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Veterans'
Affairs Legislation Amendment (Military Compensation Review and Other Measures)
Bill 2013
Introduced into the House of
Representatives on 20 March 2013
Portfolio: Veterans' Affairs
Summary of committee view
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The committee
seeks clarification as to whether certain amendments in the bill may result in
a person receiving lesser amounts of compensation or treatment options and, if
so, how this is consistent with the right to social security.
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The committee
seeks further information in relation to broad information sharing powers and
how this is consistent with the right to privacy.
Overview
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This bill amends
the Military Rehabilitation and Compensation Act 2004 and other
legislation to give effect to initiatives that form part of the government’s
response to the Review of Military Compensation Arrangements. The bill also
amends Veterans’ Affairs legislation to enable travelling expenses to be paid
for the partners of certain eligible persons and clarify arrangements relating
to bank accounts and in relation to certain treatment costs.
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In particular,
the bill:
- amends
arrangements in relation to rehabilitation and transition management for
Defence Force members (Schedule 1);
- provides for
permanent impairment compensation to be payable earlier for eligible persons
and to recalculate payments to take into account the effect of an injury or
disease on a person's lifestyle, and change the methodology for recalculating
payments (Schedule 2);
- expands options
to allow lump sum compensation (instead of weekly compensation) for wholly
dependent partners of deceased members and increases the rate of periodic
compensation payable for dependent children of deceased members (Schedules 3
and 4);
- increases the
amount of compensation for financial advice and includes legal advice within
the new limit (Schedule 5);
- expands the
eligibility criteria for Special Rate Disability Pension (Schedule 6);
- makes changes to
certain superannuation provisions so that they apply equally to serving and
former members (Schedule 7);
- provides the
Veterans' Review Board with an explicit power to remit a matter to the Military
Rehabilitation and Compensation Commission (MRCC) for it to conduct a needs
assessment and determine compensation (Schedule 8), and increases
membership of the MRCC (Schedule 9);
- requires all
claims for conditions accepted under the Veterans' Entitlements Act 1986
and aggravated by defence service after 1 July 2004 to be determined
under that Act – removing the current choice to have those claims determined
either under that Act or the Military Rehabilitation and Compensation Act
2004 (Schedule 10);
- requires
treatment for an injury recognised under the Safety Rehabilitation and
Compensation Act 1988 to be provided under other legislation, to achieve
consistency in treatment arrangements for all former Defence Force members
(Schedule 11);
- includes certain
categories of persons as 'members' under the Military Rehabilitation and
Compensation Act 2004, to provide certainty about access to rehabilitation
and compensation for these defined groups (Schedule 12);
- clarifies which
Commonwealth organisation is responsible for the cost of aged care services for
eligible Veterans' Affairs clients (Schedule 13);
- extends the
entitlement for travelling expenses for the partner of an eligible person who
is required to travel with them to participate in their treatment (Schedule
14);
- streamlines the
administrative arrangements for the payment of pensions, compensation and other
pecuniary benefits into bank accounts (Schedule 15); and
- clarifies which
payments made under the Military Rehabilitation and Compensation Act 2004
are excluded income for the purposes of the Social Security Act 1991 and
provides for the recovery of compensation that should not have been paid.
Compatibility with human
rights
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The bill is
accompanied by a self-contained statement of compatibility that examines each
Schedule of the bill for compatibility with human rights. It identifies the
right to social security, the right to health, the right of people with
disabilities and the right to privacy as being enhanced by the bill.[1]
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The
committee agrees that the provisions in the bill that provide for more
effective delivery of services or treatment to injured and ill Defence Force
members promote the right to health under article 12 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and many of the
rights contained in the Convention on the Rights of Persons with Disabilities.
The committee also agrees that increases in the amount of compensation payable
and expansion of the eligibility criteria for members promotes the right to
social security under article 9 of the ICESCR.
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The
committee seeks clarification as to the effect of some of the amendments in the
bill on the right to social security and the right to privacy.
Right
to social security and the right to health
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There are a
number of provisions in the bill where it is unclear what the effect of the
amendments might be and whether it may have an adverse impact on the enjoyment
of the right to social security.
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Schedule 2 of
the bill revises the methodology used for calculating the amount of permanent
impairment compensation a person is to be paid where the person already has an
injury or disease that has been accepted under certain Acts. The explanatory
memorandum explains:
It has been
found that the methodology that has been used may have resulted in a lower or
higher net permanent impairment compensation payment than expected ...
As a
consequence the methodology has been changed and will be applied both
prospectively and retrospectively. Where retrospective application of the new
methodology results in a lower amount of compensation for an existing
recipient, the existing rate will apply until a new assessment results in a
higher amount.[2]
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It appears from
this description that the new methodology may result in a lower amount of
compensation for some people. Although the explanatory memorandum says that
where retrospective application results in a lower amount of compensation the
existing rate will apply, it is unclear if this is provided for in the
legislation and it is also unclear whether there will be lower rates applied to
prospective applications. The statement of compatibility only states:
The
amendments promote the right to social security by providing for permanent
impairment compensation to be payable earlier to eligible persons and also for
a recalculation of the amount that was previously payable.[3]
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Schedule 10
removes the ability for claimants to choose to have certain claims determined
under the Military Rehabilitation and Compensation Act 2004 (instead
requiring claims to be determined under the Veterans' Entitlements
Act 1986). The statement of compatibility states that this promotes
the right to social security 'by reducing the complexity and confusion for
claimants and reducing the burden in the administration of claims'.[4]
However, it is unclear whether this change would result in any change to the
level of compensation payable, access to review rights, or in other respects.
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In addition,
Schedule 11 requires treatment for an injury recognised under the Safety
Rehabilitation and Compensation Act 1988 to be provided under the Veterans'
Entitlements Act 1986 or the Military Rehabilitation and Compensation
Act 2004. The explanatory memorandum provides that this is intended
'to achieve consistency in treatment arrangements for all former Defence Force
members'.[5]
It is unclear whether this change will affect the level of treatment available
to a person. Proposed new section 144C in Schedule 11 provides that the
Military Rehabilitation and Compensation Commission (MRCC) can determine that
parts of these provisions will not apply if satisfied there are 'exceptional
circumstances'; which suggests there may be situations where a person may be
adversely affected by the changes. However, the statement of compatibility
simply states that the amendments will promote the right to health as they will
provide for 'more effective delivery of treatment'.
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The
committee intends to write to the Minister for Veterans' Affairs to seek
clarification as to whether the changes in Schedules 2, 10 and 11 of the bill
may result in a person receiving lesser amounts of compensation or different
levels of services or treatment options and, if so, how this is consistent with
the right to social security under article 9 of the ICESCR and the right to
health under article 12 of the ICESCR.
Right
to privacy
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The statement of
compatibility states that the right to privacy under article 17 of the
International Covenant on Civil and Political Rights (ICCPR) is 'advanced' by
the bill, as it provides for greater sharing of personal information.
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In Schedule 11
of the bill, new item 15 introduces a new section 151A which enables staff of
the MRCC to provide 'any information obtained in the performance of duties' to
the Secretary of the Department of Health, the Department of Human Services and
the Chief Executive of Medicare and Centrelink, to be used for the purposes of
the relevant Department, Centrelink or Medicare. This is a broad
information-sharing power and could, presumably, allow for information about a
claimant to be shared which may cause them to be investigated by the
Department, Centrelink or Medicare. No reasons are given, in either the
statement of compatibility or the explanatory memorandum, as to why this
provision is necessary. The statement of compatibility simply states that the
purposes for which the information can be shared 'are limited to those which
assist the Departments and the agencies to perform their legislative functions
and powers and are subject to the principles set out in the Privacy
Act 1988'.[6]
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The
committee intends to write to the Minister for Veterans' Affairs to seek
further information as to what objective new section 151A in Schedule 11 of the
bill is seeking to achieve in giving broad information sharing powers and how
this is consistent with the right to privacy and how this limitation might be
said to 'advance' human rights as stated in the statement of compatibility.
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Schedule 15 also
engages the right to privacy as it enables the MRCC and the Repatriation Commission
to use the details of a nominated bank account for the purposes of making
payments into bank accounts. As this is limited to using the account details
for the limited purpose of making compensation payments into accounts, the
committee is satisfied that this does not appear to give rise to human rights
concerns.
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