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Reconsideration of a decision

Under Part 6 of the Act, a person affected* by a decision made by WEA under the Scheme, can apply to WEA for a reconsideration of the decision.

Applications must be made on the Application to Reconsider a Decision form and must set out the reasons for the reconsideration of a decision.  The non-refundable application fee of $3,344.00 must also accompany the form.
   
Applications must be made within 28 days after the person was notified of the original decision, or longer if granted an extension by WEA.   

* A ‘person affected’ is limited to those who are substantially and adversely affected by a decision.  This effect must be real or certain.  The potential for, or speculative expectation of, detriment does not by itself constitute the necessary effect to be a ‘person affected’.  The mere fact that a person is a commercial competitor of the person to whom a decision of WEA relates is not sufficient to allow such a competitor to appeal to WEA for a reconsideration of that decision under this clause.  A decision by WEA to allow a commercial activity that has the potential to commercially or competitively affect another party is not intended to render that party an ‘affected person’ for the purpose of Part 6 of the Act.

Processing of applications

When reconsidering a decision WEA will only consider the information that was before it at the time of making the original decision.  If further information is provided in an application for reconsideration, WEA will only consider it where WEA is satisfied special circumstances exist.
   
WEA must make a decision on the application within 30 days of receiving it.  WEA will make one of the following decisions:

    • to affirm the original decision;
    • to vary the original decision; or
    • to revoke the original decision.   

WEA will advise the applicant in writing of its decision.  If WEA does not provide written notice to the applicant within 30 days, WEA is taken to have affirmed its original decision.

Within 28 days of WEA providing written notice of a decision to the applicant, WEA will also provide the applicant with the reasons for the decision. 

The reconsidered decision will have the same legal effect as an original decision made under the Scheme.

Rights of review

Merits review

Part 6 of the Wheat Export Marketing Act 2008 confers certain rights on a person in relation to decisions made by WEA under the Wheat Export Accreditation Scheme 2008.   Under s 68, an application may be made to WEA for reconsideration of such a decision.
   
Furthermore, under s 70, an application may be made to the Administrative Appeals Tribunal (AAT) to review such a decision if WEA has affirmed or varied the decision on reconsideration.  AAT conducts a review on the merits so that it is in a position whereby it can substitute its own decision for that of WEA.
     
For further information on the AAT and making an application to the AAT, visit http://www.aat.gov.au/

Judicial review

If a person thinks that a decision made by WEA has not been made in accordance with law, they may have a right to seek judicial review of that decision.    For example under the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act), a person may be able to seek judicial review of decisions made by WEA under both the Wheat Export Marketing Act 2008 and the Wheat Export Marketing Scheme 2008.
   
Furthermore, if the AD(JR) Act entitles a person to apply for review of a decision made by WEA, the person may be entitled to obtain a statement of reasons from WEA in respect of the decision.   A court is concerned with whether a decision has been made in accordance with law, rather than with the merits of the particular matter.