Dispute Resolution
internal review
A person affected by a primary decision of the Authority or from 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).
Thirty-five requests for reconsideration were received from DFRB and DFRDB Scheme Members during the year, a decrease from the 45 received in the previous year. Thirty-three cases were carried over from 2007–08. Of the 50 cases finalised during the year, the Authority confirmed 26 cases on reconsideration, while 16 cases were varied in favour of the applicants. Another eight cases were lapsed or withdrawn with the applicant failing to pursue the matter. Eighteen requests remained under investigation on 30 June 2009.
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, 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 with 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 2008–09, 14 applications for review were lodged with the AAT in addition to the eight matters carried over from the previous year. Of the 11 applications resolved during the year, the Authority’s decision was affirmed in three matters and set aside in one matter. Three 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, while one decision was settled. There were 11 matters outstanding as at 30 June 2009.
Systems are in place to fast-track the 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.
| 2004-05 | 2005-06 | 2006-07 | 2007-08 | 2008-09 | |
|---|---|---|---|---|---|
| Decisions affirmed | 6 | 3 | 2 | 4 | 3 |
| Decisions varied | - | 1 | - | 1 | 2 |
| Decisions set aside | 6 | 5 | 3 | 1 | 1 |
| Decisions conceded | 7 | 1 | 4 | 2 | 2 |
| Applications dismissed | 1 | 3 | - | 1 | 3 |
| Applications withdrawn | 5 | - | 2 | 1 | - |
| Total | 25 | 13 | 11 | 10 | 11 |
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 2008–09. One of these appeals was successful, while the other is still pending. One decision of the AAT to dismiss the matter before proceeding to a hearing was appealed by the member to the Federal Court; the appeal is pending. One decision of the Federal Magistrates Court was appealed to the Federal Court by a member. The matter is pending.
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. There were no FMC matters in 2008–09.
High Court of Australia
No matters were referred to the High Court of Australia during 2008–09.
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 2008–09.
claims
The Authority received two claims in the 2008–09 financial year. One claim was accepted and compensation of $923.25 paid. The other claim was unresolved at the end of the financial year.
complaints
ComSuper’s Complaint Unit has systems in place for handling complaints, Ombudsman enquiries, and requests made under the Freedom of Information Act 1982 (the FOI Act). ComSuper also prepares responses to parliamentary representations.
In 2008–09, 86 complaints, 14 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.
family law
The DFRDB legislation enables the creation of separate accounts for non-Member spouses (associates) in family law splitting situations. During the year 85 cases were received, with 61 new DFRDB Scheme associate pension records and 24 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 Scheme Members made 41 requests for access to documents during 2008–09. Thirty-three requests were granted in full and six partially. One request was withdrawn and one request was refused.