Supplement to 2003–04 annual report 1
Letter 1 Submission to the Joint Standing Committee on the National Capital and External Territories Inquiry into Norfolk Island Governance
The Council’s submission to the Inquiry into Norfolk Island Governance focused on the role of administrative law in ensuring good governance. After comparing the existing Norfolk Island administrative review system with the Commonwealth equivalent, the Council suggested extension of the jurisdiction of the Island’s merits review tribunal, creation of an ombudsman and adoption of legislation similar to the Commonwealth’s Administrative Decisions (Judicial Review) Act.
31 July 2003
Senator Ross Lightfoot
Chairman
Joint Standing Committee on the National Capital
& External Territories
Parliament House
CANBERRA ACT 2600
Dear Senator Lightfoot
Submission to the Joint Standing Committee on the National Capital and External Territories Inquiry into Norfolk Island Governance
Thank you for the opportunity to make a late submission to the Committee’s Inquiry into Norfolk Island Governance.
The Administrative Review Council is a statutory body, established under the Administrative Appeals Tribunal Act 1975 to advise the Commonwealth Attorney-General on a broad range of matters relating to the Commonwealth system of administrative law.
Having regard to the terms of reference for the Inquiry, particularly the reference to the need for a financially sustainable and accountable system of representative self-government for Norfolk Island, the focus of the Council’s submission is upon the role that administrative law could play in ensuring good governance for the Territory.
The Commonwealth system of administrative review
The Commonwealth has a comprehensive system of administrative law. Through the provision of avenues of redress for those affected by the decisions of administrative decision-makers and the normative effect of external review on the quality of decision-making, the system has contributed substantially to good governance at the Commonwealth level.
Merits review of Commonwealth administrative decisions is available by five major Commonwealth tribunals, the Administrative Appeals Tribunal, the Migration Review Tribunal, the Refugee Review Tribunal, the Social Security Appeals Tribunal and the Veterans’ Review Board.
Judicial review of administrative decisions under Commonwealth enactments is available under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) and also by way of the more complex processes associated with the common law remedies of prohibition, certiorari or mandamus and the equitable remedies of injunction or declaration.
Additionally, access to information held by Commonwealth agencies is available under the Freedom of Information Act 1982 and protection is afforded to personal information under the Privacy Act 1988. Under the Ombudsman Act 1976, the Ombudsman has jurisdiction to investigate complaints against Commonwealth agencies.
Similar administrative law systems exist in other Australian states and territories.
Administrative review and Norfolk Island
The administrative review system for decisions of the Territory Government is less comprehensive than that of the Commonwealth, providing for:
· judicial review by way of the complex processes associated with common law writs and equitable remedies in the Supreme Court of Norfolk Island as a superior court of the record, with no equivalent to the ADJR Act; and
· merits review by the Territory’s Administrative Review Tribunal. Decisions made under at least five Norfolk Island Acts, the Public Reserves Act 1997, the Norfolk Island Broadcasting Authority Act 2001, the Lands Title Act 1996, the Land Administration Fees Act 1996 and the Crowns Lands Act 1986, are reviewable by the Tribunal.
The Territory does not have freedom of information legislation, privacy legislation or an ombudsman’s office.
Relevantly in this context, the Territory has been granted a large degree of autonomy under the Norfolk Island Act 1979. As a result, the Government of the Territory is responsible for a range of matters that are generally handled by the Commonwealth Government elsewhere in Australia.
In particular, the Council notes that social welfare, customs, immigration and quarantine are matters regulated under Territory rather than Commonwealth legislation.
As a result, in contrast to the situation in other states and territories, administrative decisions in these areas are not subject to the comprehensive Commonwealth administrative review regime described above. Rather, review rights in relation to such decisions derive from the system of administrative review prevailing in the Territory.
Council comment
As a matter of principle, the Council supports access to comprehensive administrative review rights for all Australians, both as a means of redress for individuals in the face of adverse administrative decisions and also as a means of encouraging high-quality decision-making by government decision-makers.
However, the Council recognises that the Territory’s small population and related high level of community involvement in administrative decision-making present a somewhat different environment to that which prompted the development of the Commonwealth system of administrative review described above. Nonetheless, in the Council’s view, the significance of the distinctions to be drawn and the difficulties associated with extending the current review system should not be overstated.
While wholesale adoption of all of the elements of the Commonwealth administrative system may not be appropriate for Norfolk Island, there are aspects of the Territory’s review system which would seem to be amenable to change without a significant increase in the complexity of governance in the Territory.
An extension of the jurisdiction of the Territory’s Administrative Review Tribunal to cover decisions under Territory legislation that are currently subject to merits review by Commonwealth tribunals elsewhere in Australia would seem to fall within this category.
Additionally, the Council has had the opportunity to read the Commonwealth Ombudsman’s submission to the Committee and considers that the suggestion for the creation of a Norfolk Island Ombudsman would provide a significant avenue for the review of administrative decisions.
While, in view of that office’s familiarity with areas such as immigration and social security, there might be particular advantage in appointing the Commonwealth Ombudsman to this role, the role could undoubtedly equally be undertaken by either the Queensland or the NSW statutory ombudsman.
The Council also suggests that to simplify access to judicial review of decisions made by the Government of the Territory, in keeping with the situation elsewhere in Australia, consideration might be given to the adoption of legislation similar to the Commonwealth’s Administrative Decisions (Judicial Review) Act.
I would of course be pleased to discuss any aspect of this submission with you further, at your convenience. The contact officer in the first instance is David Ward of the Council Secretariat, who may be reached on tel. 0262505806.
Yours sincerely
Wayne Martin QC
President
Letter 2 Inquiry into administrative review of veteran and military compensation and income support
Writing to the Senate Finance and Public Administration References Committee, the Council gave a generally positive assessment of the performance of the administrative decision-making and review system for veteran and military compensation and income support. The Council considered, however, that measures to encourage earlier production of evidence, especially medical evidence, would be beneficial.
3 September 2003
Mr Alistair Sands
Secretary
Senate Finance & Public Administration
References Committee
Parliament House
Canberra ACT 2600
Dear Mr Sands
Inquiry into administrative review of veteran and military compensation and income support
The Administrative Review Council welcomes the opportunity to make a submission to the Senate Finance and Public Administration References Committee’s inquiry into the options and preferences for a revised system of administrative review within the area of veteran and military compensation and income support.
The Council is a statutory body, established under Part V of the Administrative Appeals Tribunal Act 1975 to advise the Attorney-General on a broad range of matters relating to the Commonwealth system of administrative law. The inquiry is of obvious interest to the Council.
Response to terms of reference
Having regard to its statutory functions, the Council offers the following comments in response to terms of reference (a) and (b) for the inquiry. The Council does not propose to comment on terms of reference (c) and (d) apart from the reference in (c) to onus of proof. Comments relevant to legal aid issues in (e) are dealt with primarily as they arise in the context of terms of reference (a) and (b).
Overview of Council comments
These may be summarised as follows:
· Administrative review levels in the area of military veterans’ and military compensation and income support are attributable to a range of factors in which the nature of the review system itself has a related rather than a pivotal position.
· Individual elements of the administrative decision-making and review system covered by the inquiry (including, where applicable, the two tier external review system) are performing well, particularly as a result of initiatives like the Statements of Principles and the Compensation Claims Processing System and ongoing training initiatives for decision-makers.
· However, when coupled with certain other factors, there can be distortions, particularly evidentiary ones, which can add to the cost and the efficiency of the system overall.
· These include distortions arising in relation to
§ the point at which evidence is encouraged (through the availability of legal aid, for instance)
§ following on from this, the point at which expert evidence is adduced in proceedings.
· In common with other decision-making areas involving recourse to expert evidence, improvements might usefully be considered to the way in which such evidence is adduced.
· Current efforts directed at training for Ex Service Organisation representatives in assisting and in presenting claims should be maintained and modified in response to the decline in those available to provide such services.
Background
The Council notes that aspects of the entitlements and of the regimes subject to the present inquiry have also been the subject of previous inquiries.
The 1999 Tanzer Review of the Military Compensation Scheme[1] and the more recent Clarke Report of the Review of Veterans’ Entitlements[2] are illustrative. The Council notes that a further report on the classifications of war-like and non-war-like service is also pending.[3]
Reports in which review elements of the two regimes have been considered include the Council’s 1983 report Review of Decisions under Repatriation Legislation[4] and a number of reports by the Australian National Audit Office, including Audit Report No. 8 of 1992–3[5] from which the Baume Report, A Fair Go[6], sprang and the Repatriation Medical Authority and the Specialist Medical Review Council established under Parts XIA and B of the Veterans’ Entitlements Act 1986 (the VEA).[7]
Aspects of the review scheme have also been considered in more generally directed reports such as the Council’s Better Decisions report[8], and the Australian Law Reform Commission’s Managing Justice report.[9]
The Council notes that a range of entitlements and a number of legislative regimes and proposed regimes fall for consideration within the scope of the Committee’s terms of reference.
To assist subsequent comment, an overview of the current and proposed system of review for veteran and military compensation and income support follows.
Veterans’ entitlements
Depending on the sort of service, entitlements available under the VEA include:
· compensation by way of disability pension to veterans, certain members of the Defence Force and members of peacekeeping forces and war and defence widow and widowers pensions and orphans pensions for their dependents (VEA Parts II and IV)
· income support benefits by way of service pension (including age, invalidity and partner service pensions), income support supplement, pension bonus for those with qualifying service and their partners, and income support supplements for war or defence widows (VEA Part IIIs and IIIA)
· health care for veterans and their dependents (VEA Part V); and
· a range of allowances and other benefits (VEA Parts VI, VII and VIIAA).
The Repatriation Commission (the Commission) discharges its role in dispensing these entitlements through the Department of Veterans’ Affairs (DVA).
Entitlements for members of the Defence Force—the Military Compensation Scheme
In addition to those available under the VEA (as amended by the Military Compensation Act 1994), benefits may be paid to injured service personnel in two ways under the MCS depending on the type of service (including warlike, non-warlike and peacetime):
· the Safety Rehabilitation and Compensation Act 1988 (the SRCA)[10] (and its predecessor legislation) supplemented by additional benefits payable under the Defence Act 1903, Chapter 10, Part 5 of Defence Determination 2000/1; and
· dual eligibility under both the SRCA and the VEA.
The Military Compensation and Rehabilitation Service, located in DVA since December 1999, provides the following compensation arrangements under the MCS for current and former Australian Defence Force members covered by the SRCA, its predecessor legislation and the Defence Act:
· lump sum payments for pain and suffering and non-economic loss
· weekly incapacity payments
· reimbursement of expenses incurred for health care
· household expenses and attendant care; and
· additional lump sums for severe incapacity and death (the Defence Act supplement).
The proposed new Military and Compensation Scheme
The main features of the proposed scheme encapsulated in the Exposure Draft Military Rehabilitation and Compensation Scheme Bill 2003 (the Exposure Draft Bill) released by the Minister for Veterans’ Affairs on 27June 2003 reflect proposals made in the Tanzer review of the Military Compensation Scheme.[11]
The Bill seeks to introduce a self-contained safety, compensation and rehabilitation scheme for the Australian Defence Force, covering all future service short of declared war involving generalised mobilisation.
Once the new scheme is implemented, it is understood that it is proposed that the VEA only apply to major warlike situations involving general mobilisation.
Operational and non-operational service
The criteria for eligibility for benefits under all these schemes are complex: in addition to the main categories of those with service that entitles them to a disability or a service pension or to some other form of compensation, there is a further sub-group—those with operational and non-operational service (including warlike or non-warlike service).[12]
Although it does not affect the range and level of entitlement, under the two current schemes and the proposed new scheme as reflected in the Exposure Draft Bill, operational service does affect that standard of proof applicable in establishing entitlement to a disability pension under VEA Parts II and IV and under the other two schemes referred to.