Dispute Resolution
internal review
A person affected by a primary decision of the Authority or a delegate may request the Authority to reconsider that decision. Almost any action taken in the administration of the DFRB and DFRDB Acts can be the subject of a request for reconsideration. Decisions on reconsideration are not delegated but are taken by the Authority itself.
The Authority must confirm or vary the decision and inform the person of the result in writing. The person is given a copy of the statement of the reasons for the decision and details of the evidence considered. The person is also advised about appeal rights to the Administrative Appeals Tribunal (AAT).
Forty-five requests for reconsideration were received from DFRB and DFRDB Members during the year, an increase from the 32 received in the previous year. Eighteen cases were carried over from 2006–07. Of the 30 cases finalised during the year, the Authority confirmed nine cases on reconsideration, while ten cases were varied in favour of the applicants. Another 11 cases were lapsed or withdrawn with the applicant failing to pursue the matter. Thirty-three requests remained under investigation on 30 June 2008.
The majority of requests for reconsideration concerned the amount of invalidity benefit payable, either on discharge or at subsequent reviews. Other typical matters included determination of grounds for retirement, recognition of prior service, scheme membership eligibility, overpayment recovery and spouses’ entitlements.
ComSuper’s Military Schemes Reconsideration Unit undertook the preliminary investigation of cases. The reconsideration process normally involves the assembly of information additional to that available to the primary decision-maker.
external appeals
The DFRDB Act provides that applications may be made to the AAT for review of decisions reconsidered by the Authority. If the Authority’s decision is adverse to the applicant, information about the right to apply for review by the AAT is included in the advice of the decision.
Applications to the AAT are processed in accordance with the procedures and practices of that body, as provided for in the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the practice directions issued by the AAT President. A party to a proceeding before the AAT may appeal to the Federal Court on a question of law arising from the decision of the AAT. Since 16 May 2005 the concurrence of the President of the AAT must be obtained before the question of law may be referred to the Federal Court.
During 2007–08, seven applications for review were lodged with the AAT in addition to the
11 matters carried over from the previous year. Of the ten applications resolved during the year, the Authority’s decision was affirmed in four matters and set aside in one matter. Two of the matters were dismissed/withdrawn by the Tribunal before proceeding to a hearing, while two of the matters were conceded prior to hearing on the basis of new medical evidence furnished by the applicant. One of the Authority’s decisions was varied by the Tribunal. There were eight matters outstanding as at 30 June 2008.
Systems are in place to facilitate the expeditious processing of matters going to the AAT, the Federal Court and other jurisdictions such as the Human Rights and Equal Opportunity Commission.
The Authority also monitors the outcome of external appeals and their implications, as shown in Table 7.
| 2003-04 | 2004-05 | 2005-06 | 2006-07 | 2007-08 | |
|---|---|---|---|---|---|
| Decisions affirmed | 10 | 6 | 3 | 2 | 4 |
| Decisions varied | - | - | 1 | - | 1 |
| Decisions set aside | 9 | 6 | 5 | 3 | 1 |
| Decisions conceded | 5 | 7 | 1 | 4 | 2 |
| Applications dismissed | 2 | 1 | 3 | - | 1 |
| Applications withdrawn | 10 | 5 | - | 2 | 1 |
| Total | 36 | 25 | 13 | 11 | 10 |
Federal Court of Australia
Under section 44 of the AAT Act, a party to a proceeding before the AAT may appeal to the Federal Court of Australia on a question of law arising from any decision of the AAT in that proceeding. Since 16 May 2005 section 45 (1) of that Act has required the concurrence of the President of the AAT to be obtained before a question of law may be referred to the Federal Court.
The Authority appealed two matters from the AAT to the Federal Court during 2007–08. One of these appeals was successful, while the other is still pending. In the successful appeal, the Federal Court clarified that overpayments recoverable by the Authority are gross amounts, not after-tax amounts.
Federal Magistrates Court of Australia
The Federal Magistrates Court of Australia (FMC) was established in 2000 to provide a simple and accessible forum for resolution of less complex federal law matters. One matter involving an appeal from the AAT by a Member was carried over from 2006-07. The appeal was dismissed by the FMC but the Member has now appealed the matter to the Federal Court, where it is still pending.
High Court of Australia
No matters were referred to the High Court of Australia during 2007–08.
judicial review
The Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act) provides an alternative external review mechanism. The AD(JR) Act entitles a person aggrieved by an administrative decision taken under Commonwealth legislation to seek, on specified grounds, an order for review of the decision in the Federal Court. Section 13 of that Act provides that an aggrieved person may, without first applying to the Federal Court, ask that the decision-maker furnish a statement in writing, setting out the findings on material questions of fact. The statement must refer to the evidence or other material on which those findings were based, and give the reasons for the decision.
There were no orders for review and no requests for a statement of reasons under the AD(JR) Act in respect of decisions made under either the DFRB or DFRDB Acts during 2007–08.
claims
The Authority received four claims in the 2007–08 financial year, with one claim carried over from the previous financial year. Three claims were resolved, with two claims accepted and total compensation of $2,328.35 paid.
complaints
ComSuper’s Complaint Unit has systems in place for dealing with complaints, Ombudsman enquiries, and requests made under the Freedom of Information Act 1982 (the FOI Act). ComSuper also prepares responses to parliamentary representations.
In 2007–08, 74 complaints, 15 parliamentary representations and three Ombudsman enquiries were received. ComSuper has internal processes to identify and resolve systemic issues and to continually improve the service provided to Members.
Ministerial Representations relating to military superannuation policy issues are received and responded to within the Department of Defence. In 2007–08 there were 243 such representations relating specifically to the DFRDB Scheme. The representations were mainly concerned with three main topics - some representations concerned more than one topic. Of the representations received 153 referred to the use of the Consumer Price Index to index pensions, 88 referred to the 1 July 2007 taxation changes and the unfunded nature of the scheme, and 68 referred to commutation and the use of life expectancy tables.
There were also 319 Ministerial Representations that related to both MilitarySuper and the DFRDB Schemes. Of these 219 referred to the method used to index military pensions,
74 referred to 1 July 2007 taxation changes, 21 referred to the Review of Military Superannuation Arrangements, and five related to general queries.
Following the dissolution of the Government on 17 October 2007 for the Federal Election, the Government assumed a caretaker role. In accordance with caretaker conventions the Department of Defence was unable to provide comments on Government policy. During this period 346 ministerials concerning military superannuation policy were received or awaiting a response. These representations received a standard caretaker response from the Coordination and Public Affairs office.
family law
The DFRDB legislation enables the creation of separate accounts for non-Member spouses (associates) in Family Law splitting situations. During the year 61 cases were received, with 57 new DFRDB associate pension records and four new MilitarySuper associate pension records created. The DFRDB legislation allows for a MilitarySuper associate preserved record to be created when a DFRDB contributor or deferred benefit is subject to a family law splitting court order.
freedom of information
DFRDB Members made 50 requests for access to documents during 2007–08. Forty-one requests were granted in full and four partially. Two requests were withdrawn. Three requests were refused. The requests took an average of 14 days to process.
Enquiries relating to the documentary disclosure of information about the personal affairs of clients of the agency under the provisions of the Freedom of Information Act 1982 should be directed to:
Freedom of Information Unit
ComSuperPO Box 22
Belconnen ACT 2616
Facsimile: (02) 6272 9804
Telephone: 1300 033 732
TTY: (02) 6272 9827
Email: foi@dfrdb.gov.au