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External scrutiny

External scrutiny provides independent assurance that DVA's 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; and
  • 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 2016–17 are described in this section. In 2016–17, DVA was the subject of one cross-entity audit from the Australian National Audit Office: Managing underperformance in the Australian Public Service.

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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) 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 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 34. 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.

Table 34—VEA, SRCA and MRCA matters considered by the Administrative Appeals Tribunal in 2016–17
Category Applications
decided by AAT
Decisions affirmed,
withdrawn, or
dismissed by the AAT
Decisions settled
by consent of
the AAT
Decisions set
aside at
hearing
VEA 191 141 Not available1 Not available
SRCA 84 61 20 3
MRCA 44 27 16 1

AAT = Administrative Appeals Tribunal, MRCA = Military Rehabilitation and Compensation Act 2004, SRCA = Safety, Rehabilitation and Compensation Act 1988, VEA = Veterans' Entitlements Act 1986

  1. These figures are currently not captured.

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Under the Legal Services Directions 2017, the Repatriation Commission or the MRCC may lodge an appeal to the AAT or the Federal Court in order to clarify a legal issue or protect the integrity of legislation.

In 2016–17, 10 applications were lodged with the Federal Court, of which eight were lodged by the veteran or widow. In the same period, the Federal Court made seven decisions, four of which were favourable to the veteran or widow. These numbers include cases considered by the Federal Circuit Court. One appeal was lodged in the Full Federal Court, by the Repatriation Commission. The Full Federal Court made one decision during the period, the matter of Repatriation Commission v McDermid [2016] FCAFC 179. The decision was favourable to the Repatriation Commission.

On 14 December 2016, the Full Federal Court upheld the Repatriation Commission appeal in the matter of Repatriation Commission v McDermid [2016] FCAFC 179. The Federal Court at first instance had made a decision which had the potential to impact the way offsetting was administered under the VEA. The Full Court's decision restored certainty in this area.

The High Court did not deliver any decisions, but did refuse an application for special leave to appeal from the Full Court decision of Repatriation Commission v McDermid [2016] FCAFC 179.

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Decisions by the Australian Information Commissioner

The Australian Information Commissioner handed down five decisions in relation to the Department in 2016–17 under the Freedom of Information Act 1982 (FOI Act). There were no determinations made under the Privacy Act 1988.

On 31 January 2017, in Julie Anderson and Department of Veterans' Affairs (Freedom of information)[2017] AICmr 10, the Australian Information Commissioner affirmed a decision by the Department under the FOI Act not to release the peer review of the Australian Gulf War Veterans' Follow Up Health Study. The Commissioner's decision considered the application of the exemption contained in section 47G of the FOI Act. The provision allows an agency to refuse access to documents where the disclosure would unreasonably affect an organisation's business affairs and where disclosure would be contrary to the public interest. The Commissioner was satisfied that disclosing the peer review document could reasonably be expected to unreasonably affect Monash University in respect of its lawful business affairs and that giving the applicant access to the peer review document at this time would, on balance, be contrary to the public interest.

On 6 February 2017, in 'KR' and Department of Veterans' Affairs (Freedom of information)[2017] AICmr 13, the Australian Information Commissioner set aside a decision by the Department under the FOI Act relating to access to the schedule to the Veterans' Indemnity and Training Association professional indemnity insurance policy.

The Commissioner's decision considered whether the schedule was exempt under section 45 (material obtained in confidence exemption) or subsection 47(1) (commercial valuable information exemption) or conditionally exempt under section 47G (business affairs). The Commissioner decided that these exemptions did not apply to the policy schedule and substituted the decision that the document is not exempt.

This decision of the Australian Information Commissioner has been appealed to the Administrative Appeals Tribunal.

Three of the decisions of the Australian Information Commissioner considered whether DVA had taken all reasonable steps to find documents within the scope of the applicants' requests under section 24A of the FOI Act. In all three decisions, the Commissioner affirmed the decisions of the Department under the FOI Act (see 'KK' and Department of Veterans' Affairs (Freedom of information)[2017] AICmr 3 (17 January 2017); 'KM' and Department of Veterans' Affairs (Freedom of information)[2017] AICmr 5 (19 January 2017); and 'KX' and Department of Veterans' Affairs (Freedom of information)[2017] AICmr 23 (17 March 2017)).

Copies of the decisions are available on the Office of the Australian Information Commissioner's (OAIC) website (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 2016–17, the Auditor-General published the following cross-entity report involving DVA: Managing underperformance in the Australian Public Service.

This report is available at www.anao.gov.au.

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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.

DVA did not make any submissions to the committee during 2016–17.

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Implementation of the Government's regulatory reform agenda

DVA continues to contribute red tape savings towards the Australian Government's program of reducing the regulatory burden of red and green tape for individuals, business and community organisations. This is achieved by reviewing the regulatory requirements established in DVA legislation, identifying policy options which allow for regulatory requirements to be minimised wherever possible, and investigating opportunities to make interaction easier for our veterans, service providers and the ex-service community. This activity occurs in the context of ensuring that important consumer and other safeguards are maintained.

DVA reports its key red tape savings to the Department of the Prime Minister and Cabinet. Information on the Government's regulatory reform agenda is available on the Cutting Red Tape website at www.cuttingredtape.gov.au.

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