Bills Digest No. 112 2003-04
Military Rehabilitation and Compensation Bill
2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding comments
Endnotes
Contact Officer & Copyright Details
Passage History
Military Rehabilitation and
Compensation Bill 2003
Date Introduced:
4 December 2003
House: House of Representatives
Portfolio: Veterans' Affairs
Commencement:
Most provisions of the
Bill will commence on a date fixed by Proclamation or, if this is
not within six months of Royal Assent, the first day after that
period. Chapter 9 of the Bill, which deals with the establishment
of the Military Rehabilitation and Compensation Commission,
commences on Royal Assent.
The purpose of the Military Rehabilitation and
Compensation Bill 2003 (the MRC Bill) is to establish a single,
self-contained legislative scheme governing compensation for
injuries or conditions arising from service in the Australian
Defence Force (ADF) subsequent to the commencement date of the
legislation and recognising the different nature of military
service from civilian employment.
The Bill also establishes a more integrated
approach to the management of safety, rehabilitation, resettlement
and compensation that includes an appropriate emphasis on
prevention and rehabilitation.
Background
On 12 June 1996 a training accident at the
Training Area near Townsville involving the collision and
destruction of two Black Hawk helicopters resulted in the deaths of
18 members of the Australian Army and injuries ranging from minor
to very serious to a further 12 members.(1)
A Review of the Military Compensation Scheme
(the Tanzer Review) was conducted by Mr Noel Tanzer AC to develop
options for a single, self contained military compensation scheme
for peacetime service. The review recommended the adoption of a new
integrated military specific scheme for military
compensation.(2)
The MRC Bill represents the Government s
response to the recommendations in the Review. It follows the
release of an exposure draft of the Bill in June 2003, and
subsequent consultation with the veteran and defence force
communities.
The entitlement of members of the ADF to
compensation and rehabilitation is currently affected by four
pieces of legislation:
-
the Safety,
Rehabilitation and Compensation Act 1988 (the SRCA) (which
also applies to other Commonwealth employees);
-
enhancements to the SRC Act for the ADF only, made by the
Military Compensation Act 1994;
-
the Veterans Entitlements Act 1986 (the VEA); and
-
additional benefits under Defence Determination 2000/1 made
under the Defence Act 1903.
These pieces of legislation combine to provide
a complex structure of eligibility for compensation.
In general, the legislation which determines
the compensation available in relation to a particular injury is
currently determined by a combination of the date of the injury and
the nature of the service being performed. Under the MRC Bill
compensation available will generally be determined by reference to
a single piece of legislation although there will still be some
situations of dual eligibility and some cases in which it is
necessary to refer to other legislation in order to determine a
person s entitlements.(3) The amount of compensation to
be received by a person or their dependants will still in some
circumstances be dependent upon the nature of the service being
performed, as may whether the Commonwealth s liability to pay
compensation can be established.
The provisions of the MRC Bill will apply to
members of the Defence Force, cadets, and persons who are declared
by the Defence Minister to be members (clauses 5
and 8). It will have no application to people who
have ceased to be members of the Defence Force prior to the
commencement date (who may be either currently receiving
compensation under either the VEA or the SRCA or subsequently
establish an entitlement to receive compensation under either or
both of those Acts). It will apply to persons who have ceased to be
members of the Defence Force after the commencement date (i.e. it
will in future apply to both past and serving members).
The provisions of the MRC Bill will apply to
service injuries, service diseases and service deaths (defined in
Part 3 of Chapter 2) occurring
after the commencement of the Bill. It will not apply to injuries,
diseases or deaths occurring before that date, even where the
entitlement to compensation is not established until after the
commencement of the MRC Bill. This means that the provisions of the
VEA and the SRCA will continue to be relevant in determining
compensation entitlements of affected veterans for many years.
Principal
issues
There are a number of issues arising out of
the Bill, some of which are of particular concern to the Defence
community. It is notable that most concern has been expressed by
representatives of the veterans community,(4) although
the provisions of this Bill will apply only in relation to service
injuries sustained, service diseases contracted, or service deaths
occurring after the commencement of the Bill. It therefore has
significance to current and future members of the ADF rather than
to members of the veterans community.
The following issues that may be of concern
will be noted here:
-
the distinction between warlike service, non-warlike service,
and peacetime service, and the effect this may have on the amount
of compensation payable
-
concerns about the provisions of the Bill relating to
rehabilitation, particularly the obligation to undergo
rehabilitation programs in some circumstances
-
the tying of an ADF member s pay for compensation purposes to
the rank at which he or she left the service, to the exclusion of
probable subsequent promotions
-
the set-off
against compensation payments in some circumstances of amounts
contributed by the Commonwealth to a Commonwealth superannuation
scheme, and
-
a number of matters are to be determined by reference to other
documents. This means that, for example, it is not clear on the
face of the Bill how the indexation of civilian earnings is to be
calculated where this is relevant to the calculation of an amount
of compensation, it is not clear how a member or former member s
degree of impairment is to be determined and it is not clear in
what circumstances it will be accepted that a particular injury,
disease or death is attributable to military service.
An important concept that has been developed
in military compensation is the distinction between various types
of service. The distinction originated subsequent to World War II,
when the position was taken that those veterans who suffered the
rigours of service that exposed them to harm from enemy forces
should receive additional assistance to those who did
not.(5) More recently this view has been expressed as
there is widespread belief that those veterans who were thus
exposed have been affected by that service in ways not quantifiable
and should be provided with additional assistance where they cannot
work because of age or disability, and do not have sufficient
resources to provide a standard of living comparable to community
norms . (6)
The Tanzer Review recommended that to take
account of the unique nature of military service, the element of
exposure to risk of injury/disease arising out of, or in the course
of, employment should, as a guiding principle, be recognised in the
remuneration arrangements .(7) That is, that exposure to
additional risk should be recognised by means of allowances payable
regardless of whether an injury, disease or death has occurred.
This approach has not been adopted in the Bill.
Currently there is a process by which the
Minister for Defence, in consultation with the Prime Minister and
on advice from the Chief of Defence Force, is responsible for the
declaration of service with a deployment as warlike or non-warlike
service. The definitions of what constitutes warlike and
non-warlike service are defined in Defence Industrial Manual,
Instruction 4010.(8)
In summary, Instruction 4010 defines warlike
operations as those military activities where the application of
force is authorised to pursue specific military objectives and
there is an expectation of casualties . Non-warlike operations are
defined as those military activities short of Warlike operations
where there is risk associated with the assigned task(s) and where
the application of force is limited to self defence. Casualties
could occur but are not expected .(9) Peacetime service
is defined as all remaining service, particularly service within
Australia. Overseas service may be classified as peacetime service
where the conditions for declaration of the service as warlike or
non-warlike are not met. The compensation currently applicable in
relation to a service injury is dependent primarily on the date on
which the injury occurred and the category of service.
Such distinctions are continued in the MRC
Bill, with the definitions contained in clause 6
of the Bill.
Under the MRC Bill, the level of entitlement
to some aspects of compensation for a service injury, disease or
death will continue to be dependent upon the category of service.
In essence, compensation that may be thought of as referable to the
loss of amenities of life caused by a service injury or disease
will be dependent upon whether service is, on the one hand warlike
service or non-warlike service, or, on the other hand peacetime
service. Compensation payable to a partner or dependants in respect
of a service death will also be dependent upon the category of
service. In this case the distinction is between, on the one hand,
warlike service and on the other non-warlike service or peacetime
service. Compensation that is akin to compensation for loss of
income will not be so dependent. The standard of proof to be met in
order to establish an entitlement to compensation or other benefits
will also vary depending upon the category of service in relation
to which an injury, disease or death occurred. Some claims that
relate to warlike or non-warlike service are subject to a more
beneficial standard of proof.
Recent press commentary in relation to
veterans affairs has focussed on the situation in relation to
existing veterans, the level of benefits received by them, and
perceived anomalies in relation to different veterans suffering the
same condition but receiving different payments which will continue
to occur under the MRC Bill because of the distinction between
different categories of service.
For example, an article in the
Australian on 19 February 2004 titled War scars need fair
treatment referred to a soldier who hurt his back in a training
accident [and] estimates he loses 40 per cent of his service
pension because of the way his [Totally and Permanently
Incapacitated] payment is treated . Another veteran stated that
[t]hey should be looking at compensating everyone equally for the
same disability .(10) The opportunity for such perceived
anomalies is perpetuated under the Bill, with the maintenance of
the distinction between warlike service, non-warlike service and
peacetime service. This means that future servicemen and veterans
will continue to be compensated differently in respect of the same
injury.
It has been argued that this distinction is
justified as exposure to hazardous circumstances is recognised by
providing access to increased compensation benefits in the event
that injury or death occurs. It should be noted that in submissions
made to the Department of Defence Inquiry following the Black Hawk
disaster the Returned and Services League supported the approach of
providing access to increased compensation benefits for those
involved in operational training in peacetime that is of a more
hazardous nature.(11)
Integration of rehabilitation measures with
safety, prevention and compensation measures is a feature of most
modern compensation systems. The Government has stated its
intention to emphasise rehabilitation in the new Military
Compensation Scheme.(12) Currently the VEA provides for
medical and vocational rehabilitation. However, participation in
the rehabilitation scheme is voluntary. Furthermore, provisions to
reduce pension and offset treatment costs in certain circumstances
can operate as a disincentive to seeking rehabilitation in some
circumstances.(13) Under the SRCA the ADF has developed
a policy on rehabilitation and return to work. However the special
circumstances of the ADF, particularly the need to maintain a
highly fit force, mean that the opportunities for return to work
within the ADF are often limited. The MRC Bill attempts to provide
a rehabilitation system which is aimed at providing injured members
with the support they need to make a full recovery and to return to
work where possible .(14)
Concerns in relation to the proposed
rehabilitation scheme primarily focus on its compulsory nature and
on the belief that its focus is on vocational rehabilitation (that
is, rehabilitation designed at facilitating return to the
workforce) rather than on other aspects of rehabilitation, such as
social and psychological rehabilitation.
Where the amount of compensation which the
Commonwealth is liable to pay a person is in part determined by the
pay and allowances they were receiving as a member of the ADF
before they were incapacitated for such service then the pay and
allowances to be taken into account will remain, for whatever
period that person is in receipt of compensation, those of a member
of the Defence Force at the level and performing the service that
that person performed. It has been argued that because the Defence
Force is a highly structured service where promotions are to be
expected on a regular basis then expected promotions should be
taken into account.(15)
Concern has been raised in relation to the set
off of superannuation contributions made by the Commonwealth
against amounts of compensation. However, this concern appears to
be largely based on a misunderstanding of the meaning of
Commonwealth superannuation scheme under the Bill. The definition
of Commonwealth superannuation scheme in clause 5 of the Bill has
the effect that contributions made by the Commonwealth to a scheme
such as the Public Sector Superannuation Scheme where a previously
full-time member of the ADF has subsequently obtained employment
with the Commonwealth outside the ADF will not be affected.
A number of matters that are crucial to the
operation of the compensation scheme are to be determined by
reference to other documents. For instance, the degree of
impairment of a person is to be determined by reference to a guide
to be determined by the Commission under clause 67. A person s
degree of impairment is relevant to determining his or her, and, in
the event of death, his or her dependant s, entitlement to various
elements of compensation. Whether or not liability for an injury,
disease or death is to be accepted will frequently be dependent
upon the operation of a Statement of Principles determined by the
Repatriation Medical Authority under the VEA. In a scheme of
legislation of this size it may well be necessary to have recourse
to such mechanisms, and in general they have been made disallowable
instruments for the purposes of the Acts Interpretation Act
1901, which ensures an opportunity for parliamentary
scrutiny.
Clause 3 of the Bill
comprises a simplified outline of the Act. It states that the Act
provides for compensation and other benefits to be provided for
current and former members of the Defence Force who suffer a
service injury or disease, and that the Act also provides for
compensation and other benefits to be provided for the dependants
of some deceased members.
What are the significant defined terms
and where are they defined?
Terms are defined in clause
5. Many of these terms are defined by reference to other
provisions of the Bill.
The Commission is the
Military Rehabilitation and Compensation Commission to be
established by clause 361.
Commonwealth superannuation
scheme in most cases means a scheme to which the
Commonwealth makes contributions on behalf of members of the
Defence Force. In the case of some part-time Reservists it includes
any scheme to which the Commonwealth makes contributions on behalf
of employees. This means, for instance, that where a member of the
ADF subsequently joins the Australian Public Service the
Commonwealth s contribution to his or her superannuation as a
member of the APS is not taken into account under the MRC Bill.
The terms defence service , warlike
service , non-warlike service and peacetime
service are defined by reference to clause
6.
An eligible young person is a
person who is aged under 16, or is aged under 25 and is both
receiving full-time education and not in full-time work.
Incapacity for service
relates to service in the ADF, and means incapacity to engage in
service at the level the person was working at before the onset of
the incapacity. It includes inability to work at this level for the
person s normal weekly hours.
Incapacity for work relates
to work in the civilian work force, and means incapacity to work at
the level the person was working at before the onset of the
incapacity. It includes inability to work at this level for the
person s normal weekly hours.
Member means a member of the
ADF, a cadet, or a declared member.
Former member means a person
who has ceased to be a member. It is notable that this term
replaces the term veteran used in previous legislation.
The terms service injury, service
disease and service death are defined by reference to
clauses 27, 28, 29 and 30 (in
Chapter 2 of the Bill).
How is it determined whether
particular service is warlike, non-warlike or
peacetime?
Clause 6 of the Bill
continues the distinctions between warlike, non-warlike and
peacetime service. The classification of a service as warlike or
non-warlike service will be dependent on a determination by the
Minister (paragraphs 6(1)(a) and (b) of the Bill).
Peacetime service means any other service with the ADF
(paragraph 6(1)(c) of the Bill). Presumably the
definitions in Instruction 4010 will continue to be utilised under
the MRC Bill.
Clause 7 has the effect that
where a pre-existing (non-service related) injury or disease is
aggravated by defence service the provisions of the Act will apply
to the injury or disease.
Clause 8 provides that the
Defence Minister may make a determination that will have the effect
that specified people are taken to be members of the ADF for the
purposes of the MRC Act, and thus may become entitled to
compensation or other benefits under the Act. It is expected that
declarations under this section may relate to people such as
entertainers, construction experts, and those working for welfare
agencies where the work performed is of benefit to the ADF.
Clause 12 relates to deceased
members. It applies to a member if the Commission has accepted
liability for the member s death, if prior to his or her death the
member was eligible to receive a Special Rate Disability Allowance
(or would have been eligible if he or she were not aged 63 or
over), or if the Commission has determined that prior to his or her
death the member s impairment constituted at least 80 impairment
points. Certain benefits under chapter 5 are only
payable to a dependant of a deceased member to whom clause 12
applies.
What is the significance of the
Commission accepting liability for an injury, disease or
death?
Clause 21 provides a
simplified outline of Chapter 2. In most cases to receive benefits
under the MRC Act it is first necessary for the Commission to have
accepted liability for an injury, disease or death. Although the
Bill is drafted in terms of the Commission accepting
liability, this does not mean that it has a choice whether or not
to accept liability. If an injury, disease or death is a service
injury, disease or death, and none of the exclusions in
Part 4 of Chapter 2 apply, the
Commission must accept liability.
The process for accepting liability is
explained in the outline. First, the person makes a claim for
acceptance of liability. Then, the Commission decides whether the
injury, disease or death is a service injury, disease or death, in
accordance with Part 3 of Chapter
2. Then, the Commission decides whether it is prevented
from accepting liability because of an exclusion under Part
4 of Chapter 2.
When does the Commission have to
accept liability for a service injury, disease or
death?
Part 2 of Chapter
2 deals with when the Commission must accept liability for
a service injury, disease or death. Clause 22
provides a simplified outline of the Part. The Commission must
accept liability if a claim for acceptance of liability has been
made under clause 319, the injury, disease or
death is a service injury, disease or death, and no exclusions in
proposed Part 4 apply. Differing
standards of proof apply to the decision of whether an injury,
disease or death is a service injury, disease or death depending on
whether it relates to warlike service, non-warlike service or other
service. In some circumstances the standard of proof can only be
met if the injury, disease or cause of death is covered by a
Statement of Principles, which sets out factors relating to defence
service that have been found to cause specific injuries, diseases
and deaths. A Statement of Principles is an instrument made under
the VEA.
Clause 23 deals with when the
Commission must accept liability for service injuries and diseases,
for service injuries and diseases arising from Commonwealth
treatment, and for service injuries and diseases arising from
aggravation of signs and symptoms. Clause 24 deals
with when the Commission must accept liability for service
deaths.
Clause 25 provides that an
acceptance of liability only has effect for the purposes of the MRC
Act, so that a person cannot rely on the acceptance of liability in
an action against the Commonwealth.
What is a service injury, a service
disease or a service death?
Part 3 of Chapter
2 contains definitions of service injury, service disease
and service death. Under Clause 27 there are five
situations in which an injury is a service injury. If it resulted
from an incident that occurred whilst a person was performing
defence service, if it arose out of defence service, if it would
not have occurred had the person not been performing defence
service, if the person s defence service has aggravated an injury
which had occurred prior to enlistment in the ADF (but compensation
is only payable in respect of the aggravation), and if it occurred
whilst a member whilst travelling to or from duty.
Any injury that occurs whilst on warlike or
non-warlike service is considered to satisfy paragraph
27(a) or (c). In other words any injury
suffered or disease contracted by a person whilst on warlike or
non-warlike service will be a service injury or a service disease.
Questions as to whether an injury or disease is actually a service
injury or a service disease will only arise in relation to
peacetime service.
When is the Commission not able to
accept liability for a service injury, a service disease or a
service death?
Part 4 of Chapter
4 sets out five situations in which the Commission is
prevented from accepting liability, even if a service injury,
disease or death is established. These five situations are outlined
in clause 31 as relating to serious defaults or
wilful acts, counselling about a person s performance as a member
of the ADF, false representations, travel during peacetime service,
and the use of tobacco products. Clauses 32 to
36 deal in turn with each of these exceptions.
The exclusion in relation to an injury or
disease that relates to a person s serious default or wilful act
does not apply to an injury or disease resulting in serious and
permanent impairment. In such a case the Commission must accept
liability unless another exclusion applies. There is no definition
of serious and permanent impairment.
Where an injury, disease or death is connected
to service only by relation to the use of tobacco products, the MRC
Act will not provide an entitlement to compensation where the
injury, disease or death occurs after the commencement date. Where
the injury, disease or death occurs before the commencement date
liability is excluded under the VEA and in the application of the
SRCA.
What is the objective of
rehabilitation for members and former members of the
ADF?
Clause 37 provides a
simplified outline of Chapter 3. The chapter establishes a scheme
for the provision of rehabilitation programs for current and former
members suffering a service injury or disease, assistance in
finding suitable work (either defence or civilian), and, where
required, assistance in moving from defence to civilian life. Where
a person has been assessed under Part 2 as capable of
rehabilitation he or she may be required to undertake a
rehabilitation program.
Clause 38 states the aim of
rehabilitation as being to maximise the potential to restore a
person to at least his or her pre-injury or disease physical and
psychological state and social, vocational and educational
status.
Clauses 39 to
41 provide definitions relevant to rehabilitation.
In particular, clause 39 provides that where a
person is likely to continue as a member of the Defence Force his
or her rehabilitation authority is the person s
service chief; where the person is likely to be discharged for
medical reasons his or her rehabilitation
authority is the Commission.
Who will the legislation relating to
rehabilitation apply to?
Part 2 of Chapter 3 makes
provision in relation to rehabilitation programs. Clause
42 provides a simplified outline of the Part.
Clause 43 provides that the
Part applies to a person if they are incapacitated for service or
work, or have an impairment, because of a service injury or disease
for which the Commission has accepted liability. Incapacity
for service, incapacity for work, and
impairment are terms defined in clause
5. Clause 43 also provides that the Part
applies where the incapacity or impairment is the result of an
aggravated injury or disease even though the incapacity or
impairment is the result of the original injury or disease. So,
even where the Commonwealth is not liable in relation to the
original injury or disease (e.g. because it occurred prior to the
person commencing defence service), if military service has
aggravated the injury or disease the Part will apply to the
incapacity or impairment.
How is a person s capacity for
rehabilitation determined?
Clause 44 provides that the
rehabilitation authority may carry out an initial or further
assessment of a person s capacity for rehabilitation and must carry
out an initial assessment if a person so requests. Clauses
45 and 46 specify how an assessment is to
be carried out. Clauses 47 to 49
relate to compensation in relation to an assessment. Clause
50 provides that if a person is required to undergo an
examination and the person does not do so the person s right to
compensation under various provisions of the Bill may be
suspended.
How are rehabilitation programs
provided?
Clause 51 provides that the
rehabilitation authority for a person may determine that the person
is to undertake a rehabilitation program. The authority is to have
regard to a number of factors, including any reduction in the
Commonwealth s future liability to pay compensation and any
improvement in the person s opportunity to undertake work after
completing the program. Clause 52 provides that if
a person is required to undertake a rehabilitation program and the
person does not do so, the person s right to compensation under
various provisions of the Bill may be suspended.
What other assistance can be provided
to a person?
Part 3 of Chapter
3 makes provision in relation to alterations, aids and
appliances. Although the heading of the Part refers to
alterations, aids and appliances relating to
rehabilitation provision of alterations, aids and
appliances need not relate to rehabilitation where a person has
been assessed as not having the capacity for rehabilitation
(subparagraph 55(1)(c)(ii)).
Clause 55 provides that the
Part applies to a person if the person has an impairment because of
a service injury or disease for which the Commission has accepted
liability and the person is undertaking a rehabilitation program,
or has completed a rehabilitation program, or has been assessed as
not having the capacity for rehabilitation.
Clauses 56 to
59 provide that the Commission may provide
assistance to an impaired person by way of alterations, aids and
appliances, and may pay compensation in relation to the costs
incurred in obtaining such. Clause 58 specifies
the matters to which the Commission must have regard in determining
whether an alteration, aid or appliance is reasonably required.
Some of these matters relate more to the fairness of the assistance
being paid for by the Commonwealth than to the person s need. For
instance, paragraph 58(2)(d) requires the
Commission to have regard to whether the person has previously
received assistance in relation to an alteration of his or her home
and has, on the sale of that home, received a financial benefit
because of the alteration. The Explanatory Memorandum to the Bill
states that such an increase in value might be considered; in fact
clause 58 states that it must be
considered.(16)
How will an incapacitated member or
former member be helped to find suitable work?
Part 4 of Chapter
3 provides that a person s rehabilitation authority must
assist the person to find suitable work, within the Permanent
Forces if the person is a Permanent Forces member who has not been
identified as likely to be discharged, as a continuous full-time
Reservist if the person is a continuous full-time Reservist who has
not been identified as likely to be discharged, and as a civilian
in any other case. Under Part 5 of Chapter
3 a person who has been identified as likely to be
discharged is entitled to have a case manager appointed. The role
of a case manager is to assist the person in the transition to
civilian life.
Chapter 4 deals with the
provision of compensation for members and former members.
Clause 65 provides a simplified outline of the
chapter. The most significant Parts are Part 2,
which provides for compensation to be provided in relation to a
permanent impairment, Part 3, which provides for
compensation to be provided to current members of the Defence Force
in relation to a loss of earning capacity, Part 4,
which provides for compensation to be provided to former members of
the Defence Force in relation to a loss of earning capacity, and
Part 6, which provides for a safety net
pension.
How does the
Bill provide for compensation for loss of
amenities of life?
Part 2 provides for the
payment of compensation to current and former members who have
suffered a permanent impairment. This is essentially a compensation
for the loss of the general amenities of health which result from
such things as loss of use of part of the body or damage to a body
system. Compensation is only payable if the degree of impairment is
above a minimum level. The amount of compensation is also dependent
on the degree of impairment (subject to a maximum rate set out in
clause 74). The degree of impairment of a person
is to be decided by reference to a guide determined by the
Commission under clause 67. The Repatriation
Commission currently prepares a Guide to the Assessment of Rates of
Veterans Pensions (GARP) under section 29 of the Veterans
Entitlements Act 1986. The Explanatory Memorandum envisages
that the guide to be determined under clause 67
will be based on the current GARP.(17)
Subclause 67(2) provides that
the guide must provide different methods for determining the
relationship between a person s impairment points and the level of
compensation payable to the person dependent on whether the service
injury or disease relates to warlike or non-warlike service or to
other service, and a method of determining the compensation payable
where a person has both a service injury or disease that relates to
warlike or non-warlike service and a service injury or disease that
does not relate to warlike or non-warlike service. Clause
67(4) provides that the guide is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901. This means that it must be laid
before each House of the Parliament and may be disallowed by either
House.
Clause 68 sets out the
circumstances in which the Commonwealth is required to pay
compensation to a person in relation to a service injury or
disease. Compensation is only payable under this section where a
person s compensable condition has stabilised; however interim
compensation is payable under clause 75 in certain
circumstances.
Clauses 69 and
70 set out minimum levels of impairment before
compensation will be payable. Determination of whether an
impairment satisfies these minimum requirements will require
reference to the guide to be determined under clause
67.
Clauses 71 and
72 provide that additional compensation may become
payable where a person who is currently receiving compensation
suffers a further service injury or service disease or an
aggravation of an existing injury or disease. It will be necessary
to establish a minimum level of additional impairment.
Clause 74 specifies a maximum
amount of weekly compensation payable to a person under
Part 2 of Chapter 4. The guide
determined under clause 67 by the Commission will
include a method by which the impairment points of a person can be
used to determine the compensation payable to the person by
reference to the maximum amount of weekly compensation payable to a
person under clause 74. The maximum amount payable
is to be indexed by reference to the Consumer Price Index (under
clause 404).
Under clause 78 a person may
choose to convert a weekly amount payable to the person under
Part 2 into a lump sum, either totally or, in
certain circumstances, in part. The amount of the lump sum will be
determined by reference to the weekly amount payable to the person
and advice from the Australian Government Actuary.
Under clause 80 where the
degree of impairment suffered by a person has been determined to be
at least 80 impairment points (which may not result in the payment
of maximum compensation, as suggested by the section heading) the
Commonwealth is required to pay the person $60 000 in relation
to each dependant of the person who is an eligible young person (as
defined in clause 5). This figure is indexed by
reference to the CPI. It is notable that the requirement of 80
impairment points is absolute, so that, for example, no proportion
of $60 000 is payable where a person s degree of impairment is
75 points.
Under clauses 81 and 82 the
Commonwealth is liable to pay compensation for the cost of
financial advice, up to a maximum of $1200.
How does the
Bill provide for compensation for a loss
of income-earning capacity?
Part 3 provides for the
payment of compensation to current members who have suffered
a service injury or disease (defined in
clause 5) which has resulted in an
incapacity for service (also defined in
clause 5). A person has an incapacity for
service if he or she is unable to perform the defence
service he or she previously performed at the level at which he or
she previously performed. The compensation provided under this Part
is essentially a compensation for economic loss, with the basic
formula being that a member is entitled to be paid the difference
between the amount he or she would have earned were it not for the
relevant service injury or service disease and the amount he or she
actually earns.
Clauses 85 to
87 provide an entitlement to compensation for
full-time members (including continuous full-time Reservists),
part-time Reservists, incapacitated cadets and declared
members.
Clause 88 provides that the
Commonwealth is only required to pay compensation in relation to an
aggravation if the aggravation causes a person s incapacity for
work. So, for example, if a person has a pre-existing injury which
would cause them to be unable to work regardless of an aggravation
caused by military services, the Commonwealth is not liable to pay
compensation for economic loss. This contrasts with the situation
in regard to rehabilitation, as the Commonwealth would be required
to provide rehabilitation in such a case.
Clause 89 sets out the
sections by reference to which the actual earnings and normal
earnings of various types of members are to be calculated.
How is the amount of compensation
determined?
Division 2 of Part
3 sets out the method of calculating normal and actual
earnings for full-time members (both Permanent Forces members and
continuous full-time Reservists). Normal earnings are the total of
normal ADF pay and normal pay-related allowances. Normal pay and
allowances means those amounts that the member would have earned if
he or she were not affected by a service injury or disease. Actual
earnings are the total of actual ADF pay and actual pay-related
allowances.
Division 3 of Part
3 sets out the method of calculating normal and actual
earnings for part-time Reservists. Generally, the amounts the
person would have earned as a Reservist and in civilian work are
totalled to give normal earnings; the amounts he or she actually
earned as a Reservist (if any) and in civilian work (if any) are
totalled to give actual earnings. The situations where a person is
incapacitated for service as a Reservist but is able to continue
civilian work, or is able to continue service as a Reservist but
unable to perform civilian work, are dealt with in clauses
96 to 99.
Under clause 101, in working
out actual civilian earnings for a week the Commission is able to
determine the amount that the Reservist could earn in suitable
work, where this is greater than the amount he or she actually
earns.
Division 4 deals with the
calculation of the amount of compensation payable to a part-time
Reservist who is incapacitated for service as a Reservist or work
as a civilian due to an injury or disease that occurred when the
person was a Permanent Forces member. In such cases normal earnings
will be worked out by reference to the amount the person would have
earned had he or she continued to be a Permanent Forces member (not
taking into account promotions that the person may have expected to
receive but had not actually received).
Division 5 deals with the
calculation of the amount of compensation payable to a part-time
Reservist who is incapacitated for service as a Reservist or work
as a civilian due to an injury or disease that occurred when the
person was a continuous full-time Reservist. The person has a
choice between two ways of calculating normal earnings. He or she
may choose to have them calculated on the basis of the amount he or
she would have earned if still a continuous full-time Reservist.
Alternatively, he or she may have them calculated on the basis of
income earned from civilian work prior to becoming a continuous
full-time Reservist.
Normal and actual earnings for cadets and
declared members are, under clause 116, to be
worked out under the regulations.
Part 4 of Chapter
4 deals with compensation for incapacity for work for
former members of the ADF. Clause 117
provides a simplified outline of the Part. Compensation is payable
where a person is incapacitated for work as a result of a service
injury or disease for which the Commission has accepted liability,
and the person has made a claim for compensation. The amount of
compensation for a week is, generally, the difference between the
person s normal and actual earnings for the week. Normal earnings
are calculated under whichever Division of Part 4 applies. The
Division that applies is determined by the person s status when he
or she left the Defence Force and, in the case of a person who left
the Defence Force as a part-time Reservist, other factors such as
the person s status when the service injury or disease
occurred.
The Commonwealth s liability to pay
compensation is established by clause 118.
Subclause 118 (1) provides that compensation is
payable to a person who is a former member (as defined in
clause 5), where the Commission has accepted
liability for a service injury or disease which results in the
person s incapacity for work (as also defined in clause
5) and a claim for compensation has been made.
Subclause 118(2) provides that the amount of
compensation is either the Special Rate Disability Pension worked
out under Part 6 of Chapter 4 (the safety net pension ), or the
amount worked out under Division 2 of Part 4 of Chapter 4.
Clause 119 provides that the
Commonwealth is only liable to pay compensation in respect of an
aggravated injury or disease where incapacity for work is wholly or
partly due to the aggravation. This means that if a former member
joined the Defence Force with a pre-existing injury or disease, and
that has been aggravated by defence service, the Commonwealth is
not liable to pay compensation where the incapacity for work is
solely due to the original injury or disease and would have
occurred regardless of the aggravation.
Clauses 120 and
121 limit compensation for persons aged 63 or
over, and prevent compensation from being paid to anyone aged 65 or
over.
Division 2 (clauses 123 to
139) provides how to work out the amount of
compensation a person will receive for a week during which he or
she is entitled to compensation (unless the person has chosen to
receive a Special Rate Disability Pension).
Subdivision B (clauses 124 to
127) set out which sections apply to the
calculation of compensation in particular circumstances. The main
distinction is between persons who are not receiving Commonwealth
superannuation (where the amount of compensation is worked out
under subdivision C (clauses 128 to
132)) and persons who have retired and are
receiving Commonwealth superannuation (where the amount of
compensation is worked out under subdivision D (clauses
133 to 136)). Special provision is also
made for those who are maintained in hospitals or similar
institutions on a long-term basis (clause 127) and
those who are receiving only small amounts of compensation
(subdivision E allows for compensation payments of
not more than $150 a week to be converted to a lump sum in certain
circumstances).
The most common situation is expected to be
that where the person is not receiving Commonwealth superannuation,
where the amount of compensation is worked out under
subdivision C (clauses 128 to
132). In this situation the Commonwealth will be
liable to pay the difference between the person s normal earnings
for the week (worked out under clause 132) and the
person s actual earnings for that week for at least 45 weeks. After
45 weeks (or, if the person is not incapacitated for work for all
of his or her normal weekly hours, as defined in clause
132, a longer period), the amount of compensation will be
reduced in accord with clause 131). Actual
earnings are determined by reference to subclause
132(1); the provisions by reference to which
normal earnings are determined are set out in
subclause 132(2).
Where a person to whom the Commonwealth is
liable to pay compensation has retired and is receiving a
Commonwealth superannuation pension (defined in clause
5) the amount of compensation payable is reduced under
subdivision D (clauses 133 to
136). Essentially the Commonwealth will be liable
to pay the amount determined under subdivision C
less the amount of superannuation that the person is receiving
attributable to the Commonwealth s contribution.
Clause 141 provides how the
normal earnings for a person who left the Defence Force as a
Permanent Forces member are to be worked out. Normal earnings
constitute ADF pay plus allowance
component plus $100 (subclause 141(1)).
ADF pay is the amount the person would have earned
if he or she was still a Permanent Forces member and was not
incapacitated for service. Allowance component is,
essentially, the amount of allowances that the person would have
been paid if he or she was still a Permanent Forces member and was
not incapacitated for service. The additional payment of $100
(indexed) is intended to compensate for additional elements of the
ADF payment package, such as free medical care and subsidised
housing. The amount of ADF pay that a person would
have earned does not take into account any possible promotions that
the person may have received if he or she had remained in the
Defence Force.
The normal earnings for a person who left the
Defence Force as a continuous full-time Reservist are to be worked
out under Division 4 of Part 4 (clauses
142 to 150). Such a person may choose to
have normal earnings calculated on the basis of the amount that the
person would have earned if he or she were still a continuous
full-time Reservist. The normal earnings of the person will be then
calculated under clause 144 on a corresponding
basis to that on which the earnings of a person who left the
Defence Force as a Permanent Forces member are worked out
(including the additional amount of $100). Alternatively, the
person may elect under clause 143 to have normal
earnings and normal weekly hours calculated on the basis of his or
her work engaged in before beginning his or her last period of
continuous full-time service (referred to as choosing
pre-CFTS earnings).
Where the person chooses pre-CFTS earnings
their normal earnings and normal weekly hours will be worked out
under subdivision D of Division 4 (clauses
145 to 150). Generally the amount the
person was earning from employment (or combinations of employment)
immediately prior to commencing his or her last period of
service as a continuous full-time Reservist will be his or
her normal earnings, and the hours worked in that employment (or combinations of
employment) will be his or her normal weekly hours.
The normal earnings and normal
weekly hours of a person who was a part-time Reservist when the
service injury or disease occurred and was still a part-time
Reservist when he or she left the Defence Force are worked out
under Division 5 (clauses 151 to
158) if he or she was working in civilian work
before leaving the Defence Force and under Division 6
(clauses 159 to 161) if he or she was not
working in civilian work before leaving the Defence Force. Under
Division 5 the person s normal earnings are the
total of the amount the person would have earned as a part-time
Reservist if he or she were still a part-time Reservist and the
amount he or she was earning from civilian work before ceasing to
be a member of the Defence Force. The person s normal weekly hours
are the total of hours he or she was serving in the Reserve and
working in civilian work before ceasing to be a member of the
Defence Force. Under Division 6 the person s
normal earnings are 7 times the daily rate that the person would be
paid if he or she were still a part-time Reservist.
The normal earnings and normal
weekly hours of a person who was a Permanent Forces member or a
continuous full-time Reservist when the service injury or disease
occurred and a part-time Reservist when he or she left the Defence
Force are worked out under Division 7 (clauses 162
to 164) if his or her last period of full-time
service was as a Permanent Forces member and under Division
8 (clauses 165 to 174) if his or her last
period of full-time service was as a continuous full-time
Reservist. Under Division 7 the normal
earnings of the person are calculated under clause
164 on a corresponding basis to that on which the earnings
of a person who left the Defence Force as a Permanent Forces member
are worked out (including the additional amount of $100).
Under Division 8 the person
may choose to have normal earnings calculated on the basis of the
amount that the person would have earned if he or she were still a
continuous full-time Reservist. The normal earnings of the person
will be then calculated under clause 168 on a
corresponding basis to that on which the earnings of a person who
left the Defence Force as a Permanent Forces member are worked out
(including the additional amount of $100). Alternatively, the
person may elect under clause 167 to have normal
earnings and normal weekly hours calculated on the basis of his or
her work engaged in before beginning his or her last period of
continuous full-time service (referred to as choosing
pre-CFTS earnings).
Where the person chooses pre-CFTS earnings
their normal earnings and normal weekly hours will be worked out
under subdivision D of Division 8 (clauses
169 to 174). Generally the amount the
person was earning from employment (or combinations of employment)
immediately prior to commencing his or her last period of
service as a continuous full-time Reservist will be his or
her normal earnings, and the hours worked in that employment (or combinations of
employment) will be his or her normal weekly hours.
Clause 175 provides that the
normal and actual earnings and normal weekly hours for cadets or
declared members are to be worked out in accordance with the
regulations.
Part 5 makes provision for
the adjustment of normal earnings and actual earnings in specified
circumstances. Of principal significance is the provision that an
amount of civilian pay that contributes to the determination of the
amount of compensation to which the Commonwealth is liable in
respect of a person is to be indexed in accordance with a
method to be set out in the regulations.
Clause 179 provides that the
minimum that a person s normal earnings can be is
the federal minimum wage (even if the person s normal earnings are
actually less than that minimum).
Clause 180 provides that
normal earnings do not include amounts earned as a bonus, or any
expected increase in earnings due to the expectation of a bonus,
promotion or posting.
Where it is necessary to determine actual
civilian earnings the Commission is in some circumstances required
to determine the amount that a person is able to earn in suitable
work. Clause 181 specifies the matters that
the Commission may consider in making such a determination,
including matters such as a failure to accept an offer of suitable
work.
In some cases the amount of compensation to which the Commonwealth
is liable in respect of a person is determined in part by the
amount of the person s civilian pay prior to a period of continuous
full-time service. Clause 182 provides that in
these cases the amount of civilian pay is to be indexed in
accordance with a method to be set out in the regulations.
Clause 183 provides that the amount of $100
included in calculation of the amount of compensation payable in
some cases is also to be indexed in accordance with a method to be
set out in the regulations.
Division 3 (clauses 184 to
190) provide for the adjustment of ADF pay and
pay-related allowances. Of principal significance is the provision
that an amount of ADF pay that contributes to the determination of
the amount of compensation to which the Commonwealth is liable in
respect of a person is to be increased in line with
increases in the pay as a result of the operation of a law or the
operation of an award. This essentially means that the amount of
compensation payable to a person will be determined by reference to
the pay and pay-related allowances currently payable to a person of
the rank the person was when he or she left the Defence Force.
Increases in pay due to actual promotions are
included under clause 186, but not increases due
to promotions that may have been expected to occur had a person not
been injured.
Calculation of civilian earnings under this
Bill is usually to be performed by reference to an example period
(generally the last period of two weeks before a person left the
relevant employment). Division 4 (clauses 191 to
194) makes provision for adjusting the amount of
civilian earnings where a person s earnings vary during the example
period or it is impracticable to work out such an amount.
How does the
Bill provide a safety net?
Part 6 of Chapter 4
(clauses 197 to 210) provides for a
Special Rate Disability Pension. Severely impaired people who are
unable to work more than 10 hours per week may choose to receive a
pension under this Part instead of compensation under Part
4. Clause 198 provides that the rate
of pension is the same as that payable under the VEA.
Clause 199 provides that a person is only eligible
to choose to receive a Special Rate Disability Pension if the
person is receiving compensation under Division 2 of Part 4, has
suffered an impairment that is likely to continue indefinitely, has
suffered a substantial impairment and is unable to perform paid
work for more than 10 hours per week (and this is unlikely to be
increased by rehabilitation).
Clauses 200 to
203 make provision in relation to the making of
the choice to receive the Special Rate Disability Pension by a
person, and in relation to a determination by the Commission that a
person is to receive the Special Rate Disability Pension.
Clause 204 provides that an
amount of Special Rate Disability Pension payable to a person is
offset where a person is receiving compensation under Part 2 (that
is compensation in the nature of compensation for loss of amenities
of life resulting from an injury or disease) or where the person is
receiving Commonwealth superannuation.
Clauses 205 to
207 make provision in relation to financial advice
obtained by a person before choosing whether to receive a Special
Rate Disability Pension.
If a person s impairment is reduced, or the
person becomes able to undertake more than 10 hours per week paid
work, clause 209 provides that a Special Rate
Disability Pension is no longer payable.
Clause 210 provides that the
Commission may establish a Return to Work scheme that applies where
a person who was receiving a Special Rate Disability Pension
becomes able to undertake more than 10 hours per week paid work,
and may determine amounts of compensation payable in such
circumstances.
Compensation is payable under Part
7 in respect of various additional matters. Under
Division 2 (clause 212) compensation may be
payable where a person s impairment resulting from a service injury
or disease means they have special requirements in relation to a
motor vehicle. Compensation may, for example, relate to payment of
the cost of modifications to a motor vehicle. Under
Division 3 (clauses 213 to 220)
the Commonwealth is liable to pay for the cost of household
services and attendant care services in certain circumstances.
Under Division 4 (clauses 221 to
225) persons who are eligible to receive a Special
Rate Disability Allowance (or would be eligible if they were not
aged over 63) may be eligible to receive a telephone allowance.
Under Division 5 (clauses 226 to
230) the Commonwealth may be liable to pay
compensation for loss of, or damage to, medical aids.
Part 1 (clause 231) provides
a simplified outline of Chapter 5. Most benefits payable under the
Chapter are provided to dependants of deceased members to whom
clause 12 applies (that is, the person s death was
a service death or prior to the person s death he or she suffered a
serious impairment from a service injury or disease). There is also
provision for a scheme to provide education and training for
children and young dependants of deceased members and some current
and former members.
Under Part 2 compensation is
provided for the wholly dependent partners of deceased members to
whom clause 12 applies. The amount of compensation
is determined by reference to the provisions of Division 2
(clauses 234 to 238). It has two
components. The first is worked out by applying the partner
s age-based number to, in the case of a death relating to
warlike service, the amount of $100 000, and, in the case of a
death relating to non-warlike or peacetime service, the amount of
$40 000. Subclause 234(7) provides that a
partner s age-based number is the number advised
by the Australian Government Actuary by reference to the partner s
age at the date of the member s death. The second is a weekly
amount that is equivalent to the pension payable under paragraphs
30(1)(a) and (b) of the Veterans Entitlements Act 1986,
which the partner may elect to take as either a pension payable
until death or as a lump sum calculated, under subclause
234(4) by reference to the weekly amount and to the
partner s age-based number.
Under Division 3 (clauses 239
to 241) the Commonwealth is liable to compensate
the partner for the cost of obtaining financial advice.
Under Division 4 (clauses 242
to 244) the Commonwealth is also liable to pay to
a wholly dependent partner an amount equal to 12 weeks continuing
payments where the deceased member was receiving compensation as a
result of permanent impairment or incapacity for service or work.
The member must have received compensation for the week before he
or she died (so if the member was not paid compensation for that
week because he or she was in prison no compensation will be
payable under this clause). Where a deceased member had no wholly
dependent partner this amount may be payable under Division
4 of Part 3 (clauses 255 to
256) to a dependant of the deceased member who is
an eligible young person.
Part 3 provides for
compensation and other benefits for the children (or other
dependants aged under 25) of certain deceased members, members and
former members. Under Division 2 (clauses 251 to
252) compensation of $60 000 is payable for
an eligible young person who was a dependant of a deceased member
to whom clause 12 applies. Under Division
3 (clauses 253 to 254) weekly
compensation of $66 is payable for an eligible young person who was
a dependant of a deceased member to whom clause 12
applies.
Under Division 6 the
Commission may establish a scheme to provide education and training
for eligible young persons who are dependants of members or former
members suffering substantial impairment, or who were dependants of
deceased members to whom clause 12 applies.
Under Part 4 (clauses 261 to
264) the Commonwealth is liable to pay
compensation to a person who was a dependant of a deceased person
other than a wholly dependent partner of an eligible young person.
The amount payable is the amount that the Commission determines
reasonable, but it must not exceed $60 000 for a dependant and the
total amount payable under this Part for all dependants must not
exceed $190 000.
Chapter 6 makes provision for
treatment of injuries and diseases for some current members, former
members, and dependants of deceased members. Provision for
compensation for treatment costs is made under Part 2
(clauses 270 to 277). Compensation for
the cost of treatment of a person s service injury or disease will
generally be payable under clause 271 or
272 (dependent on whether or not the person is a
current member of the Defence Force) where the Commission has
accepted liability for the service injury or disease, it was
reasonable for the person to obtain the treatment. Under
clause 276 the amount of treatment compensation
payable is the amount that the Commission considers reasonable.
Part 3 (clauses
278 to 287) makes provision for treatment
to be provided for service injuries and diseases of some current
members and former members. Treatment for current members is
generally provided under the Defence Force Regulations
1952 but may instead be provided under clause
279. Treatment for former members and members who are not
entitled to treatment under the Defence Force Regulations
1952 may be provided under clause 280.
Clauses 281 and 282 provide that
a person who has an impairment of 60 or more impairment points or
is entitled to a Special Rate Disability Pension is entitled to be
provided with treatment under Part 3. Clause 284
provides that certain dependants of deceased members are eligible
for treatment under Part 3.
Division 4 (clauses 285 to
287) sets out how the Commission is to administer
the provision of treatment under the Part.
Part 4 (clauses 288 to
303) deals with the provision of other
compensation relating to treatment, such as compensation for travel
costs (clause 290), compensation for
transportation costs of an attendant (clause 297),
and the payment of a pharmaceutical allowance (clause
300).
Offences are created under Part
5 in relation to treatment provided or compensated for
under Chapter 6. These offences principally relate
to the behaviour of medical service providers and practitioners.
Some of the offences created are offences of strict liability (for
example, the offences created by clause 306
relating to making a statement or issuing a document that is false
or misleading and is capable of being used in connection with a
claim under Chapter 6).
Under clause 315 where an
amount is paid under Chapter 6 which is, as a
result of a false or misleading statement, greater that the amount
that should have been made, the excess is recoverable from the
person by or on behalf of whom the statement was made.
Clause 317 provides that if an amount has
previously been paid to a person that exceeded the amount payable
to that person the Commission may, with the agreement of the
person, reduce the amount of a subsequent payment to the
person.
The rules that deal with the making of a claim
for compensation or treatment under the Bill are set out in
Chapter 7 (clauses 318 to 343).
Most benefits under the Bill are not payable unless a claim has
been made under clause 319. This clause makes
provision for the making of a claim for acceptance of liability by
the Commission for a service injury, a service disease, a service
death, or loss of or damage to a medical aid or for compensation.
Clause 319 and the other provisions of
Division 2 (clauses 319 to 323)
provide for how a claim is to be made and who can make a claim.
Division 3 (clauses 324 to
331) sets out what happens after a claim is made.
Provision is made for investigation of a claim (clause
324), a needs assessment in relation to a claim
(clauses 325 to 327), medical
examinations and the consequences of a failure to have an
examination (clauses 328 to 329)
and the obligation of claimants and the Commission to provide
information or documents (clauses 330 to
331).
Part 2 (clauses 332 to
343) makes provision in relation to the
determination of claims under the Bill. Clause 334
provides that the Commission is not bound by any technicalities but
must act according to the substantial merits of a case. In
particular, it must take account of the effect of such matters as
the passage of time and the absence of official records (including
an absence that resulted from a failure to report an incident to
the relevant authorities). Clause 335 sets out the
standard of proof required for a determination by the Commission.
Generally the standard of proof is one of reasonable satisfaction.
However, where a claim for acceptance of liability for a person s
injury, disease or death relates to warlike or non-warlike service
then a more beneficial standard of proof applies. That is, the
Commission is required to make the relevant determination unless it
is satisfied, beyond reasonable doubt, that there is no sufficient
ground for making the determination. It is to be so satisfied if it
is of the opinion that the material before it does not raise a
reasonable hypothesis connecting the injury,
disease or death of a person with the person s service.
Clause 338 provides that
whether or not the material raises a reasonable
hypothesis is generally to be assessed by reference either
to a Statement of Principles determined under
either the VEA or a determination under clause
340. Clause 339 provides that in certain
cases whether or not the Commission is to be reasonably satisfied
of a matter is also to be determined by reference to a Statement of
Principles or a determination.
Part 1 of Chapter 8
(clauses 344 and 345) provides an outline
of the chapter and a number of definitions relating to
reconsideration and review.
Clause 346 provides that
where the Commission makes an original determination in relation to
a claim it must notify the claimant of the terms of the
determination and the reasons for the determination. It must also
set out the claimant s rights to request a reconsideration of the
determination or, in some circumstances, request a review.
Part 3 (clauses 347 to
351) sets out the procedure for reconsideration of
determinations.
Where a determination relates to warlike or
non-warlike service the claimant may elect whether to ask the
Commission to reconsider the determination or apply to the Veterans
Review Board for review of the determination. It is not possible
for a claimant to seek review of such a determination by the
Veterans Review Board after it has been reconsidered by the
Commission. Part 4 (clauses 352 and
353) deals with review by the Board.
Where a determination has been reconsidered by
the Commission or reviewed by the Board a claimant who is still
unsatisfied can apply to the Administrative Appeals Tribunal for
review of the determination. The procedure for review is set out in
Part 5 (clauses 354 to 359).
Chapter 9 of the Bill deals
with the establishment and operation of the Commission. It is
established by clause 361 and its functions are
set out in clause 362. Provision is also made in
relation to membership of the Commission (clauses
364 to 372) and to meetings and
resolutions of the Commission (clauses 373 to
381).
Chapter 10 of the Bill deals
with the situation where a person entitled to compensation under
the Bill for an injury, disease, death or loss may also have a
right to recover damages in relation to the matter. Clause
388 provides that generally a person does not have an
action against the Commonwealth or another member in relation to a
service injury or service disease. A dependant of a deceased member
may bring an action in respect of a service death but, if
successful, will be required to pay to the Commonwealth the lesser
of the damages received and compensation received under the
Bill.
Clause 389 provides that a
person may choose to bring an action against the Commonwealth for
damages for non-economic loss. If the person so chooses, generally
further compensation will not be payable under the Bill, and the
amount of damages is limited to $110 000.
Part 3 (clauses 391 to
403) deals with the liability of third parties. In
particular, clause 393 provides for the Commission
to institute or take over a claim against a third party and
clause 398 provides that where damages are payable
in a claim made or taken over by the Commission the damages are
payable to the Commonwealth and will be set off against amounts of
compensation paid or payable to the claimant. Clause
402 provides that where a claim was not instituted or
taken over by the Commission and damages are recovered compensation
under the Bill is generally not payable after the day on which the
damages were recovered.
Chapter 11 deals with a
number of miscellaneous matters. In particular, clause
404 provides for indexation of various amounts and
clause 415 provides for recovery of amounts of
compensation wrongly paid.
Technical flaws
The reference in clause 50 to
an examination under section 45 should be to an examination under
section 46.
References to the partner in clause
221 (subclauses (1) and
(2)) should be to the person .
The provision of differing amounts of
compensation to a member, a former member or a dependant of a
deceased member of whether the service injury, service disease or
death related to warlike, non-warlike or peacetime service is
controversial. It is notable that the dividing line differs in
relation to compensation for different matters. That is, where
compensation in the nature of compensation for loss of amenities of
life is payable under Chapter 4, the distinction is between on the
one hand warlike service or non-warlike service , and on the other
hand peacetime service . Where compensation to the partner of a
deceased member is payable under Chapter 5, the distinction is
between on the one hand warlike service , and on the other hand
non-warlike service or peacetime service . Even if it is accepted
that differing amounts should be provided in relation to differing
types of service, it is difficult to see why the distinction should
be at a different point in relation to different circumstances
giving rise to a liability to compensation.
It is apparently presumed that no member
would deliberately act so as to cause an injury or disease that
resulting in serious and permanent impairment.(18) It is
not clear what forms the basis for this presumption. Unfortunately
there are instances of veterans committing suicide as a result of
defence service, and there seems no cogent reason to believe that
this would never happen in relation to serving members.
The provisions of Chapter 5 relating to
the payment of compensation to the partners of certain deceased
members are structured on the basis that the normal situation will
be that the partner of a deceased member was wholly dependent on
the member. It would seem that this is continually becoming less
likely to be the situation. Although compensation is payable to a
partly dependent partner it may be seen to be unsatisfactory and
likely to give rise to dispute that in such a case the amount of
compensation is determined by reference to what the Commission
considers reasonable rather than by reference to a generally
available set of criteria.
A number of calculations under
the Bill can only be performed by
reference to external information, either in regulations or other
sources. For example, the amount of compensation payable under
Division 5 to the wholly dependent partner of a deceased member is
dependent upon a number that is advised by the Australian
Government Actuary. This lack of transparency will make it
difficult for potential claimants to be aware of their entitlements
under the legislation.
Most decisions to be made under
the Bill can be reconsidered by the
Commission. Decisions that relate to warlike or non-warlike service
can also be reviewed by the Veterans Review Board. After a decision
has been reconsidered or reviewed it can be reviewed by the
Administrative Appeals Tribunal. This effectively continues the
position established under the current legislation.
-
Black Hawk Board of Inquiry, Documents for Public Release, 1997,
p. 1.
-
The Review of the Military Compensation Scheme,
Department of Defence, March 1999, p. 74 (Recommendation
27).
-
For example, the amount of the Special Rate Disability Pension
(which can be paid in certain circumstances under Part 6 of Chapter
4) is determined by reference to the pension payable under section
24 of the Veterans Entitlements Act 1986.
-
Bodies represented at the public hearings held by the Senate
Foreign Affairs Defence and Trade Legislation Committee on 23, 24
and 25 February 2004 included, amongst others, the Australian
Federation of Totally and Permanently Incapacitated Ex Servicemen
and Women, the Injured Service Persons Association, and the Vietnam
Veterans Association.
-
Review of Veterans Entitlements, conducted by the Hon.
John Clarke QC, Air Marshal Doug Riding AO DFC and Dr David
Rosalky, January 2003, Vol. 2 p. 279.
-
ibid.
-
The Review of the Military Compensation Scheme, op.
cit., p. 63 (Recommendation 24).
-
This instruction is reproduced as Annex G to the Review of
the Military Compensation Scheme op. cit.
-
ibid.
-
Belinda Hickman War scars need fair treatment The
Australian 19 February 2004, p. 2.
-
The Review of the Military Compensation Scheme, op.
cit., p. 63.
-
Review of Veterans Entitlements op. cit., p. 142.
-
ibid., p. 48.
-
The Hon. Dana Vale, MP, Minister for Veterans Affairs, Military
Rehabilitation and Compensation Bill 2004, Second Reading Speech ,
House of Representatives, Debates, 4 December 2004, p.
23806.
-
For instance, in speaking to the Senate Foreign Affairs, Defence
and Trade Legislation Committee by the Naval Association referred
to the Navy as a very structured career and argued that the
reasonable expectation of promotion must be included in any
calculation of compensation entitlements , Submission of 25
February 2004 p. 4, and the Australian Federation of Totally and
Permanently Incapacitated Ex Servicemen and Women stated that there
should be provision for an increase that would reasonably
correspond with [his]reasonable expectations of promotion , Mr
Bodey, speaking to the Senate Foreign Affairs, Defence and Trade
Legislation Committee on 23 February 2004, p. 3.
-
Explanatory Memorandum, Note to clause 58, p. 31.
-
Explanatory Memorandum, Note to clause 67, p. 35.
-
Explanatory Memorandum, Note to clause 32, p. 19.
Jennifer Nicholson
25 March 2004
Bills Digest Service
Information and Research Services
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