At the date of writing, reconsiderations are carried out in only two offices of the Military Rehabilitation and Compensation Commission (MRCC); the MRCC's National Office in Canberra and the MRCC's Brisbane office. Please forward all requests for reconsideration for clients living in VIC, NSW, TAS, ACT and WA to brisbanerecons@dva.gov.au [3]
Section 62 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) is the part of the Act which provides for reconsideration of determinations made, in the context, by delegates who work with the MRCC. For the purposes of the SRC Act, the MRCC is a 'determining authority'. Section 62 actually reads:
62 (1) A determining authority may, on its own motion:
a) reconsider a determination made by it, or
b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of the determination, whether or not a proceeding has been instituted or completed under this part in respect of a reviewable decision made in relation to that determination.
Section 62 of the SRC Act also provides that:
Section 38 of the SRC Act is very similar to Section 62. The main difference is that Section 38 relates to decisions concerning rehabilitation matters arising under the Act in individual cases.
Not all determination are open to reconsideration under the SRC Act. Subsection 60(1) states that; 'a 'determination' means a determination, decision or requirement made under Section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X'.
A request for reconsideration of a determination made under a provision of the SRC Act other than under those provisions quoted above can be 'rejected'. The employee or claimant could simply be advised that there is no provision for such a determination to be reconsidered. However, the employee or claimant should also be advised that if he/she is dissatisfied with the advice given, he/she may have a right to seek a review of that 'administrative decision' under the provisions of the Administrative Decisions (Judicial Review) Act 1977. It should also be mentioned that any such application would necessarily have to be made to the Federal Court of Australia and that whether the employee or claimant decides to seek legal advice is a matter for his/her decision and would necessarily be at his/her own expense.
Basically, a request for reconsideration can be made by a party to a determination. In the MRCC context, a party to a determination is the injured employee (that is, a member or former member of the Australian Defence Force) or his/her legal representative, a compensation claimant (for example, a member's widow in the case of the death of an employee) or the Commonwealth. In practice, it is quite rare for the Commonwealth to request a reconsideration of a determination. The only time that might occur is where the Commonwealth believes that it has incorrectly or unjustifiably been found liable to pay compensation to a given employee.
Reconsiderations are not always carried out at the request of a party to a determination; the employee, claimant or the Commonwealth. In some cases, it may be considered necessary for an MRCC Delegate to carry out a review of his or her 'own motion'. A Delegate who made a determination is a 'determining authority' for the purposes of Subsection 60(1) of the Act in relation to that determination. Basically, if a Delegate considers that his/her original decision was incorrect or in some way flawed, it is open to the Delegate either to:
Although all Delegates have the right to carry out a review of their own decisions, the MRCC has a strict policy that such action should only be taken where the result of any such reconsideration will be, or would be, favourable to the employee or claimant. If a Delegate considers, either in light of new evidence or because of a different interpretation of the original evidence, that a decision was wrong and that a reconsideration should be carried out, he or she must discuss the matter with a RD at level 6 or above or with the local MRCC Manager. In cases where it is proposed to revoke or to cease liability in a given case, the MRCC has strict procedures which must be followed. Please refer to section 53.3 of the Liability Handbook.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/19602%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/19595%23comment-form
[3] mailto:brisbanerecons@dva.gov.au
[4] https://clik.dva.gov.au/user/login?destination=node/19605%23comment-form
[5] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/reconsiderations-and-appeals/ch-10-reconsiderations/104-reconsiderations-own-motion
[6] https://clik.dva.gov.au/user/login?destination=node/19604%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=node/19596%23comment-form