This section explains the policy regarding delegations.
Last amended: 13 August 2009
It is impossible for the Minister, the Repatriation Commission [4], or the Secretary to personally undertake all the functions required under the VEA [4]. The solution is to delegate their powers to officers of the APS.
The authority to exercise the powers of the Commission for the administration of pensions under the VEA is delegated to decision makers through a formal instrument of delegation.
More ? [6]
To allow an officer to seek information necessary for the investigation of a claim, the Secretary may delegate his or her powers to the officer.
More ? [8]
Delegations are nearly always issued to a specified level, rather than to a specific person. It should be noted that while the effect of delegation to level is that all departmental employees at the designated level are capable of exercising the delegated power, not all employees at the designated APS level are required to use the power as part of their duties. The necessity to use the power derives from the allocated duties of each individual APS employee.
Section 212 [9] VEA - Delegation by Minister
Section 213 [9] VEA - Delegation by Commission
Section 214 [9] VEA - Delegation by Secretary
Responsibilities of a delegate of the Repatriation Commission
11.9.3/Role and Responsibilities of a Delegate of the Repatriation Commission [12]
According to Section 179 [17]of the VEA [17], the Commission is a body corporate under the name of Repatriation Commission.
Veterans' Entitlements Act 1986.
When a power has been delegated, the following basic rules apply:
When waiving a debt, if the total value of the debt exceeds the delegated limit of the officer, they cannot
An officer must signify the capacity in which they sign when exercising the powers assigned to them.
If the decision-maker does not have the necessary delegated authority to make each decision required of them, their decision has no legal effect.
More ? [19]
A delegate may only make a formal decision on a matter under their direct control. The delegate must understand the extent of their power and the provisions of relevant legislation before making a decision.
VEA [9]?
A delegate of the Repatriation Commission must provide a statement of reasons where a determination is made in connection with a claim, or review of pension.
A statement of reasons should contain the following elements:
When making any formal decision, the delegate must have read and become familiar with all relevant information. A decision cannot be made if the delegate doubts the validity of the information, or if it is incomplete.
It is the responsibility of each delegate of the Commission [4] to ensure that they are informed of and apply any recent legislative changes or Federal Court decisions which are binding on the Commission and affect the decisions they make.
The Repatriation Commission issues guidelines on how the VEA is to be applied. These are based on the Government's intention when framing the legislation and are issued to promote consistency in decision making. These guidelines:
Where the Commission has endorsed a guideline, it is treated as official policy and is to be applied in the decision making process.
When determining whether someone has rendered qualifying service, the legislation requires that the person “incurred danger from hostile forces of the enemy.” The Commission's Policy is that a person is accepted as having incurred danger if their service in Darwin was for three consecutive months during the period it was subject to enemy bombing raids.
Discretionary legislation [4], where it appears in the VEA, requires a delegate to exercise discretion. This means the delegate is required to form an opinion and make a decision based on the available evidence.
More ? [29]
When deciding whether an asset is a financial asset, s52CA(1) (b) [9] of the VEA states “if the person has assets (including real property) that are, in the Repatriation Commission's opinion, used for the purposes of carrying on that primary production”. This requires a delegate to exercise their own judgement, based on available evidence, regarding the use of that asset.
Non discretionary legislation does not involve any exercise of discretion or judgement but merely the findings of fact.
S36(1) (c) [9] of the VEA states that one of the requirements to be eligible for a service pension is that a veteran must have reached pension age. The VEA specifies what is meant by pension age and the evidence will establish the fact.
Resources available to assist delegates to form an opinion
11.9.3/Resources Available to Delegates to Assist in Decision Making [30]
According to Section 179 [17]of the VEA [17], the Commission is a body corporate under the name of Repatriation Commission.
Some sections of the VEA require a delegate to exercise their discretion when making a decision. Sections containing passages such as “in the Repatriation Commission's opinion” are discretionary, as they require the delegate to use their own judgement based on the available evidence.
Last amended: 15 June 2011
The decision on a case is made based on the level of satisfaction of the delegate based on the available evidence. However this may involve some degree of subjectivity. A delegate should use available resources to achieve consistency in the decision making process.
More ? [33]
The following is a list of resources available to assist delegates in making decisions:
Veterans' Entitlements Act 1986.
The Department of Veterans' Affairs.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/16924%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/16947%23comment-form
[3] https://clik.dva.gov.au/book/export/html/16924#tgt-cspol_part11_ftn212
[4] https://clik.dva.gov.au/%23
[5] https://clik.dva.gov.au/book/export/html/16924#tgt-cspol_part11_ftn213
[6] https://clik.dva.gov.au/book/export/html/16924#tgt-cspol_part11_ftn214
[7] https://clik.dva.gov.au/book/export/html/16924#tgt-cspol_part11_ftn215
[8] https://clik.dva.gov.au/book/export/html/16924#tgt-cspol_part11_ftn216
[9] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-vea
[10] https://clik.dva.gov.au/book/export/html/16924#ref-cspol_part11_ftn212
[11] https://clik.dva.gov.au/book/export/html/16924#ref-cspol_part11_ftn213
[12] https://clik.dva.gov.au/compensation-and-support-policy-library/part-11-administration-payments/119-powers-administration-and-delegation/1193-delegations/role-and-responsibilities-delegate-repatriation-commission
[13] https://clik.dva.gov.au/book/export/html/16924#ref-cspol_part11_ftn214
[14] https://clik.dva.gov.au/book/export/html/16924#ref-cspol_part11_ftn215
[15] https://clik.dva.gov.au/compensation-and-support-policy-library/part-2-applying-pension/21-claims/214-assessment-claim
[16] https://clik.dva.gov.au/book/export/html/16924#ref-cspol_part11_ftn216
[17] http://clik.dva.gov.au/legislation-library
[18] https://clik.dva.gov.au/user/login?destination=node/16941%23comment-form
[19] https://clik.dva.gov.au/book/export/html/16924#tgt-cspol_part11_ftn217
[20] https://clik.dva.gov.au/book/export/html/16924#tgt-cspol_part11_ftn218
[21] https://clik.dva.gov.au/book/export/html/16924#tgt-cspol_part11_ftn219
[22] https://clik.dva.gov.au/compensation-and-support-policy-library/part-11-administration-payments/119-powers-administration-and-delegation/1193-delegations/what-are-delegations
[23] https://clik.dva.gov.au/book/export/html/16924#ref-cspol_part11_ftn217
[24] https://clik.dva.gov.au/compensation-and-support-policy-library/part-11-administration-payments/1110-advices
[25] https://clik.dva.gov.au/book/export/html/16924#ref-cspol_part11_ftn218
[26] https://clik.dva.gov.au/compensation-and-support-policy-library/part-12-compliance-and-obligations/125-reviews-and-appeals
[27] https://clik.dva.gov.au/book/export/html/16924#ref-cspol_part11_ftn219
[28] https://clik.dva.gov.au/user/login?destination=node/16967%23comment-form
[29] https://clik.dva.gov.au/book/export/html/16924#tgt-cspol_part11_ftn220
[30] https://clik.dva.gov.au/compensation-and-support-policy-library/part-11-administration-payments/119-powers-administration-and-delegation/1193-delegations/resources-available-delegates-assist-decision-making
[31] https://clik.dva.gov.au/book/export/html/16924#ref-cspol_part11_ftn220
[32] https://clik.dva.gov.au/user/login?destination=node/16951%23comment-form
[33] https://clik.dva.gov.au/book/export/html/16924#tgt-cspol_part11_ftn221
[34] clikpopup://DEF/FaHCSIA
[35] https://clik.dva.gov.au/compensation-and-support-policy-library/part-2-applying-pension/23-standard-and-onus-proof
[36] https://clik.dva.gov.au/book/export/html/16924#ref-cspol_part11_ftn221