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External scrutiny

External scrutiny provides independent assurance that the Department of Veterans' Affairs' (DVA) systems, processes and controls are effective.

The annual report must provide information on the most significant developments in external scrutiny of the Department and the Department’s response, including particulars of:

  • judicial decisions and decisions of administrative tribunals that have had, or may have, a significant impact on the operations of the Department
  • reports on the operations of the Department by the Auditor-General (other than the report on financial statements), a parliamentary committee or the Commonwealth Ombudsman.

External decisions and reports related to the operations of DVA in 2017–18 are described in this section.

Decisions by courts and the tribunals

Where a claimant disagrees with a decision of the Repatriation Commission or the Military Rehabilitation and Compensation Commission (MRCC), it is open to them to appeal the decision under the Veterans' Entitlements Act 1986 (VEA), Safety, Rehabilitation and Compensation Act 1988 (SRCA) (until 11 October 2017), Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) (from 12 October 2017) or Military Rehabilitation and Compensation Act 2004 (MRCA) as set out below.

Appeals relating to compensation matters under the VEA are lodged first with the Veterans’ Review Board (VRB). If the appellant is dissatisfied with the VRB decision, they can lodge an appeal with the Administrative Appeals Tribunal (AAT).

If a person is dissatisfied with an income support decision under the VEA, it is first subject to an internal review by a different decision-maker and then subject to review by the AAT.

An appeal under the SRCA/DRCA is first subject to internal review by a reconsideration delegate and then subject to review by the AAT.

An appeal of a decision under the MRCA made prior to 1 January 2017 may proceed down one of two pathways: appeal to the VRB, then to the AAT; or appeal for internal review by a reconsideration delegate, then to the AAT. The appellant must nominate one pathway to the exclusion of the other. An appeal of a decision under the MRCA made on or after 1 January 2017 is subject to review by the VRB only and then subject to review by the AAT.

AAT applications and outcomes are set out in Table 6. These figures include cases that were remitted by the Federal Court to be considered again by the AAT.

While the number of AAT decisions affirmed at hearing may seem low compared to the number decided, this is because not all were decided following AAT hearing. For example, some were withdrawn and others were resolved without the need for a hearing.

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Table 6: VEA, DRCA and MRCA matters considered by the Administrative Appeals Tribunal 2017–18
Category Applications decided by AAT Decisions affirmed, withdrawn, dismissed by the AAT Decisions settled by consent of the AAT Decisions set aside at hearing
AAT = Administrative Appeals Tribunal, MRCA = Military Rehabilitation and Compensation Act 2004, DRCA = Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (previously the Safety, Rehabilitation and Compensation Act 1988), VEA = Veterans’ Entitlements Act 1986
  1. These figures are currently not captured.
VEA 205 125 Not available1 Not available1
DRCA 144 86 54 4
MRCA 57 29 27 1

In accordance with the Legal Services Directions 2017, the Repatriation Commission or the MRCC may lodge an appeal in order to clarify a legal issue or protect the integrity of legislation.

In 2017–18, 12 applications were lodged with the Federal Court. Of those, 11 were lodged by a veteran or widow. The MRCC lodged one application to the Federal Court.

In the same period, the Federal Court made six decisions, three of which were favourable to the veteran or widow.

No appeals involving the Repatriation Commission or the MRCC were lodged in the Full Court of the Federal Court or the High Court.

Neither the Full Court of the Federal Court nor the High Court delivered any decisions involving the Repatriation Commission or the MRCC.

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Decisions by the Australian Information Commissioner

The Australian Information Commissioner handed down two decisions in relation to the Department in 2017–18 under the Freedom of Information Act 1982 (FOI Act). There was one determination made under the Privacy Act 1988.

On 26 July 2017, in ‘MA’ and Department of Veterans’ Affairs (Freedom of information) [2017] AICmr 72, the Commissioner varied a decision by DVA, under the FOI Act, for documents relating to a complaint investigation undertaken by DVA in relation to the VRB. DVA relied on the legal professional privilege exemption (section 42), the deliberative processes exemption (section 47C), the certain operations of agencies exemption (subsection 47E(d)), and the personal privacy exemption (section 47F) of the FOI Act. The Commissioner decided some or parts of the documents were not exempt.

On 13 September 2017, in David Kalman and Department of Veterans’ Affairs (Freedom of information) [2017] AICmr 86, the Commissioner affirmed a decision by DVA, under the FOI Act, for documents relating to a medical practitioner. The issue was whether DVA had taken all reasonable steps to find documents within the scope of the request, under section 24A of the FOI Act. The Commissioner was satisfied that no documents existed or could be found.

On 23 March 2018, in ‘PA’ and Department of Veterans’ Affairs (Privacy) [2018] AICmr 50, the Commissioner determined DVA did not interfere with the complainant’s privacy, as defined in the Privacy Act 1988, by disclosing the complainant’s personal information to the Australian Institute of Health and Welfare (AIHW). The complainant alleged an improper disclosure of his personal information by DVA to the AIHW, which was provided with a Military and Veteran Research Study Roll, being a database established to assist in recruiting current and ex-serving Australian Defence Force members for approved health research. Section 95 of the Privacy Act provides that acts done in the course of medical research and in accordance with approved guidelines will not breach privacy. The Commissioner found DVA’s Transition and Wellbeing Research Programme, made up of three studies, was medical research. Further, the DVA Human Research Ethics Committee’s approval of the medical research, including the use of the Military and Veteran Research Study Roll for that research, was open to it and decided as such. Therefore, DVA was able to rely on that approval in order to lawfully disclose the complainant’s personal information to the AIHW.

Copies of the decisions are available at www.oaic.gov.au.

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Reports by the Auditor-General

Reports tabled in Parliament by the Auditor-General were reviewed by senior management and relevant DVA business areas.

In 2017–18, the Auditor-General published:

  • one cross-entity report involving DVA — Efficiency through Contestability Programme
  • one report involving DVA only — Efficiency of veterans service delivery by the Department of Veterans’ Affairs.

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Reports by the Joint Committee of Public Accounts and Audit

The Joint Committee of Public Accounts and Audit examines reports of the Auditor-General that are tabled in Parliament. DVA’s Audit and Risk Committee monitors all reports of the committee.

In 2017–18, DVA made one submission to the committee, in relation to Australian Government Contract Reporting — Inquiry based on Auditor-General’s report no. 19 (2017–18).

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Reports by the Senate Foreign Affairs, Defence and Trade References Committee

The Foreign Affairs, Defence and Trade Committees cover the Defence (including Veterans' Affairs), Foreign Affairs and Trade portfolios. 

On 1 September 2016 the Senate referred the matter of Suicide by veterans and ex-service personnel to the Foreign Affairs, Defence and Trade References Committee for inquiry and report.

DVA provided a written submission to the inquiry, and participated in public hearings.

On 15 August 2017 the committee tabled its report on the inquiry, The constant battle: suicide by veterans and ex-service personnel, which made 24 recommendations to the Government.

On 24 October 2017 the Government tabled its response to the report. The response noted the Government accepted 22 of the recommendations, and accepted in-principle 2 of the recommendations.

DVA is responding to the recommendations by taking a range of actions including:

  • reviewing its veteran-specific online training programs for health professionals
  • reviewing the service delivery training of departmental staff
  • conducting consultation forums for veterans who are concerned about their use of mefloquine while in service
  • realigning its mental and social health strategies with Defence and whole-of-government strategies to enable a stronger focus on suicide prevention
  • delivering the outcomes of research into homelessness in the veteran community
  • delivering the Family Support Package.

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Deregulation Agenda

DVA supports the Government’s Deregulation Agenda and is committed to improving the quality of its regulation, including minimising the burden of regulation on individuals, businesses and community organisations. This is achieved through continuous review of the regulatory requirements established in DVA legislation, by identifying policy options which allow for regulatory requirements to be minimised wherever possible, and by investigating opportunities to make interaction easier for veterans and their families, service providers and the ex-service community. This activity occurs in the context of ensuring that important consumer and other safeguards are maintained. Further information on the Government’s Deregulation Agenda is available on the Department of Jobs and Small Business website (www.jobs.gov.au/deregulation-agenda).

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