C07/2005 IMPLEMENTATION OF DECISIONS OF THE ADMINISTRATIVE APPEALS TRIBUNAL (THE AAT); AND NOTIFICATION OF RIGHT TO APPEAL

Purpose

This Departmental Instruction provides procedural guidelines to State offices for implementation of decisions of the AAT and for the referral of decisions of the AAT for appeal to the Federal Court

Background

On 30 October 2001 the Commission Decision CM5266 was handed down regarding recovery of arrears after an appeal to the Federal Court.  The Commission noted that it is bound to comply with the terms of an AAT decision and pay the resultant rate of pension from the date of the decision, being the date the Commission receives a written copy of the decision.  Further, the Commission agreed that the veteran or widow is to be notified that an appeal may be considered, and if it is successful, action will be taken to recover any overpayment of benefits that has occurred.

More recently, on 27 October 2003, the Federal Court of Australia handed down a judgment in the matter of Repatriation Commission v Nugent.  The Court raised some specific concerns regarding the knowledge of staff regarding the commencement of the appeal period after an AAT decision is published and the necessity to implement AAT decisions without undue delay.

Sub-section 43(5A) of the Administrative Appeals Tribunal Act 1974 (the AAT Act) provides:-

    Subject to subsection (5B), a decision of the Tribunal comes into operation

    forthwith upon the giving of a decision.

Appeals to the Federal Court

The Administrative Appeals Tribunal Act 1975 provides at section 44(2A) that an appeal from a decision of the AAT may be instituted “not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows;...”

Notification to claimants

If payment action is completed within the 28 day appeal period, the veteran or widow should be notified that there is a possibility of an appeal to the Federal Court.

Appeal Submissions to National Office

Staff may consider that a decision of the AAT should be appealed to the Federal Court of Australia.  If so, submissions should be made through Local Management to National Advocacy Co-ordinator in the Veterans' Compensation Branch at National Office.

Such submissions must be made at the earliest possible time after receiving the decision.  Because time starts to run from the receipt of the decision, there must be no delay in making submissions.

ACTION

1. On receipt of an AAT decision setting aside and substituting its decision or varying a decision of the Veterans' Review Board and the Repatriation Commission, action must be taken to comply with the decision.
2. If all implementation action has been taken and the resultant pension payment is to be made within 28 days of the receipt of the decision, the veteran or widow must be notified in the following terms:

“The Commission, being a party to the AAT decision, has a right to appeal to the Federal Court should it be of the view that the Tribunal has made a serious error of law.  On rare occasions the Commission will be of that view.  In the event that the Commission does appeal to the Federal Court and is ultimately successful, the Commission is bound to institute action to recover any moneys paid as a result of the decision of the AAT.”

Contact

The contact officer for further information is Cathy Binnington on x16492 or e-mail to Cathy.Binnington@dva.gov.au.