You are here

Making Decisions Under the VEA

Document

Last updated: 25 November 2008

Commission not bound by rules of evidence

VEA?

The Commission does not have to act in a formal manner, nor is it bound by rules of evidence when making decisions in relation to pensions. Evidence such as hearsay evidence which would not be admissible in a court of law, may be used by a delegate to establish reasonable satisfaction in a case.

Example where rules of evidence need not apply

If a widow relates stories that her late husband told her about his experiences during his war service in an attempt to illustrate that he incurred danger, this evidence may be accepted, whereas it would be inadmissible in court.

Commission's decisions are to be made on substantial justice of cases

VEA?

The Commission, when considering, hearing, determining or making a decision in relation to:

  • claims,
  • applications,
  • reviews,
  • variations,
  • suspensions, and
  • cancellations;

shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities.

Meaning of substantial justice

Substantial justice implies that the decision maker must accord the claimant procedural fairness (or natural justice) in the manner in which the decision-making process is conducted. The decision maker must:

  • afford an opportunity to be heard to a person who will be adversely affected by the decision,
  • be disinterested or unbiased in the matter to be decided,
  • ensure that similar cases are dealt with in the same way, and
  • ensure that similar outcomes occur for similar cases.
Delegate required to examine all bases

A delegate must examine all apparently valid bases before rejecting a claim. If a claimant's main argument is not substantiated by the evidence they provided, but supported by other evidence they may have omitted, a decision may still be made in their favour.

Administrative decision making

When making a determination based on a ruling in the VEA, decision makers must comply with the general principles of administrative law. Section 5(1) of the Administrative Decisions (Judicial Review) Act 1977 provides for circumstances in which an administrative decision may be judicially reviewed. The Administrative Review Council (ARC) Best Practice Guide 2 - Natural Justice explains the implications of natural justice (or procedural fairness) for decision makers and its connection with public service values and standards of conduct. .     

Natural justice

Natural justice requires that administrators adhere to a fair decision-making procedure. Although fair procedures tend to result in better decisions, the concern is not whether the decision itself is fair, it is the decision-making process that must be fair. Statutes sometimes require administrators to make a decision that could be regarded as unfair—for example, to require someone to repay an overpaid allowance. For legal purposes, however, a fair decision is one that is properly made, in accordance with the statute and the rules of natural justice.     

Rules of natural justice

There are two primary rules of natural justice. The 'hearing rule' is that people who will be affected by a proposed decision must be given an opportunity to express their views to the decision maker. The 'bias rule' is that the decision maker must be impartial and must have no personal stake in the matter to be decided.      

More ?

Federal Court and Income Support Matters - Administrative Decisions (Judicial Review) Act 1977

Section 12.5.4 Federal Court and Income Support Matters

More ? (go back)