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CM5063 Application of Keeley in SoP cases
REPATRIATION COMMISSION GUIDELINES
CM 5063 - Application of Keeley in SoP cases
For Delegates of the Repatriation Commission
These Guidelines are not directives and should not be used as a substitute for the proper application of the law to the particular circumstances of each case.
For Advocates appearing on behalf of the Repatriation Commission
These are instructions and should be presented to the Administrative Appeals Tribunal as the view of the Repatriation Commission in relation to the particular circumstances of each case.
Guidelines set out the Repatriation Commission's position on the legislation concerning the application of Statements of Principles. They are based on the words of the legislation and the interpretation given to them in the Courts. The Guidelines indicate the way in which the Commission believes the legislation should be applied.
An Instruction to an Advocate is the expression of the Repatriation Commission's position on an issue and is the approach to be taken by all Advocates.
Repatriation Commission Decision CM 5063
REVIEWS AFFECTED BY THE FEDERAL COURT DECISION IN KEELEY
PRIMARY DECISION TO RECORD Statements of principles USED
Section 31 REVIEWS NOT TO BE UNDERTAKEN
The Federal Court in Keeley v Repatriation Commission ruled that the Statement of Principles (SoP) that applied at the time of determining the primary claim for disability must be applied at all stages through the review process. This ruling, if correct, prevents using a current SoP that has been revoked and replaced since the primary claim was determined.1
The Repatriation Commission's view is that this ruling is inconsistent with:
- the intent underlying the SoP regime - that decision makers should apply current sound medical-scientific evidence when determining claims; and
- the Full Federal Court decisions in Ogston - which broadly dealt with the issue of which SoP should be applied.
The Keeley ruling would not assist veterans where later medical-scientific evidence results in the revocation and substitution of a new SoP during the review process that is more favourable to the applicant. For example, the carcinoma of the prostate SoP now includes consumption of a high animal fat diet as an additional factor to those listed in the original SoP.
The Commission has lodged an appeal to the Full Federal Court in the matter of Keeley. The Commission's appeal in Keeley will be heard on 1 December 1999.
Although the Commission considers that the Full Federal Court decision in Ogston is correct, the applicant is seeking review of that decision by the High Court. The special leave application to the High Court is to be heard on 30 November 1999.
The outcome of the appeals may not be known for several weeks after the hearings are concluded.
The Commission has also lodged protective appeals to the Federal Court against two decisions of the AAT that have applied the Keeley approach - Ginniff.
Although the Commission's view is that Keeley is wrongly decided and that the Full Federal Court reasoning in Ogston governs the situation, Commission has decided to await the outcome of the appeals in Keeley and Ogston. In the meantime the following advice is provided.
Repatriation Commission Instruction
Delegates of the Repatriation Commission should consider the following advice.
1.Primary delegates must record SoP applied
The decision in Keeley does not directly affect the primary decision-maker. However, further along the review chain the SoP used to make the first decision may become an issue. If the Commission is not successful in the Ogston and Keeley appeals it will be essential that the SoP applied by the primary decision-maker is easy to identify.
This is essential because:
- where the review body makes a decision on the current SoP and that is the same SoP as applied at the primary level, the Keeley ruling does not apply; and
- where the review body is likely to follow Keeley and apply the SoP used by the primary decision-maker, any amendments or replacement since the primary decision must be able to be identified.
All primary decision-makers should record the SoP they apply in their reasons for decision.
The Decision Support Section is currently arranging for a new field in the CCPS to allow for this record. However, in the interim decision-makers must record in their reasons for decision the name and number of the SoP they apply in making their decision.
There is no need to place a copy of the SoP on file if it is correctly identified.
2.No section 31 review
Until the courts determine otherwise (and despite an alternate view being open) the decision of the Federal Court in Keeley is to be regarded as binding on decision-makers when they determine an application for review. However, the Commission has appealed this decision as it considers it is incorrect and contrary to the intent of the legislation.
Delegates should consider declining to undertake any section 31 reviews where the SoP that applied at the time of the primary decision has subsequently been amended or replaced.
3.Reasons for not undertaking a s31 review
When declining to undertake a section 31 review, the following explanation should be included in the advice letter:
“As a result of the Federal Court decision in Keeley, the question of which Statement of Principles to apply on a review is not clear. The Repatriation Commission is currently seeking to have this issue clarified by the courts. In these circumstances, as a Delegate of the Commission I will not conduct a section 31 review in any matter where the SOP has been amended or replaced after the primary decision has been made.
4.Instruction to AAT advocates
The President of the AAT has been requested to issue an instruction to all members that affected AAT applications are to be adjourned pending resolution of the appeals in Ogston and Keeley. The President's agreement to this strategy has not been confirmed to date.
The Commission instructs advocates in the conduct of cases.
All advocates are instructed to:
a)request adjournments where the SoP that applied at the time of the primary decision has subsequently been amended or replaced – it should not be implied in any way that Keeley is correct; and
b)notify DIR(PER) or DIR(ALE) of decisions of the AAT (if any) that rely on the ruling in Keeley.
Acting Branch Head
15 October 1999
1.This was based on the Court's finding that the application of section 50 of the Acts Interpretation Act 1901 was not excluded by the words of the Veterans' Entitlements Act 1986. It should be noted that Keeley does not cover the situation where a SoP has been amended and the wording of the amending SoP is such that it applies to all matters to which the original SoP applied. There are relatively few of these and in order to simplify the issue this Instruction applies to amended SoPs.