Commonwealth Numbered Acts Commonwealth Numbered ActsVeterans' Entitlements Act 1986
1 Section 133
Before "In this", insert "(1)".
2 Section 133
Insert:
"alternative dispute resolution processes" means procedures and services for the resolution of disputes, and includes:
(a) conferencing; and
(b) mediation; and
(c) neutral evaluation; and
(d) case appraisal; and
(e) conciliation; and
(f) procedures or services prescribed in an instrument under subsection (2);
but does not include:
(g) arbitration; or
(h) court procedures or services.
Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition.
"Conference Registrar" means a Conference Registrar of the Board.
"Deputy Registrar" means a Deputy Registrar of the Board.
"National Registrar" means the National Registrar of the Board.
"Registrar" means a Registrar of the Board.
3 At the end of section 133
Add:
(2) The Minister may, by legislative instrument, prescribe procedures or services for the purposes of paragraph (f) of the definition of alternative dispute resolution processes in subsection (1).
4 At the end of Division 1 of Part IX
Add:
In carrying out its functions, the Board must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
5 After section 138
Insert:
138A Board may remit matters to Commission for further consideration
(1) At any stage of a review of a decision of the Commission, the Board may remit the decision to the Commission for the Commission to reconsider the decision.
Role of Commission
(2) If a decision is remitted to the Commission, the Commission must reconsider the decision and must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
(3) If the Commission affirms the decision, the review resumes.
(4) If the Commission varies the decision:
(a) the application for review is taken to be an application for review of the decision as varied; and
(b) the person who made the application may:
(i) proceed with the application for review of the decision as varied; or
(ii) withdraw the application.
(5) If the Commission sets aside the decision and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision; and
(b) the person who made the application may:
(i) proceed with the application for review of the new decision; or
(ii) withdraw the application.
6 Paragraph 139(3)(c)
Repeal the paragraph, substitute:
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) making a decision in substitution for the decision so set aside and, in relation to the substituted decision, remitting one or more matters to the Commission for consideration in accordance with any directions or recommendations of the Board; or
(iii) remitting one or more matters to the Commission for reconsideration in accordance with any directions or recommendations of the Board.
7 Subsection 139(4)
Repeal the subsection.
8 Section 140
Repeal the section, substitute:
140 Board to give notice of decision and reasons to parties
Notice of decision
(1) The Board must give a copy of its decision under section 139 to each party to the review.
Reasons
(2) The Board must give reasons either orally or in writing for its decision under section 139.
(3) If the Board does not give reasons in writing for its decision:
(a) a party to the review may, within 28 days after the day on which a copy of the decision is given to the party, request the Board for a written statement of the Board's reasons for its decision; and
(b) the Board must comply with any request within 28 days after receiving the request.
(4) If the Board gives reasons in writing for its decision, those reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
(5) If the Board gives reasons in writing for its decision and the reasons contain or refer to any information, opinion or other matter:
(a) that in the Board's opinion is of a confidential nature; or
(b) that in the Board's opinion might be prejudicial to the physical or mental health or wellbeing of the applicant for the review to communicate to the applicant;
any written statement of the Board's reasons for the decision given to the applicant (or a person authorised by the applicant) must not contain or refer to that information, opinion or other matter.
Notice of review right
(6) The Board must give the applicant for the review (or a person authorised by the applicant) notice of the right under subsection 175(1) (about review by the Administrative Appeals Tribunal).
Filing of decision
(7) The Board must file its decision under section 139, and any written statement of its reasons for the decision, with the records of the case.
9 Subsection 140A(1)
Omit "a registrar or a deputy registrar", substitute "the National Registrar, a Registrar or a Deputy Registrar".
10 Subsection 141(2)
Omit "With the approval of the Minister, the", substitute "The".
11 After section 141
Insert:
141A Management of administrative affairs of Board
(1) The Principal Member is responsible for managing the administrative affairs of the Board.
(2) In the management of the administrative affairs of the Board, the Principal Member is assisted by the National Registrar.
(3) The National Registrar has power to do all things necessary or convenient to be done for the purpose of assisting the Principal Member.
(4) In particular, the National Registrar may act on behalf of the Principal Member in relation to the administrative affairs of the Board.
(5) The Principal Member may give the National Registrar written directions regarding the exercise of the National Registrar's powers under this Part.
12 Section 142
Repeal the section, substitute:
142 Arrangement of business of Board
(1) Subject to this Act, the Principal Member is responsible for ensuring the expeditious and efficient discharge of the business of the Board.
(2) Without limiting subsection (1), the Principal Member may give written directions as to:
(a) the operations of the Board generally; and
(b) the operations of the Board at a particular place; and
(c) the procedure of the Board generally; and
(d) the procedure of the Board at a particular place; and
(e) the conduct of reviews by the Board; and
(f) the arrangement of the business of the Board; and
(g) the places in Australia at which the Board may sit.
13 Section 145
Repeal the section.
14 After Division 4 of Part IX
Insert:
Division 4A -- Alternative dispute resolution processes
145A Referral of review for alternative dispute resolution process
(1) If an application is made to the Board for review of a decision, the Principal Member may in writing:
(a) direct the holding of a conference of the parties to the review or their representatives in relation to the review, any part of the review or any matter arising out of the review; or
(b) direct that the review, any part of the review or any matter arising out of the review, be referred for a particular alternative dispute resolution process (other than conferencing).
(2) The Principal Member may in writing direct the holding of conferences of the parties to a review or their representatives in the case of applications made to the Board for review of decisions of a kind specified in the direction.
(3) The Principal Member may in writing direct that reviews be referred for a particular alternative dispute resolution process (other than conferencing) in the case of applications made to the Board for review of decisions of a kind specified in the direction.
(4) A direction may be given under paragraph (1)(a) or (b):
(a) whether or not a direction has previously been given under paragraph (1)(a) or (b) in relation to the review; and
(b) whether or not a direction under subsection (2) or (3) has applied.
(5) If a direction under this section is applicable to:
(a) a review; or
(b) a part of a review; or
(c) a matter arising out of a review;
each party must act in good faith in relation to the conduct of the alternative dispute resolution process concerned.
145B Directions by Principal Member
(1) The Principal Member may give written directions about alternative dispute resolution processes.
(2) Directions under subsection (1) may relate to:
(a) the procedure to be followed in the conduct of an alternative dispute resolution process; and
(b) the person who is to conduct an alternative dispute resolution process; and
(c) the procedure to be followed when an alternative dispute resolution process ends.
(3) Subsection (2) does not limit subsection (1).
(4) A person is not entitled to conduct an alternative dispute resolution process unless the person is:
(a) a member; or
(b) the National Registrar, a Registrar, a Deputy Registrar or a Conference Registrar; or
(c) a person engaged under section 145G.
(5) The National Registrar, a Registrar or a Deputy Registrar, in conducting an alternative dispute resolution process, does so in the capacity of a Conference Registrar.
145C Agreement about the terms of a decision etc.
(1) If:
(a) in the course of an alternative dispute resolution process under this Division, agreement is reached between the parties to a review or their representatives as to the terms of a decision of the Board:
(i) in the review; or
(ii) in relation to a part of the review; or
(iii) in relation to a matter arising out of the review;
that would be acceptable to the parties; and
(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Board; and
(c) 7 days pass after lodgement, and none of the parties has notified the Board in writing that the party wishes to withdraw from the agreement; and
(d) the Board is satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Board;
the Board may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
(2) If the agreement reached is an agreement as to the terms of a decision of the Board in the review, the Board may, without holding a hearing of the review, make a decision in accordance with those terms.
(3) If the agreement relates to:
(a) a part of the review; or
(b) a matter arising out of the review;
the Board may, in its decision on the review, give effect to the terms of the agreement without dealing at the hearing of the review with the part of the review, or the matter arising out of the review, to which the agreement relates.
(1) Evidence of anything said, or any act done, at an alternative dispute resolution process under this Division is not admissible:
(a) in any court; or
(b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory to hear evidence; or
(c) in any proceedings before a person authorised by the consent of the parties to hear evidence.
Exceptions
(2) Subsection (1) does not apply so as to prevent, at the hearing of a review before the Board, the admission of particular evidence if the parties to the review agree to the evidence being admissible at the hearing.
(3) Subsection (1) does not apply so as to prevent, at the hearing of a review before the Board, the admission of:
(a) a case appraisal report prepared by a person conducting an alternative dispute resolution process under this Division; or
(b) a neutral evaluation report prepared by a person conducting an alternative dispute resolution process under this Division;
unless a party to the review notifies the Board before the hearing begins that the party objects to the report being admissible at the hearing.
If:
(a) an alternative dispute resolution process under this Division in relation to a review is conducted by a member; and
(b) a party to the review notifies the Board before the hearing that the party objects to that member participating in the hearing;
that member is not entitled to be a member of the Board as constituted for the purposes of the review.
145F Participation by telephone etc.
The person conducting an alternative dispute resolution process under this Division may allow a person to participate by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
145G Engagement of persons to conduct alternative dispute resolution processes
(1) The National Registrar may, on behalf of the Commonwealth, engage persons to conduct one or more kinds of alternative dispute resolution processes under this Division.
(2) The National Registrar must not engage a person under subsection (1) unless the National Registrar is satisfied, having regard to the person's qualifications and experience, that the person is a suitable person to conduct the relevant kind or kinds of alternative dispute resolution processes under this Division.
15 Subsection 147(2) (note)
Repeal the note.
16 After subsection 148(4)
Insert:
(4A) A member may hold a directions hearing in relation to a review.
(4B) Before the hearing of a review has commenced, a member, the National Registrar, a Registrar, a Deputy Registrar or a Conference Registrar may give directions, not inconsistent with subsections (1), (2), (3) and (4) or directions under subsection 142(2), in relation to the procedure to be followed in connection with the review. Without limiting this subsection, a direction may:
(a) require any person who is a party to the review to provide further information in relation to the review; or
(b) require the Commission to provide a statement of the grounds on which the application will be resisted at the hearing of the review; or
(c) require any person who is a party to the review to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing of the review.
17 Paragraph 148(5)(a)
After "subsections (1), (2), (3) and (4)", insert "or directions under subsection 142(2),".
18 Paragraph 148(5)(b)
After "subsections (1), (2), (3) and (4)", insert "or directions under subsection 142(2)".
19 Paragraph 148(5B)(e)
Repeal the paragraph, substitute:
(e) documents withdrawing or discontinuing applications for review communicated to the Board under subsection 155(2).
20 Paragraphs 148(5B)(f) to (i)
Repeal the paragraphs.
21 Subsection 148(6)
After "subsections (1), (2), (3) and (4)", insert "or directions under subsection 142(2)".
22 Subsection 148(7)
Omit "shall have regard to the need for the review to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Board permit", substitute "must have regard to the objective in section 133A".
23 At the end of section 148
Add:
(8) A member holding a directions hearing or the Board in the hearing of a review may allow a person to participate by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
(9) In a review of a decision of the Commission, the Commission must use its best endeavours to assist the Board to make a decision in relation to the review.
24 Sections 155 to 155AC
Repeal the sections, substitute:
Dismissal if parties consent
(1) If each party to the review by the Board of a decision consents, the Principal Member may dismiss the application for review without proceeding to review the decision or, if the Board has started to review the decision, without completing the review.
Dismissal if applicant discontinues or withdraws application
(2) A person who has made an application to the Board for a review of a decision may, in writing, notify the Board that the application is withdrawn or discontinued.
(3) If notification is so given, the Principal Member is taken to have dismissed the application without proceeding to review the decision.
Dismissal if applicant fails to appear
(4) If the applicant for the review of a decision fails to appear in person, or to appear by a representative, at a directions hearing, or an alternative dispute resolution process under Division 4A, held in relation to the application or at the hearing of the review:
(a) the Principal Member may dismiss the application without proceeding to review the decision; and
(b) if he or she does so, he or she must notify each party to the review of the dismissal.
(5) For the purposes of subsection (4):
(a) a person is taken to appear in person or by a representative at an alternative dispute resolution process if the person or representative participates in it by a means allowed under section 145F; and
(b) a person is taken to appear in person or by a representative at a directions hearing, or the hearing of the review, if the person or representative participates in it by a means allowed under subsection 148(8).
(6) The Principal Member must, before exercising a power under subsection (4), be satisfied that appropriate notice was given to the applicant for the review of the time and place of the directions hearing, the alternative dispute resolution process or the hearing of the review.
Dismissal if decision not reviewable
(7) If:
(a) the applicant for the review of a decision is notified in writing by the National Registrar that the decision does not appear to be reviewable by the Board; and
(b) before the end of the period prescribed in a legislative instrument made by the Minister for the purposes of this paragraph, the person is unable to show that the decision is so reviewable;
the Principal Member may dismiss the application without proceeding to review the decision.
Dismissal if applicant fails to proceed or fails to comply with Board's direction
(8) If the applicant for the review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction given to the applicant under this Part in relation to the application;
then:
(c) the Principal Member may dismiss the application without proceeding to review the decision; and
(d) if he or she does so, he or she must notify each party to the review of the dismissal.
Review taken to be concluded
(9) If an application is dismissed under this section, the review to which the application relates, unless the application is reinstated under subsection (10) or (11), is taken to be concluded.
Reinstatement of application
(10) If the Principal Member, under subsection (4), dismisses an application:
(a) the applicant may, within 28 days after receiving notification of the dismissal, apply to the Principal Member for reinstatement of the application; and
(b) if the Principal Member considers it appropriate to do so, he or she may reinstate the application and give such directions as appear to him or her to be appropriate in the circumstances.
(11) If it appears to the Principal Member that an application has been dismissed under this section in error, he or she may, on the application of a party to the review or on his or her own initiative, reinstate the application and give such directions as appear to him or her to be appropriate in the circumstances.
25 Subsection 155A(1)
Repeal the subsection, substitute:
(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision by the Principal Member under subsection 155(4), (7) or (8) to dismiss an application.
26 Subparagraph 157(2)(b)(ii)
Omit "served on", substitute "given to".
27 After subsection 157(4)
Insert:
(4A) If the Board, upon its review of a decision of the Commission, sets aside that decision and subparagraph 139(3)(c)(iii) applies, the decision to set aside the Commission's decision takes effect on the day the Board made its decision or an earlier or later date, as the Board determines is fair and reasonable in all the circumstances.
28 Subsection 166(1A)
Repeal the subsection, substitute:
(1A) The Principal Member may, by writing signed by him or her, delegate to the National Registrar all or any of the Principal Member's powers under section 142, 143, 144, 148 or 155.
(1B) The Principal Member may, by writing signed by him or her, delegate to a Registrar, a Deputy Registrar or a Conference Registrar all or any of the Principal Member's powers under subsection 148(6A) or section 155.
29 Section 167 (heading)
Repeal the heading, substitute:
30 Before subsection 167(1)
Insert:
Members
31 After subsection 167(1)
Insert:
Registrars
(1A) The National Registrar, a Registrar, a Deputy Registrar or a Conference Registrar has, in the performance of his or her duties as such a person, the same protection and immunity as a Justice of the High Court.
Alternative dispute resolution practitioners
(1B) An alternative dispute resolution practitioner has, in the performance of his or her duties as an alternative dispute resolution practitioner under this Part, the same protection and immunity as a Justice of the High Court.
32 Before subsection 167(2)
Insert:
Party representatives
33 Before subsection 167(3)
Insert:
Witnesses
34 At the end of section 167
Add:
Definition
(4) In this section:
"alternative dispute resolution practitioner" means a person who conducts an alternative dispute resolution process under Division 4A.
35 Section 170
Repeal the section, substitute:
Insulting a person
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person's conduct insults another person in, or in relation to, the exercise of the other person's powers or functions under this Part.
Penalty: Imprisonment for 6 months.
Interrupting proceedings of the Board
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person's conduct interrupts the proceedings of the Board.
Penalty: Imprisonment for 6 months.
Creating a disturbance
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person's conduct creates a disturbance in or near a place where the Board is sitting.
Penalty: Imprisonment for 6 months.
Taking part in creating or continuing a disturbance
(4) A person commits an offence if:
(a) the person takes part in creating or continuing a disturbance; and
(b) the disturbance is in or near a place where the Board is sitting.
Penalty: Imprisonment for 6 months.
Contempt of Board
(5) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person's conduct would, if the Board were a court of record, constitute a contempt of that court.
Penalty: Imprisonment for 6 months.
36 Section 172
Before "Any", insert "(1)".
37 At the end of section 172
Add:
(2) Without limiting subsection (1), the staff required to assist the Board may include one or more of the following:
(a) a National Registrar;
(b) Registrars;
(c) Deputy Registrars;
(d) Conference Registrars.
38 Subsection 175(1)
Repeal the subsection, substitute:
(1) If:
(a) a decision of the Commission has been reviewed by the Board upon an application made under section 135; and
(b) either:
(i) the Board affirms or varies the decision; or
(ii) the Board sets aside the decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies;
applications may be made to the Administrative Appeals Tribunal for review of the decision of the Board.
(1AA) For the purposes of subsection (1), the decision made by the Board is taken to be:
(a) if the Board affirms a decision--that decision as affirmed; or
(b) if the Board varies a decision--that decision as varied; or
(c) if the Board sets aside a decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies--the decision made by the Board in substitution for the decision so set aside.
39 Paragraph 176(3)(a)
Omit "paragraph 175(1)(a) or (c)", substitute "paragraph 175(1AA)(a) or (c)".
40 Paragraph 176(3)(b)
Omit "paragraph 175(1)(b)", substitute "paragraph 175(1AA)(b)".
41 Application and saving provisions
(1) The amendments made by items 5, 6, 7, 10, 16, 19, 20, 23, 24 and 25 apply in relation to an application for review that is made under section 135 of the Veterans' Entitlements Act 1986 on or after the commencement of those items.
(2) The amendments made by items 8, 26, 27, 38, 39 and 40 apply in relation to decisions made by the Board on or after the commencement of those items.
(3) Subsections 145A(1), (2) and (3) of the Veterans' Entitlements Act 1986 , as inserted by this Act, apply in relation to an application for review that is made on or after the commencement of this item.
(4) The amendment made by item 28 does not affect the validity of a delegation in force under subsection 166(1A) of the Veterans' Entitlements Act 1986 immediately before the commencement of this item.
(5) The amendment made by item 31 applies in relation to duties performed on or after the commencement of that item.
(6) The amendment made by item 35 applies in relation to conduct engaged in on or after the commencement of that item.
Part 2 -- Consequential amendments
Military Rehabilitation and Compensation Act 2004
42 Subsection 353(1)
After "133,", insert "133A,".
43 Subsection 353(1)
After "138,", insert "138A,".
44 Subsection 353(1)
After "Divisions 4,", insert "4A,".
45 Subsection 353(2) (cell at table item 6, column headed "Modification")
Repeal the cell, substitute:
|
References to a decision, where the decision is a decision of the Repatriation Commission, have effect as references to an original determination |
46 Subsection 353(2) (table item 11)
Repeal the item, substitute:
|
11 |
Subsection 140(6) |
The reference to subsection 175(1) has effect as a reference to subsection 354(1) of this Act |
47 Subsection 353(2) (table items 17 and 18)
Repeal the items.
48 Section 353A
Repeal the section.
49 Application provisions
(1) The amendments made by items 43, 44, 45, 47 and 48 apply in relation to an application for review that is made on or after the commencement of those items.
(2) The amendment made by item 46 applies in relation to decisions made by the Board on or after the commencement of that item.
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