Defence Determination 2012/68, Reserve employer support payments-Concluded Matters [2013] AUSStaCSDLM 113 (21 March 2013)

• Defence Determination 2012/68, Reserve employer support payments
• (a) Trespass on personal rights
• (b) Review of decisions on their merits

Defence Determination 2012/68, Reserve employer support payments

Purpose	Repeals and replaces the Defence (Employer Support) Determination 2005, which provides for payments to be made to the employers of certain members of the Australian Defence Force who serve as reservists
Last day to disallow	15 May 2013
Authorising legislation	Defence Act 1903
Department	Defence

ISSUES:

(a) Trespass on personal rights

Subsections 3.5(a) and (b) of the determination provide that nothing in section 3 (relating to repeal, saving and transition matters) is taken to preserve the monetary amount or value of a person's entitlements under the former determination. While the committee appreciates that the section facilitates the transition between the two determinations by, for example, ensuring that a person who has qualified for an entitlement under the previous determination will be taken to have qualified for the corresponding requirement under the new determination, the committee notes that the ES provides only a general description of the purpose and operation of the section and, particularly, subsections 3.5(a) and (b) [the committee sought further information from the parliamentary secretary on the intended purpose of subsections 3.5(a) and (b) of the determination, and particularly as to whether there was potential for a person to be disadvantaged due to their operation].

(b) Review of decisions on their merits

Part 5 of the instrument deals with the question of review of decisions. It is apparent from the transitional provisions that the new instrument removes the right of review by the Administrative Appeals Tribunal (AAT) for certain decisions relating to employer support payments; however, the ES notes that a review of a decision may be conducted by the Commonwealth Ombudsman. In the committee's view, it is unclear as to why AAT review has been excluded, and what will be the nature and potential outcomes of a review by the Ombudsman [the committee sought further information from the parliamentary secretary].

PARLIAMENTARY SECRETARY'S RESPONSE:

In relation to issue (a), the parliamentary secretary advised that the purpose of the provision was to provide transitional arrangements to avoid any detriment to claimants by ensuring continuity of applications, claims and decisions across the two determinations, without matters needing to be recommenced or delayed. The provision was in substantially the same form as that used whenever a determination repealed and replaced an earlier determination. Sufficient discretion also existed for a requirement to be waived, in cases where a member providing a required capability failed to meet a test that they had met under the previous determination.

In relation to issue (b), the parliamentary secretary advised that the removal of AAT review of decisions for all claimants was intended not to prevent review but to ensure that review took place 'at the lowest possible level'. While the Ombudsman would not be able to substitute an original decision as could the AAT, he or she could inquire into and assist self-employed members to resolve claim-related complaints through the giving of advice to claimants and the making of recommendations to decision makers (a function said to be analogous to the referral of a matter by the AAT back to a decision maker for fresh consideration, although 'less formal'). The less formal and technical nature of the Ombudsman's processes were thought to be advantageous to claimants by providing more timely and less costly review of decisions, and to be appropriate to the number and outcomes of previous reviews conducted by the AAT over the life of the scheme.

COMMITTEE RESPONSE:

The committee thanks the parliamentary secretary for his response and has concluded its interest in the matter.

However, in relation to merits review of decisions by the AAT the committee notes that, while the parliamentary secretary has advanced a substantial justification the removal of AAT review, this step nevertheless represents a diminution of the principle that administrative decisions should be subject to review on their merits by a judicial or other independent tribunal. The committee therefore draws this matter to the attention of senators.