Bills Digest no. 99 2009–10
Veterans' Affairs and Other Legislation Amendment
(Miscellaneous Measures) Bill 2009
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
Contact officer & copyright details
Passage history
| Abbreviation |
Definition |
| APBNTTA |
Australian Participants in British Nuclear Tests
(Treatment) Act 2006 |
| AFP |
Australian Federal
Police |
| APS |
Australian Protective
Services |
| MRCA |
Military Rehabilitation and Compensation Act 2004 |
| RMA |
Repatriation Medical Authority |
| SRCA |
Safety Rehabilitation and Compensation Act
1988 |
| SMRC |
Specialist Medical Review Council |
| SoP |
Statements of Principles |
| VEA |
Veterans’ Entitlements Act 1986 |
Veterans'
Affairs and Other Legislation Amendment (Miscellaneous Measures)
Bill 2009
Date introduced: 25
November 2009
House: House of
Representatives
Portfolio: Veterans'
Affairs
Commencement: On
the date of Royal Assent except for Items 42 to 44
in Schedule 1 which are to commence from the day
after the date this Act receives Royal Assent or from 1 July 2010,
whichever is the later.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
To amend various Acts to give effect to
several minor changes to veterans’ assistance and
entitlements.
The purpose of the amendments to the Australian Participants
in British Nuclear Tests (Treatment) Act 2006 (APBNTTA) in
this Bill is to change the definition of a ‘nuclear test
participant’ in the APBNTTA. The definition is to be
expanded to include members of the Australian Protective Services
(APS) from 1984 to 1988.
The Commonwealth provides for the payment of screening and
testing for cancer and also for the treatment of cancer for
participants in the British nuclear tests conducted in Australia in
the 1950s. The coverage was originally provided for with the
passage of the APBNTTA.[1] The coverage of the cancer and treatment
arrangements was later extended to members of the Commonwealth or
Australian Federal Police (AFP) performing guard duties at
Maralinga from 1 May 1965 to 30 June 1988.[2]
The Maralinga test site was also guarded by officers of the APS
from 1984 to 1988. However, from 20 October 1984 APS officers
were not members of the AFP and were not covered by the
Australian Federal Police Act 1979.
The amendments in this Bill will describe APS officers
performing guard duties at Maralinga from 20 October 2984 to 30
June 1988 as a ‘nuclear test participant’ and they will
therefore receive the benefit of having any cancer screen testing
and treatment paid for under the APBNTTA.
This is beneficial legislation that will ensure there is equity
of access to cancer screening and cancer treatment for officers
involved in guarding the Maralinga test site.
There are three main Acts that provide for compensation and
coverage of a war or defence service injury, disease or
death. They are the:
- Veterans’ Entitlements Act 1986 (VEA)
- Safety Rehabilitation and Compensation Act 1988
(SRCA), and
- Military Rehabilitation and Compensation Act 2004
(MRCA)
There is some overlap of coverage between the VEA and the SRCA
and the MRA respectively. For example, a person may have an
entitlement to coverage under the VEA and the MRCA at the same
time. In such cases a person may have to choose which
coverage they want to receive. Where a person does choose,
this may also lead to offsets against entitlements under the other
act. Broadly these acts provide for:
VEA – Operational service, peacekeeping service and
hazardous military service. Peacetime military service from 7
December 1972 up to 6 April 1986,
SRCA - Illness/injury/death from military service from 3 January
1949 up to and including 30 June 2004, and
MRCA - Illness/injury/death occurring on military service from
on or after 1 July 2004.
The coverage for service personnel for illness/injury/death was
for a long time only provided for by the VEA. The VEA, having
its origins in repatriation legislation and the original War
Pension Act 1914, is primarily a war service compensation and
repatriation act. This contrasts with much of the service
undertaken by members of the defence force in more recent times,
which is often and mostly peacetime service. The issue of
coverage gets complicated as often this peacetime service gets
interspersed with peacekeeping service, with hazardous peacekeeping
service, and also with war-like (qualifying) service. For
this non war-like service, the VEA does not work like a modern
workers’ compensation act – it is much more of a
war-like service compensation and repatriation act.
For too long, too much reliance was placed in the VEA alone to
provide for service personnel and their dependants. The SRCA
attempted to fill in the gaps in VEA coverage, especially in
respect of peacetime service. The SRCA was constructed more
like a modern workers’ compensation act and its benefits were
primarily to provide workers’ compensation type
coverage. The focus was more on weekly compensation replacing
lost wages and payment of medical and rehabilitation services to
facilitate a return to work.
However, the VEA, the SRCA and the MRCA still exist and there
needs to be appropriate treatment for persons who have an
entitlement under more than one act at the same time. Service
personnel and their dependants should not be penalised, but nor
should they be able to double-dip.
The amendments to the VEA in Part 5 of this Bill are to ensure
that where there is a qualification to coverage under the VEA for
an illness/injury, the entitlement to that VEA coverage is not
compromised even though the illness/injury has been aggravated or
materially contributed to by service also covered by the MRCA.
This legislation is beneficial legislation and will ensure
service personnel (or their dependants) who have an entitlement to
coverage under both the VEA and the MRCA at the same time are not
penalised.
A person may make a claim under the VEA or the MRCA that their
illness/injury was caused by or related to their service. The
main form of assistance claimed under the VEA is the Disability
Pension, but a claim may also be made for a War
Widow’s/er’s Pension, that the death of a partner was
due to an illness/injury arising from service.
The Statements of Principles (SoP) are legislative instruments
that set out the factors which are accepted as the cause of certain
medical conditions.[3] SoPs are determined by the Repatriation Medical
Authority (RMA). SoPs describe what factors could cause a
medical condition that is the subject of a claim. In order
for a claim to succeed at least one of the SoP factors must be
related to service.
There are two SoPs for each condition, one for warlike,
non-warlike and operational service, and one for other eligible
service. This is because the different types of service
attract different standards of proof for determining claims.
SoPs are registered with the Federal Register of Legislative
Instruments (FRLI) and tabled in both Houses of the Australian
Parliament. Each SoP contains the date on which it takes
effect. The SoPs remain law unless either House of the
Australian Parliament disallows them,[4] or they are revoked by the RMA.
Veterans, serving and former members of the Australian Defence
Force (ADF), eligible dependants, ex-service organisations, the
Repatriation Commission or the Military Rehabilitation and
Compensation Commission can request the RMA to make a new SoP, if
one does not already exist, or to review a SoP if they believe that
there is additional information available.
The RMA is an expert medical body that compiles the SoP.
The RMA consists of a Chairperson and four other Members. The
Minister for Veterans' Affairs appoints all members on a part-time
basis and at least one member must have at least five years
experience in the field of epidemiology. The role of the RMA
is to:
- determine whether there is sound medical-scientific evidence
that links particular kinds of injury, disease or death with war or
defence service, and
- reflect the causal links in legally binding SoPs.
The RMA does not review or have any role in assessing an
individual's claim for benefits.
The SMRC is an independent statutory body that can be
established to review a SoP that has been written by the RMA.
The SMRC is independent of the Repatriation Commission, the
Military Rehabilitation and Compensation Commission (MRCC) and the
RMA. SMRC are selected for the purposes of each specific
review of a SoP that is before the SMRC. The SMRC must
consist of at least three and not more than five members appointed
by the Minister. To be appointed as a member the person
must be a registered medical practitioner, or medical scientist,
with a least 10 years experience and be nominated by colleges or
similar bodies – such as the College of Physicians.
In conducting a review of a SoP, a SMRC will take into
consideration all of the information that was available to the RMA
and any relevant written submissions that the applicant for review
or other eligible persons, organisations or experts in a relevant
field may provide.
The SMRC does not deal with individual applications for
disability pensions or any other compensation, but decides whether
it would have made a different decision than the RMA, on the basis
of the same medical-scientific information.
The amendments to the VEA presented in Part 7
of the Bill are to change the powers of the Specialist Medical
Review Council (SMRC) in its functions of examining SoPs that have
been written by the Repatriation Medical Authority (RMA). At
present, where a SMRC is set up to examine a SoP they can only
review that part of the SoP that is the subject of a review.
The SMRC currently does not have the power to examine the other
part of the same SoP, which can lead to inconsistencies of
application of a SoP. The SMRC will also be given the power
to review a decision of the RMA on a SoP, where the RMA decided to
not change or alter the SoP.
This is beneficial legislation. The amendments presented
will allow the SMRC more flexibility and more consistency in its
role of reviewing a SoP.
Item 3 inserts into the definition of a nuclear
test participant officers in the APS and also a protective service
officer in a department of the Commonwealth.
Part 3–Claims for travel expenses
Items 8, 9 and 10 extend the
period in which a claim for travel expenses may be lodged.
Claims will be able to be lodged up to 12 months after the event
causing the expense occurred and there is also the flexibility to
allow a claim after more than 12 months. In effect this will
allow claims retrospectively, that is up to 12 months before Part 3
of the Bill comes into effect, which is to be the date of Royal
Assent.
Items 15 to 18 propose to
amend section 9A of the VEA. Section 9A of the VEA describes
conditions no longer covered by the VEA. The new wording will
allow an injury or disease to be still covered by the VEA, even
though it may have been aggravated or materially contributed to by
service also covered by the MRCA.
Items 24 to 27 proposes to
insert provisions that will empower the SMRC to review a SoP where
the RMA has chosen to not amend a SoP. At the moment the
current VEA provisions only empower the SMRC to review a SoP that
is the subject of a review or has been amended by the RMA.
The new provisions will allow the SMRC to review a SoP where the
RMA decided not to alter a SoP.
Item 28 proposes amendments to section 196W(3)
of the VEA to empower and also require the SMRC to review all the
contents of a SoP, even though only part of the SoP were the
subject of a review.
Concluding comments
The changes to legislation presented in this Bill are minor and
in all cases beneficial. The most notable changes have been
discussed in this Digest.
[1].
P Yeend and A Biggs, Australian
Participants in British Nuclear Tests (Treatment) Bill 2006,
Bills digest, no. 31, 2006-07, Parliamentary Library, Canberra,
2006, viewed 2 February 2010 http://www.aph.gov.au/library/pubs/bd/2006-07/07bd031.htm
[2].
P Yeend, Veterans' Affairs
Legislation Amendment (International Agreements and Other Measures)
Bill 2008, Bills digest no. 103, 2007-08, Parliamentary
Library, Canberra, 2008, viewed 2 February 2010 http://www.aph.gov.au/library/pubs/bd/2007-08/08bd103.htm
[3].
Department of Veterans’
Affairs, Statements of Principles, viewed 3 February 2010
http://www.dva.gov.au/pensions_and_compensation/Pages/sops.aspx
[4]. M Coombs,
Legislative Instruments Bill 2003, Bills digest,
no. 26, 2003-04, Parliamentary Library, Canberra, 2003, viewed 9
February 2010 http://www.aph.gov.au/library/pubs/bd/2003-04/04bd026.htm
Peter Yeend
12 February 2010
Bills Digest Service
Parliamentary Library
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
62772479.
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