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Veterans' Affairs Legislation Amendment Bill (No. 1) 2000
Date Introduced: 29 June 2000
House: House of Representatives
Portfolio: Veterans' Affairs
Commencement: The measures described in this Digest commence on the Bill receiving Royal Assent.
The Bill makes a number of uncontroversial amendments to legislation dealing with veterans, the most notable of which relate to:
- formal recognition of the treatment of additional compensation payable on death or severe injury
- the inclusion of counselling services in the services which may be provided to veterans children, and
- the correction of 'obvious errors' in decisions relating to the review of certain decisions.
As there is no central theme to the Bill the background to the various measures will be discussed below.
Determining compensation cover for members of the Defence Forces can be complex and involve coverage under either the Safety, Rehabilitation and Compensation Act 1988 (SRCA), which also applies to civilian government employees, or the Veterans' Entitlements Act 1986 (VEA), or a combination of the two. Coverage depends on the type of service, date of enlistment and the time that the member is injured. VEA coverage generally only applies where there is overseas service. Where coverage is provided under both Acts there is provision for a reduction in benefits to prevent 'double dipping'.
In addition, members covered by the SRCA may be eligible for payments under the Defence Act 1903. These payments were introduced following the 1996 crash involving Black Hawk helicopters. Following that accident an inquiry into the adequacy of compensation for members undertaking high risk activities in Australia was held and The Inquiry into Military Compensation Arrangements for the ADF resulted in maximum payments being increased to:
- $200 000 for death or severe injury (ie 80% or more whole person impairment)
- $50 000 in respect of each dependent child at the date of death or severe injury, and
- $1 000 payable to severely injured members or dependents of deceased members for obtaining professional advice.
The above amounts were at the time of announcement, 11 June 1997, and are subject to indexation. Amounts in excess of the SRCA payment, which was approximately $165 000 for death and a maximum of $150 000 for severe injury, are not subject to the 'double dipping' rules and are not offset against other entitlements under the VEA.
While the additional payments were announced on 11 June 1997 eligibility for the payments was backdated to 7 April 1994. Payments are made under section 58B of the Defence Act 1903 which allows the Minister to make determinations relating to remuneration and other payments.
Division 5A of the VEA provides for entitlements to be reduced when amounts are received from other sources, principally under the SRCA. Item 1 of Schedule 1 will substitute a new section 30A into the VEA which provides that in addition to the current exemptions from the Division:
- payments under section 58B of the Defence Act 1903 made after 10 June 1997, and
- ex gratia payments made in respect of certain deaths or injury occurring between 7 April 1994 and 9 June 1997.
will also to be exempt.
Similarly, proposed section 73A provides that pensions are not to be reduced as a consequence of such payments (item 2).
Veterans' Children Education Scheme (VCES)
VCES provides assistance, including financial assistance, for the children of deceased, blinded and totally and permanently incapacitated veterans and benefits under the scheme are generally similar to those available under the Youth Allowance. As at 30 June 1999, 4 499 children were assisted under the scheme.(1)
The Morbidity of Vietnam Veterans study, the results of which were released in March 1998 and subsequently subject to a validation study by the Australian Institute of Health and Welfare, found, among other matters, that the children of Vietnam veterans have a significantly higher risk of suicide than the general community.
Subsection 117(5) of the VEA contains a non-exhaustive list of the services that may be provided under VCES. Item 4 of Schedule 1 will amend subsection 117(5) to include guidance and counselling services in the list. As well, section 118 will be amended to allow the Repatriation Commission to provide guidance and counselling services to 'such other people as the Minister determines'. Such a determination will be disallowable by either House of Parliament (item 5).
Repatriation Medical Authority (RMA)
The RMA is a statutory authority consisting of five medical specialists which has as its main function the issuing of Determinations of Statements of Principle which link particular kinds of injury, disease or death to various types of service. The Determinations state the minimum factors which must exist, and which of those must be related to service, for a reasonable hypothesis that the injury etc was service related to arise. Determinations are disallowable by either House of Parliament and are binding on decision makers, including appeal bodies.
Section 196E of the VEA provides for the Repatriation Commission, a person eligible to claim a pension and certain representative organisations to request the RMA to carry out an investigation into possible links between particular kinds of injury, disease or death and various types of service, review a decision not to make a Determination or to review a Determination. Proposed section 196CA provides that the RMA is not obliged to conduct an investigation where:
- the request does not state the grounds for the review
- RMA considers that the request does not identify sufficient grounds or otherwise is not justified, or
- the request is frivolous or vexatious.
Proposed section 196CB will allow the RMA to consolidate its reviews when they relate to the same injury, disease or death (item 7).
Veterans' Review Board (VRB)
The VRB is responsible for the review of decisions of the Repatriation Commission relating to pensions and attendant allowances. The VRB is the first opportunity for an independent review of such a decision. In its proceedings, the VRB is to record its decision and the reasons for the decision in writing.
Proposed section 140A will allow the Principal member of the VRB, or the member who presided at the review in question to alter the record where satisfied that there is an obvious error in the text of the decision or reasons. While what may constitute an obvious error is not defined the examples given are an obvious clerical or typographical error or where there is an inconsistency between the decision and the reasons (item 15). While what constitutes an 'obvious error' may appear clear to some people, the term is open to considerable subjective interpretation particularly if the correction effects a person's eligibility for a payment or the rate of that payment. Smaller points than what may constitute an obvious error have been, and no doubt will continue to be, subject to dispute.
- Department of Veterans' Affairs, Annual Report 1998-99, p. 55-6.
28 August 2000
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