BILLS DIGEST NO. 71, 2018–19              28 March 2019

Treatment Benefits (Special Access) Bill 2019 [and] Treatment Benefits (Special Access) (Consequential Amendments and Transitional Provisions) Bill 2019

Michael Klapdor
Social Policy Section

David Watt
Foreign Affairs, Defence and Security Section

Purpose of the Bill

The purpose of the Treatment Benefits (Special Access) Bill 2019 (the main Bill) is to provide a Department of Veterans’ Affairs (DVA) Treatment Card (Gold Card) to members of the Australian civilian surgical and medical teams that provided medical aid, training and treatment to Vietnamese people during the Vietnam War. The Gold Card provides access to medical treatments at DVA’s expense for any injuries and illnesses.

The Treatment Benefits (Special Access) (Consequential Amendments and Transitional Provisions) Bill 2019 (the companion Bill) will amend the Aged Care Act 1997, the A New Tax System (Medicare Levy Surcharge— Fringe Benefits) Act 1999, the Healthcare Identifiers Act 2010, the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, the Military Rehabilitation and Compensation Act 2004, the National Cancer Screening Register Act 2016, the National Health Act 1953, the Safety, Rehabilitation and Compensation Act 1988, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988, the Social Security Act 1991 and the Veterans’ Entitlements Act 1986 to provide for the effective operation of the provisions in the main Bill. Amendments include making certain payments to individuals exempt from income tax, making individuals eligible under the main Bill exempt from the Medicare levy and ensure medical treatment for these individuals is not provided under multiple Acts.

The measures were announced in December 2018 and were intended to commence on 1 July 2020.[1] On 14 February 2019 it was announced that the commencement would be brought forward to 1 July 2019.[2] The measures are expected to cost $22.2 million from 2018–19 to 2022–23.[3]

Structure of the Bill and Bills Digest

The main Bill will establish a new Act, the Treatment Benefits (Special Access) Act 2019. The companion Bill will amend a range of other Acts to provide for the operation of the new Act. Background and analysis of the Bills will be provided together, with the focus of this Bills Digest on the provisions of the main Bill.

Background

DVA Gold Card

The Gold Card is a health treatment and care card and provides access to the full range of medical, hospital, pharmaceutical, dental and allied health services in Australia funded by DVA.[4] Medical services are subject to the requirements of the Medicare Benefit Schedule and prior approval from DVA may be necessary for some treatments.[5] A patient contribution is required for pharmaceutical services and for nursing home care. The Gold Card also provides for the costs of transport to access treatment and medical services. Some recipients may be eligible for a small fortnightly payment to assist with the costs of medicines, the Veterans Supplement.

The Gold Card provides access to health treatments and care for any condition—regardless of whether that condition is related to a person’s service.

Those in receipt of a veterans’ Disability Pension at the special rate (totally and permanently incapacitated) receive a Gold Card marked ‘Totally and Permanently Incapacitated’.[6] Other eligible holders would receive a card marked ‘All Conditions’ signifying that the card can be used for medical treatment for any conditions.

State and territory governments also provide a range of concessions to Gold Card holders.

Eligibility for the Gold Card

Eligibility for a Gold Card is determined primarily by an individual’s war or defence service (or their deceased partner’s/parent’s service in the case of dependants) or by a service-related impairment that qualifies the person for a certain rate of Disability Pension.

Gold Cards are issued to:

•       Australian veterans, including:

–      ex-prisoners of war

–      First World War veterans, nurses and mariners

–      ex-service women of the Second World War between 3 September 1939 and 29 October 1945 with qualifying service

–      Second World War veterans who served in Australia’s defence force or merchant navy between 3 September 1939 and 29 October 1945, who are aged 70 years or over and who have qualifying service from that conflict

–      veterans who served in the Australian Defence Force (ADF) after the Second World War who are 70 years or over and who have qualifying service under section 7A of the Veterans’ Entitlements Act 1986 (the VE Act)—which sets out specific criteria for qualifying service

–      ADF members who served in Japan between 16 August 1945 and 30 January 1946, and those who served in Japan as part of the British Commonwealth Occupation Force at any time between 31 January 1946 and 28 April 1952

•       some veterans of Commonwealth or allied forces with qualifying service during the Second World War

•       veterans who receive a Disability Pension under the VE Act if:

–      their rate of Disability Pension is 100 per cent of the general rate or higher

–      their rate of Disability Pension is 50 per cent of the general rate or higher and they receive any amount of the Service Pension

–      their Disability Pension includes an additional amount for specific service-related amputations or blindness in one eye or

–      they were granted the Disability Pension for pulmonary tuberculosis before 2 November 1978

•       some veterans who receive an Age or Invalidity Service Pension if they also satisfy the treatment benefits, income and assets test; are permanently blind in both eyes; or also have an impairment for one or more service injuries or diseases that constitutes at least 30 points under the Military Rehabilitation and Compensation Act 2004 (MRC Act)[7]

•       former ADF members, cadets and reservists who have conditions for which liability has been accepted under the MRC Act where:

–      they have a permanent impairment from accepted conditions assessed at or above 60 points or

–      they have a permanent impairment from accepted conditions assessed at 30 points or above, and are receiving any amount of Service Pension or

–      they meet the criteria for the Special Rate Disability Pension (even if they have not chosen to receive this payment)

•       some widows and dependent children of deceased veterans and

•       participants in the British nuclear test program in Australia.[8]

Other health cards

DVA issues a number of other health cards including the DVA Health Card—Specific Conditions (White Card), the DVA Health Card—Pharmaceuticals Only (Orange Card) and the Commonwealth Seniors Health Card.

The White Card provides access to health treatments and care at DVA’s expense for disabilities and conditions accepted as war or service related. ADF members and former members can also access treatments for some specific conditions whether they are service related or not (known as non-liability health care), including: cancer (malignant neoplasm), pulmonary tuberculosis and any mental health condition.[9]

The Orange Card is issued to certain Commonwealth and allied veterans and mariners and provides access to subsidised medicines under the Repatriation Pharmaceutical Benefits Scheme (RPBS).[10]

The Commonwealth Seniors Health Card is available to those over pension age who do not receive an income support pension from DVA or a payment from Centrelink and who meet an income test.[11] It provides access to subsidised medicines under the Pharmaceutical Benefits Scheme and to some state and territory concessions.

Recognition of civilians in veterans’ legislation

The VE Act, the MRC Act and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the DRC Act) contain provisions which allow for certain civilian personnel to be declared as members for the purposes of the legislation.

The 2011 Review of Military Compensation Arrangements report (Review Report) noted that extending military compensation to civilians has its origins in 1943 when the War Cabinet approved the provision of benefits to certain categories of civilians for their service in the Second World War.[12] Benefits were generally provided through act of grace payments but were at a consistent level with repatriation benefits. Recipients included accredited representatives of philanthropic organisations attached to the armed services; New Guinea civilians imprisoned by the Japanese and the dependants of those who had died as a result of the Japanese invasion; and, telegraphists working for Amalgamated Wireless Australia who were attached to the Royal Australian Navy Volunteer Reserve.[13] The Repatriation Act 1920 was amended in 1982 to include a specific provision for the extension of benefits to civilians following a recommendation by the 1975 Toose Review of the repatriation system.[14]

The VE Act includes a provision (section 5R) allowing the Minister to determine that certain persons or classes or persons undertaking relevant service are to be considered under the Act as if they were a member of the Defence Force rendering continuous full-time service or a member of a specified unit of the Defence Force. The 2003 Review of Veterans Entitlements led by John Clarke QC (the Clarke Review) listed the following civilian groups as having had determinations made under section 5R or the similar provision under the Repatriation Act 1920:

•       Commonwealth employees attached to the Australian armed forces who provided services as members of field broadcasting units, telegraphists, camouflers, war correspondents, photographers or cinematographers in the Second World War; the Korean War; the Malayan Emergency; the Malay-Thai border; Borneo, Singapore, Malaysia and Brunei during the Indonesian Confrontation; and the Vietnam War

•       representatives of approved philanthropic organisations (including the Red Cross, Salvation Army, YWCA and YMCA) providing welfare services to the Australian armed services during the above conflicts and between 7 December 1972 and 7 April 1994

•       canteen staff on Royal Australian Navy ships in the Korean War and the Malayan Emergency

•       persons who assisted the Australian armed forces in the Second World War including Aboriginal and Torres Strait Islander people in northern Australia

•       merchant mariners who served as part of the crew of HMAS Boonaroo and HMAS Jeparit while the ships were under Navy command and

•       official war artists in East Timor.[15]

Section 88A of the VE Act provides for the Repatriation Commission to determine that certain persons of a specified class are eligible to receive medical treatments that are set out in Part V of the VE Act (those eligible for these medical treatments are generally provided with one of the treatment cards set out above).

The Military Compensation Act 1994 amended the Safety, Rehabilitation and Compensation Act 1988 to specify certain persons as being covered by that Act and the MRC Act includes a provision, section 8, which allows for certain categories of personnel to be declared 'members’ for the purposes of that Act. The DRC Act includes a provision, at section 5, for the Minister to make a determination that certain categories of personnel or people are to be taken as members of the Defence Force or Commonwealth employees for the purposes of that Act.

Section 8 of the MRC Act provides:

8               Ministerial determination that other people are members

(1)     The Defence Minister may make a written determination that a person, or a class of persons, who engage, or have engaged, in activities, or who perform, or have performed, acts:

(a)     at the request or direction of the Defence Force; or

(b)     for the benefit of the Defence Force; or

(c)     in relation to the Defence Force, under a requirement made by or under a Commonwealth law;

are taken to be, or to have been, members for the purposes of this Act.

Note: The determination may be varied or revoked (see subsection 33(3) of the Acts Interpretation Act 1901).

(2)     The determination must specify:

(a)     the date (which may be retrospective) from which the determination applies; and

(b)     the person, or class of persons, to whom the determination applies; and

(c)     the activities or acts, or classes of activities or acts, to which the determination applies.

(3)     The date referred to in paragraph (2)(a) must be, or be after, the date on which this section commences.

(4)       A determination, or a variation or revocation of a determination, is a legislative instrument.[16]

The 2011 Review Report stated that this provides a mechanism for certain categories of personnel, such as official entertainers, war artists, photographers and members of philanthropic organisations to be declared as members for the purposes of the MRC Act.[17] Determinations that have been made under this section include one to list war photographer Robert Nugent as a member in 2006, and determinations to list certain musical performers, entertainers, and war artists.[18]

Recognition of British Nuclear Test participants

In the 2017–18 Budget, the Coalition Government announced that it would provide a DVA Gold Card to all of those present at British Nuclear Test (BNT) areas during the test periods (and to Australian veterans of the British Commonwealth Occupation Force (BCOF) in Japan).[19] This included public servants and other civilians present at the nuclear test areas.

BNT participants had long campaigned for greater compensation than had already been provided to them and for access to veterans’ entitlements, particularly the Gold Card.[20] Governments consistently denied this group access to the veterans’ Service Pension and to automatic access to the Gold Card on the principle that such entitlements should be reserved for those who served in times of war and who faced danger from an armed enemy.[21]

The extension of the Gold Card to this group from 1 July 2017 was a significant change in policy, which then Minister for Veterans’ Affairs Dan Tehan stated was ‘in recognition of the possible exposure to ionising radiation experienced by both Australian veterans of BCOF and the BNT veterans’.[22]

SEATO medical teams

Australia provided both civilian and military medical teams to South Vietnam during the Vietnam War. The civilian teams provided assistance and training to under resourced and poorly equipped hospitals in South Vietnam.[23] The civilian medical teams who provided this service did so under the auspices of a Southeast Asian Treaty Organization (SEATO) aid program administered by the Australian Department of External Affairs (now the Department of Foreign Affairs and Trade).[24] SEATO was a multi-national collective defence arrangement established between 1954 and 1977 and included Australia, New Zealand, Thailand, France, the United States of America, the United Kingdom, the Philippines and Pakistan.[25]

The medical teams were sent by various Australian hospitals or recruited generally from each of the mainland Australian states. The teams consisted of doctors, nurses, other medical professionals and other hospital workers. Doctors did three to six month rotations and nurses generally did six months (some as much as a year). Approximately 240 doctors and 210 nurses and other medical professionals served in these teams.[26]

The first team (containing staff from the Royal Melbourne Hospital) arrived in October 1964 and were stationed at Long Xuyen in the Mekong Delta. The Australian teams developed close working relationships with the hospitals in which they worked.[27]

Some of the teams worked in dangerous proximity to the fighting. This was especially true of the teams stationed at Bien Hoa in Gia Dinh province and a Repatriation Commission team located at Phuoc Le (Baria) in Phuoc Tuy province.[28]

Some of these people worked with Australian Defence Force (ADF) personnel for extended periods.

Status of the medical teams

As noted, the medical teams went to Vietnam as part of a SEATO aid program which was administered by the Department of External Affairs. However, many worked closely with ADF personnel, performed similar functions to military medical teams, and were exposed to similar dangers. This has led to a long term debate about the status of the SEATO teams in relation to medical compensation and whether they should be entitled to the same compensation available to those who went to Vietnam under the command of the ADF. Members of the medical teams have argued that illnesses and medical conditions they have suffered as result of their time in Vietnam are comparable to conditions suffered by Vietnam War veterans.[29]

During 1999 a nurse who had served in one of the SEATO teams applied for compensation under the VE Act and was rejected. This decision was subsequently upheld by the Veterans Review Board.[30]

Mohr Review

The service of the civilians who worked in Vietnam was reviewed in a 2000 report by Major General Robert Mohr entitled Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955–75 (known as the Mohr Review).[31] This review inquired into the possibility that former members of Australian civilian surgical and medical teams who served in Vietnam should receive the full range of benefits similar to military personnel and designated civilians serving in Vietnam during the same period. The Review concluded that the civilian surgical and medical teams should be deemed as performing qualifying service for the purposes of repatriation benefits (benefits under the VE Act).[32] This decision was based on the awarding of the Australian Active Service Medal (AASM) to members of the teams because they were ‘integrated with the Australian military and performed like functions’, and anecdotal evidence presented to the Review.[33]

The Mohr Review also agreed that some civilian medical personnel had been attached to ADF units:

There was one occasion where it is officially noted that an anaesthetist who was serving with one of the Australian Civilian Medical Teams was called upon in an emergency to ‘fill in’ at the ADF 1 General Hospital Vung Tau.

Also there is strong anecdotal evidence that on occasions both nursing and surgical members of the Teams also ‘filled in’ at the ADF 1 General Hospital at Vung Tau and on numerous occasions allied wounded personnel, notably ARVN [Army of the Republic of Vietnam] personnel, were brought to the Teams’ hospitals.[34]

The Howard Government’s response to the Mohr Review’s recommendations included the following changes relating to warlike service (which would determine eligibility for entitlements under the VE Act):

The qualifying criteria for all operations involving the AASM 1945–75 and the current AASM will be standardised in line with modern criteria given to warlike medals. This is basically 'one day or more on the posted strength of a unit allotted (or assigned) to and serving in an operational area, one operational sortie into the area, 30 non-operational sorties or 30 days for visitors'.[35]

In other words, the civilian medical teams would not get full veterans’ entitlements.

In response to criticisms of the Government’s position, then Minister for Veterans’ Affairs Bruce Scott stated:

The purpose of the VEA [VE Act] is to provide repatriation benefits to entitled persons for death or disability incurred as a direct result of their service with the Australian Defence Force in warlike operations.

…

The men and women who comprised the SEATO civilian surgical and medical teams in South Vietnam during the war are to be commended on the valuable work they undertook, some under harsh and stressful conditions.

However, let me stress, they were never considered to be a part of Australia’s military contribution to Vietnam.

They were not allotted for duty, they were not attached to units of the ADF, they were not subject to military discipline and they were not uniformed, billeted or victualled by the ADF.

They were employed by the Department of External Affairs, now DFAT, under a SEATO aid program. They are, however, covered for compensation under the Commonwealth Employee’s compensation legislation, now the Safety, Rehabilitation and Compensation Act 1988, and are entitled to make claim for any illness or disability arising from their SEATO sponsored employment.

The recent Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75 provided no evidence that the SEATO sponsored civilian doctors or nurses served under direct ADF command.[36]

Veterans’ Affairs Legislation (Budget Measures) Bill 2000

This issue continued to gain public attention during the rest of 2000 when the Australian Labor Party and the Australian Democrats attempted to amend the Veterans’ Affairs Legislation (Budget Measures) Bill 2000 (which, among other things, was implementing some of the Mohr Review’s recommendations) in order to give veteran’s entitlements to members of the civilian medical teams.[37]

The Government rejected this:

The more than 400 men and women who comprised the SEATO Civilian Surgical and Medical teams in South Vietnam during the Vietnam War are to be commended on the valuable work they undertook, some under harsh and stressful conditions, however let me stress, there is no evidence that they served under direct Australian military command.

By allowing VEA entitlement to a person, or persons, who has not come under the direct command of the Australian Defence Force in warlike operations will undermine the integrity of the VEA and could destroy the ability of the Act to exclusively provide for the men and women of Australia’s veteran community.[38]

The Senate Foreign Affairs, Defence and Trade Legislation Committee inquired into the Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2000 and the Veterans' Affairs Legislation Amendment Bill (No. 1) 2000.[39] The Committee gave further consideration to the arguments put by the nurses but also rejected them:

The nurses have contended that by incurring danger from the hostile forces of the enemy during hostilities, they performed ‘qualifying service’ as defined in subsection 7A(1)(a) of the Veterans’ Entitlements’ Act 1986 (VEA 1986), and are therefore eligible for repatriation benefits. There can be no question that the teams were exposed to danger, but the words “incurred danger”, described by the Federal Court as constituting an ‘objective’ rather than a ‘subjective’ test, were accepted as being applicable to members of the Australian Defence Force only. Mr Peter Reece, Head, Compensation Division, Department of Veterans’ Affairs, told the Committee:

We would not dispute any of the evidence contained in their submissions. The critical test at the end of the day is not where they were or what that did or the risk that they involved; it is whether they were under the command of the ADF–that is the law.

…

The civilian nurses and surgical teams undeniably made a significant contribution to medical services in those areas of Vietnam in which they served. They did so, however, as an aid program under the administrative control of the Department of External Affairs. They were not under the control of the ADF. Nevertheless, if any member of the civilian medical teams served under the control of the ADF (such as in an Australian field hospital), even for short periods, that person may be eligible for benefits under the Act. Accordingly, the Committee does not believe that any amendment to this area of the Bill is warranted.[40]

Clarke Review of Veterans’ Entitlements

The entitlements of the civilian medical teams who served in Vietnam were also considered as part of the 2003 Clarke Review. The conclusion of this review in relation to the civilian medical teams was the exact opposite to the Mohr Review:

The Committee concludes that the civilian surgical and medical teams were part of the civilian aid effort in Vietnam and not the military effort. The teams were not attached and under the command of the Australian armed services and their work did not warrant such an attachment.[41]

In reaching this conclusion the Clarke Review rejected the Mohr Review’s view that awarding the Australian Active Service Medal implied a right to veterans’ entitlements.[42] The Clarke Review agreed with the aforementioned statement by the then Minister for Veterans’ Affairs that the civilian teams were not under the authority of the Australia armed forces.[43]

The Clarke Review did agree that those civilians who had served under military command would be eligible to apply for compensation under the VE Act.[44]

Rudd and Gillard Government position

Despite the attempted amendments in 2000, the Labor Government did not make any changes to the status of the SEATO civilian medical teams. In a statement published in the Hospital and AgedCare magazine, then Minister for Veteran’s Affairs Warren Snowdon said:

Successive government policy on repatriation benefits for civilians has consistently required that they be attached to the defence forces and be subject to its command and control.

The members of the civilian surgical and medical teams who worked in Vietnam were not integrated with the defence forces, nor were they subject to military control and command.[45]

Minister Snowdon reiterated that these medical teams were covered for compensation under Commonwealth Employees’ Compensation legislation (now the Safety, Rehabilitation and Compensation Act 1988) administered by Comcare.[46]

The subject was raised again in a 2012 Senate Estimates hearing under questioning from Australian Greens Senator Penny Wright to Department of Veterans’ Affairs officials:

Senator WRIGHT: Let me turn now to the Vietnam nurses entitlements. My questions related to Australian volunteer nursing staff who served on civilian surgical units under the banner of the South- East Asia Treaty Organisation—SEATO. Can you please advise what treatment or benefits and support these nurses are entitled to under the Veterans' Entitlements Act for physical and mental illnesses resulting from their service in the Vietnam War?

Mr Farrelly: The SEATO nurses are covered by the Safety, Rehabilitation and Compensation Act rather than the VEA.

Senator WRIGHT: Would that be encompassed under the Comcare system?

Mr Farrelly: Yes.

Senator WRIGHT: I understand there is a provision under the Veterans' Entitlements Act which allows the act to be applied to civilians. So I would be interested to know why it does not apply to the civilian volunteers who served through SEATO?

Mr Farrelly: The distinction is that the civilians need to be under military command, and the SEATO nurses were not ever under military command.

Senator WRIGHT: Would that preclude that discretion being applied at all or is that just a policy?

Mr Farrelly: No.

Senator WRIGHT: Is that a legal requirement under the act?

Mr Farrelly: Yes.[47]

Ongoing campaign

Members of the civilian medical teams, the Australian Nursing and Midwifery Federation and the Vietnam Veterans Association of Australia have run lengthy campaigns seeking recognition for SEATO nurses to receive veterans’ entitlements for their health care.[48]

During 2013, The Australian newspaper published a number of articles about civilian medical teams claiming that a leaked official document established a chain of command between the teams and the South Vietnamese and Australian armed forces.[49] This claim was backed up by former Chief of the Defence Force Peter Cosgrove who reportedly said:

… he had no doubt the volunteer teams of doctors, anaesthetists and nurses who worked in the Vietnam battle zones between 1964 and 1972 were under the control of the military.[50]

Former Chief of Army Lieutenant General Frank Hickling (Retd) was also quoted as saying ‘it would have been impossible for the civilian surgical teams to operate outside military command’.[51]

Abbott, Turnbull and Morrison Government position

The Coalition Government did not offer a change in policy in regards to the SEATO civilian medical teams during the period from the 2013 Election until the Gold Card announcement in December 2018.

In October 2017, in response to a petition on the issue, then Minister of Veterans’ Affairs Dan Tehan stated:

I am advised that prior to deploying to South Vietnam, team members signed an acceptance of general public service terms and conditions of employment, including coverage under the Commonwealth employees compensation legislation that applied at the time, which is now the SRCA. Whilst in South Vietnam, the civilian employees came under the jurisdiction of the Australian Ambassador in Saigon and on a day to day basis were administered by the Counsellor (Aid) at the Embassy.

…

I thank you for raising this matter with me, however, there is no basis for the provision of the Gold Card to this group under military compensation legislation. As they were civilians employed by the then Department of External Affairs and were not under ADF command and control, I would suggest that issues relating to treatment and compensation for this group are best placed with Ms Bishop [then Minister for Foreign Affairs Julie Bishop] and the Department of Foreign Affairs and Trade.[52]

Committee consideration

At the time of writing the Bills had not been referred to any committees.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing the Senate Standing Committee for the Scrutiny of Bills had yet to consider the Bills.

Policy position of non-government parties/independents

The Australian Labor Party supports the Bills with Shadow Minister for Veterans’ Affairs, Defence Personnel and Early Childhood Education Amanda Rishworth stating in her second reading speech for the main Bill:

Labor welcomes the expansion of the gold card to this group of brave men and women who provided invaluable service in Vietnam. 

…

These individuals volunteered their time and their skill to look after the South Vietnamese population. They were subject to many of the dangers and the traumas experienced by others who served in Vietnam. They continue to suffer as a result of volunteering their service. While the teams were awarded with the Australian Active Service Medal, this bill will finally recognise the injury and risk to their health and lives that travelling to Vietnam had caused.[53]

It is unclear what the position of other non-government parties and independents is on the Bill.

Position of major interest groups

Convenor of the Civilian Nurses Group, Dot Angell, welcomed the announcement when it was made, but criticised the initial commencement date of 1 July 2020:

It means everything. It covers absolutely everything. The only condition that is recognised in me is PTSD and I was talking to somebody from Queensland this morning who’d been very ill and they’re not recognising her cancers at all and yet under the Veterans’ Entitlement Act all cancers are recognised regardless of whether they can be proved to be war related.[54]

The Australian Nursing and Midwifery Association also welcomed the announcement but argued that the nurses who were part of the civilian medical teams should not have to wait until July 2020 to receive a Gold Card.[55]

Financial implications

The Explanatory Memorandum to the main Bill states that the measures will cost $22.2 million over the period 2018–19 to 2022–23.[56]

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 Bills’ 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 Bills are compatible.[57]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights had yet to consider the Bills.

Key issues and provisions

Measure reverses long-standing principle

As set out in the background section, Australian governments have consistently argued that as the civilian medical teams were not under the command of the ADF, they could not be entitled to veterans’ benefits. The former Minister of Veterans’ Affairs, Dan Tehan, had reiterated this position as recently as October 2017. In announcing the reversal of this position, the current Minister for Veterans’ Affairs, Darren Chester, stated:

… while these medical teams were not a part of the Australian Defence Force at the time, the Government has listened to their concerns relating to their time in Vietnam.

We have determined that it is appropriate to provide them with the DVA Gold Card which will ensure they receive the support they need.[58]

The measure does not provide access to the full-range of veterans’ entitlements, such as Service Pensions and compensation payments, and it does not provide recognition of the civilian medical teams’ work as qualifying service under the VE Act.

Measure will benefit only a small number of surviving members

The first civilian medical teams entered Vietnam more than 54 years ago and around 450 doctors, nurses and other medical professionals went to Vietnam as part of the SEATO aid program during the period from 1964 to 1972.[59] DVA estimates there are approximately 200 surviving members of the civilian medical teams who will benefit from the Bills.[60]

As with the British Nuclear Test participants and the members of the British Commonwealth Occupation Forces, many members of the SEATO medical teams have died during the long campaign for access to a Gold Card.

Key provisions

Treatment Benefits (Special Access) Bill 2019

The general structure of the main Bill, its provisions and the entitlements it provides, are similar to the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 (the BNT BCOF Act). This Act provides a Gold Card to participants in the British Nuclear Tests and members of the British Commonwealth Occupation Forces.

The main Bill provides for medical treatment, the payment of travelling expenses, and a pharmaceutical supplement to eligible persons. An eligible person is someone who is considered an Australian surgical-medical team member (as defined in subclause 5(1) and clause 7) who is an Australian resident. Where a person is also eligible for other treatment schemes (such as under the VE Act) then they will not be eligible under the Bill.[61]

Subclause 5(1) provides a list of definitions for the purposes of the Bill. An Australian surgical-medical team member is defined as a person who worked in Vietnam (Southern Zone) as a member of an Australian surgical medical team under the Commonwealth Government’s SEATO aid program at any time during the period beginning 1 October 1964 and ending 31 December 1972.

Part 2 of the main Bill provides for the medical treatments available to eligible persons. The treatment provisions largely replicate those contained in the BNT BCOF Act. Generally, medical treatments are arranged by the Repatriation Commission and are typically provided through arrangements made by the Commission with Commonwealth, state and territory governments (for the provision of treatments at public hospitals or other institutions) or with private providers.[62] The Repatriation Commission may reimburse an eligible person for treatments the person has already paid for, where the Commission approves the treatment.[63] The approval of medical treatments under the Bill must be made in accordance with the Treatment Principles set out at section 90 of the VE Act, or those principles as modified in writing by the Commission and approved by the Minister under clause 18. Such modifications are stated by clause 18 to be legislative instruments.

Similarly, the Repatriation Private Patient Principles and the Repatriation Pharmaceutical Benefits Scheme, as set out in the VE Act, are binding on the Commission unless modified in writing and approved by the Minister (clauses 19 and 20).

Part 3 of the main Bill provides for a person to be paid for any travelling expenses incurred for the purpose of obtaining medical treatment. The provisions largely replicate those contained in the BNT BCOF Act. Travel must be approved by the Repatriation Commission in order for travel expenses to be paid.[64] A person accompanying the person receiving medical treatment as an attendant may also be paid travel expenses.[65] In some cases, the Commission may approve for advance payments to be made but the person must repay any amounts paid in excess of their actual travel costs.[66]

Part 4 of the main Bill provides for the payment of a pharmaceutical supplement to those eligible for treatment under the Act. Clause 30 provides that the pharmaceutical supplement is paid at the rate of the Veterans Supplement under section 118C of the VE Act. This is a small fortnightly payment intended to assist eligible recipients with the out-of-pocket costs of medicines.[67] The rate of the payment is currently $6.20 per fortnight for Gold Card holders.[68] A person will not be eligible for the payment where they are in receipt of a veterans’ or social security income support payment such as the Service Pension or Age Pension.[69] Those payments attract their own supplement which includes a payment component intended to assist with the cost of medicines. The provisions in this part replicate those in the BNT BCOF Act.

Parts 5 and 6 of the main Bill provide for review procedures and administration and enforcement procedures, respectively. These provisions replicate those in the BNT BCOF Act.[70]

Part 7 includes an appropriation provision (clause 62—for funds to be appropriated from the consolidated revenue fund for the purposes of the Bill); and a rule making power (clause 63) which allows the Minister to, by legislative instrument, make rules for matters under the Bill or necessary/convenient for carrying out or giving effect to the Bill.

Treatment Benefits (Special Access) (Consequential Amendments and Transitional Provisions) Bill 2019

Clause 1 of Schedule 1 of the companion Bill provides that the main Bill applies in relation to treatment, travel expenses and payment of pharmaceutical supplement on and after 1 July 2019.

Schedule 2 proposes amendments to the Aged Care Act 1997, the A New Tax System (Medicare Levy Surcharge—Fringe Benefits) Act 1999, the Healthcare Identifiers Act 2010, the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, the Military Rehabilitation and Compensation Act 2004, the National Cancer Screening Register Act 2016, the National Health Act 1953, the Safety, Rehabilitation and Compensation Act 1988, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988, the Social Security Act 1991 and the Veterans’ Entitlements Act 1986 to provide for the effective operation of the provisions in the main Bill. Amendments include making the pharmaceutical supplement and travelling expenses that are payable under the main Bill exempt from income tax (items 9-11), making individuals eligible under the main Bill exempt from the Medicare levy (items 5, 6 and 8), providing for appropriate information sharing related to the main Bill (items 1-3 and 13), and ensuring that medical treatment for these individuals and any related payments are not provided under multiple Acts (for example, items 4, 12, 21 and 22-38).

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[1].              J Frydenberg (Treasurer) and D Chester (Minister for Veterans’ Affairs and Defence Personnel), Gold Card for doctors and nurses from the Vietnam War, media release, 16 December 2018.

[2].              J Frydenberg (Treasurer) and D Chester (Minister for Veterans’ Affairs and Defence Personnel), Fast-tracking support to SEATO doctors and nurses, media release, 14 February 2019.

[3].              Explanatory Memorandum, Treatment Benefits (Special Access) Bill 2019, p. iii.

[4].              Department of Veterans’ Affairs (DVA), ‘Using the DVA Health Card – All Conditions (Gold) or DVA Health Card Totally and Permanently Incapacitated (Gold)’, factsheet HSV60, DVA website, last updated 18 May 2018.

[5].              Ibid.

[6].              Disability Pension is paid at different rates based on the level of impairment, and, for some recipients, by their work capacity. See DVA, ‘Overview of disability pensions and allowances’, factsheet DP01, DVA website, 11 April 2017.

[7].              The extent of an individual’s medical impairment is measured in impairment points on a scale from zero to 100 using the Guide to Determining Impairment and Compensation. DVA, ‘Ch. 5 Permanent impairment: 5.1 overview’, Military Rehabilitation and Compensation Act 2004 policy manual, DVA, Canberra, August 2014.

[8].              DVA, ‘Eligibility for the DVA Health Card - All Conditions (Gold) or Totally and Permanently Incapacitated (Gold)’, factsheet HSV59, DVA, 8 January 2019; DVA, ‘DVA Health Card For All Conditions (Gold Card)’, Compensation and Support Policy Library, DVA website, 3 July 2017.

[9].              DVA, ‘Veterans’ health cards’, DVA website.

[10].              Ibid.

[11].              Ibid.

[12].              Review of Military Compensation Arrangements, Report to the Minister for Veterans’ Affairs, vol. 2: detailed analysis, DVA, Canberra, February 2011, p. 386.

[13].              Review of Veterans’ Entitlements, Report of the Review of Veterans’ Entitlements (Clarke Review), vol. 2, Department of Veterans’ Affairs, January 2003, pp. 445–446.

[14].              Ibid., p. 446.

[15].              Ibid., pp. 447–448.

[16].              Military Rehabilitation and Compensation Act 2004, section 8.

[17].              Review of Military Compensation Arrangements, Report to the Minister for Veterans’ Affairs, volume 2, op. cit., p. 386.

[18].              Military Rehabilitation and Compensation (Members) Determination 2006; Military Rehabilitation and Compensation (Members) Determination 2006 (No. 2).

[19].              Australian Government, Portfolio budget statements 2017–18: budget related paper no. 1.4B: Defence Portfolio (Department of Veterans’ Affairs), p. 18.

[20].              See M Klapdor, Veterans' Affairs Legislation Amendment (Budget Measures) Bill 2017, Bills digest, 113, 2016–17, Parliamentary Library, Canberra, 15 June 2017, pp. 6–11.

[21].              See, for example, J Howard (Prime Minister), Additional benefits for veterans, government response to Clarke Report, media release, 2 March 2004.

[22].              D Tehan, ‘Second reading speech: Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2017’, House of Representatives, Debates, 24 May 2017, p. 4910.

[23].              B O’Keefe, Medicine at war: medical aspects of Australia’s involvement in Southeast Asia 1950–1972, Allen and Unwin, Sydney, 1994, p. 367.

[24].              Ibid.

[25].              United States Department of State, ‘Southeast Asia Treaty Organization (SEATO), 1954’, Milestones in the History of U.S. Foreign Relations, Department of State website.

[26].              O’Keefe, op. cit., p. 367.

[27].              Ibid.

[28].              Ibid., p. 368.

[29].              G Kearney and L Thomas, SEATO nurses - 10 years on, Australian Nursing Federation, Canberra, June 2009, p. 3.

[30].              Ibid., p. 2.

[31].              R Mohr, Review of service entitlement anomalies in respect of South-East Asian service 1955–75, (Mohr Review), [Defence Publishing Service, Canberra], February 2000, pp. 76–80.

[32].              Ibid., p. 80.

[33].              Ibid.

[34].              Ibid., p. 77.

[35].              B Scott (Minister for Veterans’ Affairs), 42 000 new medal entitlements for South East Asian service 1955-75, media release, 30 August 2000.

[36].              B Scott (Minister for Veterans’ Affairs), Understanding the Veterans' Entitlement Act, media release, 11 October 2000.

[37].              Parliament of Australia, ‘Veterans' Affairs Legislation Amendment (Budget Measures) Bill 2000 homepage’, Australian Parliament website.

[38].              B Scott (Minister for Veterans’ Affairs), Government rejects Senate amendment on SEATO civilian nurses, media release, 29 November 2000.

[39].              Senate Foreign Affairs, Defence and Trade Legislation Committee, Veterans' Affairs Legislation Amendment Bill (No. 1) 2000 and Veterans' Affairs Legislation Amendment (Budget Measures) Bill 2000, The Senate, August 2000.

[40].              Ibid., pp. 8–9.

[41].              Clarke Review, op. cit., p. 461.

[42].              Ibid., p. 459.

[43].              Ibid.

[44].              Ibid., pp. 458, 461.

[45].              D Hutchins, ‘VA Minister blind on SEATO nurse benefits’, Hospital and AgedCare, September 2011, p. 8.

[46].              Ibid., p. 9.

[47].              Senate Foreign Affairs, Defence and Trade Legislation Committee, Official committee Hansard, 17 October 2012, pp. 163–4.

[48].              Australian Nursing and Midwifery Federation (ANMF), ‘Governments must act for SEATO nurses’, ANMF website.

[49].              M Day, ‘Oz medics in Vietnam “were run by military”’, The Weekend Australian, 23 February 2013, p. 6.

[50].              M Day, ‘Top brass back Vietnam medics’, The Weekend Australian, 27 April 2013, p. 2.

[51].              Ibid.

[52].              D Tehan, ‘Petitions: Veterans’, House of Representatives, Debates, 23 October 2017, p. 11452.

[53].              A Rishworth, ‘Second reading speech: Treatment Benefits (Special Access) Bill 2019, Treatment Benefits (Special Access) (Consequential Amendments and Transitional Provisions) Bill 2019’, House of Representatives, Debates, 20 February 2019, p. 14074.

[54].              D Angell quoted in R Fedele, ‘Justice for SEATO nurses?’, Australian Nursing and Midwifery Journal, 17 December 2018.

[55].              Australian Nursing and Midwifery Association, SEATO nurses shouldn’t have to wait any longer for Gold Card, media release, 18 December 2018.

[56].              Explanatory Memorandum, Treatment Benefits (Special Access) Bill 2019, p. iii.

[57].              Ibid., pp. iv–v; Explanatory Memorandum, Treatment Benefits (Special Access) (Consequential Amendments and Transitional Provisions) Bill 2019, p. iv.

[58].              Frydenberg and Chester, Gold Card for doctors and nurses from the Vietnam War, op. cit.

[59].              O’Keefe, op. cit., p. 367.

[60].              K Andrews, ‘Second reading speech: Treatment Benefits (Special Access) Bill 2019’, House of Representatives, Debates, 14 February 2019, p. 13411.

[61].              Main Bill, subclause 7(2).

[62].              DVA, ‘Treatment of your health conditions’, DVA website.

[63].              Clause 14.

[64].              Clause 22.

[65].              Subclause 22(2).

[66].              Clause 23.

[67].              DVA, Veterans Supplement, factsheet IS18, DVA website, last updated 24 September 2018.

[68].              Gold Card holders in receipt of certain rates of the veterans’ Disability Pension can receive a higher rate of $12.40 per fortnight. The $6.20 rate will apply for those eligible under the proposed Act. Ibid.

[69].              Clause 29.

[70].              See A Biggs and P Yeend, Australian Participants in British Nuclear Tests (Treatment) Bill 2006, Bills digest, 31, 2006–07, Parliamentary Library, Canberra, 2006, pp. 16–17.