Section 138 material
Subsections 138 (2) and (3) of the Veterans' Entitlements Act 1986 provide:
(a) statements of principles applied by the Commission in deciding claims for pension and applications for pension and attendant allowance and increased pension and in conducting reviews under section 31; and
(b) such other material as the Commission considers may be of assistance to the Board in the exercise of its powers or the performance of its functions under this Act.
(3) Nothing in this section authorizes the Commission to direct the Board with respect to its consideration of a particular review by the Board.
The policy guidelines and material listed below have been approved by the Repatriation Commission for the guidance of its claims assessors, review officers and departmental advocates in the decision-making process.
The policy guidelines and other material have been made available to the Board under subsection 138(2) of the Veterans� Entitlements Act 1986. The Commission is empowered to make material available to the Board but may not direct the Board in its decision-making.
Unlike the Statements of Principles issued by the Repatriation Medical Authority, which are disallowable instruments and have the force of law, these guidelines are not binding on the Board. However, they may be useful background material for Board members in relevant cases.
The Administrative Appeals Tribunal (Brennan J) observed in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 that decision-making in conformity with a stated policy is permissible as long as the policy is consistent with statute. This does not relieve decision-makers of the obligation to decide each case on its merits. Strict adherence to policy without regard to the law and the merits of individual cases provides a basis for judicial review under paragraphs 5(2)(f) and 6(2)(f) of the Administrative Decisions (Judicial Review) Act 1977.