Applications for Review
A valid application made by an eligible person or organisation (as defined in s196Y of the VEA) is the trigger for an SMRC review.
Under s196Y of the VEA, the SMRC can review on request:
- some or all of the contents of a SOP in force under Part XIA; or
- a decision of the (RM) not to make, or not to amend, a SOP in respect of a particular kind of injury, disease or not to make a SOP in respect of a particular kind of injury, disease or death under subsection s196B(2) or (3).
Under s196Z of the VEA, the SMRC can review a decision by the RMA not to carry out an investigation.
The VEA sets out some procedural requirements, including that:
- each Review Council is made up of three to five Councillors;
- the Convener or Presiding Councillor may convene meetings of the Review Council as is considered necessary;
- questions are decided by a majority of the votes of Councillors; and
- the Review Council must keep minutes of each meeting.
Apart from these specified matters, each Review Council determines its procedures for convening meetings and conducting its business within general guidelines.
The Information subject to review
This 'available' information is that information that was in fact used by the RMA. It does not include information that may have been available for the use of the RMA at the time but was not accessed by the RMA.
Eligible persons and organisations are entitled to reasonable access to the information that was available to the RMA in its determination of a SoP.9 Lists of information obtained by the RMA in the course of an investigation or review are routinely provided to eligible persons and organisations on request.
The available information is provided to Councillors and parties to a review.
‘New information’ is information the RMA advises was not available to it when it made the decision under review. This may include relevant information published before or after the date that the RMA determined the SoPs under review, including during the time the SMRC undertakes the review.
Generally people seeking a SMRC review because of such new information are referred to the RMA in the first instance.
In appropriate circumstances, the SMRC can consider new information for the different purpose of deciding whether there seems to be SMSE not previously considered by the RMA, which might justify a recommendation to the RMA that it conduct a fresh investigation into the injury, disease or death, considering the new information.
The Council must publish in the Australian Government Gazette a notice of its intention to carry out a review. That notice specifies the date by which all submissions must be received.
Eligible persons and organisations may make a written submission to the SMRC. A person having expertise in a field relevant to the review may also make a written submission.
The SMRC asks that written submissions refer to the information that was available to the RMA, and which is relevant to the review, rather than an individual case.
An eligible individual or organisation making written submissions may appear before the SMRC to make an oral submission complementing their written submission.
Guidelines for making written submissions are available on the SMRC website.
Having considered ‘the information’ subject to review, the Applicant’s contentions and any submissions, the Review Council:
- forms a view on the scope of the review, ie whether any factors, in addition to that contended by the applicant, should be considered in the review. These can be factors already in the SoPs (which the Council may want to consider amending or excising), or the inclusion of new factors;
- evaluates the ‘information’ to decide those factors, which as a minimum exist connecting the injury / disease / death (condition) to service.
Applying Standards of Proof
Both the RMA and the SMRC are required to apply the two standards of proof in arriving at their decisions as set out above.
Decisions available to the Review Council
The decision for the Review Council is whether the available information (the SMSE available to the RMA at the time of its decision) justifies the making of SoPs or an amendment to the SoPs under review, by applying the relevant legal tests of reasonable hypothesis and balance of probabilities.
Whatever the outcome of the review, the SMRC cannot, itself make or amend SoPs.
If the Review Council is of the view that there is sound medical-scientific evidence on which the RMA could have relied to amend one or both of the SoPs, by amending, adding or deleting a factor or factors, it may:
- direct the RMA to amend the SoPs to insert such a factor(s) or otherwise amend the SoPs in accordance with directions given by the SMRC; or
- remit the matter to the RMA for reconsideration in accordance with any directions or recommendations the SMRC may make.
If the Review Council is of the view that there is:
- no sound medical-scientific evidence justifying an amendment; or
- that the sound medical-scientific evidence is insufficient to justify an amendment it makes a declaration to that effect. It may also make any recommendation that it considers appropriate. For example, it may recommend that the RMA conduct a new investigation.
If the Review Council is reviewing a decision of the RMA not to determine a SoP, it can determine whether the available SMSE justifies making a SoP concerning the particular kind of disease, injury or death.
If the Review Council is reviewing a decision of the RMA not to carry out an investigation under s196C(4), it can, under s196Z, determine whether there appears to be a new body of SMSE, not previously considered by the RMA , could justify making or amending a SoPs. In so doing, It assess the new information along with the SMSE that was available to the RMA.
See the diagrams setting out the process of review at the end of this section.
Reasons for Decision
The final decision is the responsibility of all members of the Review Council.
SMRC Review Councils are required to give reasons for their decisions. Each Review Council makes a Declaration and Statement of Reasons setting out its evaluation and decisions. The declarations are published in the Australian Government Gazette.10
Unlike the SMRC, the RMA is not required to give reasons for its determination of a SoP and does not do so. A brief summary is included in correspondence to those applicants who have requested an investigation or review.
Role of Convener and Presiding Councillors on Reviews
The Minister for Veterans’ Affairs appoints the Convener. The Convener oversees the operations of the SMRC as a whole. He or she presides at all meetings of Review Councils constituted for the purposes of a review.
When the Convener is not available to preside over a new review, he or she can appoint a presiding councillor to manage the functions for the term of that specific review.
During a review, the Convener or the Presiding Councillor will be required to:
- participate in the selection of councillors for the review over which they will preside;
- work with the secretariat on preparations for the review, including liaison with the legal adviser as required;
- preside at all meetings of a Review Council constituted for the purposes of a review;
- provide guidance and counsel to members; and
- provide continuity and guidance that is necessary for the SMRC to ensure consistency of decision-making.
If the Convener is not presiding, he or she remains available for support and advice and values feedback from Presiding Councillors. The Convener reviews drafts of decisions before sign off by each Review Council.
Role of Review Council members
Councillors are responsible for evaluating the SMSE available for each review. They consider the application, any submissions, and the ‘available information’ along with the contents of the SoPs under review to determine the scope of the review. They then evaluate the relevant SMSE to form a collective view and decisions.
Role of the Secretariat
Secretariat staff are employees of the Department of Veteran’s Affairs, made available to the SMRC. They:
- provide support and guidance on all administrative matters, including decision documents and records of meetings;
- manage all correspondence and liaison with applicants, the Commissions and anyone making submissions;
- liaise with the RMA about the available information and other review related matters; and
- manage the contracts with relevant providers.
Early in the review process, there will be an opportunity for the Presiding Councillor and staff to discuss working arrangements.
Role of Medical Science Writer
A medical science writer assists each Review Council to present its findings on the medical science for incorporation into its Reasons document.
Meetings of Review Councils
There are usually three to four meetings over the course of a review. All meetings are held by teleconference (no longer than two hours) apart from one meeting which includes the hearing of oral submissions. The hearing of oral submissions meeting is held face-to-face, and Councillors may be required to travel.
The SMRC may engage legal advisers and Council’s refer specific legal questions to them via the Registrar and Convener.
9 s196I of the VEA
10s196W(4) of VEA.