Advisory from Disability Compensation Branch
No 1/99
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.
APPLICATION OF NEW STATEMENTS OF PRINCIPLES
DATE OF EFFECT
Question
What is the date of effect when the Repatriation Medical Authority issues new or amended Statements of Principles?
Answer
A new Statement of Principles or a Statement of Principles which amends an existing Statement of Principles takes effect when it is notified in the Commonwealth of Australia Gazette. Notification in the Gazette counts as informing the public at large that new Statements of Principles SoPs have been made.
Notification of SoPs is necessary because section 196D of the Veterans' Entitlements Act 1986 provides that SoPs are disallowable instruments. Section 196D refers the reader to section 46A of the Acts Interpretation Act 1901 (the AIA). Section 46A of the AIA applies to disallowable instruments and provides that sections 48, 48A, 48B, 49 and 50 of the AIA apply. Paragraph 48(1)(a) of the AIA requires that SoPs be notified in the Gazette.
The RMA's notification includes details of where copies of the SoPs can be obtained. This ensures compliance with the requirements of subsections 5(3) to 5(3C) inclusive of the Statutory Rules Publication Act 1903, brought in by section 46A(1)(c) of the AIA. Subsection 5(3) makes it unnecessary to gazette the whole of the text of a SoP, merely requiring notice to be given that the SoP has been made, what its subject matter is and where copies can be obtained.
Until a determination takes effect, it is not law. Therefore gazettal is an integral part of the determination process.
The date of effect of the decision
Does the date of decision affect the date of effect?
This is a different question and refers to the date the claim was received in the Department of Veterans' Affairs.
The date the claim was received determines the date of effect for pension and treatment benefits. The date of the decision is immaterial in determining that date of effect.
However, the SoP currently in force must be applied when making the decision, regardless of whether that SoP was in force when the claim was received.
Decision made between dates of signing and gazettal
What if there is a claim determined at the primary level between the date of signing by the Chairman of the RMA and the gazettal?
Answer
In fairness this should be the subject of a section 31 review as it would be possible for the Veterans' Review Board to make a fresh decision based on the new SoP. Where there is information that a new or amended SoP is forthcoming, delegates should avoid making a decision until the Gazettal notice is advised.
Does this include notification under section 196G of a formal investigation?
Answer
No. There is a Departmental Instruction published on dealing with this scenario. In addition the Federal Court has indicated that it is improper to delay a decision because of the commencement of a formal investigation. That investigation and any consequent decision may take months or years, and will not necessarily advantage the claimant.
W.R. Maxwell
Branch Head
Disability Compensation
19 January 1999