Bills Digest no. 91, 2017–18
PDF version [664KB]
Michael Klapdor
Social Policy Section
21 March 2018
Contents
Purpose of the Bill
Structure of the Bill and the Bills
Digest
Background
General background to veterans’
legislation
Veteran Centric Reform Program
Committee consideration
Senate Standing Committee for the
Selection of Bills
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups. 7
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Schedule 1—Family support
Key issues and provisions
Key provisions
Schedule 2—Veteran payment
Background
Payment rates and eligibility
Key issues and provisions
Eligibility and assessment issues
No Energy Supplement
Provisions
Schedule 3—Coordinated Veteran Care
mental health pilot
Provisions
Schedule 4—Compensation for household
and attendant care services where catastrophic injury or disease
Provisions
Schedule 5—Qualifying service
Key issues and provisions
Provisions
Schedule 6—Defence-related claims
Schedule 7—Specialist Medical Review
Council
Schedule 8—Other amendments
Date introduced: 15 February 2018
House: House of Representatives
Portfolio: Veterans' Affairs
Commencement: Various dates as set out in the table at clause 2.
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 March 2018.
Purpose of the Bill
The purpose of the Veterans’ Affairs Legislation Amendment
(Veteran-centric Reforms No. 1) Bill 2018 (the Bill) is to amend the Military
Rehabilitation and Compensation Act 2004 (the MRCA), the Veterans’
Entitlements Act 1986 (the VEA) and a large number of other Acts
in order to:
- provide
additional childcare, counselling, household services and attendant care for current
and former members of the Australian Defence Force (ADF) with warlike service,
and their families
- provide
a new Veteran Payment to veterans with little or no financial support until
their compensation claims for liability for a mental health condition are determined
- commence
the Coordinated Veterans’ Care Mental Health Pilot, a two-year pilot in rural
and regional areas targeting those with mild to moderate mental health
conditions such as anxiety or depression who also have a physical condition
requiring pain management
- make
it quicker to provide financial assistance with household and attendant care
services to certain veterans with catastrophic injuries or diseases
- allow
for the automated determination an individual’s qualifying service under the VEA
removing the need for all veterans to manually apply for a determination of
their defence service as qualifying service
- make
a large number of changes to the Safety,
Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the DRCA)
replacing redundant references and repealing provisions unrelated to the
operation of this Act
- makes
technical amendments to the VEA to ensure consistent references to the
Special Medical Review Council and
- a
range of minor amendments including extending Gold Card eligibility under the Australian
Participants in British Commonwealth Occupation Force (Treatment) Act 2006
to ADF members who served in Japan prior to the British Commonwealth Occupation
Force and technical amendments to the VEA.
One of these measures—Schedule 5 relating to the
automation of qualifying service determinations—is part of the Veteran Centric
Reform program announced in the 2017–18 Budget.[1]
The additional childcare and other services measures in Schedule 1, and the Veteran
Payment measure in Schedule 2 were announced as part of the Government Response
to the Senate Foreign Affairs, Defence and Trade Committee’s inquiry, Suicide
by veterans and ex-service personnel.[2]
The other proposed measures are related to correcting or improving the
operation of the veterans’ entitlements and compensation schemes, and fixing
errors or oversights in recent legislation.
Structure of the Bill and the Bills Digest
The Bill is divided into eight schedules proposing
distinct measures. This Bills Digest will provide background information on
veterans’ entitlements legislation and the Veteran Centric Reform Program and
then provide analysis of each Schedule in separate sections.
Background
General
background to veterans’ legislation
There are three main Acts that provide for supports and
compensation for veterans and their dependants:
- the VEA—which primarily provides benefits and entitlements for those who
undertook operational service, peacekeeping service and hazardous military
service before 1 July 2004, and/or peacetime military service from 7 December
1972 up to 6 April 1994
- the DRCA—which provides coverage for illness, injury or death arising from
military service undertaken from 3 January 1949 to 30 June 2004; and for
certain periods of operational service between 7 April 1994 and 30 June 2004.
The DRCA contains provisions relating to military personnel that were
previously contained in the Safety,
Rehabilitation and Compensation Act 1988 (the SRCA) and commenced
on 12 December 2017 and
- the MRCA—which provides coverage for illness, injury or death arising from
military service undertaken from 1 July 2004.
The VEA provides four main types of benefits:
- compensation,
through disability pensions to veterans, certain members of the Defence Force
and members of peacekeeping forces, and war and defence widow/er’s pensions and
orphan pensions for their dependants. These compensation payments are paid at
rates determined by the level of impairment or by specific conditions or death
and are not means-tested. They can be paid at the same time as income support
payments
- income
support, through service pensions for veterans with qualifying service and
their partners, and income support supplements for war or defence widow/ers.
These payments are means tested and are paid at the same rate as Centrelink
pensions
- health
care for veterans and their dependants and
- additional
allowances and benefits for veterans and dependants (such as travel assistance,
attendant and decoration allowances, and financial support for dependent
children of veterans to undertake study).[3]
In order to be eligible for compensatory pensions through
the VEA, a person’s disability or illness must be determined to be
related to their service (that is, war-caused or defence-caused).
The DRCA and MRCA provide rehabilitation and
compensation coverage for military service-related injuries, illnesses or
death. The DRCA and the MRCA are different types of legislation
to the VEA, with the MRCA and the DRCA being more like
more modern workers’ compensation legislation—including the provision of both
lump-sum payments and on-going payments—with elements reflecting the hazards
particular to military service. This is also featured in these two Acts having
payments rates linked to the rate of pay of the entitled recipient when they
became ill or injured.
Both the MRCA and DRCA provide permanent
impairment lump-sum payments, death benefits, wage-replacement incapacity
payments, vocational and medical rehabilitation services, and a large range of
allowances for additional costs (such as household services and attendant
allowances).
Veteran Centric
Reform Program
The 2016 Senate Foreign Affairs, Defence and Trade
Committee’s inquiry into the mental health of serving ADF personnel received
numerous submissions taking issue with the DVA claims process and its impact on
veterans and their families.[4]
The Australian Public Service Commission also raised serious concerns with
DVA’s service delivery models and claims processing in a 2013 capability review.[5]
The report of the Senate inquiry set out the main issues
with DVA services:
- complex
application processes and concerns that the process is becoming more
adversarial
- issues
with record keeping and procedural errors
- multiple
and old ICT systems that are not able to be integrated
- a
lack of case-coordination or continuity when dealing with DVA (DVA does provide
case coordination for some clients and received additional funding in 2015–16
to expand this kind of assistance)
- the
time taken to process claims and
- lack
of services in regional and remote areas.[6]
The Committee’s main recommendation in relation to these
issues was for adequate funding to be provided to update DVA’s ICT systems.
In the 2016–17 Budget, $24.8 million was allocated to DVA
and the Department of Human Services (DHS) to develop a business case for ‘the
transformation of the Department of Veterans’ Affairs—from a focus on claims
processing to a client focused and connected service’.[7]
The 2017–18 Budget saw $166.6 million allocated to a Veteran
Centric Reform Program: a package of measures aimed at overhauling the
Department of Veterans’ Affairs’ (DVA) service delivery and infrastructure.[8]
DVA describes the rationale for Veteran Centric Reform:
New clients of the Department of Veterans’ Affairs (DVA)
expect to receive personalised services that are connected across government
and simple to access. They expect that their families will also receive
appropriate services. DVA operations and infrastructure are no longer fit for
purpose as current business systems are claims based, requiring the veteran to
approach the Department, and lack the information sharing and data analysis
necessary to meet veterans’ expectations of a quality service.
Without change, some veterans may continue to be disengaged
from DVA services, which can inhibit a successful transition from the
Australian Defence Force and lead to poor health and life outcomes.[9]
A key aim of the measures is to improve the transition
process from the ADF to civilian life, and to ensure DVA can quickly identify
the needs of veterans’ and families and provide appropriate supports:
The reform process will allow DVA to provide a seamless
transition experience. The Department will aim to know about everyone who is
serving and to use sophisticated analytics to connect them to the services
they’re most likely to need based on their unique history and circumstances. In
some cases, this will allow DVA to completely bypass the complexity of legacy
systems, so that veterans and their families need only tell us things once.
Those who need help will get it quicker. At the moment DVA
often finds out about veterans and families in need too late. Challenges that
could have been managed early become chronic issues, leading to long periods in
rehabilitation and treatment.[10]
The 2017–18 budget measure included funding for computer
systems, changes to business processes and piloting new services. Some of the
piloted measures include:
1. DVA will consider veterans’ needs by analysing the
services they access through the Department, from car bookings through to
health and rehabilitation services, to understand which policies, programs and
early interventions are most in demand.
2. Building on the work of the Government’s Behavioural
Economics Team, DVA will implement a two-year pilot of behaviour-informed
design and trial small-scale policy interventions to evaluate different approaches
to veteran support.
3. Taking the insights provided through proactive
interventions 1 and 2 above, DVA will implement a framework to actively manage
the assistance provided to veterans. The framework will provide real-time
assessment of the effects of these initiatives so DVA can proactively alter
support arrangements to better meet the needs of clients.
4. DVA will implement a two-year trial to provide veterans
with access to medical treatment for specified conditions while their claim
under the Military Rehabilitation and Compensation Act 2004 (MRCA) and
the Safety, Rehabilitation and Compensation Act 1988 (SRCA) is being
processed.[11]
Committee consideration
Senate
Standing Committee for the Selection of Bills
On 15 February 2018, the Senate Selection of Bills
Committee deferred consideration of the Bill until its next meeting.[12]
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills had not considered the Bill.
Policy position of non-government
parties/independents
Shadow Minister for Veterans’ Affairs and Defence
Personnel, Amanda Rishworth, stated that Labor was supportive of the amendments
in the Bill:
... in particular those which seek to implement the
recommendations from the Senate inquiry and the Jesse Bird inquiry. Both those
inquiries highlighted issues with a system that has become adversarial, lengthy
and overly complicated, a system which has let down some of the people it is
designed to assist.[13]
Nick Xenophon Team MP Rebekha Sharkie also provided
‘wholehearted support for the Bill’s extension of additional support services
for veterans and their families and the establishment of the interim income
support veteran payment’.[14]
At the time of writing, the position of other crossbench
parties and independents was unclear.
Position of major interest groups
At the time of writing, the major ex-service organisations
did not appear to have publicly commented on the Bill.
Financial implications
According to the Explanatory
Memorandum, the measures in the Bill will cost an estimated $26.8 million
in total over the forward estimates:
- Schedule
1—Family support will cost $7.1 million
- Schedule
2—Veteran Payment will cost $16.1 million
- Schedule
3—Coordinated Veteran Care mental health pilot will cost $3.6 million and
- Schedules
4–8 will have no financial impact.[15]
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.[16]
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Parliamentary Joint Committee
on Human Rights had not considered the Bill.
Schedule 1—Family support
Schedule 1 will amend the MRCA to allow the
Military Rehabilitation and Compensation Commission (via DVA) to provide a
range of services to members and former members of the ADF who have rendered
warlike service post 1 July 2004, and their families, with additional childcare
assistance, brief intervention counselling, household services and attendant
care.
The amendments to the MRCA will allow the
Commission to make a legislative instrument setting out benefits and services
to qualifying members, former members and their relatives. The amendments do
not specify the actual services or benefits, the detailed eligibility criteria
or any limits on the benefits that can be provided—these are to be set out in
the legislative instrument.
According to the Explanatory
Memorandum, the kinds of assistance and benefits to be included are:
- childcare
up to $10,000 per child per annum (under school age) and/or $5,000 per child
per annum (primary school) and cover long day care and outside school hours
care
- Brief
Intervention Counselling[17]
extended to current and former ADF members with a current Rehabilitation Plan
and their family members—entitled to up to 20 sessions in addition to any
treatments provided by DVA via a Repatriation Health Card and
- additional
household services, home care and counselling assistance for widow/ers of an
ADF member to receive financial assistance for a range of services (including
services such as garden maintenance, home help/domestic support) in the two
years after the death of the ADF member.[18]
These measures are intended to commence on 1 May 2018.
The measures were announced as part of the Government
Response to the Senate Foreign Affairs, Defence and Trade Committee’s inquiry, Suicide
by veterans and ex-service personnel.[19]
Recommendation 19 of the Committee’s report suggested DVA look at new ways to
support partners of veterans with mental health conditions or other disability:
... a consistent theme from the evidence received was that
there was a lack of support for the partners [of] those veterans who have mental
health conditions or have acquired severe disabilities arising from their
service. The partners of veterans often act as the keystone of support for
veterans, some as full-time or part-time carers. The situation of veterans
often markedly declines when these relationships fail. In the view of the
committee, this is a critical area for DVA to investigate and develop further
measures of support.
Recommendation 19
The committee recommends that the Department of Veterans'
Affairs review the support for partners of veterans to identify further avenues
for assistance. This review should include services such as information and
advice, counselling, peer support and options for family respite care to
support partners of veterans.[20]
In its response, the Government also stated that it would
‘continue to review the support available to the partners of veterans through
forums such as the Female Veterans Forum and the Veterans’ Families Forum’ and
noted that there ‘are a number of initiatives currently underway in the
Department of Veterans’ Affairs to review the support available to families and
ensure it continues to meet their needs’.[21]
Key issues
and provisions
The amendments will allow the Military Rehabilitation and
Compensation Commission to provide a range of new benefits to certain veterans
and their families. The Commission will have the broad power to provide
essentially any assistance or benefit, limited only by the allocated funding,
to those veterans with warlike service and their families. While the proposed
amendments suggest that kind of benefits that can be provided may include child
care, counselling or household services, the provisions do not limit the
assistance that can be provided to those listed items.
The benefits will be of significant assistance to veterans
and their families, particularly with the proposed child care assistance coming
on top of existing Australian Government child care fee assistance payments.[22]
Key
provisions
Item 1 omits and substitutes new words at the
simplified outline of the Act at section 3 of the MRCA to expand
the list of items the Act provides for to include ‘ certain assistance (such as
child care, counselling, or household services) to members or former members or
to related persons of members, former members or deceased members’. Currently,
section 3 of the Act states that it provides ‘compensation and other benefits’
to current and former members of the Defence Force who suffer a service injury
or disease, and to the ‘dependants of some deceased members’. The amendments
will make clear that the Act also provides other benefits to members or former
members (who may not have an accepted service injury or disease) and to the
relatives of these members (not only to those of deceased members).
Item 3 adds the term related person to
the list of definitions at subsection 5(1). The term is defined by subsection
15(2) as amended by item 6. A related person will be
any person who can currently be considered a dependant of the
member and includes: a partner, parent or step-parent (including of the
member’s partner), a grandparent, a child or stepchild (including of the
member’s partner), a grandchild, or a sibling (including half-brothers and
half-sisters). Item 5 will change the definition of a dependant
at subsection 15(1) to mean any related person who is wholly
or partly dependent on the member or who would be wholly or partly dependent on
the member but for an incapacity of the member resulting from an injury or
disease (or aggravation of an injury or disease).
Item 7 inserts new Chapter 5A—Family Support
which provides for the Military Rehabilitation and Compensation Commission to
make a legislative instrument providing for assistance or benefits of a certain
kind to a member or former member or to a related person of a member, former
member or deceased member. Under new subsection 268B(2), the instrument
cannot provide for the granting of assistance or benefits unless the member,
former member or deceased member has rendered warlike service on or after
1 July 2004. Warlike service is defined at paragraph 6(1)(a) and is
service of a kind determined in writing by the Defence Minister to be warlike
service for the purpose of the MRCA.[23]
There are no limits on the kinds of benefits or assistance
that can be provided, or the amounts. The Explanatory Memorandum states that
the instrument ‘is intended to enable a flexible and responsive mechanism to
ensure the needs of a member, former member, a person who is or was a related
person of a member or deceased member may be taken into account’.[24]
Item 8 will insert new paragraph 423(bb) to allow for the
Consolidated Revenue Fund to be appropriated for the purposes of providing the
assistance or benefits under new section 268B. The amendments delegate
significant powers to the Military Rehabilitation and Compensation Commission
to spend public money with few legislative restrictions other than the warlike
service requirement.
Schedule 2—Veteran payment
Schedule 2 will introduce a new interim income support
payment, the Veteran Payment, for individuals who have made a claim for a
mental health condition under the DRCA or MRCA but have not yet
had their claim determined, and who have little or no financial resources.
Background
The Veteran Payment was announced as part of the
Government’s response to the Senate Foreign Affairs, Defence and Trade
Committee’s 2017 report on suicide by veterans and ex-service personnel.[25]
The Committee had heard evidence that individuals being medically discharged
from the ADF prior to having their claims finalised, and delays in DVA
processing claims, could lead to financial stress and potentially exacerbate
their mental health conditions.[26]
A separate internal review of the government’s handling of
a compensation case made a specific recommendation for financial support to be
provided to veterans with mental health problems prior to their claim being
determined. Jesse Bird took his own life in June 2017 following difficulties
accessing support services, employment and the rejection of his claim for
compensation.[27]
Former Minister for Veterans’ Affairs, Dan Tehan, requested a review of the
case by DVA, the Department of Defence and the Veterans and Veterans Families
Counselling Service.[28]
The review’s 19 recommendations were made public and included a recommendation
that the Minister consider:
The provision of more timely incapacity compensation payments
for those former members of the ADF incapacitated for service or work by mental
health conditions, without the need for a determination that those mental
health conditions are related to service.[29]
DVA apologised to Mr Bird’s family for the way in which
its processes failed.[30]
Minister Tehan stated that the lessons from Mr Bird’s case helped inform the
Government’s response to the Senate Committee report on veteran suicide.[31]
In this response, the Government committed to provide a
‘Veteran Payment’ to veterans with little or no financial support until their
compensation claims for liability for a mental health condition are determined;
and access to vocational and psychosocial rehabilitation and financial counselling.[32]
The measure is expected to cost $16.1 million over four years and commence on 1 May
2018.[33]
According to the former Minister for Veterans’ Affairs,
Michael McCormack, the new payment will assist approximately 830 veterans and
690 partners in 2018–19.[34]
Payment
rates and eligibility
The payment will be available during the period between
lodging a claim for a mental health injury and the claim being determined. According
to the Explanatory Memorandum, the basic rate will be $913.00 per fortnight for
a single person and $713.60 per fortnight for a partnered person and recipients
may also be eligible for the pension supplement, rent assistance, Family Tax
Benefit Part A and remote area allowance, depending on their circumstances.[35]
To be eligible, individuals must be considered incapable
of undertaking remunerative work for periods totalling more than eight hours
per week. This is similar to the work eligibility criterion for the Special
Rate of Disability Pension which requires that a veteran be prevented from
undertaking their normal remunerative work or any other substantive work in their
employment history for more than 8 hours per week, solely because of their war
or defence service-caused condition.[36]
Individuals receiving Veteran Payment will be required to
participate in vocational and psychosocial rehabilitation, including financial
counselling. Partners of a Veteran Payment recipient may also receive a payment
(in circumstances to be set out in a legislative instrument).[37]
Individuals will be unable to receive Veteran Payment at
the same time as another income support payment or compensation under the VEA,
MRCA, or the DRCA. A Veteran Payment is also not payable to a
person who is a wholly dependent partner of a deceased member (within the
meaning of the MRCA) except in situations where the person is entitled
to a Veteran Payment in their own right (not as a partner). Other Australian
Government income support payments, such as social security payments, will also
not be payable at the same time as Veteran Payment.[38]
Key issues
and provisions
The Veteran Payment will be an important support measure
for veterans with mental health conditions navigating the often-lengthy
compensation process. The level of support will be higher than the current
pension rates, and much higher than other alternative payments such as Newstart
Allowance (currently paid at a maximum rate of $538.80 per fortnight for a
single person compared to the proposed $913 per fortnight for the Veteran
Payment). Providing income support during this period will reduce financial
stress for these veterans and their partners, and allow for improved access to
health treatments. The requirement for recipients to participate in vocational
and psychosocial rehabilitation, as well as financial counselling, should
assist these families managing the transition to civilian life and improve
future employment prospects.
Eligibility
and assessment issues
The proposed payment will include an eligibility criterion
that the person be incapable of undertaking remunerative work for more than
eight hours week.[39]
It is unclear how this will be assessed as the criteria are to be set out in a
legislative instrument, not the Act. For the new payment to function according
to its rationale it will be important for the assessment process to be simple
and quick—the payment would not fulfil its purpose if there was a lengthy
assessment of an individual’s work impairment.
The Explanatory Memorandum states that other sorts of
matters the legislative instrument is expected to cover include:
- enabling
the payment to be paid up to 14 days before a claim under the MRCA or DRCA
is made (to account for the fact that DVA payments are made in arrears and
there could be a 14 day delay before the first payment is made)
- enabling
the payment to be made for a specified period after the Military Rehabilitation
and Compensation Commission has determined their claim (in order to allow for a
smooth transition to any compensation payment or to another form of income
support).[40]
Again, the exact details are not specified in the Bill’s
proposed amendments and it is unclear what further eligibility criteria might
apply and how long the claim process will take.
The Veteran Payment will be means tested in the same way
as the Service Pension (with an income and assets test).[41]
While this will ensure that the payment is targeted at those without adequate
financial means to support themselves, it will limit the number of veterans
eligible for the payment. Veterans with partners earning certain levels of
income will be ineligible under the means test.
No Energy
Supplement
The proposed rate calculator for the Veteran Payment makes
no provision for the inclusion of an Energy Supplement.[42]
However, other supplementary payments such as the Pension Supplement, Rent
Assistance and Remote Area Allowance may be payable. The Energy Supplement is
payable with most veterans’ payments with the amounts varying by payment type.
A single Service Pensioner would receive a maximum Energy Supplement of $14.10
per fortnight while a person in receipt of a Special Rate Disability Pension
receives an Energy Supplement of $21.50 per fortnight.[43]
The Government has proposed closing the Energy Supplement
to new recipients with a Bill currently before the House of Representatives.
Not making the Energy Supplement payable with the Veteran Payment is consistent
with this policy.[44]
Item 499 will ensure that if the Bill to close the Energy Supplement
proceeds, and a person who is receiving Energy Supplement with a social
security payment transfers to Veteran Payment before transferring back to the
social security payment, they will continue to receive the Energy Supplement
with their social security payment.
Provisions
Item 1 inserts new Part IIIAA—Veteran payment
into the VEA. New section 45SB provides for the Repatriation
Commission to make a legislative instrument providing for and in relation to
the making of a payment to certain persons who have made claims under the MRCA
or the DRCA, or their partners. Eligible primary claimants for the
proposed Veteran Payment are those who have made a claim under section 319 of
the MRCA or under section 54 of the DRCA for an injury that is a
‘mental injury’ or a disease that is a mental ailment, disorder, defect or
morbid condition. The instrument must also make provision for the making of a
Veteran Payment to a primary claimant’s partner (if any) where the partner is
an Australian resident and may also make provision for paying a partner in
situations where the partner was receiving a Veteran Payment and the primary
claimant dies.
New subsection 45SB(4) provides for the instrument
to also make provision for any further eligibility criteria or requirements, and
the duration that the payment will be made for. The rate of payment is to be
worked out according to Schedule 6 of the VEA (as amended by items 464–493).
Rates will be adjusted in the same way as the Service Pension (item 411).
New subsection 45SB(7) restricts payment of Veteran
Payment to those not in receipt of certain income support and compensation
payments including service pension, Disability Pension, War Widow/er’s Pension,
incapacity payments or the Special Rate Disability Pension.
New subsection 45SB(8) restricts payment of Veteran
Payment to exclude a partner of a primary claimant where that person is
receiving compensation under the MRCA as a wholly dependent partner
(except where the partner is eligible for Veteran Payment in their own
right—not only as a partner).
New subsection 45SSB(9) restricts payment of
Veteran Payment to exclude recipients of an ABSTUDY Living Allowance.
Part 2 of Schedule 2 consists of hundreds of
consequential amendments to other Acts following the introduction of the
Veteran Payment as a new form of income support. The amendments are in order to
treat the payment in the same way as the Service Pension under other
legislation including social security law, family assistance law, child support
law, aged care law, tax law and other veterans’ affairs legislation. However,
the Veteran Payment is not considered a pension under the VEA or any of
these other Acts—it is intended as a temporary form of income support.[45]
Some of the amendments will ensure that a person cannot
receive Veteran Payment at the same time as another income support payment,
such as other veterans’ payments or a social security payment.
Schedule 3—Coordinated Veteran Care mental health
pilot
A range of suicide-prevention pilot programs were
announced in the 2017–18 Budget with $9.8 million provided over the
forward estimates.[46]
Schedule 3 provides for a legislative instrument to be made for the purposes of
one of these pilots, the Coordinated Veterans’ Care Mental Health Pilot (the
CVC Mental Health Pilot). The pilot will run for two years and will cost an
estimated $3.6 million over the forward estimates.[47]
This pilot program builds on the existing CVC
Program ‘which uses a team-based model of care led by a General
Practitioner [GP] and supported by a practice nurse’ to provide assistance to
DVA Gold Card holders with chronic conditions or complex care needs.[48]
The CVC Mental Health Pilot will operate in rural and
regional areas. GPs will ‘assess and diagnose clients, undertake care planning
and refer clients to use an application on a smart device’.[49]
The application will deliver cognitive behaviour treatment. The pilot is to be
targeted at those with mild to moderate mental health conditions such as
anxiety or depression who also have a physical condition requiring pain
management.
It is expected that the pilot will recruit up to 125
participants each year over two years.[50]
The amendments will commence on the 28th day after the Act
receives Royal Assent.[51]
Provisions
Item 1 inserts new section 287A to the MRCA
to provide for the Military Rehabilitation and Compensation Commission to
determine a class of persons eligible for the Coordinated Veterans’ Care mental
health pilot via a legislative instrument. Item 2 inserts new section
90AA to the VEA for the same purpose.
Schedule 4—Compensation for household and attendant
care services where catastrophic injury or disease
Schedule 4 will enable the Military Rehabilitation and
Compensation Commission to determine in a legislative instrument the conditions
that meet the definition of a catastrophic injury or disease, and
to approve amounts payable to those with such a condition as compensation for
household and attendant care services.
Currently, those with a catastrophic injury or disease may
receive household or attendant care services according to their individual
needs via an exceptional circumstances determination (under subsection 287(2)
of the MRCA). Removing the requirement for such a determination to be
made will allow for assistance to be provided more quickly.
The Explanatory Memorandum states that the definition of catastrophic
injury or disease will include injuries or diseases such as serious
neurological injury, paraplegia and quadriplegia.[52]
The Commission will be able to approve weekly amounts payable for household and
attendant care services that it considers reasonable in the individual
circumstances. The definition and framework for the provision of services will
be broadly consistent with those contained in section 29A of the DRCA.
This will provide consistency for those in similar circumstances but covered
under different compensation Acts.
The amendments will commence on the 28th day after the Act
receives Royal Assent and are not expected to have any financial impact.[53]
Provisions
Item 3 will insert a definition of catastrophic
injury or disease at new subsection 213(1) of the MRCA
(in Division 3 of Part 7 of the MRCA which deals with compensation for
household and attendant care services). The definition will refer to an injury
or disease satisfying the conditions to be set out in a legislative instrument
made under new subsection 213(2) inserted by item 4.
Items 6 and 8 insert new subsections 216(2) and
219(2), respectively, to provide for the Military Rehabilitation and
Compensation Commission to determine the reasonable amount of weekly
compensation payable for household and attendant care services for those with a
catastrophic injury or disease, rather than the specified amounts set out in
the MRCA.
Schedule 5—Qualifying service
Schedule 5 is the only amendment in the Bill specifically
linked with the Veteran Centric Reform program. The amendments in Schedule 5
will allow the DVA to determine whether an individual has qualifying service under
the VEA automatically, using information provided by the Department of
Defence. This will mean that a veteran will not necessarily have to manually
apply for recognition of their service as qualifying service—DVA will assess
the service record information provided by Defence and automatically make a
determination regarding qualifying service.
Qualifying
service entitles a person to certain benefits such as a Service Pension,
concession cards, DVA health cards (under certain circumstances) and the
exemption of the DVA Disability Pension as income for the calculation of aged
care fees. Members and former members of the ADF may have qualifying service if
they:
- rendered service during the Second World War and incurred danger from
hostile forces of the enemy (this criterion also applies to Australian
mariners); or
- served in an operational area after the Second World War and were
allotted for duty, or were a member of a unit that was allotted for duty in
that operational area; or
- have warlike service; or
- served on certain submarine special operations between 1978 and 1992 and
were awarded, or were eligible to be awarded, the Australian Service Medal with
the Special Operations Clasp; or
- have been awarded, or were eligible to be awarded, a medal/clasp listed
in the Qualifying Service factsheet under ‘Bomb Clearance or Minesweeping
Clasp’.
Commonwealth or allied veterans may have Qualifying Service
if they served prior to 12 January 1973 and incurred danger from a hostile
force. If a Commonwealth veteran was awarded, or was eligible to be awarded, a
campaign medal, they may also have Qualifying Service.[54]
The Explanatory Memorandum states that only positive
determinations will be recorded in DVA systems with the veteran to be notified
that they satisfy the qualifying service requirements.[55]
Where the automated process is unable to make a positive qualifying service
determination, no determination will be made. The veteran will still be able to
make a manual application for a qualifying service determination.
The Explanatory Memorandum also states that ‘recent data
sharing improvements between Defence and DVA will improve the ability to share
client information and over time streamline the information processes related
to a client’s eligibility for benefits and payments’.[56]
The amendments will commence on the 28th day after Royal
Assent and are not expected to have any financial impact.[57]
Key issues
and provisions
The amendments will help to streamline the claims process,
allowing DVA to make positive determinations relating to a veteran’s service
using information provided by the Department of Defence. Improved information
sharing between Defence and DVA can help ensure that veterans receive the
supports and assistance they are entitled to, services are provided in a timely
manner, and veterans are spared some of the difficulties involved in navigating
the claims process.
Provisions
Item 4 substitutes new section 35B and inserts
new section 35BA into the VEA to create two pathways to establishing
qualifying service: a veteran or their partner making a claim for a
determination that they or their partner rendered such service or a determination
being in force under new section 35BA. The current section 35B provides
that qualifying service can only be determined following a proper claim. New
section 35BA provides that the Repatriation Commission may make a written
determination that a veteran has rendered qualifying service if so satisfied.
Such a determination is to be considered proof of qualifying service for all
purposes of the VEA. A claim is not required and the Commission must
provide a copy of the determination to the veteran or their partner.
Schedule 6—Defence-related claims
Schedule 6 makes technical amendments to the DRCA.
This Act, which commenced 12 October 2017, essentially removed the
military-compensation related components of the SRCA and placed
them into a new Act.[58]
The DRCA has the same eligibility requirements and provides the same
benefits for current and former members of the ADF with compensation coverage
under the SRCA. The DRCA (and the former SRCA) provides
coverage for illness, injury or death arising from military service undertaken
from 3 January 1949 to 30 June 2004; and for certain periods of operational
service between 7 April 1994 and 30 June 2004.[59]
The amendments will replace redundant references and
repeal provisions unrelated to the coverage of the DRCA.
Items 325 and 326 in Part 1 of Schedule 6 will
enable the Military Rehabilitation and Compensation Commission to provide
information to the Chief of the Defence Force for the reconsideration or review
of a determination made regarding the liability for the injury, disease or
death of an employee. This amendment will align the information sharing
provisions under the DRCA with those under the MRCA.
Amendments in Part 2 of Schedule 6 (item 331) will
reinsert section 43 of the SRCA which was omitted during the drafting of
the DRCA. The section allows certain peacekeepers eligible for
compensation under the VEA and the SRCA to elect to not receive
compensation under the SRCA (allowing them to choose under which Act
they are to be compensated). Reinserting the section is to ensure certain
peacekeepers are not disadvantaged. The amendments will commence
retrospectively so that the positions of anyone affected by this removal will
be the same as prior to the commencement of the DRCA.
The amendments are technical and described adequately in
the Explanatory Memorandum.
Schedule 7—Specialist Medical Review Council
The Schedule makes technical amendments to the VEA
to ensure consistent references to the Specialist Medical Review Council (which
reviews decisions made by the Repatriation Medical Authority). The amendments
primarily replace references to ‘the Council’ with ‘the Review Council’.
Schedule 8—Other amendments
Schedule 8 makes minor
amendments to the Australian Participants in British Nuclear Tests (Treatment)
Act 2006 and the VEA.
The amendment to the Australian
Participants in British Nuclear Tests (Treatment) Act 2006 (item 1)
is to ensure that members of the ADF who served in Japan following the
cessation of hostilities in World War II but before the formation of the
British Commonwealth Occupation Force (BCOF) are entitled to a DVA Health
Card—All Conditions within Australia (Gold Card).[60]
The Veterans’
Affairs Legislation Amendment (Budget Measures) Act 2017 provided Gold
Cards to BCOF members but DVA has become aware of at least one person who did
not fit the definition of BCOF member but who was in Japan as an ADF member
after the cessation of hostilities.[61]
[1]. Australian
Government, Budget
measures: budget paper no. 2: 2017–18, pp. 178–9.
[2]. Australian
Government Response to the Senate Foreign Affairs, Defence and Trade
Committee report, The constant battle: suicide by veterans, The Senate,
Canberra, 24 October 2017.
[3]. Review
of Veterans’ Entitlements, Report
of the review of veterans’ entitlements, (Clarke Review), Commonwealth
of Australia, Canberra, January 2003, p. 103. Department of Veterans’ Affairs
(DVA), ‘Factsheet
DP01 – overview of disability pensions and allowances’, DVA website, last
updated 11 April 2017.
[4]. Senate
Foreign Affairs, Defence and Trade References Committee, Mental health
of Australian Defence Force members and veterans, The Senate, Canberra,
March 2016, pp. 102–14.
[5]. Australian
Public Service Commission (APSC), Capability
review: Department of Veterans’ Affairs, APSC, Canberra,
5 December 2014.
[6]. Senate
Foreign Affairs, Defence and Trade References Committee, Mental health
of Australian Defence Force members and veterans, op. cit., pp. 102–14.
[7]. Department
of Human Services (DHS), ‘Department
of Veterans' Affairs – business case for veteran centric reform - Budget 2016–17’,
DHS website, last updated 27 August 2017.
[8]. Australian
Government, Budget
measures: budget paper no. 2: 2017–18, op. cit.
[9]. Department
of Veterans’ Affairs (DVA), Budget
2017–18: veteran centric reform, DVA, Canberra, 2017, p. 1.
[10]. DVA,
‘A
plan for veteran centric reform’, Vetaffairs, 33(3), Spring 2017.
[11]. DVA,
Budget
2017–18: veteran centric reform, op. cit., p. 2.
[12]. Senate
Standing Committee for the Selection of Bills, Report,
2, 2018, The Senate, Canberra, 15 February 2018.
[13]. A
Rishworth, ‘Second
reading speech: Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms
No. 1) Bill 2018’, House of Representatives, Debates, (proof), 27
February 2018, p. 51.
[14]. R
Sharkie, ‘Second
reading speech: Veterans’ Affairs Legislation Amendment (Veteran-centric
Reforms No. 1) Bill 2018’, House of Representatives, Debates,
(proof), 28 February 2018, p. 134.
[15]. Explanatory
Memorandum, Veterans’ Affairs Legislation Amendment (Veteran-centric
Reforms No. 1) Bill 2018, p. 2.
[16]. Ibid.,
pp. 3–14.
[17]. DVA,
‘6.5.1
Brief intervention counselling to assist with adjustment to disability or
injury and/or pain management’, Rehabilitation Policy Library, DVA
website, last amended 2 November 2016.
[18]. Explanatory
Memorandum, op. cit., p. 17.
[19]. Australian
Government Response to the Senate Foreign Affairs, Defence and Trade
Committee report, The constant battle: suicide by veterans, op. cit.,
pp. 4–5.
[20]. Senate
Foreign Affairs, Defence and Trade References Committee, The constant
battle: suicide by veterans, The Senate, Canberra, August 2017, p. 130.
[21]. Australian
Government Response to the Senate Foreign Affairs, Defence and Trade
Committee report, The constant battle: suicide by veterans, op. cit.,
pp. 14–15.
[22]. DHS,
‘Assistance
with child care fees’, DHS website, 22 February 2018.
[23]. Military
Rehabilitation and Compensation (Warlike Service—2017 Measures No. 1)
Determination 2017.
[24]. Explanatory
Memorandum, op. cit., p. 20.
[25]. Australian
Government Response to the Senate Foreign Affairs, Defence and Trade
Committee report, The constant battle: suicide by veterans, op. cit.,
pp. 3–4.
[26]. Senate
Foreign Affairs, Defence and Trade References Committee, The constant
battle: suicide by veterans, op. cit., pp. 84, 108.
[27]. D
Tehan, ‘Ministerial
statement: Veterans: Government Response to Report’, House of
Representatives, Debates, 24 October 2017, p. 11705.
[28]. Ibid.
[29]. DVA
and Department of Defence, Joint
inquiry into the facts surrounding the management of Mr Jesse Bird’s case:
review recommendations, [24 October 2017], p. 3.
[30]. D
Tehan, ‘Ministerial
statement: Veterans: Government Response to Report’, op. cit.
[31]. Ibid.
[32]. Australian
Government Response to the Senate Foreign Affairs, Defence and Trade
Committee report, The constant battle: suicide by veterans, op. cit.,
pp. 3–4.
[33]. Explanatory
Memorandum, op. cit., pp. 2, 5.
[34]. M
McCormack, ‘Second
reading speech: Veterans’ Affairs Legislation Amendment (Veteran-centric
Reforms No. 1) Bill 2018’, House of Representatives, Debates, 15
February 2018, p. 1615.
[35]. Explanatory
Memorandum, op. cit., p. 22.
[36]. DVA,
‘Factsheet
DP29 – Special and intermediate rates’, DVA website, 12 October 2017.
[37]. Explanatory
Memorandum, op. cit., p. 22.
[38]. Ibid.,
p. 46
[39]. New
paragraph 45SB(1)(d), inserted by item 1.
[40]. Ibid.,
p. 23.
[41]. Items
464–493 of Schedule 2. See also: DVA, ‘Factsheet IS88
– Asset Test Overview’, DVA website, last updated 20 March 2018; DVA, ‘Factsheet
IS87 – Income Test Overview’, DVA website, last updated 20 March 2018.
[42]. DVA,
‘Factsheet
CEP01 – energy supplement’, DVA website, last updated 20 March 2018.
[43]. Ibid.
[44]. See
D Arthur and M Klapdor, Social
Services Legislation Amendment (Ending Carbon Tax Compensation) Bill 2017,
Bills digest, 3, 2017–18, Parliamentary Library, Canberra, 3 August 2017.
[45]. Explanatory
Memorandum, op. cit., p. 25.
[46]. Australian
Government, Budget
measures: budget paper no. 2: 2017–18, p. 177.
[47]. Explanatory
Memorandum, op. cit., p. 6.
[48]. Explanatory
Memorandum, op. cit., p. 58; DVA, ‘Coordinated
Veterans’ Care’, DVA website.
[49]. Ibid.
[50]. Ibid.
[51]. Table
item 8 of clause 2 of the Bill.
[52]. Explanatory
Memorandum, op. cit., p. 61.
[53]. Ibid.,
p. 2 and table item 8 of clause 2 of the Bill.
[54]. DVA,
‘The
importance of qualifying service’, Vetaffairs, 32(2), Winter 2016.
See also DVA, ‘Factsheet
IS58 - qualifying service in post-second world war conflicts’, DVA website,
updated 8 February 2017; DVA, ‘Factsheet
IS57 - Australian, Commonwealth and allied world war 2 veterans qualifying
service’, DVA website, updated 8 February 2017.
[55]. Explanatory
Memorandum, op. cit., p. 65.
[56]. Ibid.
[57]. Ibid.,
p. 2 and table item 8 of clause 2 of the Bill.
[58]. P
Pyburne, Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016,
Bills digest, 56,
2016–17, Parliamentary Library, Canberra, 25 January 2017.
[59]. DVA,
‘Factsheet
MCS01 – Overview of the Safety, Rehabilitation and Compensation
(Defence-related Claims) Act 1988 (DRCA)’, DVA website, last updated 12
October 2017.
[60]. DVA,
‘Veterans’
health cards’, DVA website.
[61]. M
McCormack, ‘Second
reading speech: Veterans’ Affairs Legislation Amendment (Veteran-centric
Reforms No. 1) Bill 2018’, op. cit., p. 1615. For more information on this
measure see M Klapdor, Veterans’
Affairs Legislation Amendment (Budget Measures) Bill 2017, Bills
digest, 113, 2016–17, Parliamentary Library, Canberra, 15 June 2017.
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.