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VeRBosity
Journal of the Veterans' Review Board
�Selected Decisions of the
Administrative Appeals Tribunal
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Assessment of incapacity - accrued rights - whether GARP 5 applicable
Re D Anderson and Repatriation Commission
Mathews J
N97/1404
3 November 1998
[Full Text]
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Mr Anderson lodged an application to the Tribunal for review of a decision assessing his pension at 50% of the General rate. At the Tribunal, a legal issue was raised as to whether the 4th or 5th edition of the Guide to the Assessment of Rates of Veterans' Pensions (the Guide) should be applied.
The background to this matter was that Mr Anderson's pension was assessed by the Repatriation Commission and Veterans' Review Board under the 4th edition of the Guide which was then in force. On 18 April 1998, prior to the Tribunal hearing, the 5th edition came into force.
Submissions
Mr Anderson's counsel submitted that the 4th edition of the Guide should be applied as he would be disadvantaged if the 5th edition was applied. Counsel relied on section 50 of the Acts Interpretation Act 1901 (AI Act) as preserving the rights he acquired under the 4th edition of the Guide. Section 50, as relevant, provides as follows:
"Effect of repeal of regulations
50. Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations effecting the repeal:
(a) affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations so repealed; or
(b) ...
(c) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or regulations had not been passed or made."
(emphasis added)
Mr Anderson's counsel also relied on clause 3 of the Instrument revoking the 4th edition which provides as follows:
"(3) In the course of re-assessing or reviewing the assessment or re-assessment of the rate at which a pension is payable, the degree of incapacity of the person to whom that pension is payable shall not be a percentage that is less than the percentage of the general rate of pension constituted by the rate at which that pension was, immediately before 18 April 1998, payable unless:
(a) the degree of incapacity of that person from war-caused or defence-caused injury or disease has decreased (as assessed under the old Guide) since the rate of pension was previously assessed or last assessed; or
(b) the previous assessment or last assessment would not have been made but for a false statement or misrepresentation of a person."
The Repatriation Commission's counsel submitted that the Tribunal was obliged to apply the 5th edition and that section 50 of the AI Act had no application in this case as a clear contrary intention to its operation was expressed both in the VE Act and in the Guide itself. He submitted that the combined effect of ss 29(4) and 5Q of the VE Act is that the Tribunal is required to assess the applicant's incapacity in accordance with the edition of the Guide which is "for the time being in force", namely that which is in force at the time of the making of its decision. He said that the legislation showed a clear contrary intention to the operation of s 50 of the AI Act.
Mr Anderson's counsel submitted that the provision in ss 29(4) and 5Q of the VE Act requiring the application of the edition of the Guide "for the time being in force" required application of the edition which was in force at the time of the decision under review (which in this case would have required application of the 4th edition). He said that clause 3 mirrored the protection in s 50 of the AI Act and provided an exception to the general requirement set out in clause 2 of the Instrument, that the 5th edition is normally to be applied after 18 April 1998.
Tribunal's conclusions
Mathews J rejected Mr Anderson's submissions. She said that the phrase "for the time being in force" must mean the Guide which is in force at the time of the review. The VE Act displayed a clear contrary intention to the application of s 50 of the AI Act. This meant that the 5th edition had to be applied by the Tribunal.
Mathews J also considered the meaning of clause 3 of the Instrument revoking the 4th edition. She accepted the Commission's submission that clause 3 is not intended to apply to decisions made in the process of reviewing earlier decisions which had been made when the 4th edition was in force. Its intention is to prevent the 5th edition being invoked in new proceedings so as to reduce pensions which had already been set under an earlier edition of the Guide. She said that clause 3 is intended to prevent entitlements obtained under earlier editions of the Guide from being reduced in subsequently-initiated proceedings. It is not intended to affect review processes which had already been initiated under the scheme set out in the legislation.
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�Formal decision
The Tribunal decided that the 5th edition of the Guide was to be applied in the proceedings.