125 Considered decision or review after deemed decision

(1) At any time before the agency or the Minister is informed of an application for review of a decision the agency’s principal officer or the Minister is taken to have made under section 27(5) or 57(2) before the commencement of this section (the deemed decision), the agency or the Minister, may, and is taken always to have been able to, continue to consider the application and make a decision in relation to it (a considered decision).

(2) If a considered decision is or was made, the considered decision replaces, and is taken always to have replaced, the deemed decision for the purposes of this Act.

Examples—

1 The agency or the Minister must give notice of the considered decision under section 34 or 58(2).

2 The considered decision is, and is taken always to have been, potentially subject to internal review under section 52 or 60, in addition to external review under part 5.

3 Any protection provided by this Act to a person or agency applies, and is taken always to have applied, for acts or omissions in relation to the considered decision.

(3) However, the commissioner may continue to deal with an application for review of a deemed decision made before the commencement of this section despite there being a considered decision when the application for review was made.

(4) Despite section 73(1)(d), if the deemed decision is taken to have been made more than 28 days before the commencement of this section, an application for review of the deemed decision may be made, and is taken always to have been able to be made, at any time.

(5) To remove any doubt, it is declared that if the deemed decision is taken to have been made not more than 28 days before the commencement of this section, section 73(1)(d) applies as if the reference in that section to written notice were a reference to written notice under section 124(2).

(6) To remove any doubt, it is also declared that—

(a) the validity and effectiveness of a considered decision made before the commencement of this section was not, and is not, affected by any relevant lack of power to make the considered decision; and

(b) a person or agency has, and is taken always to have had, the same protection for acts or omissions in relation to a considered decision made before the commencement of this section as the person or agency would have had if the considered decision were not affected by any relevant lack of power; and

(c) any review of a considered decision made before the commencement of this section was not, and is not, affected by any lack of power to review the considered decision because of any relevant lack of power to make the considered decision; and

(d) a person or agency has, and is taken always to have had, the same protection for acts or omissions in relation to a review of a considered decision made before the commencement of this section as the person or agency would have had if the considered decision were not affected by any relevant lack of power.

(7) In this section—

relevant lack of power means a lack of power because of section 27(5) or 57(2).