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Veterans’ access to justice threatened by proposed legislative change

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Leading military compensation experts are calling on the government to reconsider proposed legislative amendments which will strip injured military personnel of their rights to a fair hearing.

Proposed changes to subsection 155(8) of the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017 will give Members of the Veterans’ Review Board extended powers to dismiss an application if they believe that the application is ‘frivolous, vexatious, misconceived or lacking in substance’.

Members will also have the authority to deny an application that if, in their opinion, ‘has no reasonable prospect of success’ or ‘is otherwise an abuse of process’.

Since 1 January 2017, the Veterans’ Review Board is the only path to review decisions made by a delegate of the Military Rehabilitation and Compensation Commission under the Military Rehabilitation and Compensation Act 2004.

In a Senate Submission, Slater and Gordon National Military Compensation Lawyer Brian Briggs said the proposed amendment is unnecessary and threatens a claimant’s right to natural justice.

“While the concept of having a streamlined process is good in theory, this legislative change has the potential to be a double edged sword which could see claimants stripped of their rights to a fair hearing,” Mr Briggs said. “It would allow otherwise viable claims to slip through the cracks and force claimants into the Administrative Appeals Tribunal at significant cost to them which may not be recovered even if their appeal is successful.

“The single review pathway will significantly increase the workload of the Board and I fear that they will be ill-equipped to manage the influx, which in turn could have a damning effect of the outcomes of claims.

“Giving members the authority to dismiss a claim on the basis that it ‘has no reasonable prospect of success’ – without clear guidelines as to what that constitutes -  also leaves open the possibility for members to abuse this power.

“The legislature has a duty to implement laws that facilitate the rehabilitation of the men and women who serve our country yet this proposal seeks to make it more difficult for veterans to claim the compensation they deserve.”

Mr Briggs said the proposed amendment leaves open the possibility for the dismissal powers to be given to a register or senior member who is not required to have legal qualifications.

“If the legislation is passed in its current form, decisions that will have an enormous effect on the lives of current and former service personnel could be put into the hands of people who are arguably inexperienced and unqualified,” he said.

“I am concerned that, without the legal knowledge, members will not be able to properly identify when a claim holds any merit, increasing the risk that genuine claims will be wrongly dismissed.

“To confer powers that so easily can strip away such a fundamental right contradicts our democratic process and threatens our veterans’ access to justice by allowing the Board to deny them a fair hearing.

“I call on the government to reconsider the proposed amendment and the serious ramifications it could have on our veterans.”