Administrative Review Council

Letter 2 Inquiry into administrative review of veteran and military compensation and income support


Writing to the Senate Finance and Public Administration References Committee, the Council gave a generally positive assessment of the performance of the administrative decision-making and review system for veteran and military compensation and income support. The Council considered, however, that measures to encourage earlier production of evidence, especially medical evidence, would be beneficial.


3 September 2003

Mr Alistair Sands
Secretary
Senate Finance & Public Administration
References Committee
Parliament House
Canberra ACT 2600

Dear Mr Sands


Inquiry into administrative review of veteran and military compensation and income support

The Administrative Review Council welcomes the opportunity to make a submission to the Senate Finance and Public Administration References Committee’s inquiry into the options and preferences for a revised system of administrative review within the area of veteran and military compensation and income support.

The Council is a statutory body, established under Part V of the Administrative Appeals Tribunal Act 1975 to advise the Attorney-General on a broad range of matters relating to the Commonwealth system of administrative law. The inquiry is of obvious interest to the Council.

Response to terms of reference

Having regard to its statutory functions, the Council offers the following comments in response to terms of reference (a) and (b) for the inquiry. The Council does not propose to comment on terms of reference (c) and (d) apart from the reference in (c) to onus of proof. Comments relevant to legal aid issues in (e) are dealt with primarily as they arise in the context of terms of reference (a) and (b).

Overview of Council comments

These may be summarised as follows:

Background

The Council notes that aspects of the entitlements and of the regimes subject to the present inquiry have also been the subject of previous inquiries.

The 1999 Tanzer Review of the Military Compensation Scheme[1] and the more recent Clarke Report of the Review of Veterans’ Entitlements[2] are illustrative. The Council notes that a further report on the classifications of war-like and non-war-like service is also pending.[3]

Reports in which review elements of the two regimes have been considered include the Council’s 1983 report Review of Decisions under Repatriation Legislation[4] and a number of reports by the Australian National Audit Office, including Audit Report No. 8 of 1992–3[5] from which the Baume Report, A Fair Go[6], sprang and the Repatriation Medical Authority and the Specialist Medical Review Council established under Parts XIA and B of the Veterans’ Entitlements Act 1986 (the VEA).[7]

Aspects of the review scheme have also been considered in more generally directed reports such as the Council’s Better Decisions report[8], and the Australian Law Reform Commission’s Managing Justice report.[9]

The Council notes that a range of entitlements and a number of legislative regimes and proposed regimes fall for consideration within the scope of the Committee’s terms of reference.

To assist subsequent comment, an overview of the current and proposed system of review for veteran and military compensation and income support follows.

Veterans’ entitlements

Depending on the sort of service, entitlements available under the VEA include:

The Repatriation Commission (the Commission) discharges its role in dispensing these entitlements through the Department of Veterans’ Affairs (DVA).

Entitlements for members of the Defence Force—the Military Compensation Scheme

In addition to those available under the VEA (as amended by the Military Compensation Act 1994), benefits may be paid to injured service personnel in two ways under the MCS depending on the type of service (including warlike, non-warlike and peacetime):

The Military Compensation and Rehabilitation Service, located in DVA since December 1999, provides the following compensation arrangements under the MCS for current and former Australian Defence Force members covered by the SRCA, its predecessor legislation and the Defence Act:

The proposed new Military and Compensation Scheme

The main features of the proposed scheme encapsulated in the Exposure Draft Military Rehabilitation and Compensation Scheme Bill 2003 (the Exposure Draft Bill) released by the Minister for Veterans’ Affairs on 27 June 2003 reflect proposals made in the Tanzer review of the Military Compensation Scheme.[11]

The Bill seeks to in troduce a self-contained safety, compensation and rehabilitation scheme for the Australian Defence Force, covering all future service short of declared war involving generalised mobilisation.
Once the new scheme is implemented, it is understood that it is proposed that the VEA only apply to major warlike situations involving general mobilisation.

Operational and non-operational service

The criteria for eligibility for benefits under all these schemes are complex: in addition to the main categories of those with service that entitles them to a disability or a service pension or to some other form of compensation, there is a further sub-group—those with operational and non-operational service (including warlike or non-warlike service).[12]

Although it does not affect the range and level of entitlement, under the two current schemes and the proposed new scheme as reflected in the Exposure Draft Bill, operational service does affect that standard of proof applicable in establishing entitlement to a disability pension under VEA Parts II and IV and under the other two schemes referred to.

Where a claim relates to operational service, the standard is the more generous ‘reasonable hypothesis’ standard (s 120 VEA, cl 289 Exposure Draft Bill): once a reasonable hypothesis is raised from the evidence linking a disability or death to service, the claim must be accepted unless the decision-maker is satisfied beyond reasonable doubt that there is insufficient ground for accepting the claim.

For other sorts of service, the standard of proof is based on the civil standard of proof: that is, the decision-maker decides the claim to their reasonable satisfaction (s 120 (4) VEA, cl 289(3) Exposure Draft Bill).

The review hierarchy

The nature of the review process available varies depending on the sort of entitlement being sought.

For disability pensions under the VEA, the stages are as follows:

The review hierarchy for service pensions and income support supplements is the same except that it does not involve the VRB: review of the decision of the Commission is by the AAT.

Under the MCS and the Exposure Draft Bill, where operational service is involved, the VRB has jurisdiction to hear review decisions in the first instance and the more generous ‘reasonable hypothesis’ standard applies. In other cases, under the SRCA, review is by the AAT and the standard of proof is that normally applicable in civil proceedings.

Under the Exposure Draft Bill, the SRCA structure of internal review and appeal to the AAT would be retained. However, for compensation claims arising from war-like and non-war-like service, there would be an option to seek review by the VRB as an alternative to internal review by the Military Rehabilitation and Compensation Commission, with further review by the AAT.

The terms of reference—Council consideration

(a) an examination and assessment of the causes for such extensive demand for administrative review of decisions on compensation claims in the veterans and military compensation jurisdictions

High review levels are a feature of the veterans’ and military compensation area. In the Council’s view, this is attributable to a number of factors.

Subject matter

As a general proposition, the Council considers that where complex scientific/medical evidence is an element in the decision-making process, review levels are generally likely to be quite high.

This is born out, again in general terms, when the overall review rates for primary decisions in this area are compared, for example, with those for agencies such as Centrelink.

The number of primary claims finalised under the VEA in 2001–2 was 53,441.[13] In this period there were 15,966 reviews conducted under the VEA (including s 31 VEA, the VRB and the AAT).[14] During the period there were 1,106 applications for review of VRB decisions while during the period, the VRB finalised 3,952 hearings, representing and estimated appeal rate of 28.00%.[15]

In the same period under the MCS:

Of the 296 applications to the AAT, 230 were decided and, of these, 124 (54%) were affirmed by the AAT.[17]

In contrast to the review rates for decisions such as those that might be anticipated for Centrelink, for example, when this rate is compared with that for the SRCA (including Comcare, licensees and the ACT public service), the review levels are much more closely aligned.[18]

Underlying principles

There are important principles of generosity underlying the veterans and military compensation scheme which also undoubtedly contribute to the review rates for decisions in the area by encouraging unsuccessful applicants to seek review and in assisting them in that process.

The principles have been said to revolve around:

Such sentiments have been reiterated and endorsed as recently as this year in the Clarke report, where the review committee adopted the following expression of the core principle of the repatriation system:

In legislative terms, this sentiment is most clearly reflected in the generous standard of proof for those engaged in operational service (s 120 VEA), and in the requirement that both the Repatriation Commission act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities, and that it and the VRB take into account evidentiary difficulties arising as a result of the effluxion of time and the nature of the service (s 119, 138 VEA).[21]

In practical terms, the principles have translated into an extensive and pro-active Ex-Service Organisation (ESO) network which offers assistance to ex-members of the forces seeking to pursue pension entitlements and to non-means-tested legal aid access for those with operational service. In this latter regard, the point in the review process at which assistance is available to potential claimants in making application and seeking review is pertinent.

Difficulties in obtaining evidence and in securing reports at particular stages in the decision-making and review processes may also impact on review levels. Establishment of ‘qualifying service’ for the purposes of service pension benefits may also prove difficult: while the first part of the test, service against the enemy, is quite straightforward, establishment of having incurred danger against hostile forces is less well understood and has led to considerable inconsistency in AAT deci sions.[22]

Another contributing factor may be that many veterans are of mature age, are not engaged in employment activities and may therefore have more time to devote to pursuing claims that others might not be in a position to pursue.

(b) an assessment of the operation of the current dual model of internal review, Veterans’ Review Board and Administrative Appeals Tribunal, its advantages, costs and disadvantages

In responding to this aspect of the terms of reference, the Council has interpreted the reference to the ‘current dual model’ as a reference to the current VEA and MCS schemes.

As noted, the two schemes are complex, involving a range of entitlements, differing review hierarchies, and in the case of the MCS, depending on the nature of the service giving rise to the claim, different legislative regimes.

The objectives of the two schemes are also very different: the VEA is directed at the granting of long-term pension benefits while emphasis under the MCS is upon shorter term compensation with a strong focus on rehabilitation.

The Council does not propose to comment on the desirability or otherwise of the two regimes. There has been much said about both, particularly the MCS, the complexity and inherent difficulties of which are well documented in various reports including the 1999 Tanzer report.[23]

Consistent with its statutory mandate, the Council will concentrate its comments on key features of the review processes, including two-tiered external review.

Key features of the review processes

These include:

In gauging the success or otherwise of the administrative decision-making system, the extent to which the correct or preferable decision is achieved at the earliest stage of the decision-making process is clearly a significant consideration.

Having regard to this criterion, the Council considers that there are encouraging signs with respect to current decision-making and review processes in this area.

The technical scientific/medical nature of much of the evidence under consideration

Good primary decision-making is clearly a pivotal element of a good administrative decision-making process, particularly where complex scientific/medical elements are involved.

A number of important legislative and administrative initiatives have been taken to ensure consistency, quality and timeliness of decision-making. These have had a particular impact at the primary decision-making level.

Statements of Principles

Claims can frequently include a number of conditions and many are difficult to assess. In the past, the decision-making process had been subject to criticism, particularly at the primary level, for lack of consistency within and between states and territories.[24] 

The SoPs were introduced into the VEA[25] in response to such concerns, particularly the interpretation given to section 120 of the Act (reasonable hypothesis linking a veteran’s injury, disease or death with service).[26] 

Their origins lay in the Baume report recommendation that:

The Repatriation Medical Authority promulgates SoPs for injuries, diseases or deaths if it is of the view that the condition or death can be linked to eligible ADF service. The SoPs are founded on the basis that a connection between service and medical condition should be supported by established epidemiological evidence accepted by the RMA, rather than by the expert medical evidence produced in an individual application for pension.[28]

In the report of the review subsequently undertaken of the RMA and the Specialist Medical Review Council[29] it was said of the SoP system that:

Indeed, the success of the SoP system has been such that it is used as a reference framework in other compensation jurisdictions, including in some overseas veterans’ administrations.[31] The SoPs are binding on the Commission, the VRB and the AAT.

An expert system—the Compensation Claims Processing System

The Council notes the impact on the quality of primary decision-making of the use by DVA of an automated administrative decision-making system, the Compensation Claims Processing System (CCPS). In so far as the SoPs codify the link between military service and the source of the claimed incapacity, they assist the CCPS.

The CCPS was introduced progressively in all states from March to September 1994. Available data suggest that the introduction of the CCPS has been accompanied by a reduction in the time taken to process claims and in a decline in the number of appeals to the VRB since 1993–4 of almost 20%.[32]

At the same time as the introduction of the CCPS and the SoPs, DVA introduced ‘single point of contact’ decision-making, with appropriate recognition of the skill of the determining officers.

In combination with focussed training for DVA decision-makers, the positive impact of the reforms is reflected in a reduced time-span for the processing of claims and a reduction in the cost per pension claim. Over the period, the average time taken to process a claim fell from 157 days in 1991–2 to 102 days in 1995–6 and is now said to stand at an average of 62 days in 2001–02.[33]

In terms of cost, the average departmental cost per pension claim fell from $868 in 1991–2 to $541 in 1995–6 and, as at mid-2002, stood at $529.[34]

It has also been noted that acceptance rates for compensation claims at the primary level now stand at around 60% with appeals to the VRB standing at around 30%. In 2001–2 the number of appeals to the AAT was equivalent to only 3% of the decisions completed in DVA in that year.[35]

The Council also notes efforts in 2001–2 to support additional training and development of MCRS staff through national workshops and further enhancement of the MCRS with the introduction of the Quality Assurance Sampling Assessment and Reporting System, developed to improve quality assurance examination.[36] 

Additionally, the Council endorses the ‘reasons for decisions’ initiative instituted by DVA during 2001 to improve the level of understanding of primary decisions referred to in ANAO Report No. 58.[37] Well-documented statements of reasons not only clarify whether or not review is warranted, but also provide assistance to those seeking review of a decision as to the arguments and the evidence required to overturn a ruling.

The review hierarchy

In so far as the review system under the VEA involves internal review, review by a centrally administered intermediate merits review tribunal and provision for final merits review by the AAT, it is consistent with recommendations made by the Council in its 1983 report, Review of Decisions under Repatriation Legislation.

Although individual elements of the system are performing well, the Council notes that coupled with certain other factors, particularly evidentiary ones, distortions may occur.

Internal review

In the Better Decisions report, the Council recognised the importance of internal review in con tributing to the broader merits review system.[38] The Council saw the advantages of internal review as being its speed and easy accessibility and its value for agencies as a quality control mechanism.[39] 

Disadvantages were said to include its capacity to act as a barrier to external review and the potential for inconsistent treatment of clients in different geographic areas and regions.[40]

Under the VEA, internal review is not a compulsory step before application to the VRB or the AAT. Under the VEA ( s 31), the Commission has a discretion to review a decision before an appeal is determined by the VRB. Similarly, internal review is not compulsory under the SRCA (s 64) before seeking review by the AAT.

Information about review rights is provided to applicants when they receive notice of the primary decision. A s 31 review can also be triggered by DVA itself, for example, where further evidence comes to hand after the making of the primary decision. This is also the position under the SRCA (s 62). This position is preserved in the Exposure Draft Bill.

Providing it is quick and sufficiently independent of agency decision-makers, the Council thinks that internal review represents an important means of reducing the level of applications for external review and, therefore, overall review costs.

Since 1996–7, DVA has conducted significantly more internal reviews than previously.[41] In the past, s 31 review powers were used in a limited way. However, as a result of a review of the system in the mid-1990s, with the aim of reducing delays at the VRB stage and saving resources, s 31 is now more extensively used.

The Council also notes ANAO’s finding that DVA’s policy has been effective in reducing the level of appeal to the VRB and, therefore, in reducing costs of external review.[42]

In this latter regard, the Council notes the finding in ANAO Report No. 29, that DVA was not, at that point in time, able to provide assurance that reviews were being conducted consistently across state boundaries.[43] To maximise the benefits of increased levels of internal review, it is important that consistency also be achieved.

Two-tier external review

Specialist review tribunals like the VRB can play a valuable role by acting as a filter to control the numbers of cases going to the AAT. Providing they do this quickly, informally and effectively, they can contribute substantially to the overall administrative review system.

Importantly also, the existence of two-tier tribunals allows the more senior tribunal to focus on normative and systemic objectives while retaining its function of ensuring correct or preferable decisions in obviously contrary cases.

If there is no discernible distinction to be made between the nature of the review available at the first and second levels, then it may well be that the process is inefficient and expensive.

There is no suggestion that this is the case as between the VRB and the AAT. As a specialist tribunal, the VRB has value in so far as it is very familiar with the subject area. In the Council’s view, it also provides a distinct alternative to the AAT in so far as it operates more informally than that Tribunal, proceeding on the papers without legal representation and without agency representation at virtually all hearings.

The Council notes the recent finding of the ANAO that the VRB[44] is ‘managing review adequately within the legislation’.[45] Moreover, the Council notes that in the context of the proposed Administrative Review Tribunal, the VRB received strong support from its primary stakeholders, the ESOs, a support which was actively recognised by the Government in retaining it as a separate entity rather than seeking to incorporate it in that proposed regime. The Council also notes the proposed retention of the VRB in the Exposure Draft Bill.

The ability to bring new evidence at any stage in the review process

The nature of merits review requires tribunals to consider afresh (de novo) the decision under review and make what they consider to be the correct or preferable decision at the time of reconsideration, on the basis of all the relevant material that is before them.

As noted in the Better Decisions report, new information can come to light at any point in the decision-making process and, as a result, decisions are sometimes varied on review, not because of any error but because of changed facts or new information put to the reviewing body.[46] This is a particular likelihood where claims relate back to events that occurred more t h a n a hal f century ago and may involve incomplete and missing war records.

In the Council’s view, to preclude examination of relevant new information in the context of the administrative process would transform the process into something more akin to judicial review.

In Better Decisions, a particular problem identified was a failure on the part of some applicants to obtain relevant information (typically expert evidence) until the original decision is under review by the AAT. In the report, it is suggested that applicants do not present the evidence at the VRB because of a perception that the AAT is more likely to look on it more favourably or that DVA is more likely to make a concession at the AAT level because of the cost of contesting the claim.[47]

It is concluded in the report that altering the nature of the review process would be an inappropriate response to the problem. Rather, appropriate incentives should be introduced to encourage the production of all available information at the earliest possible time.

Amendments to the VEA subsequently made to provide for reimbursement of the costs incurred by applicants in obtaining medical reports in support of applications to the VRB have gone part of the way, at least, to achieving this.[48] The Council noted also that backdating of payments to the date of production of relevant information might also alleviate the problem.[49]

However, the Council notes that, currently, the availability of legal aid and up to $2500 of disbursements for such items as medical examinations at the AAT level provide important incentives for claimants to delay production of new evidence until the highest and most expensive level of review.

In its annual report, the VRB observes that in virtually every case where the decision was varied or set aside, new evidence was before the AAT that was not before the VRB.[50]

The Council endorses the recommendation made in ANAO Report No. 29, reiterated in Report No. 58, that DVA and VRB articulate formal strategies to encourage early settlement of applications for review.[51]

Other

It is remarked in ANAO Report No. 29 that there is a tendency for some applicants to see VRB reviews as an intermediate step to be passed through before the resolution of the case by the AAT, which is perceived to provide a greater chance of the decision favouring the veteran.[52]

This is undoubtedly encouraged also by the high levels of cases conceded by the Commission at the AAT level.

Of the applications that went on review from the VRB to the AAT in 2001–2, 30% were withdrawn by the applicants and 46% were conceded by the Commission. Of the remaining 24% that were finalised by decisions formally published with reasons, 108 (39.3%) involved an affirmation of the decision on review and 167 (60.7%) led to the decision being varied or set aside.[53]

In the comparable period, 33.24% of decisions of Centrelink authorised review officers were changed by the SSAT, 30% of customer appeals were changed in the AAT and 43.43% of agency appeals.[54]

At present, AAT review is available as a matter of course to all applicants whose claims fall within the jurisdiction of the VRB. Consideration might be given to imposing a legislative limitat ion on the circumstances in which such review may be sought, focussing on matters involving issues of general principle and cases involving manifest errors.[55]

The Council notes that this may in fact already happen in practice in the selection by the Commission of the cases which it wishes t o argue in the AAT. However, legislative provision could be directed at encouraging earlier production of all relevant evidence at the VRB stage.[56]

Although the result might be lower review levels and related reductions in costs, the Council would be concerned that an increase in the formality of proceedings in the VRB would result. As noted, part of the value of the VRB lies in its procedures, which are pre sently less formal than those of the AAT.

Assistance in formulating and presenting claims

In formulating and presenting claims, particularly in the veterans area, there is a high level of involvement from ESOs.

A number of programs have been developed to ensure the quality of such services. There is, for example, the Training and Information Program (TIP) administered jointly by DVA and ESO representatives, which provides training and information to ESOs that assist veterans and their dependants in making claims and appeals against decisions of the Repatriation Commission.[57]

Linked with this program is the Building Excellence in Support and Training (BEST) grants program, which provides infrastructure support to ESOs in theirs pensions, advocacy and welfare efforts.[58] The Council also notes initiatives such as the Veterans’ Information Service facility available in 14 Centrelink Service Centres in Queensland, Victoria and South Australia.[59]

It has been said that unrepresented or partially unrepresented parties are less likely to receive a successful outcome in their cases and that where both parties are represented the case is more likely to be settled by consent.[60] However, it has also been suggested that the lack of success is due to the fact that more meritorious cases attract legal aid and that in other cases applicants may wish to do no more than to put their case.[61]

In 2001–2, 80% of applicants before the VRB were represented[62] by ESOs or individuals. During the same period, the Commission was not represented before any VRB proceedings.[63] The Council notes and supports moves by the VRB to encourage higher levels of representation by ESOs including the National Cases Appraisal Register initiative.[64]

Legal and non-legal representation can assist in the identification and securing of evidence, and in the making of submissions on the evidence, the relevant legislation and the case-law. Parties to proceedings before the VRB may be represented but not by legal practitioners.[65]

Most applicants before the AAT are represented by lawyers. In the veterans’ affairs area the level of representation is around 86–90%.[66] The respondent agency is always represented by a lawyer, either from within the agency or outside.

The Council has previously been of the view that there should be no prohibition against lawyers, or any particular group, advising or representing parties in review tribunal proceedings to the extent that advice and representation are permitted in the relevant tribunal.[67] The Council expressed the view, however, that lawyers should be discouraged from importing unnecessary legalism into the tribunal process.[68]

In the Better Decisions report the Council rejected the idea that legal representation should be excluded or limited by law, being of the view that ‘there should be no discrimination against any particular group of representatives on the basis of an assumed correlation with the problem’.[69] Although generally maintaining this view, the Council is not a strong advocate for legal representation in the VRB, providing that ESOs are competent and well trained.

The Council supports the recommendation in ANAO Report No. 58 that to strategies should be put in place to ensure continuing ESO support in the face of increased age and a diminishing pool of voluntary representatives.[70]

Use of expert witnesses

Veteran and military compensation claims often involve extensive medical evidence and a range of medical experts who either provide written reports or oral evidence before the Tribunal.

As illustrated above, the RMA and the SoPs overcome substantial medical evidentiary problems by establishing a medical/scientific frame of reference for claims for service-related injury. However, while narrowing the scope of the necessary medical evidence, the SoPs do not entirely eliminate the need for such evidence.

Problems most commonly associated with expert witnesses include:

Strategies to address these concerns might include:

The AAT’s General Practice Directions require the exchange of expert evidence reports at an early stage in the proceedings. In the Council’s view the administrative process would be enh anced if expert evidence were available, not only at an early stage in the proceedings before the tribunal but also in the decision-making process as a whole. Comments above in relation to the early production of evidence are relevant in this regard.

The Council considers that adoption of such processes could assist better decision-making, reduce the length and adversarial nature of proceedings and, if employed at the VRB level, could reduce the tendency to withhold evidence until the AAT stage of proceedings.

(c) an assessment of the appropriate model for a system of administrative review within a new, single compensation scheme for the Australian Defence Forces and veterans of the future, including compensation claim preparation, evidentiary requirements, facilitation of information provision and the onus of proof.

With the exception of the onus of proof, the Council does not propose to address this aspect of the terms of reference specifically. Rather, it reiterates the comments made in relation to (a) and (b) above in so far as they are relevant.

If, as proposed, a single system is proposed to replace the current dual system, care will be needed to ensure that the principles of compensation and rehabilitation that feature in the current MCS scheme are not subsumed by the conceptions of life-long entitlement to benefits central to many of the benefits available under the VEA.

As there will be a choice between the VRB and the AAT under the proposed new scheme, to ensure the continuing viability of the VRB, consideration might need to be given to providing greater accessibility to assistance at the VRB level to ensure that necessary evidence can be produced at that level.

Onus of proof

There is no onus of proof in relation to proceedings under the VEA (s 120(6)) . This position is preserved in the Exposure Draft Bill (cl 289). As previously intimated, the reasons for the absence of a standard of proof relate back to enduring and largely unassailable considerations of national gratitude.

Even if this were not the case, it is certainly arguable, given the significant difficulties in securing and presenting evidence of events that took place in excess of 50 years ago, that this is a reasonable approach and does not result in a distortion of the review system.

The absence of an onus of proof is also reflective of the approach advocated by the Federal Court in McDonald v Director-General of Social Security, where it was said that ‘the use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution’, this being particularly true of an administrative tribunal which by its statute ‘is not bound by the rules of evidence but may inform itself in such matter as it thinks appropriate’.[75]

(d) identification of policy and legislative change required to amend the system at lowest cost and maximum effectiveness

The Council does not propose to comment on this aspect of the terms of reference: the system has been the subject of extensive examination by go vernment in consultation with a comprehensive range of stakeholders in the context of the proposed reforms encapsulated in the Exposure Draft Bill.

(e) an assessment of the adequacy of non-means tested legal aid for veterans, the appropriateness of the current merits test and its administration, and options for more effective assistance to veteran and ex-service claimants by ex-service organizations and the legal industry

Legal aid

Consistent with the generous disposition towards veterans with operational service, legal aid for those claiming such service is non-means-tested.[76] 

Given their larger population bases, NSW and Victoria are the states in which the highest level of legal aid is provided in this area.

In general terms, aid is restricted to appeals to the AAT and the courts from decisions of the VRB about war-caused disability pension entitlement or assessment claims and war-caused death claims under Part II of the VEA.

In 2001–2 Legal Aid NSW spent $2 ,076,000 on veterans matters. Of the 378 applications for aid received during that period, only 19 (5.5%) were refused. During this period, 4 matters involved the Full Court of the Federal Court, 8 the Federal Court and 2 the High Court.[77]

The bulk of matters involved hearings before the AAT.

As noted earlier in this submission, as a result of the point in the review process at which such aid is available, distortions can occur in the review process, particularly in relation to expert evidence. The Council believes that assistance should be available in relation to the obtaining of such evidence at the earliest possible point in proceedings.

However, the Council would see more benefit in extending the assistance available for the training of ESO personnel and for ESO representation at hearings than in directing increased levels of aid at legal representation at lower levels in the review hierarchy.

In the Council’s view, a significant advantage of the VRB is its capacity to filter cases and to produce speedy and low-cost decisions. Introducing measures likely to encourage increased utilisation of legal representation at this level could be to the detriment of the VRB and claimants alike.

Thank you once again for the opportunity to make a submission to this inquiry. In the event that the Committee would like to discuss any of the foregoing in greater detail, Council member Professor Robin Creyke will be available for that purpose. Professor Creyke may be contacted on tel. no. 02 6125 4636 or through the Council’s Executive Director, Margaret Harrison-Smith on 02 6250 5800.

Yours sincerely
 


Wayne Martin QC
President

[1] Mr N Tanzer AC, The Review of the Military Compensation Scheme, March 1999.
[2] Hon. J Clarke, Air Marshall D Riding, Dr D Rosalky, Report of the Review of Veterans' Entitlements, January 2003.
[3] The review was headed by Brig. David Webster. The system of war-like and non-war-like service is based on definitions agreed by Cabinet in 1994.
[4] Report No. 20, 1983.
[5] Audit Report No. 8, 1992–3, Efficiency Audit; Department of Veterans’ Affairs, Compensation Pensions to Veterans and War Widows.
[6] The Honourable Emeritus Professor Peter Baume AO, AVM; Richard Bomball AO, AFC and Ms Robyn Layton QC, A Fair Go, Report on Compensation for Veterans and War Widows, March 1994.
[7] The most recent ANAO Reports are No. 29 of 2001–2, Review of Veterans’ Appeals Against Disability Compensation Entitlement Decisions and Report No. 58 of 2002–3, Veterans’ Appeals Against Disability Compensation Decisions Follow Up Audit.
[8] Administrative Review Council Report No. 39, Better Decisions: a review of Commonwealth Merits Review Tribunals.
[9] Australian Law Reform Commission Report No. 69, Managing Justice: a review of the federal civil justice system.
[10] The SRCA also applies to other Commonwealth employees. The Act has an important interface with military superannuation schemes for invalidity benefits and offsetting arrangements apply to some income support provisions.
[11] ibid.
[12] Section 6F VEA.
[13] DVA Annual Report 2001–2, 146.
[14] DVA Annual Report 2001–2, 148. See also ANAO Report No. 58, figure 1.2, 26 (Flow of appeals 2001–2).
[15] Veterans’ Review Board Annual Report 2001–2, 56.
[16] Comcare Annual Report 2001–2, 91.
[17] ibid.
[18] Comcare Annual Report 2001–2, 88, although care should be taken in making comparisons between public service and ADF claims.
[19] Dr Allan Hawke, Handling Medical Contentions in the Repatriation System, paper presented at Australian Institute of Administrative Law Seminar, Sydney, 27 October 1994.
[20] Clarke report of Review of Veterans’ Entitlements, paragraph 4.29, 101.
[21] See Robin Creyke, Peter Sutherland, Veterans’ Entitlements Law, Federation Press 2000, 389.
[22] Clarke report, op cit., paragraph 25, 7.
[23] op cit.
[24] ANAO Report No. 8, 1992–3, Compensation Pensions to Veterans and War Widows.
[25] Inserted by the Veterans Affairs (1994–95 Budget Measures) Legislation Amendment Act 1995.
[26] As a result of the decision of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, where high value was afforded to expert medical evidence in establishing the link between a medical condition and military service, it was feared that the vast majority of cases would be accepted irrespective of considerations of merit or consistency.
[27] A Fair Go, Report on Compensation for Veterans and War Widows, 1994, op. cit., paragraph 3.9.
[28] Part XIB was inserted during debate on the Bill in the Senate to provide a means of appeal from determinations of the RMA to a body titled the Specialist Medical Review Council. For further information in relation to this body see Robin Creyke and Peter Sutherland, Veterans’ Entitlements Law, Federation Press 2000, 531–536.
[29] Emeritus Professor Dennis Pearce was appointed to conduct the review. He was assisted by Professor D’Arcy Holman who provided a technical report relating t o the work of the RMA: D Pearce, D Holman, Report of the Review Committee, Part Two, 1997.
[30] ibid., 524.
[31] For a comprehensive record and analysis of these amendments, see Robin Creyke and Peter Sutherland, Veterans’ Entitlements Law, Federation Press 2000, 52 1–524.
[32] ANAO Report No. 29, 2001/2, op. cit., paras 2.4–7.
[33] Figures provided by Dr Neil Johnston, Secretary, DVA at the launch of the Administrative Review Council Issues Paper Automated Assistance in Administrative Decision Making, 19 June 2003.
[34] ibid.
[35] ibid.
[36] See Comcare Annual Report 2001–2, 90.
[37] See ANAO Report No. 58, 16.
[38] Administrative Review Council, Better Decisions: review of Commonwealth Merits Review Tribunals, 1995, paragraph 6.43.
[39] ibid., paragraph 6.49.
[40] ibid.
[41] In 1998, DVA introduced an additional process in which all appeals to the VRB were screened for possible internal review action.
[42] ANAO Report, No. 29, paragraph 3.11.
[43] ibid, paragraph 3.16.
[44] And also DVA.
[45] ANAO Report No. 29, paragraph 13.
[46] Better Decisions, op cit., paragraph 3.85.
[47] Better Decisions, ibid., paragraph 3.86. Similar observations were noted in the Baume Fair Go report, op. cit., paragraphs 5.6.8–5.6.11. In that report, improved communication by DVA decision-makers of the need for the production of evidence in the early stages was suggested.
[48] See ss 170A, B and C relating to the payment of medical expenses, travelling expenses for obtaining medical evidence and the advance of travelling expenses.
[49] Better Decisions, op. cit., paragraphs 3.88–89.
[50] VRB Annual Report 2001–2, 57.
[51] ANAO Report No. 58, paragraphs 2.5–6.
[52] ANAO Report No. 29, paragraph 2.22.
[53] VRB Annual Report 2001–2, 57.
[54] Centrelink Annual Report 2001–2, 39.
[55] Better Decisions, op. cit., paragraphs 8.50–53.
[56] ibid., paragraphs 3.82–96, 8.98–99.
[57] See Department of Veterans’ Affairs Annual Report 2001–2, 109.
[58] ibid.
[59] Centrelink Annual Report 2001–2, 70.
[60] ALRC Discussion Paper 62, Review of the Federal Civil Justice System, paragraph 9.53.
[61] ibid., 454–5 and proposal 12.9, 456.
[62] VRB Annual Report 2001–2, 43.
[63] ibid., 45.
[64] As documented in ANAO Report No. 58, op. cit., paragraphs 3.8–9.
[65] VEA, s 147(2)(a).
[66] ALRC Discussion Paper 62, paragraphs 12.11–12. A high percentage of this representation is through Legal Aid.
[67] Better Decisions, op. cit., Recommendation 25.
[68] ibid., paragraph 3.187.
[69] ibid., paragraph 3.182.
[70] ANAO Report No. 58, paragraphs 16, 17.
[71] For a comprehensive discussion of this topic, see ALRC Discussion Paper 62, Review of the Federal Civil Justice System, paragraph 13.18.
[72] Known as ‘hot tubbing’, this approach is used for example in the Australian Competition Tribunal. It involves the submission of expert statements to the Tribunal which may be modified or supplemented orally during the hearing. The examination of evidence is conducted as a panel discussion between experts, counsel and tribunal members rather than the normal adversarial approach. See Michael Sassella and Sonia Frew, ‘Administrative Law Problem Areas—Reflections on Practice’, 2 003 Administr ative Law Forum, 3–4 July 2003, Canberra.
[73] As an extension of this, tribunal members with particular expertise might be appointed to act as interpreters of expert evidence for other members of the tribunal.
[74] For detailed suggestions in this area see ALRC Discussion Paper 62, op. cit., paragraphs 13.16 and following. See also ALRC Issues Paper 24, 1998, Federal Tribunal Proceedings.
[75] (1984) 6 ALD 6, 9.
[76] Guideline 5, War Veterans’ Matters, Commonwealth Legal Aid Program.
[77] Information provided by the NSW Legal Aid Commission.