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Australian Government - Australian Charities and
                    Not-For-Profit Taskforce

Review Procedure - Specific Instance Complaints

Introduction

  1. If you consider that the Australian National Contact Point (ANCP), in coming to a final decision, has failed to treat you with appropriate fairness, you may request a review. This note explains what you should do. It sets out the procedure that has been put in place by the Oversight Committee to consider reviews and the possible outcomes of a successful review.
  2. References to the ANCP Published Procedure refer to the "ANCP Procedures for dealing with complaints brought under the OECD guidelines for multinational Enterprise", which can be found on the website: wwww.ausncp.gov.au.
  3. “You” refers to the person requesting the review and “we” refers to the secretariat to the Oversight Committee co-ordinating the review.

Initial Request for a Review

Who can request a review?

  1. A review may only be requested by one of the parties to the complaint.

How do you request a review?

  1. The covering e-mail or letter circulating the ANCP final statement will normally include a paragraph which briefly sets out your right to request a review. A request for a review must be in writing but does not need to be in any specific format. It must identify the final statement to be reviewed and why you think it should be reviewed. All correspondence relating to a review request may be made by e-mail.

When can a review be requested?

  1. A review may be requested where the ANCP does not accept a Specific Instance in its initial assessment or following the conclusion of a complaint and the issue of the final statement to the parties.

What about time limits?

  1. You have up to 10 working days from the date of the ANCP final statement to ask (in writing) for a review of the decision.
  2. You then have a further 10 working days from the date of requesting the review to provide full particulars of why you think that the ANCP decision should be reviewed.
  3. The review process will normally be completed within 75 working days of receipt of a request and we will promptly notify you and the other party to the complaint of the outcome.
  4. We expect that time limits will normally be observed. Late applications will only be considered if there are good reasons why deadlines have been missed.

Consequences arising from a request for a review

  1. In the event of a request for a review being received within 10 working days, a final statement may not be published until after the review is completed.

Reasons For a Review

What is the purpose of the review procedure?

  1. The review process is intended to identify if there were any procedural errors in the ANCP decision-making process and, if so, ensure they are corrected where possible.

In what circumstances should you consider requesting a review?

  1. You might want to consider requesting a review if the ANCP has failed to comply with the ANCP Published Procedure. Examples of such failure might be:

    13.1. failure to issue a final statement in accordance with the timetable set out in the Published Procedure;

    13.2. failure by the ANCP to give you an appropriate opportunity to be heard;

    13.3. failure to meet your reasonable requirements in relation to the treatment of your witnesses, confidential or other sensitive information.

  2. You may also consider requesting a review if the ANCP has failed to treat you with appropriate fairness in the circumstances of the case.

What are the limits of the review?

  1. You should be aware that the review can only deal with procedural errors, and will not examine the substance of any ANCP decision.

What do I need to provide if I request a review?

  1. Once you have put in a request for a review you have 10 working days in which to provide full particulars of why you think the ANCP has deviated from the Published Procedure or why you have not been treated with appropriate fairness. This does not need to be very formal but should provide examples and any other supporting information you think relevant. Everything should be provided in writing, and can be delivered by hard copy or e-mail.

Review Process

  1. This section of the notice sets out the procedures we will follow upon receipt of a request for a review. The process is normally a paper based review only.

Review Panel

  1. The quorum for a Review Panel is three and will comprise members of the Oversight Committee.

Circulation of information

  1. When we receive a review request, we will promptly acknowledge receipt and ask you to provide full particulars, if you have not already done so, within 10 working days.
  2. We will promptly circulate a copy of the request to each member of the Oversight Committee, which will act as a review panel, together with a copy of the ANCP final decision. We will ask Oversight Committee members to declare any interest or involvement they may have which will affect the complaint.
  3. We will notify the Oversight Committee of the likely timetable for a review and find out which members are available during that time.
  4. We will also send a copy of the request to the ANCP and to the other party to the complaint.
  5. Promptly on receipt of full particulars we will circulate copies to the ANCP, all Oversight Committee Members and the other party to the complaint.

Ineligible, frivolous or vexatious requests

  1. If at any stage we consider that a request is ineligible, frivolous or vexatious we will notify the Oversight Committee of our opinion and recommend that the request be refused.

Comments by the ANCP and the parties

  1. The ANCP will then have 30 working days to comment in writing on the request and provide any background information it considers will assist the Oversight Committee. ANCP comments may include recommendations for rectifying errors in procedure identified by the review request.
  2. We will circulate the ANCP comments to both parties to the complaint. Each party will be given 10 working days to comment on any matter relevant to the review.
  3. We will circulate ANCP comments and any additional comments of the parties to all members of the Oversight Committee.

Impartiality of Committee Members

  1. Any Oversight Committee member who has been actively involved in the decision-making process for the complaint will not be entitled to participate as a member of the review panel.
  2. An Oversight Committee member shall notify the secretariat of an active interest in the complaint. That Oversight Committee member may choose to withdraw from the review process or ask the secretariat to declare that interest and ask the parties to the complaint if they consent to that Oversight Committee member taking part in the review. If any of the parties object, that member will take no part in the review process.

Consideration of the Request

Review Panel

  1. The Review Panel will determine its own proceedings and how best to consider the information provided. It will make a recommendation to the Oversight Committee within 15 working days of circulation of the papers.
  2. If the Review Panel considers that the recommendation should not be published, or only a summary should be published, it may set out its reasons in an appendix to its recommendation. The Review Panel may also suggest that publication be delayed until a final statement is published.

WHAT IS THE OUTCOME OF A REVIEW?

  1. If the Oversight Committee considers that there were good grounds for the request the Committee may:

    32.1. remit the decision back to the ANCP with instructions on how to rectify the procedural irregularity;

    32.2. acknowledge that there were deficiencies in the ANCP process in the Specific Instance and make recommendations as to how those errors can be avoided in the future. However, the Committee will not replace the ANCP decision with its own appraisal.

  2. If the decision is sent to the ANCP for reconsideration the ANCP will re-open the case in accordance with the instructions of the Committee, correct the deficiencies and, if necessary, reconsider its final statement.
  3. No further request for the review of that decision may be made.
  4. If the Oversight Committee considers the request for a review is not well founded it will notify the ANCP and both parties to the complaint. The ANCP will then post the final statement on the website: www.ausncp.gov.au.

PUBLICATION OF REVIEW FINDINGS

  1. The final recommendation approved by the Oversight Committee will normally be published promptly on the ANCP website, unless the Oversight Committee considers there is a good reason to withhold or delay publication or only publish a summary.