Revised Explanatory Memorandum
(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Dan Tehan MP)Schedule 1 - Veterans' Review Board
Overview
Schedule 1 of the Bill amends the provisions of the Veterans' Entitlements Act under which the Veterans' Review Board operates. The amendments will modernise and improve those operations by aligning certain provisions with similar provisions of the Administrative Appeals Tribunal Act.
Background
The Veterans' Review Board (the Board) is a statutory authority whose role is to provide independent merits review of decisions about:
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- disability pension, war widow and widower pensions and attendant allowance under the Veterans' Entitlements Act; and
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- rehabilitation, compensation and other benefits under the Military Rehabilitation and Compensation Act.
Merits review means the Board makes a fresh decision that it considers is the correct or preferable decision in all the circumstances. In doing so, the Board exercises the same statutory powers, and is subject to the same limitations that are conferred on the Repatriation Commission under the Veterans' Entitlements Act, or the MRCC or a service chief under the Military Rehabilitation and Compensation Act.
In conferring additional jurisdiction on the Board, the Military Rehabilitation and Compensation Act applies provisions of the Veterans' Entitlements Act with some modifications. This means that the Board operates under the Veterans' Entitlements Act, as modified, when deciding matters under the Military Rehabilitation and Compensation Act or the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act.
The Board does not have a general power to review decisions made under the Veterans' Entitlements Act or the Military Rehabilitation and Compensation Act. As a statutory tribunal it has only those powers given to it by legislation. The Board must be able to identify a specific provision that authorises it to make a particular decision or take a particular action. Each decision must relate to a prior decision - the decision under review.
The Principal Member is responsible for the overall operations of the Board. The Board comprises a Principal Member, Senior Members, Services members and other members. A National Registrar, Registrars, Deputy Registrars and other staff provide administrative assistance to the Board.
Explanation of the changes
In 2014 amendments were made to the Veterans' Review Board provisions of the Veterans' Entitlements Act to modernise its operations and to more closely align it with other merits review bodies such as the Administrative Appeals Tribunal.
Subsequently, the Tribunals Amalgamation Act 2015 (the Amalgamation Act) provided for the merger of the Administrative Appeals Tribunal, the Social Security Appeals Tribunal and, the Migration Review Tribunal and Refugee Review Tribunal. There were no consequential amendments to the Veterans' Entitlements Act or the Military Rehabilitation and Compensation Act as a result of the merger and the operations of the Board were not impacted upon.
In addition to the merger of the various tribunals, the Amalgamation Act made amendments to the powers of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act to modernise and improve its operations.
The proposed amendments to the Veterans' Entitlements Act will amend the relevant provisions of the Veterans' Entitlements Act to further modernise and align the operations of the Board with those of the Administrative Appeals Tribunal following the amendments made by the Amalgamation Act.
The amendments also support the alternative dispute resolution (the ADR) processes and the recent amendments to the Military Rehabilitation and Compensation Act which provide for a single appeal path for the reconsideration of decisions.
Explanation of the items
Part 1 - Main amendments
Veterans' Entitlements Act 1986
Item 1 repeals and substitutes section 133A.
Repealed section 133A stated the objectives of the Board. The objectives were set out in terms similar to the objectives of the Administrative Appeal Tribunal as set out in section 2A of the Administrative Appeals Tribunal Act. That section was repealed and substituted by the Amalgamation Act.
New section 133A provides that, in carrying out its functions, the Board must pursue the objective of providing a mechanism of review that:
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- is accessible;
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- is fair, just, economical, informal and quick;
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- is proportionate to the importance and complexity of the matter; and
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- promotes public trust and confidence in the decision-making of the Board.
Item 2 inserts new section 137A.
The amendment to insert new section 137A will align the provisions applicable to the Board with those that apply under the Administrative Appeals Tribunal Act. The Amalgamation Act inserted new subsection 38AA(1) which imposed an ongoing obligation on persons who have made a decision that is subject to first or second review - to lodge with the Administrative Appeals Tribunal a copy of any document that comes into their possession that is relevant to the review and has not been lodged previously, until such time as the Administrative Appeals Tribunal determines the review.
New section 137A imposes an ongoing obligation on both claimant and the Department during the period of time until the Board has determined the matter, to lodge with the Board a copy of any document that is in their possession that is relevant to the review under section 135 which has not been lodged previously.
New section 137A requires the claimant and the Department, subject to any directions from the Principal Member under subsection 142(2) (as amended by Item 3 of this Part) to lodge such documents as soon as practicable after it has obtained possession of them.
Item 3 amends subsection 142(2) by inserting new paragraph (h).
Section 142 imposes on the Principal Member the responsibility for the expeditious and efficient discharge of the business of the Board.
Subsection 142(2) provides the Principal Member of the Board with the power to give written directions concerning:
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- the operations of the Board, both generally and at a particular place;
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- the procedure of the Board, both generally and at a particular place;
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- the conduct of reviews by the Board;
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- the arrangement of the business of the Board; and
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- the places in Australia at which the Board may sit.
New paragraph 142(2)(h) will provide the Principal Member with the power to issue written directions concerning the requirement to provide or not to provide documents under section 137A.
Item 4 amends section 145C by inserting new subsection (4).
Section 145C provides that if the parties to a proceeding reach agreement during the course of an alternative dispute resolution (ADR) process as to the decision the Board should make in respect of the whole proceeding (existing subsection 145C(2)) or part of the proceeding (existing subsection 145C(3)), the Board may act in accordance with the parties' agreement, if it is satisfied that the terms of the agreement are within its powers.
The equivalent provision of the Administrative Appeals Tribunal Act is section 34D.
Section 34D was amended by the Amalgamation Act to include new subsection 34D(4) which permits the Administrative Appeals Tribunal to vary or revoke a decision made under section 34D, with the consent of the parties and where it is satisfied that it is within its powers and otherwise appropriate to do so.
That amendment rectifies the omission that at present the Administrative Appeals Tribunal does not have an explicit legislative power to vary or revoke such decisions in appropriate circumstances. Subsection 34D(4) enables the Administrative Appeals Tribunal to implement outcomes satisfactory to the parties where it is within the scope of its powers to do so.
The insertion of new subsection 145C(4) would permit the Board to vary or revoke a decision made under the ADR processes, with the consent of the parties, and where the Board is satisfied that it is within its powers, and otherwise appropriate to do so.
Item 5 repeals and substitutes subsection 148(9). Section 148 sets out the procedures of the Board in the conduct of a review of a decision of the Repatriation Commission.
The amendment to section 148 aligns the provisions of that section with the equivalent in the Administrative Appeals Tribunal Act by adopting the Amalgamation Act amendment which inserted new subsection 33(1AB) into the Administrative Appeals Tribunal Act, requiring the parties and their representatives to use their best endeavours to assist the Administrative Appeals Tribunal to fulfil its statutory objective as set out in section 2A of that Act.
The purpose of the amendment was to assist the Administrative Appeals Tribunal in managing the conduct of reviews, by encouraging parties and their representatives to conduct themselves in a manner that would facilitate the fair, just, economical, informal and quick resolution of the matter at hand (amongst the other aspects of the Administrative Appeals Tribunal's objective).
New subsection 148(9) (a) states the obligations of the Repatriation Commission in a review of a decision to use its best endeavours, and any person representing the Repatriation Commission must use his or her best endeavours to assist the Board in fulfilling the objectives set out in new section 133A (inserted by Item 1 of this Part).
New subsection 148(9)(b) requires applicants and persons representing the applicant to use to use their best endeavours in assisting the Board to fulfil the objectives set out in new section 133A.
Item 8 is an application provision which provides the general rule that the new law (the amendments made by this Schedule) would apply (with exceptions as set out in the item) from commencement day onwards, including in relation to proceedings commenced before commencement day and decisions made before commencement day.
Subitem 8(1) provides that new section 137A (inserted by Item 2 of this Schedule) will apply in relation to documents obtained by a person on or after commencement day. Section 137A impose an obligation to lodge with the Board a copy of any document that comes into their possession that is relevant to the review and has not been lodged previously. The obligation is ongoing until the Board determines the review.
Subitem 8(2) provides that subsection 145C(4) (inserted by Item 4 of this Schedule) does not apply to decisions made by the Board before commencement day. Subsection 145C(4) would provide new powers to the Board to vary or revoke a decision that reflects the agreement of the parties, whether reached through an alternative dispute resolution process or at any other stage of the proceeding, provided that the parties consent to the variation or revocation.
Subitem 8(3) provides that subsection 148(9) (inserted by Item 5 of this Schedule) will apply in relation to an application for review that that is made or after commencement day.
Subsection 148(9) requires the parties to a review to use their best endeavours to assist the Board in fulfilling the objectives set out in new section 133A.
Part 2 - Consequential amendments
Military Rehabilitation and Compensation Act 2004
Item 9 makes a consequential amendment to subsection 353(1) of the Military Rehabilitation and Compensation Act to include a reference to new section 137A of the Veterans' Entitlements Act (inserted by Item 2 of this Schedule).
Item 10 inserts new table item 8A into the table in subsection 353(2) of the Military Rehabilitation and Compensation Act. The item refers to the application and modification of section 137A of the Veterans' Entitlements Act for the purposes of a review by the Board of an original determination under the Military Rehabilitation and Compensation Act.
Commencement
Clause 2 provides that the amendments made by Schedule 1 commence on the day after the Act receives Royal Assent.