Dissenting report by Senator Jacqui Lambie
1.1
Senator Jacqui Lambie, of the State of Tasmania,
dissents in part from the Committee's
recommendation with respect to Schedule 1 of the Veterans' Affairs
Legislation Amendment (Omnibus) Bill 2017 [Provisions] which
would grant a single member
of the Veterans' Review Board
("VRB"), that being the Principal Member, the power to dismiss
frivolous applications by amending the Veterans' Entitlement Act 1986 ("VEA 1986") with proposed
section 155(8A).
1.2
A party
to review of a veterans'
entitlement appeal, pursuant
to section 147(2)(a) of the VEA 1986,
may "appear in person, or be represented at the party's own expense by a
person other than a legal practitioner . . ." 1 (Emphasis added.)
Conversely, a party to review of a veterans' entitlement appeal in the
Administrative Appeals Tribunal ("AAT") Veterans' Appeals Division is
permitted to be represented by a legal practitioner.2 In this regard, the common law
doctrines of procedural fairness and natural justice would disfavour adopting the AAT's model for summary dismissal, by
a single board member versus a panel of three,3 because veterans are not permitted to
be represented by legal counsel at VRB hearings.
1.3
Since 2010, DVA's
own reviews of Ex-Service Organisations ("ESO") advocacy services
indicates that there are issues with the adequacy of non-lawyer advocacy
services available to the veterans' community appearing before the VRB. Indeed,
"some ESOs have reported difficulty in attracting, training
and retaining a sufficient number
of advocates, welfare and pension officers to act on
behalf of DVA beneficiaries and claimants and to deal with increasingly complex
legislation." 4 Nearly one year ago, on 30 June 2016, the DVA-Training and Information Program ("TIP"), which trained layman
advocates, was scrapped
by DVA for implementation of a different model yet to be proven effective.5
1.4
Given the fact that there are
issues with the adequacy and availability of layman advocacy services for
veterans together with the fact that a legal practitioner is barred from
appearing before the VRB by operation of section 147(2)(a) of the VEA
1986 a self-represented veteran's right to
review should not be further impeded by granting a single member of the VRB the power to summarily dismiss
a veteran's application prior to an opportunity to be heard by a three-member panel at a hearing.
1.5
The Returned & Services League
of Australia (RSL) noted that "many [veterans] are grateful for the opportunity to see if they qualify
for assistance from DVA . . . [a] panel affords
them the chance to be heard by three individuals in contrast to one delegate .
. ." 6
1.6
Some veterans are
vulnerable as evidenced by this Committee's recent inquiry into the mental health of Australian Defence
Force serving personnel.7 In light of this vulnerability the granting of powers to
summarily dismiss a veterans' appeal, particularly by a single member of the VRB, should
not be permitted unless the veteran is first afforded
a hearing before a three- member VRB board panel.8
1.7
Mr Brian Briggs, a national expert
in veterans' entitlement law and military compensation, opined that it is
inadequate to allow summary dismissal by the Principal Member of the VRB citing
Federal Court cases as examples of incorrectly dismissed applications to the AAT.9
1.8
The Alliance of
Defence Service Organisations ("ADSO"), the Principal Member of the VRB10 and the DVA Principal
Legal Advisor (collectively the "proponents") fail to address common law doctrines of
procedural fairness and natural justice, in granting special powers to the VRB Principal Member, to summarily
dismiss an application where a self-represented veteran applicant has no right
to legal representation at a hearing before such body and where there are known issues with the adequacy of layman veterans' advocates. Self-represented veterans should
continue to enjoy the right to a hearing without the fear of a single VRB
member summarily dismissing their case.
1.9
The DVA Principal Legal Advisor's
attempt to argue that this Committee should support summary dismissal power of a veteran's appeal,
by a single VRB member,
in providing a list of bodies
that currently possess the power to dismiss frivolous or vexatious claims fails
because none of those bodies ban legal practitioners in representing11 applicants or appellants.12
1.10
In the 33rd Parliament, during the second reading of the Repatriation
Legislation Amendment Bill 1984,
which created the VRB, it was noted by the late Senator
Arthur Gietzelt, who served
as the 29th Minister for Veterans' Affairs, that:
"[A]t the VRB a claimant will have the opportunity of an oral
hearing. Country people will be
given the option of a telephone conference hookup. A claimant will also have
the right to be represented by a lay advocate if desired. Only if a claimant
fails to advise of his or her intention to attend or be represented at a hearing
will the review proceed in his or her absence." 13
1.11
Thus, for this 45th Parliament to
now consider granting powers to a single VRB member to summarily dismiss a
veterans' appeal prior to a hearing is contrary to the 33rd Parliament's intent
on the very creation of the VRB which was to afford a veteran the opportunity
to be heard by way of an oral hearing. This Committee, in its haste to report
out the Bill, fails to reconcile the lack of need for such change in procedure
versus decades of long standing precedent and the historical reasons for the
creation of the VRB. In doing so, it assists in eroding a veteran's right to a
fair hearing.
1.12
The granting of such powers to a single
VRB member to summarily dismiss
a veteran's case would be a
significant deviation from 30-plus years of veterans' entitlement law practice
as explained above. Statistical data gleaned from the VRB annual reports does
not support the proposition that there has been such a drastic increase
in caseload at the VRB necessitating the Principal Member being given such
extraordinary power to summarily dismiss a veteran's application in order to effectively manage the annual caseload of the VRB. To the contrary, the VRB caseload has significantly
decreased over the last decade.14 Thus, there is no
need to deviate from decades
of practice in affording a self-represented veteran
a hearing by a panel of
three VRB members especially since there has been a long trend in decreased caseloads.
1.13
The Committee is misled by the
representations of the proponents, as explained above, in recommending the granting of summary dismissal powers
thereby potentially thwarting three decades of deeply rooted
common law doctrines
of procedural fairness
and natural justice in VRB proceedings to those who
have served in uniform in defence of our nation. Further, this new power may
serve to harm self-represented vulnerable veteran applicants at the VRB in the
event that an application, with merit, is summarily dismissed in error by the
single member of the VRB. So, there is no doubt, Mr Briggs cited clear examples
of cases where the use of summary dismissal was in error.15
1.14
There can be no alignment of the VRB's
operations with those of the AAT with respect
to procedures for summary dismissal as the proponents would have this Committee
believe without there being unintended consequences for vulnerable self-represented
veteran applicants. The proponents sidestep these issues in their submissions
and in testimony before this Committee. The risk of unintended consequences to
those vulnerable self-represented veterans is far too great for this Parliament to grant special
summary dismissal power. There is no compelling need for a change in the law.
1.15
Senator Lambie concurs, in part,
with the remainder of the Committee's report.
Recommendation
1
1.16
Omit proposed section 155(8A) to VEA
1986 from the Veterans' Affairs Legislation Amendment (Omnibus) Bill
2017 [Provisions].
Jacqui
Lambie
Senator
for Tasmania
1 "Legal
practitioner" is read as including a reference to any person who: holds a
degree of Bachelor of Laws, Master of Laws or Doctor of Laws or Bachelor of
Legal Studies; or is otherwise qualified for admission as a barrister,
solicitor, or barrister and solicitor, of the High Court or of the Supreme
Court of a State or Territory. See section 147(3) VEA 1986. While there
is no bar for a "legal practitioner" to assist a veteran in
preliminary matters at the VRB, it can be said that s147(2)(a) VEA 1986 has
served as a deterrent to a veteran seeking a legal practitioner's assistance
even with preliminary matters and thus the veteran either relies upon a lay
advocate or is self-represented in both preliminary matters and the hearing.
2 See section 32 of
the Administrative Appeals Tribunal Act 1975. Thus, procedure in the
AAT's Veterans' Appeals Division affords applicants an opportunity for full
consideration and resolution of the matters when counsel is acting as an
advocate.
3 The composition
of the VRB, for the exercise of it powers of review, consists of traditionally
three members: (1) a Principal Member
or Senior Members;
a (2) Service Member; and (3) one other member or various combinations that would
provide a panel of three. See section 141 VEA 1986.
4 See DVA Review of DVA-Funded ESO Advocacy and Welfare Services
Final Report dated December
2010 at p. 9.
5 See DVA
website "Advocacy Training and Development Program" webpage (retrieved 10 June 2017); Training and Information Program (TIP) webpage (retrieved
10 June 2017) and DVA Training and Information Program webpage (retrieved 10
June 2017).
6 Returned &
Services League of Australia, Submission 6 at p. 5.
7 See generally report
on Mental health of Australian Defence Force members and veterans, Senate FADT
References Committee, March 2016.
8 For example, a self-represented
veteran applicant at the VRB may have a diminished mental capacity due to PTSD, depression, anxiety disorder, drug or alcohol
dependency or some other medical
condition that impairs brain function and which may be service related.
In that case, the self-represented veteran may not have been able to adequately
state his or her case on the DVA claim's forms. But given the chance to attend
a VRB hearing where three panel members are able to question the
self-represented veteran, may enable the veteran
to more fully present a successful application to the VRB instead of his
or her case being summarily dismissed by the Principal Member prior to any hearing.
9 Slater and
Gordon Lawyers, Submission 2 at p. 6.
10 Assurances by Mr
Doug Humphreys, the current VRB Principal Member, to this Committee that he
will only use the power in the rarest of cases and that he will not delegate
the power to other Board Members or Registrars is a hollow argument and misses
the point. (See VRB, Submission 8 at p. 2.) The 45th Parliament would not, per se be
granting such power directly to Mr Humphreys, rather if this Parliament was to enact the proposed
section 155(8A) it would be granting such power to whomever is the Principal Member of the VRB. Mr
Humphreys will not be the Principal Member of the VRB in perpetuity and
there is no fortune telling of how a future Principal Member will exercise such
power if it was granted by this Parliament.
11 The Social Services and Child Support
Division of the AAT may grant leave for a person to be represented. See
section 32(2) – (4) of the Administrative Appeals Tribunal Act 1975.
12 Department of Veterans' Affairs. List
of bodies that can dismiss frivolous and vexatious (tabled 26 May 2017).
13 Remarks
of Senator Gietzelt, Hansard, 29 May 1984 at p. 2048.
14 See generally VRB annual reports ranging from years 1999 to 2016.
For example, in reporting year 2015-16 there
were 2,804 applications lodged with the VRB. A decade ago, in reporting year 2005-06 there were 4,497 lodged
applications. This shows that there were 1,693 fewer cases lodged in the most
recent reporting year compared to a decade ago
15 Slater
and Gordon Lawyers, Submission 2 at p. 6.
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