewable decisions (section 190)
Provider approvals	Refusal to grant provider approval Amendment of provider approval Refusal to amend provider approval Impose a condition on provider approval Suspend provider approval without a show cause notice
Service approval	Refusal to grant service approval Amendment of service approval Refusal to amend service approval Impose a condition on service approval Suspend service approval without a show cause notice Refuse to consent to transfer of service approval Revoke a service waiver
Other	Issue a compliance direction Issue a compliance notice

If the application is not for an internally reviewable decision, regulatory authorities should contact the applicant to inform them that the application is invalid and can be refused.

Regulatory authorities should notify the applicant of any other avenues to have the decision reviewed. In some instances, this may mean an external review. External review includes review of the administrative decision-making process by an ombudsman.

Note: Quality rating decisions are also subject to review. This process is informally referred to as first tier review and second tier review and is set out in sections 141 and 144 of the National Law.
For more information, see Assessment and Rating and the Guidelines for First Tier Review and Second Tier Review on the ACECQA website at www.acecqa.gov.au.

1.2 Application for internal review

[ National Law & Regulations, Sections 190–191, 141–143, Regulation 186 ]

A person who is the subject of an internally reviewable decision may apply to the regulatory authority for review.

The person must apply in writing to the regulatory authority that made the decision within 14 days after being notified of the decision (or within 14 days of becoming aware of the decision if they are not notified).

Information that must be included in an application for internal review is set out in the table below.

Information that must be included in an application for internal review
The name of the applicant
Contact details for the applicant, including an address for notification of the decision
Provider approval number or service approval number to which the decision relates
The full name of the person to whom the provider approval or service approval was granted
A statement setting out: the details of the decision, or part of the decision, for which review is sought how the decision affects the applicant the grounds for seeking a review of the decision
Any information that the applicant considers relevant to the review.

Applications and notifications can be submitted to the regulatory authority online using the National Quality Agenda IT System at www.acecqa.gov.au.

Incomplete applications

The timeframe for processing an application does not begin until an application is ‘valid’, meaning complete with all the prescribed information.

If an application does not include all prescribed information the regulatory authority may treat the application as invalid and request missing information be provided within a set timeframe.

The National Law does not specify how much time applicants have to provide this information once requested by a regulatory authority. Regulatory authorities will set timeframes taking into consideration:

the amount and complexity of the information requested
the applicant’s capacity to provide information in that timeframe
whether a timeframe applies to when the applicant must submit the application.

If an applicant does not supply the information requested by the regulatory authority, a record of the incomplete application must be retained.

Timeframe for conducting internal review

[ National Law, Section 191 ]

An internal review must be conducted within 30 days after the application is made. This period may be extended by up to 30 calendar days if the regulatory authority requests more information, or with the agreement of the applicant.

1.3 Conducting an internal review

[ National Law, Section 191 ]

An internal review must be conducted by a person who was not involved in the assessment or investigation of the person or service.

The person conducting the review may ask the applicant for more information.

How is a review conducted?

An internal review is a merits review, which means it allows a new decision-maker to take a fresh look at the matter, with full consideration of all relevant facts, policies and law (see Good Regulatory Practice for more information about what type of information must be included in a decision record).

In a merits review, the new decision-maker is expected to make the ‘correct and preferable’ decision and may sometimes consider new evidence. New evidence should be considered where it is relevant and will help the decision maker come to the correct and preferable decision. In some cases, this may mean that a decision made during merits review is based on factors that were not present at the time of the original decision. For this reason, a different decision on a merits review does not necessarily indicate that the original decision was ‘incorrect’.

Even if there was no error of fact or law when the first decision was made, the decision-maker for the review might exercise their discretion or judgement in a different way, making a different decision.

An internal review is a review of the original decision only, so cannot consider a different application. For example, a review on a decision to reject an increase to the maximum number of children at a centre-based service cannot consider a request for a smaller increase to the maximum number of children. The review can only reconsider the original request. If an applicant wishes to change the nature of an application that has been rejected, the applicant should submit a new application, rather than request an internal review.

Who should conduct a review?

Any person conducting the review must not have been involved in the assessment or investigation of the person or service that was the subject of the decision. This means that the original decision-maker, as well as staff who were involved in collecting evidence, making an assessment or preparing a recommendation for the original decision cannot conduct the review. While the conducting officer will most likely be from the same department, where possible the conducting officer should be from a different team.

The person(s) making the review decision should have:

access to all relevant information, including information submitted by the applicant in the review application, and all information used by the regulatory authority in making the original decision
relevant knowledge of administrative processes and requirements
a solid understanding of the relevant provisions of the National Law and Regulations, in particular the requirements relating to reviews
effective communication skills
conflict resolution skills to aid working with the applicant and staff within the regulatory authority.

What is the process for conducting a review?

The process for conducting a review is set out below.

Review process
Step 1	Receive request for review and decide whether it has been provided within 14 days of the applicant having been notified of the original decision (or within 14 days of the applicant becoming aware of the decision if they were not notified). If the request has not been received in the required timeframe, the application is not valid and must be refused.
Step 2	Register request for review on the NQA IT System. The regulatory authority has 30 days to conduct the review.
Step 3	Acknowledge receipt of the application.
Step 4	Assign request for review to an individual officer or a panel, making sure the officer or panel members were not involved in the original decision.
Step 5	Validate the application by: checking the regulatory authority has the power to conduct an internal review of the decision checking the application form is complete ensuring all supporting documentation referenced in the application has been included determining whether the grounds for the review have been satisfied (if the legislation specifies the grounds for requesting a review) and decide if further information is needed. If the request is not for review of a reviewable decision, it is invalid.
Step 6	If required, seek further information from the applicant and staff of the regulatory authority such as: evidence of the grounds for requesting review notes, evidence or any other information considered in original decision comment on the grounds of the request for review from those involved in the original decision any other relevant information required, as determined by examining the information provided by the applicant and/or regulatory authority staff involved in the original decision. The timeframe for conducting the review is extended by 30 days if more information is requested from the applicant. The timeframe may also be extended by 30 days with the agreement of the applicant.
Step 7	Assess the application. In some situations the regulatory authority may decide to seek legal advice on a request for review.
Step 8	Consistent with the principles of good decision-making (set out in Good Regulatory Practice), determine whether to affirm the original decision or make a new decision. The person making the decision must confirm that they have the appropriate delegation to do so under the National Law.
Step 9	Prepare a statement of reasons, clearly setting out the basis for the decision.
Step 10	Notify applicant of the decision and provide the statement of reasons. Notification should also include information about the applicant’s right to external review by a tribunal or court (if applicable), or by an ombudsman. (Refer to the table of contacts in Review of the administrative process by an ombudsman, below).

Table of contents