DVA LogoAnnual Report 2005-2006

Management and accountability - Corporate governance

The Department’s new oneDVA model is built upon sound governance principles. They encompass authority, accountability, stewardship, leadership, direction and control exercised in the organisation.

The DVA governance framework consists of the:

2005-06 presented two significant challenges for the Department:

Uhrig Report

During the year, the following five statutory authorities within the Veterans’ Affairs portfolio were assessed in line with the recommendations of the Uhrig Report. They were the:

The assessments were completed before the due date of 31 March 2006.  Recommendations for change were made only in respect of the AWM. These were:

Statements of Expectations and Intent were not considered appropriate for the other four statutory authorities because administrative support for these authorities is provided by DVA, which operates under direct and day-to-day ministerial oversight, and there is no capacity for ministerial direction in respect of their decision-making powers under the various pieces of legislation.

Governance committees

Following the Review of Service Delivery Arrangements, DVA established a new governance committee structure, designed to consolidate and rationalise the disparate roles and functions of the existing committees into a function-based approach to business operations. The new committee structure retains the Executive Management Group (EMG) and the National Audit and Fraud Committee (NAFCOM) as the senior governance committees in the Department. 

Figure 24:  DVA’s new corporate committee structure

Figure 24: DVA’s new corporate committee structure

Large size Figure 24: DVA’s new corporate committee structure. (it will open in a separate window)

Under the revised governance structure, three new committees report directly to the EMG, ensuring:

Figure 25:  Transition to the new DVA committee structure

Figure 25: Transition to the new DVA committee structure

Large size Figure 25: Transition to the new DVA committee structure. (it will open in a separate window)

Executive Management Group

The Executive Management Group is concerned with DVA’s internal management and determines and evaluates progress on its strategic directions. The EMG supports the Secretary in the discharge of his responsibilities, particularly to manage the Department’s business in a way that promotes the efficient, effective and ethical use of Australian Government resources. The members of the committee are the Secretary (Chair), Deputy President and Services Member of the Repatriation Commission, Deputy Commissioners from each state, General Managers, Chief Information Officer and Chief Finance Officer. The Principal Medical Adviser and National Manager People Services attend all meetings and other National Managers may be invited to attend as subject matter experts. The EMG met 11 times during the year.

Standing agenda items in 2005-06 included:

Other issues dealt with during the year included:

EMG also simplified and rationalised performance reporting through the oneDVA Report Card and now considers performance on a monthly, rather than quarterly, basis.

National Audit and Fraud Committee

NAFCOM’s objectives are to:

The committee provides a forum for communication between senior management and the internal and external auditors. The revised NAFCOM Charter, endorsed at its June 2005 meeting, was approved by the Secretary in July 2005.

The committee members are the Deputy President (Chair), the five General Managers, two Deputy Commissioners and an independent member. NAFCOM met five times during the year, including an extraordinary meeting to consider the 2004-05 financial statements.

The internal audit function is managed by the Department. The audit program is developed in partnership with a contracted provider (KPMG) and approved by NAFCOM. Audit reviews are undertaken by the provider and reports presented to the committee (see Internal scrutiny for more information on audit reviews).

The Auditor-General of the Commonwealth of Australia provides the external audit function, in accordance with the Financial Management and Accountability Act 1997. Reports of the Auditor-General are presented to Parliament. 

Resources Committee

The Resources Committee was created under the new governance structure and provides independent advice and assistance to the Secretary and the EMG. It replaces the Corporate Resources Committee and the People Initiatives Committee. The Resources Committee continues to focus on maintaining DVA’s financial health and providing assurance that DVA’s objectives and goals are achieved efficiently and economically. It provides advice on DVA’s people management strategies, policies and practices.

Committee members are the Deputy President (Chair), the Deputy Commissioners for New South Wales, Queensland and Western Australia (Deputy Commissioners are appointed by the Secretary on a 12-month, rotating basis), General Managers, the Chief Finance Officer and the National Manager People Services. The committee met five times during the year.

The committee’s functions relating to financial matters are to:

The functions relating to people matters are to:

Standing agenda items include:

Other matters considered during the year included:

Operations Committee

The Operations Committee was established in March 2006. The committee provides advice and assistance to the Secretary and the EMG on all matters relating to business operations, to ensure the maintenance and, where possible, enhancement of quality service to the veteran and defence force communities. Committee members are the General Manager Service Delivery (Chair), the Deputy Commissioners for Victoria and South Australia/Northern Territory (representing all Deputy Commissioners), the remaining General Managers and seven National Managers representing all divisions. The committee met twice during the year and will meet quarterly in future. Membership will be reviewed every two years.

Matters addressed included:

Information Committee

The Information Committee provides a cohesive, corporate-wide overview and direction for strategic information and communication technology management through:

The members of the committee are the Deputy President (Chair), General Managers, two Deputy Commissioners, the Chief Information Officer, National Manager Business Modernisation and Integration, the Chief Finance Officer and an independent member. The committee met seven times during the year.

Standing agenda items were:

Strategic issues considered during the year included:

The Infrastructure Coordination Committee met four times during the year. Its functions have been subsumed by the Information Committee.

The Information Management Project Review Committee met once during the year. Its functions have been subsumed by the Information Committee.

The Departmental IT Security Committee met twice during 2005-06. Its functions have been subsumed by the Information Committee.

The Information Management Steering Committee did not meet during 2005-06. Its functions have been subsumed by the Information Committee.

Business Architecture Committee (BAC)

The BAC supports the Information Committee by:

The committee members are the General Manager Corporate (Chair), Chief Information Officer, National Manager Business Modernisation and Integration, National Manager Income Support, National Manager Veterans’ Compensation, National Manager Military Compensation, National Manager Operations Support and a representative from Business Integrity Division. The committee met seven times during the year.

Standing agenda items were:

The Applications Architecture Committee met four times during the  year.  Its functions have been subsumed by the Business Architecture Committee.

National Continuous Improvement Committee

The committee did not meet during 2005-06. Its operations have been subsumed into other committees.

Defence/DVA Links Steering Committee

The Defence/DVA Links Project Review Board was restructured during the year to make it more dynamic and operationally focused and renamed the Defence/DVA Links Steering Committee. It provides high level strategic direction and policy development for the Defence/DVA Links program. 

The objective of the Links program is to:

The committee’s role is to:

The committee’s members are the Head of Defence Personnel Executive and the Deputy President of the Repatriation Commission (co-Chairs), the Repatriation Commissioner and the First Assistant Secretary Personnel Defence Personnel Executive. Other senior managers from DVA and the Department of Defence also attend meetings. 

The steering committee takes an active role in liaison between the two departments and reports on major issues across the portfolio to the Minister assisting the Minister for Defence and the Minister for Veterans’ Affairs. The steering committee, through the Repatriation Commissioner, formally reports to the EMG.

The Defence/DVA Links Project Review Board met once during 2005-06. The Defence/DVA Links Steering Committee met once during 2005-06. There are no standing agenda items. 

During 2006-07, the steering committee will focus on five high-level areas:

Defence and DVA continue to collaborate on mental health as a priority area, including the relationship between the departments and the Centre for Military and Veterans’ Health and Australian Centre for Posttraumatic Mental Health. 

The steering committee has established two working groups to examine:

The steering committee has also overseen the development of a Defence/DVA Occupational Health, Safety and Health Promotion Program. The program aims to build a joint approach to key OH&S areas, starting with a demonstration project on prevention of noise-induced hearing loss and associated chronic hearing disorders such as tinnitus. Possible areas for future collaboration include reducing tobacco usage, solar radiation, exercise and nutrition.

The steering committee oversees the Defence/DVA Health Consultative Committee which was formed as a result of the restructuring of the Medical Advisory Panel and its two working groups, the Research Working Group and the Mental Health Focus Working Group. The consultative committee is co-chaired by the Head Defence Health Service and DVA’s Principal Medical Adviser.

Chief Executive Instructions

The Secretary is required by the Financial Management and Accountability Act 1997 to manage the Department’s affairs in a way that promotes the efficient, effective and ethical use of Commonwealth resources. The Secretary is authorised to give Chief Executive Instructions (CEIs) to staff and contractors in the Department. The CEIs provide a policy framework for financial risk management and decision-making, encouraging the exercise of sound judgement with fiscal discipline and responsibility.

The Secretary has issued 75 CEIs that deal with financial matters such as:

The CEIs were reviewed during the year and will be reissued.

Strategic plans and business planning

Corporate Plan

DVA has moved to a three-year corporate plan, setting out the Department’s priorities through to 2009. The Corporate Plan 2006-2009 was issued on 30 June 2006. The Secretary’s message, Working as oneDVA, outlined the challenges ahead as resources are reduced in line with the decline in the number of World War II veterans and war widows. 

The Corporate Plan sets out the path ahead with priority given to:

ICT Strategic Plan

The ICT Strategic Plan articulates DVA’s information and communication technology strategic directions, objectives and key initiatives. As foreshadowed in last year’s annual report, a new ICT Strategic Plan has been developed as a companion document to the Corporate Plan. The new plan covers 2006-2009 and was released with the Corporate Plan on 30 June 2006. 

The ICT plan is built upon four long-term imperatives:

Major components and activities are identified in the plan. The key directions for ICT for the next few years are to standardise DVA’s applications environment using the Cúram integrated framework, simplify business processes using Cúram’s in-built application functionality and undertake a program of modernisation and integration whilst ensuring that support for existing legacy systems is maintained.

Performance framework

DVA’s performance framework gauges performance against the outcomes set for it by Government. In achieving these outcomes, DVA assesses performance against:

Following a review of DVA’s performance measurement reporting arrangements in 2005-06, the quarterly DVA Balanced Scorecard was replaced by a monthly oneDVA Report Card. This is the Department’s primary performance management tool, providing concise financial, operational and strategic information that allows senior management to monitor and oversee DVA activity and plan future directions. The performance measures in the Report Card are focused on matters of national and strategic importance.

The DVA executive receives a monthly divisional report outlining significant business achievements or issues of importance. The Department also uses audit services to evaluate its performance across a range of effectiveness, efficiency and financial standards based on risk management principles.

Risk management

The Risk Management Policy provides high-level direction on DVA’s approach to managing risk. The principles of the policy are that DVA uses a systematic approach to managing risks and that risk management is the responsibility of all staff. 

Another document, Risk Management Strategies, builds on the policy by providing guidance on a systematic approach to managing risk. It is supported by a range of tools designed to assist staff in applying the risk management process and principles to DVA’s business.

The Department’s 2005 residual risk profile was finalised during the year. The risk profile identifies key risks that need to be closely monitored or actively managed through the development of cost-effective treatment plans. Mitigation action taken in relation to key risks is reported to the National Audit and Fraud Committee.

The risk management process was used actively in supporting the implementation of oneDVA. Risk assessments were carried out as part of the Review of Service Delivery Arrangements demonstration projects and by national lines of business in preparing for transition to the new structure. The risk assessments were included in documentation reviewed by the Executive Management Group and a summary of the key risks was reported to NAFCOM. Risk assessments were also conducted on key elements of DVA’s business to assist the new Resources Committee and Information Committee. 

Risk assessments are being carried out as part of the implementation of Cúram and by a range of business areas and project teams in reviewing processes and implementing changes. 

Benchmarking

During March and April 2006, DVA participated in the 2006 Comcover Risk Management Benchmarking Program. This provides an opportunity for DVA to measure its progress in implementing its risk management framework and to compare its position against other Comcover members. It also allows DVA to identify key areas for further improvement.

Scoring in the 2006 round was changed to better reflect the more mature risk management frameworks in place in most agencies. Performance was assessed against five Key Result Areas, rather than the 10 Key Performance Indicators used in previous rounds. In comparison to the average scores of all participants and similar large agencies, DVA achieved above average scores in all five KRAs.

Insurance

DVA’s insurable risks are covered through its Comcover insurance arrangements. An annual review is undertaken to ensure the correct policies and levels of cover are in place, while maintaining the appropriate level of risk retention.  Participation in the Comcover Risk Management Benchmarking Program allows DVA to take advantage of the premium discounts aligned to its overall score. DVA’s 2006 score resulted in an 8 per cent premium discount, equal to the maximum achieved by any agency.

Business continuity

DVA’s Business Continuity Plan is an integral element of its risk management framework and provides assurance that essential services will continue to be provided following a major disaster. The focus in 2005-06 was on fine-tuning contingency plans in line with the outcomes of testing. Initial consideration was also given to the impact of changes under oneDVA and the format of the Business Continuity Management teams. Further development will be undertaken in 2006-07.

Disaster recovery

DVA continues to explore its options regarding its ICT disaster recovery environment. One of the options being considered is establishing a mirror site running critical applications in parallel, so that the Department can move to the mirror site with minimal impact on service. As at 30 June 2006, DVA was assessing costings and investigating feasibility.

Protective security

The protective security function reports to the Resources Committee. Its objectives are to:

During the year, the Department maintained the DVA Protective Security Policy, covering:

Training sessions were developed and provided to make staff aware of the need for adequate security controls, the requirements for maintaining the confidentiality and integrity of information and the impact of providing official information to a third party without authorisation. The section also developed performance measures for protective security that have been incorporated into the functional business planning process and maintained a network for security liaison offices in all DVA locations to develop a consistent approach to protective security. 

A risk management review led to improved physical security measures, including effective identification of staff, contractors and visitors at DVA premises and controlled access to buildings and facilities. These measures are designed to provide staff with a safe and secure environment and help the Department meet its duty of care to staff, providers and those who use its services.

Fraud

The DVA Fraud Control Plan 2005-2007 was approved by the Secretary during the year. NAFCOM oversaw the development of the plan and monitors the achievement of action items.

During the year, 659 investigations of suspected fraud were finalised. Eight cases resulted in convictions, 445 cases were handled administratively two cases that went to court did not result in convictions and no offence was detected in the remaining 204 cases. A total of $3 152 768 was recovered as a result of these investigations. The table below gives more information on fraud investigations conducted by DVA staff and the outcomes of these cases.

Table 73: Fraud control detection and prosecution activities
  Health Compensation Other Total
Current cases at 30 June 2006 19 458 1 478
Matters before the courts 3 13 1 17
Matters referred to Commonwealth Director of Public Prosecutions 5 35 1 41
Convictions 1 7 0 8
Finalised cases 23 631 5 659

Ethics

DVA’s Corporate Plan states that integrity, honesty, fairness and openness underpin its approach to business. Staff are required to attend presentations on APS Values, ethics and the APS Code of Conduct. Chief Executive Instructions regulate financial processes.

DVA has a comprehensive policy on the use of the Department’s electronic facilities, including email, Intranet and Internet. There is an on-going information and education campaign to ensure staff are aware of their rights, responsibilities and obligations.

All research proposals involving veterans are considered by the DVA Human Research Ethics Committee (see Outcome 2).

Internal Scrutiny

KPMG is contracted to provide internal audit services to DVA. These include review, audit and ICT audit services throughout the Department, as well as the provision of advice and assistance to management on associated functions including corporate governance, risk management and fraud control.

The Internal Audit section is based in the Australian Capital Territory office and delivers a national review program across DVA. All internal audit and review activities are reported to the National Audit and Fraud Committee. Internal Audit also liaises closely with the Australian National Audit Office (ANAO) on external audit matters.

Reviews

NAFCOM approved DVA’s 2005-08 Internal Audit Work Program in June 2005. The program is a mix of compliance and  performance audits, with a focus on ensuring that high risk areas are adequately controlled and controls in low risk areas are operating effectively and identifying opportunities for business improvement. 

Recommendations from internal reviews and relevant ANAO reviews are subject to follow-up action to ensure their implementation. Business managers provide comment on the action taken in relation to the recommendations. The recommendations and comments are reported regularly to NAFCOM, which monitors implementation progress. During 2005-06, NAFCOM focused strongly on those recommendations that had been outstanding for some length of time.

Some of the reviews conducted during the year were:

Accounts payable: The objectives of the review were to assess the effectiveness of national policy covering the preparation of claims for payment and determine whether accounts payable procedures were being consistently applied by staff preparing claims for payment prior to processing by Queensland Clerical Services, the outsourced provider. It found that revision of documentation and guidelines would improve current practices and ensure consistency in claims preparation. The report made one medium priority, four low priority and three business improvement recommendations. All recommendations were accepted.

Budget Advisor: The objectives of the review were to determine if the Budget Advisor system would be compatible with DVA’s software environment, provide efficiencies in responding to budgeting requirements and be cost-effective to implement. It found that Budget Advisor would be compatible once the Department completed its upgrade to Excel 2000 or higher and that efficiencies could be gained through improved accuracy, timeliness and improved quality. The report made two medium priority and three business improvement recommendations. All recommendations were accepted.

Staff travel: The objectives of this review were to assess the staff travel process and identify any potential efficiencies. It was conducted primarily in the ACT office and in part at the Queensland office. The review found that while the system worked well there was scope to improve the current arrangements. Two business improvement recommendations were made and both were accepted.

Health delegations:  The objectives of this review were to examine the current VEA delegations within the Health Division and to assess the appropriateness of current delegations and compliance with relevant legislation. It found no evidence of any significant breach of these delegations in the office tested, but that the framework for setting, reviewing and communicating delegations to staff could be improved. Four low priority and three business improvement recommendations were made. All recommendations were accepted.

Rehabilitation Appliance Program (RAP):  The objectives of the review were to examine and assess the new contracting arrangements surrounding RAP, identify better practice, assess the controls and processes, including the RAPTOR system, and examine arrangements for items supplied outside the contract. The review found that RAP staff nationally had taken positive steps to address the risk of paying inappropriately for supplies. However, it identified the need for nationally consistent procedures for checking invoices of suppliers not yet on RAPTOR and the continued transition of all suppliers to RAPTOR as priority issues. Three medium priority, six low priority and two business improvement recommendations were issued. All recommendations were accepted.

TPI and TTI decision-making: The objective of the review was to assess the quality of the decision making process, focussing specifically on the appropriateness of entitlement decisions, the completeness of investigations and the level of documentation retained to support the decisions. While the review identified a number of good practices, it also identified a number of improvement opportunities relating to the need for clarification of some processes and the communication of information of importance to staff working in claims assessment areas. Three medium priority and two business improvement recommendations were issued.  All recommendations were accepted.

Property management: The objective of this review was to identify and assess the Department’s management processes in relation to property leasing. It found that the processes were generally providing an adequate level of support for the delivery of the Department’s services. However, it was considered improvement could be achieved by the development of accommodation guidelines and the sharing of knowledge and best practice between offices. Two low priority recommendations were issued and accepted.  

External Scrutiny

Reports by the Auditor-General

The Auditor-General published three reports in 2005-06 that specifically related to DVA.

The Department, through NAFCOM, also considers ANAO reports that are relevant to DVA’s operations.  NAFCOM considered the following reports during 2005-06:

ANAO year 2004-05

ANAO year 2005-06

Freedom of  information

Table 76: Freedom of Information (FOI) requests 2002-03 to 2005-06
  2002-03 2003-04 2004-05 2005-06
Requests received 12 729 11 166 9 743 8 330
Average time taken to process (days) 16.2 17.3 17.3 14.82
Percentage refused in full or part 0.72 0.43 0.33 1.19
Average cost per request $97.65 $125.43 $177.10 $189.75

During 2005-06, there was a decrease in the number of requests lodged under the Freedom of Information Act compared to the previous three years. Rising salary costs and ICT charges have impacted on the average cost per request.

Table 77: FOI requests by state
  NSW VIC QLD WA SA TAs ACT Total
Received 2 824 1 421 2 915 483 432 224 31 8 330
Finalised 2 903 1 467 2 896 504 452 230 32 8 484
Granted in full 2 736 1 285 2 890 488 418 205 22 8 044
Granted in part 9 0 4 1 13 11 3 41
Access refused 17 10 2 0 6 2 2 39
Transferred 68 149 0 0 3 1 0 221
Withdrawn 73 23 0 15 12 11 5 139
Outstanding 209 109 94 32 14 15 2 475

The average time taken to complete a request was 14.82 days, a decrease on the previous year. Of the requests finalised, 6.29  per cent were processed outside the 30 day statutory time limit and where an additional 30 days was not claimed for the purposes of consultation with third parties.  The Queensland figures have been adjusted by an amount of 661, erroneously included as outstanding from the previous year due to an unstable database application. The adjustment has been accepted by the Attorney-General’s Department.

FOI fees and charges

In 2005-06, a total of $22 522 in fees and charges was collected.  The increase is due to a rise in FOI requests that are not by a person who is making a claim under the VEA.  It appears there is also a rise in requests from insurance companies for documents relating to mutual clients with the appropriate fees and charges being imposed.

Comments by the Ombudsman

During 2005-06, there was an increase in the number of complaints notified by the Ombudsman to the Department. Some of this increase relates to the ex gratia payment scheme for those involved in the F-111 Deseal/Reseal program. DVA also participated in an initiative from the Ombudsman’s office to have monthly ‘health check’ meetings to identify and address any areas of concern. 

The majority of complaints are still resolved after preliminary enquiries are made to the Department by an investigator from the Ombudsman’s office. Several long-running investigations were concluded during the year, with changes made to departmental practices to address specific concerns. There were no complaints that attracted reports from the Ombudsman under sections 15, 16 or 17 of the Ombudsman Act 1976.

Privacy

Four complaints were raised by the Privacy Commissioner during the year. Three were closed during this period. One case, involving a breach of privacy, resulted in an apology from the Department and the offer of compensation. Two of the four complaints involved departmental officers, with allegations that personal information was improperly given to other departmental officers in circumstances not covered by Information Privacy Principle 10. One of these complaints remained outstanding at the end of the reporting period.

No reports were served on the Department under section 30 of the Privacy Act 1988, nor were any determinations made by the Privacy Commissioner relating to the actions of the Department under sections 52 or 53. No public interest determinations were sought from the Privacy Commissioner were sought under section 72 of the Privacy Act 1988.

Delegations to DVA contractors

The Repatriation Commission is vested with broad powers to enable it to carry out its functions, duties and powers under the Veterans’ Entitlements Act 1986 (VEA). Although the Commission has no staff of its own, it is able to delegate its powers to members of the Australian Public Service, generally staff of DVA. Delegations may also be made by either the Commission or the Secretary to non-APS contractors and consultants.

The Military Rehabilitation and Compensation Commission is also vested with broad powers to enable it to carry out is functions under the Military Rehabilitation and Compensation Act 2004 (MRCA). Like the Repatriation Commission, the MRCC has no staff of its own and relies on employees allocated to it by the Secretary of DVA, and other specified people, including contractors and consultants.

The MRCC has two separate delegation powers that it can use to delegate its functions and powers. Section 384 of the MRCA specifies that the MRCC is able to delegate its functions or powers under that Act to individual members of the MRCC, staff of the MRCC, certain employees under the Public Service Act 1999 and members of the ADF. In addition, the MRCC is able to delegate its powers to a consultant to the MRCC or to an employee of such a consultant.

Schedule 2 to the Military Rehabilitation and Compensation (Consequential Transition Provisions) Act 2004 gives the MRCC functions and powers to determine and manage claims that relate to Defence service under the Safety, Rehabilitation and Compensation Act 1988 (SRCA). Section 152 of the SRCA contains a power for the MRCC to delegate its powers and functions under the SRCA to the same group of people specified in section 184 of the MRCA.

The Repatriation Commission and the MRCC are purchasers of health services. The ability to delegate their powers to contractors or consultants gives these two bodies the flexibility they need in this area. For example, Commission powers to approve the supply of certain pharmaceuticals to current and former ADF personnel have been delegated to contracted pharmacists.

During 2005-06, delegations were granted through the Veterans’ Affairs Pharmaceuticals Approvals Centre to four new pharmacists to approve prescriptions under the Repatriation Pharmaceutical Benefits Scheme.

Decisions of courts and administrative tribunals

The Roncevich case

One high profile case during the year was the matter of Roncevich, which involved an accident that occurred while the veteran was intoxicated. This matter was appealed by the veteran to the High Court. In the course of its decision, the Court considered whether an expected attendance by the veteran at a Sergeants’ Mess function and his subsequent intoxication could give rise to eligibility for disability pension payments under the VEAwhere the veteran later sustained an injury. The Court found that the Administrative Appeals Tribunal (AAT) had unduly restricted itself in its consideration of the breadth of the term ‘defence service’ at Section 70(5) of the VEA and remitted for re-hearing by the AAT. The AAT hearing is yet to be finalised in this matter as a range of further evidence and legal argument has been produced for consideration.

Error of law a requirement for appeal

In recent cases the Courts have again emphasised that it is only error of law that can provide the basis for an appeal to the Courts from a decision of the AAT. The existence of different views on the relevant facts will not suffice to ground an appeal. Thus, in the Federal Court matter of Somerset v Repatriation Commission  the judge noted:

...the question before the Federal Court of Australia, in its original jurisdiction, in an ‘appeal’ of this kind from the AAT is whether there is a question of law to be determined in the sense that the AAT has made an error of law rather than whether legitimately different views might be taken, based on the evidence before the AAT, as to the factual matters to be decided by the AAT.

In the Federal Magistrates Court matter of Repatriation Commission v Thomas, the Federal Magistrate discussed at length the case law in respect of appeals from the AAT and the need for such appeals to be framed with some specificity as to the questions of law involved. His Honour cited the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou, later approved by the Full Court of the Federal Court in Birdseye v Australian Securities and Investment Commission, and again in Comcare v Ether

If the question, properly analysed, is not a question of law no amount of formulary like ‘erred in law’ or ‘was open as a matter of law’ can make it into a question of law.

His Honour went on to find in Thomas that the purported errors in law were, at best, allegations that the AAT made errors of law.

The reverse side of this analysis is that, except in extreme circumstances, error of fact is not open to ground an appeal to the courts. Thus, it is rarely open to challenge examples of fact-finding by the AAT, no matter how extreme those findings are on all of the available evidence. Such fact-finding has occurred, on occasion, in reasonable hypothesis cases where decision-makers appear to have concluded that there is no capacity for analysis at the third Deledio stage. Clearly, at this stage there must be a determination whether a reasonable hypothesis is raised and is reasonable after consideration of the whole of the material. This is, in itself, a fact-finding exercise requiring an analysis to determine whether on the whole of the material, and not simply part of it, the requisite hypothesis exists and is reasonable. Were there no capacity for such consideration, then decision-makers would in effect be back in the legal situation that pertained following the High Court’s decision in Repatriation Commission v O’Brien, where even diseases of unknown aetiology had to be accepted as war-caused because the causal relationship could not be negatived beyond reasonable doubt.

Special Rate

In Annett, a case in which a veteran over the age of 65 had applied for payment at the Special Rate, the AAT had to decide whether he satisfied the requirements of sub-paragraph (2A)(g)(ii) of Section 24 of the VEA. This sub-paragraph contains the so-called ‘10 year rule’ which specifies that veterans applying over the age of 65 must have been working, either as an employee or on his/her own account in particular employment, for a continuous period of 10 years that began before turning 65. Mr Annett had a complex recent employment history which saw him working in a range of different situations. He sought to characterise this employment under the umbrella of a company director/manager and so bring himself within the rule. The AAT agreed and granted Special Rate.

The Commission appealed to the Federal Court on the basis that Mr Annett’s employment could not be so characterised. Before the case could be heard, both sides reached agreement that it should be re-heard by the AAT, as the AAT decision appeared to include some errors of law. The Federal Court agreed with the proposed terms of settlement and the matter remitted to the AAT for a new hearing. 

Upon re-hearing, the AAT found that the veteran had ceased his last paid work, as an employee, before he turned 65 and that the cessation was not because of war-caused incapacity alone. In these circumstances, he could not meet sub-paragraphs (d), (e), (f) or (g) of subsection 24(2A) and was ineligible for payment at the Special Rate.

The eventual outcome in this matter is in line with Federal Court precedent and the strict construction intended.

Service pension – residency requirements

The VEA requires that applicants for service pension be residents of Australia and in the country at the date of the application. The AAT case of Alexander v Repatriation Commission involved the situation of a now deceased veteran (Mr Stefanaras) who had lodged a claim, citing an Australian address and bank account, while on a temporary visit to Australia using a visitor’s visa. Mr Stefanaras had originally been resident in Australia in the 1950s. He subsequently moved to the United States of America where he took up US citizenship, visiting Australia from time to time. Upon his death, the irregularity in the grant of his service pension was disclosed and repayment of some 15 years of pension was sought from his estate. This was challenged, with the matter eventually coming before the AAT on the point of whether Mr Stefanaras had lodged a valid claim for service pension. The AAT decided that he was not an Australian resident at the time of lodgement and had therefore not been eligible to lodge a claim.  Recovery action is being pursued.