Advisory from Disability Compensation Branch

No 2/99

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

THE PROPER FUNCTIONS OF DELEGATES OF THE REPATRIATION COMMISSION AND THE DEPARTMENT OF VETERAN AFFAIRS

Compensation

Income Support

Health

Background

Letters to the Minister and the Secretary, contact with members of the Repatriation Commission and complaints to the Department have concerned the role of delegates.  In particular there is a concern about the treatment of supporting material by delegates of the Repatriation Commission.

These materials include Departmental Instructions, Commission Guidelines and commentary in CCPS.  It includes advice contained in the General, on CLIK and ELMNET.  It can be in the form of training and processing guides (official and unofficial).  The material also includes notes taken by delegates from their original training, legal opinion sought from and provided by Legal Services group and advice provided by policy areas in National Office.

The task and role of a delegate

The immediate problem identified is that there are delegates for the Repatriation Commission who do not now and have never understood or appreciated the task of a delegate.

Primarily the principle that is most misunderstood and not appreciated is that a delegate cannot be directed by anyone in the performance of the function of delegate of the Repatriation Commission or of the Department.

That is not to say that the Repatriation Commission or the Department of Veterans' Affairs cannot issue “Guidelines” or “Instructions” on certain matters.

Similarly State Offices can issue directions on the distribution of or availability of resources necessary conduct an investigation into a claim from a veteran or veterans' partner.

However, no-one can “direct” a delegate to make a particular decision or even to make a particular “finding of fact” (see Commission Guidelines CM 5017).

Sometimes delegates have a view that it if is not specifically stated in the legislation, guidelines, General Orders that we can do it then it will not be done.  Rather there should be an approach that if it is not specifically excluded by the legislation or if I have advice that I accept that it is not specifically excluded then it may be able to be done if the legislation is not compromised.

What is the purpose of seeking advice or “instructions”?

A delegate can seek the opinion of anyone as to the proper or intended operation of the Veterans' Entitlements Act 1986.  That source can be the representative of the veteran, an ex-service organisation a researcher, an expert or the policy or legal advice areas of the Department.

All such advice in whatever form that it takes is just an “opinion”.  That opinion might be on a set of facts or on how the legislation operates. That opinion may be persuasive or suggestive it may even be simply a rational explanation but it cannot take the place of the legislation.

Advice that conflicts with the lawful and proper operation of the Veterans' Entitlements Act 1986 can never supplant the legal requirements of the Act.

Advice that is overtaken by decisions in the Courts is no longer valid.  Indeed policy that may have had approval from the Repatriation Commission many years in the past cannot supplant the intent of the legislation especially when later Federal Court, or High Court, decisions have indicated the proper meaning and application of the legislation.  There may even be persuasive decisions by the President of the Administrative Appeals Tribunal.

What does this apply to?

This advice applies to all advice that may have been requested from someone in the past.  It includes responses to inquiries made in the circumstances of a particular case or situation or event.  At some time some other change may have overtaken that advice.

An example of this is if the policy area of the Department has given advice based on past experience but a later Federal Court decision results in a new view of the legislation intention.    Examples are or may be

• QS in Townsville
• The operation of the “beyond reasonable doubt” standard of proof
• The meaning of  “domicile”
• The requirement for residency
• The standard of proof to be applied to diagnosis
• The commentary contained in CCPS or ELMNET

It applies to advice sought by delegates within any area of the Department that is then circulated amongst staff and delegates for information.  In the past this has been forgotten and there have been experiences of delegates forgetting their proper task is to make the decision according to law, not according to another's opinion.

Examples that have led to this advice

A delegate recorded on the file of a veteran claiming for an increase in pension that he was applying a tighter interpretation to the Special Rate tests because of instructions from National Office.  The “instruction” was nothing more than an answer to a request from the State Office for advice and assistance on interpretation of the special rate tests.

A delegate recorded in the reasons for decision that they were satisfied that the veteran had not been exposed to the factor required in the Statement of Principles.  This was because the commentary in CCPS said it was not usual for that exposure to occur for people in that branch of the service.  This was in spite of a description of the veteran's occupation that clearly allowed the possibility of exposure to that factor

A delegate explained that the reason for deciding that a person who had served in Allied forces was not an “Australian” because they did not reside in Australia immediately before the war.  The delegate was advised that this was not a requirement of the legislation.  The response was that that was what the delegate had been taught when they had their training and what they had been told by a senior delegate.  Furthermore the policy adviser was told that the delegate wouldn't change the way of deciding until instructed in writing on the decision to be made.

How do I know what is binding and what is advisory?

Departmental Instructions

These should only deal with matters that are capable of being instructed upon.  They concern the use of resources, the delivery of materials relations with other organisations, procedures to be followed and requirements for dealing with clients and public and fulfilling duties under the various Acts and Agency Agreements.  They do not relate to a delegate making a decision in a particular case.

Commission Guidelines

These are advisory.  They will all in fact state that they cannot replace the legislation or the proper application as revealed by the Courts.  They will have actually been considered in detail by the Commission so that to operate outside the guidelines would indicate that there is a problem with them or that the delegate is not applying the legislation as intended by the Parliament and explained by the Courts.

Statements of Principles

These are mandatory, as they are Legislative Instruments having the same authority as if they were an Act of Parliament.  They apply from the date of Gazettal and until they are rejected by either house of Parliament.  They are binding on all decision-makers.

Treatment Principles

These are mandatory as they are established as Legislative Instruments and have the same power as an Act of Parliament.  They are binding on all delegates.

Advice on issues from National Office policy areas

These are advisory.  However, they represent the best view of the legislation and the interpretation of the Courts that is possible.  If a delegate intends to make a contrary decision then it would be proper to advise the policy area that provided the advice along with the reasons that a different decision or conclusion was reached.  This is because it may reveal a further problem that has not been taken into account by the policy area.

Legal opinions from National Office

These are usually sought in particular circumstances to do with a particular veteran or claim.  The advice is the best available and is for the consideration of the delegate.  The delegate is not “bound” by this advice but it will be persuasive in the absence of a contrary view.  Any decision must refer to a delegate having reached his or her own views of the material with this as an aide but not an instruction.

Medical opinion from doctors

The Federal Court in the mater of A v Repatriation Commission endorsed the ability of any decision-maker to make a finding of fact from the evidence available and if that doing so entails no error of law.  In that case the Court said that it is open to make a finding that an applicant has exaggerated the extent of incapacity and it is rational, indeed necessary to change the psychiatric evidence to reflect that finding.   That principle is also true for the opinions of specialists and Departmental Medical Officers.   A common criticism of delegates is that they never question the opinion of a DMO when in fact they are duty bound to make that finding for themselves.

A delegate is entitled to make a decision that a doctor has misapplied the terms of GARP or that the ratings are unsustainable on the evidence before them.  That is a finding of fact.  Delegates are encouraged to look at all the material.  If they are wrong then either the s31 review process or the Veterans' Review Board will correct them.

Historical reports from researchers

Historical reports are usually in response to a specific request for factual information about certain claims or events.  The researcher may report on these things and a delegate may or may not accept as facts some or all of the report.  However it is clear that since the researcher/reporter does not make the decision the reports is simply more evidence to be considered.  In the absence of a contrary report from an equally qualified historian then the report may be persuasive but not binding.

Contracts for researchers should ensure that the report does not contain language that asserts that a certain specified outcome must result from the report.  It is not the researcher's place to tell a delegate or claims examiner that a veteran is not entitled to a benefit.  Nor is it proper for the researcher say that because a veteran's story does not accord with the historical evidence that he is lying. That is a conclusion that only the delegate may reach.

WR Maxwell

Branch Head

19 January 1999