Bills Digest No. 105, 2016–17
PDF version [718KB]
Claire Petrie and Paula Pyburne
Law and Bills Digest Section
7 June 2017
Contents
Purpose of the Bill
Structure of the Bill
Structure of this Bills Digest
Committee consideration
Foreign Affairs, Defence and Trade
Legislation Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Schedule 1—Veterans’ Review Board
Quick guide to Schedule 1
Commencement
Background
Key provisions
VRB objectives
VRB procedures
Dismiss an application for review
Stakeholder comments
Application
Schedule 2—Specialist Medical Review
Council
Quick guide to Schedule 2
Commencement
Background
Key provisions
Appointments to the SMRC
Travel expenses
Stakeholder comments
Document lodgement and notice
requirements
Schedule 3—international agreements
Quick guide to Schedule
Commencement
Key provisions
Defence-related claims Act
Schedule 4—Employer Incentive Scheme
Quick guide to Schedule 4
Commencement
Background
Key provisions
Stakeholder comments
Schedule 5—disclosure of information
Quick guide to Schedule 5
Commencement
Background
Key provisions
Main amendments
Contingent amendments
Stakeholder views
Schedule 6—delegation
Quick guide to Schedule 6
Commencement
Key provisions
Scrutiny of Bills Committee
Schedule 7—legislative instruments
and external material
Quick guide to Schedule 7
Commencement
Background
Scrutiny of Bills Committee
Rationale for the amendments
Key provisions
Amendments to the MRCA
Changes to structure—not content
Changes to content
Amendments to the VEA
Amendments to the British Nuclear
Tests Act
Schedule 8—minor amendments
Quick guide to Schedule 8
Commencement
Key provisions
Concluding comments
Date introduced: 30
March 2017
House: House of
Representatives
Portfolio: Veterans'
Affairs
Commencement: Sections
1 to 3 commence on Royal Assent. Schedules 1 to 8 commence on various dates,
as set out in the digest.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at June 2017.
Purpose of
the Bill
The purpose of the Veterans’ Affairs Legislation Amendment
(Omnibus) Bill 2017 (the Bill) is to make a series of minor changes to the
veterans’ compensation law across several Acts. In his second reading speech
the Minister for Veterans’ Affairs, Dan Tehan, stated that the Bill would:
... implement several small but necessary amendments to
veterans legislation to clarify, improve or streamline the operation of the
law.
...
Each of the sets of amendments are relatively modest. They will
enhance the operation of the department [of Veterans’ Affairs (DVA)] and will
mean better outcomes for veterans.[1]
Structure
of the Bill
The Bill has eight schedules:
- Schedule
1 amends the Veterans’
Entitlements Act 1986 (VEA) to update and align certain
procedures of the Veterans’ Review Board (VRB) with those of the Administrative
Appeals Tribunal (AAT)
- Schedule
2 amends provisions of the VEA relating to the Specialist Medical
Review Council (SMRC)
- Schedule
3 expands the powers of the Minister for Veterans’ Affairs to make
agreements with foreign governments
- Schedule
4 makes minor amendments in relation to Employer Incentive Scheme payments
- Schedule
5 makes changes to allow the Military Rehabilitation and Compensation
Commission (MRCC) to disclose information to the Commonwealth Superannuation
Corporation (CSC) to assist the CSC in the performance of its functions
- Schedule
6 amends the Military
Rehabilitation and Compensation Act 2004 (MRCA) to provide for
the delegation of the Minister’s powers
- Schedule
7 makes changes to allow certain legislative instruments to incorporate
external material as it is amended from time to time
- Schedule
8 repeals spent and redundant provisions in the VEA and MRCA,
including those which relate to benefits that are no longer payable.
Structure
of this Bills Digest
As the matters covered by each of the Schedules are
independent of each other, the relevant background, stakeholder comments (where
available) and analysis of the provisions are set out under each Schedule
number.
Committee
consideration
Foreign
Affairs, Defence and Trade Legislation Committee
The Bill has been referred to the Senate Standing Committee
on Foreign Affairs, Defence and Trade (the FADT Committee) for inquiry and
report by 13 June 2017. Details are available at the inquiry
home page.
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny
of Bills Committee) reported on the Bill in its Fifth Scrutiny Digest of
2017.[2]
The Scrutiny of Bills Committee raised concerns with two Schedules of the
Bill—specifically, provisions which allow for the broad delegation of
administrative powers under the MRCA (Schedule 6) and
provisions concerning the incorporation of external materials into legislative
instruments (Schedule 7). Details of the Scrutiny of Bills Committee’s
concerns are discussed under heading for the relevant Schedule below.
Policy
position of non-government parties/independents
The ALP and other non-government parties and independents
had not commented on the Bill at the time of writing.
Position of
major interest groups
The comments by various stakeholders are discussed under
heading for the relevant Schedule below.
Financial
implications
The Explanatory Memorandum states that the Bill will have
no financial impact.[3]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[4]
Parliamentary
Joint Committee on Human Rights
In its Fourth Report of 2017, the Parliamentary
Joint Committee on Human Rights concluded that the Bill does not raise human
rights concerns.[5]
Schedule 1—Veterans’
Review Board
Quick
guide to Schedule 1
The provisions of Schedule 1 to the Bill relate to the
operation of the VRB. In particular they:
- align
the statement of objectives in the VEA with that in the Administrative
Appeals Tribunal Act 1975
- modify
certain VRB procedures and
- give
the Principal Member of the VRB the power to dismiss an application for
review in certain circumstances.
|
Commencement
The provisions in Schedule 1 to the Bill commence on the
day after Royal Assent.
Background
The VRB is an independent tribunal that exists to review
decisions made by the Repatriation Commission under the VEA about:
- claims
for acceptance of injury or disease as war-caused or defence-caused
- claims
for war widows', war widowers' and orphans' pensions
- assessment
of pension rate for incapacity from war-caused or defence-caused injury or
disease and
- claims
for the grant, or assessment of, attendant allowance.
The VRB also reviews determinations under the MRCA
made by:
- the
Military Rehabilitation and Compensation Commission (MRCC) and
- the
Service Chiefs of the Australian Army, the Royal Australian Navy, and the Royal
Australian Air Force.[6]
With the enactment of the Budget Savings
(Omnibus) Act 2016 (Cth), decisions made under the MRCA follow a
single appeal path so that a claimant may seek reconsideration of an original
determination by the MRCC. Any subsequent review of that decision is carried
out by the VRB. The decision of the VRB may be the subject of an appeal to the AAT.
Key
provisions
The amendments to the VEA in Schedule 1 of
the Bill update VRB processes to make them consistent with the Administrative
Appeals Tribunal Act 1975 (Cth) (AAT Act). The changes do not
significantly alter the functions and powers of the VRB, but clarify aspects of
its processes.
VRB
objectives
Item 1 repeals and substitutes section 133A which
provides a statement of the VRB’s objectives. The current section provides that
in carrying out its functions the Board must pursue the objective of providing
a mechanism of review that is ‘fair, just, economical, informal and quick’.
Whilst proposed section 133A preserves this objective, it also lists
additional objectives, namely that the mechanism of review:
- be
accessible
- be
proportionate to the importance and complexity of the matter and
- promote
public trust and confidence in the decision-making of the VRB.
This reworded provision mirrors the statement of
objectives in section 2A of the AAT Act, as it was amended by the Tribunals
Amalgamation Act 2015. The Explanatory Memorandum to the Tribunals
Amalgamation Bill 2015 explained that the addition of these objectives:
... reflects the diversity of the amalgamated Tribunal‘s
jurisdiction, which would range from simple to highly complex matters, and
reiterates the importance of the Tribunal continuing to be, and to be seen to
be, an independent forum for review of the merits of Government decisions.[7]
VRB
procedures
Item 2 inserts proposed section 137A to
specify that the parties to a non-finalised matter before the VRB have an
ongoing obligation to lodge with the Board, as soon as practicable, any
documents obtained which are relevant to the review. These requirements
similarly apply to matters before the AAT.[8]
Item 3 amends section 142 of the VEA to provide that the
Principal Member may give written directions as to the provision of documents
under section 137A, including documents that are or are not required to be
lodged under that section.
Section 145C of the VEA provides that where the
parties reach an agreement in the course of an alternative dispute resolution process
to settle all or part of the matter, the Board may make a decision in
accordance with the terms of this agreement. There is currently no provision
for the variation or revocation of the decision. Item 4 inserts proposed
subsection 145C(4) to specify that if the parties agree, in writing, to
vary or revoke a settlement agreement, the Board may accordingly vary or revoke
its decision where satisfied that it is appropriate and within its powers to do
so.[9]
Subsection 148(9) of the VEA currently states that
in a review of a decision of the Repatriation Commission, the Commission must
use its best endeavours to assist the VRB to make a decision in relation to the
review. Item 5 repeals and substitutes this subsection to provide that all
parties to a VRB review, and their representatives, are obliged to use their
best endeavours to assist the VRB to fulfil its objectives as set out in
section 133A.
Dismiss an
application for review
Item 6 inserts proposed subsection 155(8A)
to give the Principal Member of the VRB the power to dismiss an application for
review if any one of the following criteria is satisfied, being that the
application:
- is
frivolous, vexatious, misconceived or lacking in substance
- has
no reasonable prospect of success or
- is
otherwise an abuse of the process of the Board.
This aligns with the grounds for dismissal set out under
subsection 42B(1) of the AAT Act. There is no existing provision of the VEA
which allows the VRB to dismiss applications which it believes have no reasonable
prospects of success. However, differences remain between the two Acts. After
dismissing an application under subsection 42B(1), the AAT may issue a written
direction that the person who made the application must not, without leave of
the Tribunal, make a subsequent application of a specified kind.[10]
The Bill does not give the VRB similar power. A decision of the VRB to dismiss
an application under proposed subsection 155(8A) is reviewable by the
AAT.[11]
Stakeholder
comments
Stakeholders have raised particular concerns with this
provision. In their submission to the FADT Committee inquiry, Slater and Gordon
Lawyers expressed concerns on two matters. First, it was argued that the
power to dismiss an application could threaten an applicant’s right to natural
justice and to a fair hearing.[12]
They argued that the grounds for summary dismissal of an application will be
established ‘only in the rarest of cases’, and questioned whether the VRB is
sufficiently versed in the legal nuances applying to such a decision to handle
such matters. The RSL expressed the view that ‘to allow one member to decide on
the prospect of success of an appeal is likely to reduce the belief of veterans
that they have access to justice in the way they do now’.[13]
The submission to the FADT Committee by the Department of
Veterans’ Affairs states that ‘to provide assurance and to prevent abuse of
such a provision, there would be a right of appeal to the AAT for this type of
dismissal’.[14]
However, this may be of little comfort to an applicant who finds that following
the successful appeal to the AAT his, or her, matter is referred back to the
VRB for its consideration. According to the RSL:
In many cases, veterans lodging claims are affected by more
than the injury or illness. They are often dealing with emotions associated
with the loss of their military career, their inability or reduced ability to
provide for their family, difficulty in obtaining employment post-service if
they are injured or ill and strained relationships with family and friends.[15]
The second matter of concern to Slater and Gordon
Lawyers was that section 166 of the VEA allows the Principal Member to
delegate all of their powers to a Senior Member or acting Senior Member, and
some powers—including those under section 155—to the National Registrar, a
Registrar, Deputy Registrar or Conference Registrar.[16]
This opens the possibility of the dismissal powers conferred by proposed
subsection 155(8A) being delegated to other Members and Registrars across
the VRB. The Explanatory Memorandum is silent as to whether any delegation is
likely to occur.
The Commonwealth Ombudsman, while noting that it is
reasonable for agencies to formalise legislative provisions to deal with
frivolous or vexatious applications, also commented on the issue of delegation,
suggesting:
It is important that the VRB considers the level of
delegation required to make decisions under this provision, for example, senior
officers. This will provide assurance that serious consideration has been given
to the use of this provision at an appropriate senior level.[17]
The RSL also raised concerns with the provision, noting
that there is no requirement for the Principal Member to provide reasons for
the dismissal.[18]
Application
Most of the proposed amendments are to apply in relation
to VRB applications made on or after the commencement of Schedule 1.[19]
Proposed subsection 145C(4) is to apply in relation to decisions made by
the Board on or after commencement of the Schedule.[20]
Schedule 2—Specialist
Medical Review Council
Quick
guide to Schedule 2
The provisions in Schedule 2 to the Bill relate to the
Specialist Medical Review Council. In particular they:
- amend
the process for appointing councillors
- allow
for the payment of travel expenses for costs incurred when a person appears
before the SMRC to make an oral submission and
- facilitate
electronic lodgement of documents.
|
Commencement
The provisions in Schedule 2 to the Bill commence on the
28th day after Royal Assent.
Background
The SMRC is an independent statutory body which reviews
decisions of the Repatriation Medical Authority (RMA) in relation to the
contents of a Statement of Principles (SoP) made in respect of a particular
kind of injury, disease or death, as well as decisions by the RMA not to issue
or amend a SoP.[21]
Members of the SMRC are medical practitioners and scientists, appointed by the
Minister of Veterans’ Affairs and selected by the Convener of the SMRC for the
purposes of each specific review of a SoP that is before the Council.[22]
The establishment and functions of the SMRC are provided
for by Part XIB of the VEA. The Explanatory Memorandum notes:
The SMRC was created 1994. Legislative amendment is required
to improve the operation of the SMRC and to better reflect the manner in which
its functions and processes have evolved over time. These amendments would
streamline some of the SMRC’s administrative arrangements. Further, many of the
amendments are designed to assist the SMRC to modernise by allowing electronic
lodgement of requests for review.[23]
Key
provisions
Appointments
to the SMRC
The Bill proposes amendments to the process of appointing councillors.
Currently, when making appointments the Minister must ensure that, at any time,
there is a sufficient number of councillors—and no less than two—with
experience in each branch of medical science expertise necessary for deciding
matters referred to the SMRC for review, to ensure the proper exercise of the
Council’s functions.[24]
Each appointee is selected from a list of nominees submitted (as requested by
the Minister) by colleges or similar bodies of medical practitioners or medical
scientists.[25]
Items 9 and 10 repeal these requirements. The
Minister must still have regard to the necessary branches of medical science
expertise for deciding matters referred to the SMRC, but there are no further
obligations with regards to the number in each field. In regards to the existing
list of nominations, the Explanatory Memorandum explains the removal of the
requirement for nominees to be submitted by medical colleges by stating: ‘in
practice, colleges forward the names of candidates who have responded to
advertisements without assessing or recommending candidates’.[26]
Item 10 also inserts proposed subsection 196ZE(4) to provide that
one of the councillors must have at least five years’ experience in the field
of epidemiology.
Travel
expenses
The VEA currently provides for the claiming of
travel and medical expenses for costs incurred by a person in obtaining medical
evidence submitted to the Review Council.[27]
Item 28 inserts proposed section 196ZQ to provide that a person
who appears before the SMRC to make an oral submission (and that person’s
attendant, if reasonably required) is entitled to be paid prescribed expenses
for travel undertaken to appear. Travel expenses are not payable for travel
outside of Australia, and will only be payable where a written application for
payment is lodged with the SMRC within three months after the completion of the
travel.
Stakeholder
comments
Submitters to the FADT Committee inquiry were supportive
of this amendment.[28]
Document
lodgement and notice requirements
Changes are also made to processes for the lodgement of
requests for review and other documents. The Explanatory Memorandum states that
this is to facilitate electronic lodgement of documents, ‘in light of the
Australian Government’s digital transformation agenda’.[29]
Currently, requests for review by the SMRC must be lodged
at a DVA office in accordance with the lodgement procedures set out in section
5T of the VEA.[30]
Items 3 and 6 amend this procedure so that requests for review are
lodged with the SMRC itself, in accordance with the directions of the Convener
under section 196ZR.[31]
Consequential to this change, items 4 and 7 remove the requirement for the
Secretary to send the request to the SMRC and notify the RMA within 28 days,
and introduce a new requirement that the SMRC—as recipient of the
request—notifies the Secretary and RMA within 28 days of lodgement.[32]
Similarly, items 16 and 24 amend provisions
relating to applications for payment of an applicant’s medical expenses and
travelling expenses, respectively, to require lodgement with the SMRC in
accordance with the directions of the Convener under section 196ZR.[33]
Item 29 inserts proposed section 196ZR into
a proposed Division 5 which provides that the Convener of the SMRC may
give written directions as to:
- the
manner of lodging requests or applications, including in electronic form and
- the
time at which such requests or applications are taken to have been lodged.
Item 8 repeals and substitutes proposed
subsection 196ZB(2), which relates to the content of a notice of
investigation which must be published in the Gazette by the SMRC upon
commencing a new review. The effect of the amendment is that the notice is no
longer required to specify the date on which the SMRC will hold its first
meeting for the purposes of the review. It will still be required to specify the
closing date for submissions.
Schedule
3—international agreements
Quick
guide to Schedule 3
The provisions in Schedule 3 to the Bill relate to the
making of international agreements. In particular they will allow the
Minister to enter into agreements with a broader range of foreign countries than
is currently allowed to establish reciprocal arrangements for veterans’
affairs.
|
Commencement
Part 1 of Schedule 3 commences on the day after
Royal Assent. Part 2 is contingent on the Safety, Rehabilitation and
Compensation (Defence-related Claims) Act 1988 (DRCA) coming into
effect, and commences on the later of:
- the
day after Royal Assent or
- immediately
after the commencement of Part 2 of Schedule 1 of the DRCA.[34]
Key provisions
Part 1 of Schedule 3 makes various amendments to
allow the Minister to enter into agreements with foreign countries in relation
to reciprocal arrangements for veterans’ affairs matters. Currently, section
203 of the VEA provides that the Minister may enter into reciprocal arrangements
with the Government of a former or current Dominion of the Crown, to provide
assistance and benefits to veterans of the armed forces of that country who are
resident in Australia (and vice versa). Australia is entered into formal
agreements with New Zealand and the United Kingdom under equivalent provisions
of the now-repealed Repatriation Act 1920 (Cth), which continue to
operate under transitional provisions of the Veterans’ Entitlements
(Transitional Provisions and Consequential Amendments) Act 1986 (Cth).[35]
The proposed amendments expand the countries with which
the Government can enter into agreements beyond the Commonwealth. Item 4
repeals and substitutes section 203 to provide that the Minister can
enter into agreements with any foreign country that make provision for
reciprocal payments or treatment/rehabilitation, to or in relation to classes
of persons specified in the agreement.
Proposed subsection 203(2) expands the potential
scope of such agreements beyond veterans with service of a type equivalent to
that covered by the VEA, so that these agreements may relate to payments
or treatment provided for under the MRCA, Australian
Participants in British Nuclear Tests (Treatment) Act 2006 (Cth) and
the proposed DRCA.
The Repatriation Commission or Military Rehabilitation and
Compensation Commission (MRCC) will be responsible for giving effect to and
administering an agreement entered into under proposed section 203 of
the VEA.[36]
Item 5 contains transitional provisions specifying that agreements in
force under existing section 203 will continue in force as if they had been
entered into under proposed section 203.
Items 1 and 2 insert into the British Nuclear
Tests Act and MRCA, respectively, a note that under section 203 of
the VEA, the Minister may enter into an agreement with a foreign country
providing for the provision of payments or treatment comparable to payments or
treatment under the (respective) Acts.
Defence-related
claims Act
Part 2 of Schedule 3 to the Bill makes
consequential amendments which are contingent on the enactment of the DRCA.
The Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016
(SRC Amendment Bill), introduced into the House of Representatives on 9
November 2016, proposes to create a re-enacted version of the Safety,
Rehabilitation and Compensation Act 1988 (SRCA) (Cth) which will
apply to Australian Defence Force (ADF) members and their dependants.[37]
The SRC Amendment Bill will also amend the SRCA to exclude ADF members
and their dependants from its operation. At the time of writing, it had not yet
been debated.
Item 6 inserts a note into the DRCA in the
same terms as inserted by items 1 and 2 into the British Nuclear
Tests Act and MRCA. Item 7 further amends proposed
subsection 203(2) of the VEA to specify that international
agreements may relate to payments or treatment provided for under the DRCA.
Schedule 4—Employer
Incentive Scheme
Quick
guide to Schedule 4
The provisions in Schedule 4 to the Bill relate to the
Employer Incentive Scheme, which aims to provide certain rehabilitation
assistance to eligible serving and former defence force members, reservists
and cadets. The amendments to the MRCA, VEA and the DRCA
(when enacted) will provide the Employer Incentive Scheme with more explicit legislative
authorisation than the current arrangements.
|
Commencement
Part 1 of Schedule 4 commences on the day after
Royal Assent. Part 2 is contingent on the DRCA coming into
effect, and commences on the later of:
- the
day after Royal Assent or
- immediately
after the commencement of Part 2 of Schedule 1 of the DRCA.[38]
Background
The Employer Incentive Scheme enables DVA to provide
incentive payments to employers who hire injured veterans who are undertaking
an approved vocational rehabilitation program.[39]
To access the available incentives, employers must pay the employee full award
wages at a rate comparable to that earned by other employees in the business
doing similar work, be able to provide ongoing full or part time employment,
and meet necessary work health and safety standards.[40]
Key
provisions
Part 4 of Chapter 3 of the MRCA deals with the
provision of assistance in finding suitable work to current or former ADF
members who are incapacitated for service or work due to a service injury or
disease. The simplified outline of the operation of Part 4, which is contained
in section 60 of the MRCA, notes that all such members are assisted in
finding suitable Defence Force or civilian work. Item 1 of Schedule 4 to
the Bill inserts a further statement in this section that employers who provide
civilian work may be entitled to payments under a scheme determined by the
Military Rehabilitation and Compensation Commission (MRCC).
Item 2 inserts proposed section 62A into the
MRCA to provide the legislative basis for such a scheme. Proposed
subsection 62A(1) states that the MRCC may, in writing, determine a scheme
for the making of payments to employers in relation to the provision of
suitable civilian work to eligible ADF members.[41]
The Scheme—and any subsequent variation or revocation—must be approved by the
Minister to take effect.[42]
Once a determination by the MRCC to form, vary or revoke a scheme has been
approved by the Minister, it will be a legislative instrument made by the
Minister on the day on which it was approved.[43]
This will be subject to disallowance in Parliament. Item 3 inserts proposed
paragraph 423(ba) to provide that the Consolidated Revenue Fund is
appropriated for payments made under this Scheme.
Items 4 and 5 amend the VEA to explicitly accommodate
the Employer Incentive Scheme as part of the VVRS. Section 115B of the VEA
provides for the making of the VVRS, with subsection 115B(5) setting out the
types of matters which may be provided for within the VVRS. Item 4
inserts proposed paragraph 115B(5)(h) into the VEA to expressly
provide that this includes the payment of financial assistance to specified
employers in respect of the provision of employment to veterans. Item 5 inserts
proposed paragraph 199(da) to specify that the Consolidated Revenue Fund
is appropriated to the extent necessary for payments under the VVRS.
Part 2 of Schedule 4 contains amendments
contingent on the enactment of the DRCA. Item 6 inserts proposed
section 40A into the DRCA, in equivalent terms to proposed
section 62A of the MRCA and provides for the determination of an
employer payment scheme by the MRCC. Item 7 inserts proposed
subsection 160(1A) to provide that the Consolidated Revenue Fund is
appropriated for the purposes of making payments under this scheme.
Stakeholder
comments
The submission to the FADT Committee by the Alliance of
Defence Service Organisations (ADSO) sets out the harm to be remedied by the
amendment:
The provisions of s. 62 MRCA 2004 are silent on any incentive
scheme for employers to employ veterans. The provisions of s. 62 clearly
indicate that it falls to a veteran’s rehabilitation authority to make
reasonable attempts to find suitable civilian work for the member
concerned. This is not always successful and places a rehabilitation authority
in the invidious position of being unable to offer any potential employer any
form of incentive to employ an injured veteran.
ADSO contends the addition of new s. 62A will substantially
redress this imbalance ...[44]
The RSL also supported the amendment but added a note of
caution:
... like any government payments they can be open to abuse. The
amendment must ensure that the payment of wage subsidies is to those employers
who are genuinely willing and able to offer injured veterans suitable,
sustainable, productive and long term employment.[45]
Schedule
5—disclosure of information
Quick
guide to Schedule 5
The provisions in Schedule 5 to the Bill relate to the
disclosure of information. In particular they amend the MRCA and DRCA
to allow for information sharing between the MRCC and the Commonwealth
Superannuation Corporation.
|
Commencement
The provisions in Part 1 of Schedule 5 to the Bill
commence on the day after Royal Assent. Part 2 of Schedule 5 to the Bill is
contingent on the DRCA coming into effect, and commences on the later
of:
- the
day after Royal Assent or
- immediately
after the commencement of Part 2 of Schedule 1 of the DRCA.[46]
Background
The calculation of incapacity payments under military
compensation laws takes into account superannuation entitlements. The
Explanatory Memorandum notes that although the MRCC is authorised to request
information from the Commonwealth Superannuation Corporation (CSC) to assist
with the calculation of incapacity payments, there is no reciprocal provision
enabling the MRCC to provide information to the CSC to assist the assessment of
superannuation benefits.[47]
As a result, the CSC must request information from the MRCC in accordance with
the Freedom of
Information Act 1982 (Cth).[48]
The Review of military compensation arrangements (2011),
conducted by a six-member Steering Committee chaired by the Chair of the MRCC
and Secretary of DVA, Ian Campbell, recommended further consideration of the
scope for streamlining the administration of superannuation and compensation
invalidity and death benefits, including through the consolidation of service
delivery.[49]
The Government accepted the recommendation, noting:
... the legislative and administrative responsibilities of both
ComSuper and DVA are unique and complex and there are interactions between the
benefits paid by both agencies. This consideration, across government, provides
the mechanism to scope opportunities for streamlining the administration of
superannuation and compensation invalidity and death benefits ...[50]
Key
provisions
Main
amendments
Subsection 409(2) of the MRCA sets out in table
form the persons to whom and the purpose for which the MRCC, or a staff member
assisting the MRCC, can disclose information obtained in the performance of his
or her duties under the Act. This currently permits the giving of information
to an employee of the Defence Department or the Chief of the Defence Force for
specified purposes, or to a person or agency as prescribed by the regulations. Item
1 amends this subsection by inserting table item 2A into subsection 409(2) to
allow the disclosure of information to the CSC, for purposes relating to the
exercise of the Corporation’s functions or powers under an Act—or instrument
under an Act—administered by CSC. Item 2 defines Act administered
by CSC to have the meaning given by the Governance of Australian
Government Superannuation Schemes Act 2011 (Cth).[51]
Item 3 is an application provision stating that
these amendments to the MRCA apply in relation to the provision of
information on or after the commencement of the amendments, whether the
information was obtained before, on or after this date.
Contingent
amendments
Items 4 to 6 make amendments to section 151A of the
DRCA, contingent on that Act’s enactment. These changes largely mirror
those made to the MRCA, as discussed above, and allow the MRCC (or a
staff member assisting the MRCC) to give information obtained in the
performance of its duties under the DRCA to the CSC, for a purpose
relating to the CSC’s functions and powers under Acts (and instruments made
under Acts) administered by the CSC. Item 4 also restructures existing
subsection 151A(1) into a table ‘to aid readability and improve clarity’.[52]
Item 7 is an application provision stating that the
proposed changes to the DRCA will apply in relation to the provision of
information on or after the commencement of these items, regardless of when the
information was obtained.
Stakeholder
views
In its submission to the Senate inquiry, the Commonwealth
Ombudsman expressed support for the proposed amendments. It reported that
current limitations on information sharing were in some circumstances leading
to overpayments, due to difficulties in determining the extent to which
superannuation payments would affect a DVA entitlement:
This office has investigated a number of complaints about
debt recovery which have involved debts being raised by DVA as a result of
delays in receiving information from CSC that was critical to the determination
of the relevant entitlement.
[...] Given the vulnerabilities of many DVA customers, debts
not only have a significant financial impact but can exacerbate serious mental
health issues. Therefore, the formalisation of data sharing between CSC and DVA
should reduce the risk of overpayments linked to the delay or omission of
superannuation related evidence.[53]
The ADSO, while supporting the amendment in principle,
raised concerns about the expansion of information-sharing arrangements in
light of issues surrounding the Department of Human Services’ data-matching
programme, and incidents involving the accidental releases of private
information.[54]
It stated that it was unconvinced that sufficient checks and balances had been
put in place to ensure the integrity of the electronic data on DVA and Defence
servers—and those of the Government more broadly.[55]
ASDO and the Office of the Australian Information Commissioner both raised
concerns that a Privacy Impact Assessment of the proposed amendments does not
appear to have been undertaken.[56]
Schedule
6—delegation
Quick
guide to Schedule 6
The provisions in Schedule 6 of the Bill relate to the
power of the Minister for Veterans’ Affairs to delegate any of his, or her,
functions or powers. In particular, the delegation of the Minister’s power
will be extended to:
a
Commissioner of the MRCC or
a
person appointed or engaged under the Public Service Act 1999.
|
Commencement
The provisions in Schedule 6 to the Bill commence on the
day after Royal Assent.[57]
Key
provisions
Item 1 of Schedule 6 to the Bill makes a single
amendment to the MRCA, inserting proposed section 437A. This
allows the Minister for Veterans’ Affairs to delegate any of his, or her,
functions or powers under the Act, associated regulations and legislative
instruments, to:
- a
commissioner of the MRCC or
- a
federal public servant—that is, a person appointed or engaged under the Public Service Act
1999 (Cth).
The Explanatory Memorandum notes that a Ministerial
delegation provision is already contained in the VEA, and that the MRCA
currently provides for the delegation of the powers and functions of the MRCC.[58]
It explains that 2014 departmental efficiency reforms led to the appointment of
a Chief Operating Officer (COO) in DVA who has assumed some of the powers and
functions of the MRCC and Repatriation Commission under delegation. A further envisioned
administrative reform was the delegation to the COO of the Minister’s power to
approve certain instruments made by the Commissions—specifically, variations to
the Treatment Principles and Pharmaceutical Benefits schemes under sections 90
and 91 of the VEA, and section 286 of the MRCA. The power of the
Minister to approve such variations under the VEA was delegated to the
COO in 2014.[59]
The Explanatory Memorandum states that should the proposed
amendments take effect, the proposed initial delegation of the Minister’s
powers under the MRCA will be limited to the approval of MRCC
determinations in relation to variations to and the revocation of:
- the
MRCA Education and Training Scheme (section 258) and
- the
Treatment Principles and MRCA Pharmaceutical Benefits Scheme (section 286).[60]
Scrutiny of
Bills Committee
Proposed section 437A places no limitations on the
Minister’s delegation powers. The Scrutiny of Bills Committee has expressed
concern about the scope of the provision, noting that it allows for the
delegation of powers to a public servant at any level and in any government
department:
Generally, the committee prefers to see a limit set either on
the scope of powers that might be delegated, or on the categories of people to
whom those powers might be delegated, or on the categories of people to whom
those powers might be delegated. The committee’s preference is that delegates
by confined to the holders of nominated officers or to members of the Senior
Executive Service ...
The explanatory materials do not explain why it is necessary
to provide for such a broad delegation to a person of any level of the public
service.[61]
Schedule 7—legislative instruments and external
material
Quick
guide to Schedule 7
The provisions in Schedule 7 to the Bill relate to
legislative instruments and external material.
The proposed amendments to the VEA and MRCA will
operate to expressly provide that a number of specified instruments may
incorporate external materials ‘as in force or existing from time to time’.
This will allow any changes to such materials to be automatically
incorporated into the relevant instrument.
Other changes largely work to clarify the language and
structure of relevant provisions.
|
Commencement
The provisions in Schedule 7 to the Bill commence on the
day after Royal Assent.[62]
Background
The amendments in Schedule 7 to the Bill propose exempting
certain legislative instruments from the operation of subsection 14(2) of the Legislation
Act 2003 (Cth). This provides:
Unless the contrary intention appears, the legislative
instrument or notifiable instrument may not make provision in relation to a
matter by applying, adopting or incorporating any matter contained in an
instrument or other writing as in force or existing from time to time.[63]
The effect of this provision is that as a general rule, a
federal legislative instrument incorporating external materials such as
standards, codes of conduct or manuals will incorporate such materials only as
they exist at the point in time when the instrument is made. Any subsequent
changes to the external material will only be incorporated if the legislative
instrument is also amended.[64]
However, this principle will be overruled where the empowering Act expressly
authorises otherwise.[65]
In Delegated Legislation in Australia, Dennis
Pearce and Stephen Argument explain the rationale for the general principle
against the incorporation of materials as amended from time to time:
It is suggested that provisions in delegated legislation
incorporating other material on a from time to time basis are undesirable, as
not only may members of the public be subjected to the problem of going to
another source before being able to identify the law on a topic, but also they
will be unsure to which particular instrument they should go as there is, of
course, no obligation on other organisations to publish their instruments as
amended from time to time.[66]
Scrutiny of
Bills Committee
The Scrutiny of Bills Committee has raised similar
concerns in regards to the proposed amendments made by Schedule 7 to the Bill,
noting that the incorporation of legislative provisions by reference to other
documents can create uncertainty in the law; restrict the public’s access to
the contents and terms of a particular law (particularly where the external
materials are not publicly available); and raise the prospect of changes being
made to the law in the absence of Parliamentary scrutiny.[67]
The Committee cites the June 2016 report of the Western Australian Joint
Standing Committee on Delegated Legislation on Access to Australian
Standards adopted in delegated legislation.[68]
In the report, the WA Committee focuses in particular on problems associated
with delegated legislation incorporating standards to which public access is
limited, due to the existence of copyright and licence terms, and recommends
that any such standards should be supplied on request free of charge by the
relevant department or agency.[69]
In regards to the adoption of Standards ‘as made from time to time’, the WA
Committee notes:
This is extremely convenient for the makers of the
instrument, in that the regulations or local law need not be re‑produced
each time the Standard is updated or rewritten. Unfortunately, it also means
that only the version of the Standard as it exists at the time the legislation
is made is subjected to any sort of parliamentary scrutiny – when it is later
amended or reproduced, it is effectively the private standard making body that
is making law. It amounts to a sub-delegation of the delegation to make the
instrument, albeit a lawful one. In some circumstances, an abdication perhaps.[70]
Rationale
for the amendments
The Explanatory Memorandum to the Bill states that the
proposed amendments will address problems with the current situation in which a
policy-driven change to an incorporated document (for example, the inclusion of
a newly-available rehabilitation appliance) cannot take effect until the
incorporating legislative instrument is amended to refer to the updated version
of the document.[71]
It identifies four ‘substantial legislative instruments’ to which the
amendments will apply:
- the
Treatment Principles made under section 90 of the VEA
- the
Treatment Principles made under section 286 of the MRCA
- the
Repatriation Pharmaceutical Benefits Scheme (RPBS) made under section 91 of the VEA and
- the
MRCA Pharmaceutical Benefits Scheme (MPBS) made under section 286 of the MRCA.
The Explanatory Memorandum states that both sets of
Treatment Principles incorporate approximately thirty non-legislative documents
and the RPBS and MPBS each incorporate eleven non-legislative instruments.[72]
These include:
- non-legislative
instruments made by DVA and the Department of Health, such as Fee Schedules and
the Rehabilitation Appliance Program National Schedule of Equipment and
- reference
documents such as the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) and Pharmacopoeia,
published by the US and UK Governments and the European Union.[73]
The Scrutiny of Bills Committee has noted that in reference
to this second category of materials, it is not clear whether all such
documents will be freely available. The Committee has requested the Minister’s
advice as to:
- the
availability of documents in this category, and whether arrangements can be
made to ensure such documents are freely and readily available to the public
and
- whether
a legislative provision could be included to require each incorporated document
which has been prepared by DVA to be made freely available on the Department’s
website.[74]
Key
provisions
Amendments
to the MRCA
Section 286 of the MRCA enables the MRCC to make a
written determination regarding the provision of treatment and pharmaceutical
benefits under the Act. Schedule 7 amends both the structure and content of the
provision, inserting new definitions of the types of determinations which can
be made under the section and specifying that such determinations may
incorporate external materials as they are amended from time to time.
The changes made to section 286 provide a useful example
of the effect of other amendments made by Schedule 7.
Changes to
structure—not content
Item 10 repeals subsections 286(2) to (6) and
substitutes proposed subsections 286(2) to (6B) of the MRCA. The
majority of these proposed amendments vary the structure of the section but do
not make substantive changes. For example, proposed subsection 286(2)
provides that a determination made by the MRCC under subsection 286(1) has
no effect unless the Minister approves it in writing. Proposed subsections
286(5) and (6) state that the MRCC may vary or revoke a determination made
under the section, and that this will only have effect if approved by the
Minister in writing. Together, these amendments replicate the content of
existing subsections 286(2) and (3). Proposed subsection 286(6A) states
that an approved determination is a legislative instrument made by the Minister
on the day on which it is approved. This is currently provided for under
subsections 286(4) and (5).
Changes to
content
There have, however, been some changes to the content of
section 286. First, proposed subsections 286(3) and (4) draw a new
distinction between the two types of determinations which may be made under
this section:
- proposed
subsection 286(3) defines pharmaceutical benefits determination
as a determination made in relation to paragraph 286(1)(c)—that is, a
determination about the places and circumstances in which, and conditions
subject to which, pharmaceutical benefits may be provided under the MRCA—approved
by the Minister and as in force from time to time
- proposed
subsection 286(4) defines treatment determination to mean any
other determination made under subsection 286(1), approved by the Minister and
as in force from time to time.[75]
Second, proposed subsection 286(6B) provides that
despite subsection 14(2) of the Legislation Act, a determination under proposed
subsections 286(1) or (5) may apply, adopt or incorporate—with or without
modification—any matter contained in an instrument or other writing as in force
or existing from time to time.[76]
Third, subsection 286(6) currently provides that the MRCC
must make copies of all determinations under this section publicly available on
the internet. This is not preserved in the proposed amendments, and the
Explanatory Memorandum does not note or explain this omission. However, all
approved determinations under section 286 are disallowable legislative
instruments, and therefore subject to the registration and tabling requirements
under the Legislation Act.[77]
As all material registered on the Federal Register of Legislation must be made
publicly available online, the omission of existing subsection 286(6) does not
appear to have substantive effect.[78]
Amendments
to the VEA
The Schedule makes a large number of changes to the VEA.
Minor amendments include:
- the
repeal and replacement of terms in the dictionary in subsection 5Q(1) relevant
to the other changes to the Act[79]
and other consequential changes to terminology[80]
- amendments
to various provisions relating to the making of written determinations by the Repatriation
Commission. These are largely similar to the type of amendments made to the MRCA,
as described above, and include:
- minor
amendments to terminology—for example, the replacement of references to the
‘Guide to the Assessment of Rates of Veterans’ Pensions’ with the defined term Approved
Guide to the Assessment of Rates of Veterans’ Pensions (section 29)[81]
and
- structural
amendments which do not have substantive effect—for example, items 79 to 84
amend section 115B which provides for the Veterans’ Vocational Rehabilitation
Scheme. These changes are structural in nature and do not alter the content of
the section.
The Schedule also inserts ‘incorporation provisions’ into
the VEA, similar to proposed subsection 286(6B) of the MRCA,
which provide that despite subsection 14(2) of the Legislation Act, a
determination made under the relevant provision may apply, adopt or incorporate
any matter contained in an instrument or other writing as in force or existing
from time to time. These are inserted in relation to the following
determinations:
- an
Approved Guide to the Assessment of Rates of Veterans’ Pensions (section 29)[82]
- Treatment
Principles (section 90)[83]
- Repatriation
Private Patient Principles (section 90A)[84]
and
- a
Repatriation Pharmaceutical Benefits Scheme (section 91).[85]
Amendments
to the British Nuclear Tests Act
Items 1 to 5 of Schedule 7 to the Bill make
consequential amendments to the British Nuclear Tests Act to reflect the
changes made to section 91 of the VEA. These involve replacing
references to an ‘approved pharmaceutical scheme’ with the term Repatriation
Pharmaceutical Benefits Scheme, and inserting a definition of this term
into the Act.
Schedule
8—minor amendments
Quick
guide to Schedule 8
The provisions of Schedule 8 to the Bill make minor
amendments to a number of statutes. In particular they repeal redundant and
spent provisions administered in the Veterans’ Affairs portfolio concerning
benefits that are no longer payable and make amendments consequential to
those repeals.
|
Commencement
The provisions in Schedule 8 to the Bill commence on the
day after Royal Assent.[86]
Key
provisions
Schedule 8 makes minor amendments to various Acts.
These include:
- the
removal of spent payments under the VEA and MRCA—specifically,
the repeal of definitions and provisions relating to the clean energy advance,
clean energy bonus and clean energy payment[87]
- the
removal of references to obsolete veterans’ payments in the Income Tax
Assessment Act 1997 (Cth), Social Security Act
1991 (Cth) and Social Security
(Administration) Act 1999 (Cth)[88]
- replacing
an incorrect reference to the ‘Commission’ with the ‘Minister’ under the VEA[89]
and
- amending
delegation provisions of the VEA to provide further clarification that
the Repatriation Commission and Secretary of DVA can delegate powers under a
legislative instrument made under the VEA. Although this was already
specified under subsections 213(1) and 214(1) of the VEA, the amendments
insert additional references to legislative instruments in subsections 213(2)
and (4) (in relation to delegations by the Commission), and subsections 214(2)
and (4) (in relation to delegations by the Secretary).[90]
Concluding
comments
Many of the amendments in this Bill are minor in nature,
but that is not uniformly the case.
The amendment in Schedule 1 which will allow the principal
member of the VRB to dismiss an application for review if satisfied that the
application is frivolous, vexatious, misconceived or lacking in substance; or
has no reasonable prospect of success; or is otherwise an abuse of process of
the board has been the subject of some stakeholder angst. Importantly,
stakeholders such as the RSL have cautioned that the amendment might cause some
members of the veterans’ community to feel that they are being denied access to
justice.
The amendments in Schedule 5 which will allow for
information sharing between the MRCC and the Commonwealth Superannuation
Corporation were welcomed by the Commonwealth Ombudsman. However the Alliance
of Defence Service Organisations expressed its concern at the ‘declining level
of trust in secure electronic storage’ and noted the ‘suspicion of any
government initiatives involving information sharing between government
agencies’.[91]
The ADSO was less open to the terms of these amendments because of its
continuing concerns on behalf of its members about breaches of privacy.
Finally, the amendments in Schedule 7 which were the
subject of little stakeholder comment are of some concern. According to DVA the
amendments, which are designed to exempt certain legislative instruments from
subsection 14(2) of the Legislation Act, address ‘significant
administration issues for the Department’.[92]
In its submission to the FADT Committee, the Department highlighted the
positives of such a move:
The benefit to DVA clients is that, as new aids and
appliances are added to the RAP schedule or new medications are added to the
pharmaceutical benefits schemes for example, they will be available to clients
straight away. Currently, because of the need to amend the legislative
instruments to take account of changes to incorporated documents, there can be
a delay of 3–6 months before new aids, appliances or medications are available
to DVA clients.[93]
Whilst this is correct, there is also a downside. At the
moment there is a clear signal that the incorporated documents have changed—this
is given by the tabling in Parliament of the relevant legislative instruments.
In the absence of the tabling, DVA clients and their advocates may have some
difficulty in identifying the correct version of an incorporated document and
determining the time from which it applies.
[1]. D
Tehan, ‘Second
reading speech: Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017’,
House of Representatives, Debates, 30 March 2017, p. 3804.
[2]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, The Senate, 10 May 2017, pp. 59–62.
[3]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017, p.
iv.
[4]. The
Statement of Compatibility with Human Rights can be found at pages v to xv of
the Explanatory Memorandum to the Bill.
[5]. Parliamentary
Joint Committee on Human Rights, Report,
4, 2017, 9 May 2017, p. 74.
[6]. Veterans’ Review Board (VRB) website.
[7]. Explanatory
Memorandum, Tribunals Amalgamation Bill 2015, p. 19.
[8]. Administrative
Appeals Tribunal Act 1975 (Cth) (AAT Act), section 38AA.
[9]. This
mirrors subsection 34D(4) of the AAT Act.
[10]. AAT
Act, subsection 42B(2).
[11]. Item
7 of Schedule 1.
[12]. Slater
and Gordon Lawyers, Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], 5 May 2017.
[13]. Returned
and Services League of Australia (RSL), Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], 12 May 2017, p. 5.
[14]. Department
of Veterans’ Affairs (DVA), Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade,
Inquiry into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], 12 May 2017, p. 2.
[15]. RSL,
Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], op. cit., p. 4.
[16]. Slater
and Gordon Lawyers, Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], op. cit., p. 4.
[17]. Commonwealth
Ombudsman, Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], 4 May 2017, p. 2.
[18]. RSL,
Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], op. cit., p. 2.
[19]. Item
8 of Schedule 1.
[20]. Item
8(2) of Schedule 1.
[21]. Specialist
Medical Review Council (SMRC), ‘About SMRC’,
SMRC website.
[22]. SMRC,
Members’
manual, SMRC, Brisbane, n.d., p. 2.
[23]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017, p.
7.
[24]. VEA,
subsection 196ZE(3).
[25]. Ibid.,
subsection 196ZE(4).
[26]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017, op.
cit., p. 7.
[27]. VEA,
sections 196ZN to 196ZP.
[28]. RSL,
Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], op. cit., p. 6.
[29]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017, op.
cit., p. 8.
[30]. VEA,
subsections 196Y(3) (in relation to requests for review of the contents of
SoPs, or decisions) and 196Z(2) (in relation to requests for review of an RMA
decision not to carry out an investigation).
[31]. Item
3 repeals and substitutes paragraph 196Y(3)(c); item 6
repeals and substitutes paragraph 196Z(2)(d).
[32]. Item
4 repeals and substitutes subsection 196Y(4); item 7 repeals
and substitutes subsection 196(3).
[33]. Item
16 repeals and substitutes paragraph 196ZN(4)(d); item 24
repeals and substitutes paragraph 196ZO(5)(d). Item 17 repeals
subsection 196ZN(4A) and item 25 repeals subsection 196ZO(5A), which
deal with the date of lodgement of requests for medical and travelling
expenses, respectively. The Explanatory Memorandum notes that these two
subsections will be redundant as such requests will be instead lodged with the
SMRC, and the time of lodgement will be determined in accordance with written
directions given by the Convenor under section 196ZR (p. 9).
[34]. Clause
2, table items 4 and 5.
[35]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017, op.
cit., p. 13.
[36]. Item
4 of Schedule 3, proposed subsection 203(4).
[37]. Parliament
of Australia, ‘Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016
homepage’, Australian Parliament website; P Pyburne, Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016,
Bills digest, 56, 2016–17, Parliamentary Library, Canberra, 25 January
2017.
[38]. Clause
2, table items 6 and 7.
[39]. DVA,
‘9.10
employer incentives’, Consolidated Library of Information and Knowledge
(CLIK), 30 May 2017.
[40]. Ibid.
[41]. That
is, a Permanent Forces member or continuous full-time Reservist, part-time
Reservist, cadet, declared member or former member who is incapacitated for service
or work as a result of a service injury or disease for which the MRCC has
accepted liability (sections 61 and 62).
[42]. Item
2 of Schedule 4, proposed subsections 62A(2), (3) and (4).
[43]. Item
2 of Schedule 4, proposed subsection 62A(5).
[44]. Alliance
of Defence Service Organisations (ADSO), Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], 5 May 2017, p. 7.
[45]. RSL,
Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], op. cit., p. 7.
[46]. Clause
2, table items 8 and 9.
[47]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017, op.
cit., p. 21.
[48]. Ibid.,
p. 21.
[49]. DVA,
Review
of military compensation arrangements: report to the Minister for Veterans’
Affairs, volume 1, DVA, Canberra, February 2011, p. 50
(recommendation 12.5).
[50]. Australian
Government, Government
response to the review of military compensation arrangements, DVA,
Canberra, 2012, p. 21.
[51]. Section
4 of the Governance
of Australian Government Superannuation Schemes Act 2011 (Cth) defines Act
administered by CSC to mean:
(a) the Defence Act 1903,
to the extent that the Act deals with superannuation benefit in
Part IIIAA; or
(b) the Defence Force
Retirement and Death Benefits Act 1973; or
(c) the Defence
Forces Retirement Benefits Act 1948; or
(d) the Military
Superannuation and Benefits Act 1991; or
(da) the Australian
Defence Force Superannuation Act 2015; or
(db) the Australian
Defence Force Cover Act 2015; or
(e) the Papua New
Guinea (Staffing Assistance) Act 1973, to the extent that the Act deals
with superannuation; or
(f) the Superannuation
Act 1922; or
(g) the Superannuation
Act 1976; or
(h) the Superannuation
Act 1990; or
(i) the Superannuation
Act 2005.
[52]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017, op.
cit., p. 22.
[53]. Commonwealth
Ombudsman, Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], op. cit., pp. 2–3.
[54]. ADSO,
Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], op. cit., pp. 8–9.
[55]. Ibid.,
p. 9.
[56]. Ibid.,
p. 10; Office of the Australian Information Commissioner, Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], 8 May 2017, p. 2.
[57]. Clause
2, table item 10.
[58]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017, op.
cit., p. 25.
[59]. Ibid.
[60]. Ibid.,
p. 26.
[61]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, op. cit. p. 60.
[62]. Clause
2, table item 10.
[63]. Legislation Act
2003 (Cth), subsection 14(2).
[64]. D
Pearce and S Argument, Delegated Legislation in Australia, 4th edn,
LexisNexis Butterworths, Australia, 2012, pp. 382–383.
[65]. Ibid.;
It should be noted that the approach to this issue varies under state and
territory legislation—for more information, see: D Pearce and S Argument, Delegated
Legislation in Australia, op. cit., pp. 383–384.
[66]. Ibid.,
p. 384.
[67]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, op. cit., pp. 61–62.
[68]. Western
Australian Joint Standing Committee on Delegated Legislation, Access
to Australian Standards adopted in delegated legislation, report, 84,
Western Australia Legislative Assembly, Perth, June 2016.
[69]. Ibid.,
p. 67 (Recommendation 3).
[70]. Ibid.,
p. 19.
[71]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017, op.
cit., p. 27.
[72]. Ibid.,
p. 28.
[73]. Ibid.,
p. 28.
[74]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, op. cit., p. 62.
[75]. Item
7 inserts definitions of pharmaceutical benefits determination
and treatment determination into subsection 5(1).
[76]. Item
8 inserts a similar ‘incorporation’ provision—proposed subsection 67(5)—which
is to apply to a guide made by the MRCC setting out criteria and methods for
the assessment of the degree of impairment from a service injury or service
disease. The current guide is the Guide to
Determining Impairment and Compensation 2016.
[77]. Legislation
Act, sections 15G (lodgement of legislative instruments and notifiable
instruments, and other material) and 38 (tabling of legislative instruments).
[78]. Ibid.,
section 15C.
[79]. Items
15 to 20.
[80]. For
example: items 21 to 23, 33 to 36, 68 to 69, 93 to 96.
[81]. Items
15 to 16, 24, 26.
[82]. Items
24 to 31.
[83]. Items
37 to 43.
[84]. Items
45 to 53.
[85]. Items
55 to 65.
[86]. Clause
2, table item 10.
[87]. Items
1 to 10 (in relation to the VEA) and items 20 to 25 (in
relation to the MRCA).
[88]. Items
11 to 18, 26.
[89]. Item
28.
[90]. Items
30 to 33.
[91]. ADSO,
Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade, Inquiry
into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], op. cit., p. 8.
[92]. DVA,
Submission
to the Senate Standing Committee on Foreign Affairs, Defence and Trade,
Inquiry into the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017
[provisions], op. cit., p. 7.
[93]. Ibid.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Enquiry Point for referral.