Chapter 1Introduction
Referral of the Bill
1.1On 3 July 2024, the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024 [Provisions] (the Bill) was introduced into the House of Representatives by the Minister for Veterans’ Affairs (the Minister), the Hon Matt Keogh MP.
1.2On 4 July 2024, pursuant to the Senate Selection of Bills Committee Report, the provisions of the Bill were referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the Committee) for inquiry and report by 3 October 2024.
Structure of the report
1.3The report contains three chapters:
This chapter covers the purpose and key provisions of the Bill, as well as the conduct of the inquiry.
Chapter 2 provides background information on the current legislative framework for veterans’ entitlements, rehabilitation and compensation, previous inquiries into the complexity of the legislative framework, and the Government’s consultation on the Bill.
Chapter 3 canvasses the key issues raised by submitters and witnesses, and sets out the Committee’s views and recommendation.
Purpose of the Bill
1.4The Bill aims to simplify and harmonise the existing tri-Act framework of legislation governing veterans’ entitlements, rehabilitation and compensation arrangements by creating a ‘single ongoing Act’ model. The explanatory memorandum (EM) states that this single Act will provide greater clarity and consistency around entitlements for veterans and their families.
1.5Currently, there are three pieces of primary legislation governing veterans’ entitlements, rehabilitation and compensation:
(a)Veterans' Entitlements Act 1986 (VEA);
(b)Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA); and
(c)Military Rehabilitation and Compensation Act 2004 (MRCA).
1.6All three Acts provide for medical treatment and rehabilitation services as well as other allowances. Compensation can be broadly paid for impairment (loss of lifestyle and loss of function), incapacity for service or work (income loss), and service-related death of a veteran where there are dependants. Eligibility under each of the Acts is generally determined by when an individual’s service occurred, the type of service rendered and the date of onset of an injury or disease.
1.7The current legislative framework is widely acknowledged as being complex, difficult to navigate and challenging to administer, contributing to delays and inconsistent claims processing. The Department of Veterans’ Affairs (DVA) noted that the structural differences between these Acts often results in ‘very different and seemingly inequitable compensation outcomes for veterans with similar conditions’. Calls to simplify these arrangements are longstanding.
1.8The Minister stated that the Bill responds to the Royal Commission into Defence Veteran Suicide’s (the Royal Commission) interim report which found that the veterans’ entitlement system is so complicated that it adversely affects the metal health of some veterans and recommended legislative reform to simplify and harmonise the system. The Royal Commission is discussed in further detail in Chapter 2 of this report.
1.9The Minister explained the complexity of the current system and why reform is needed:
Veteran claims for benefits and support are currently assessed under three different pieces of legislation depending on the time someone served, and the nature of their service. Often veterans have had claims dealt with under all three pieces of legislation.
This is the result of decades of piecemeal change and fringe reform built on top of a century of different veterans' entitlements legislation.
…
Anyone who has engaged with the current veteran compensation system will tell you the system is unnecessarily complicated, difficult to understand and has negatively impacted veterans. This same complexity has directly contributed to delays, inconsistent processing, uncertain outcomes and claims backlogs.
1.10The Minister described the Bill as the ‘most significant reform of the veterans’ entitlements legislation since the introduction of the [MRCA] 20 years ago’ and as the ‘most significant shift in approach to veterans’ entitlements legislation in the nearly 40 years since the [VEA] was introduced’.
1.11The Bill sets out that the MRCA will operate as the single ongoing Act going forward from 1 July 2026, providing coverage for all future claims for compensation, irrespective of when and where the veteran served, or when their injury or illness occurred. To support this ‘single ongoing Act’ model, the VEA and the DRCA will continue in a limited form and be closed to new claims for compensation and rehabilitation from 1 July 2026.
1.12DVA stated that a key principle of the Bill is that ‘there will be no reduction in payments that veterans or families previously received or are receiving when the new arrangements commence’.
Provisions of the Bill
1.13The Bill contains eight schedules.
Schedule 1
1.14Schedules 1 and 2 of the Bill provide for the main changes to the veterans’ compensation schemes, including closing the VEA and DRCA to new compensation claims and adding enhancements to the MRCA.
1.15Schedule 1 would make the following amendments to the MRCA:
opening the MRCA to pre-2004 conditions and close eligibility to compensation and rehabilitation under the DRCA and VEA from 1 July 2026;
service classifications for pre-2004 operations that were recognised under the VEA would be replicated under the MRCA. Coverage for all types and periods of service in the VEA, including warlike, non-warlike, peacekeeping, operational, hazardous, and British nuclear test defence would be continued in the MRCA;
ensuring that there is no need for veterans to retest injuries or diseases already accepted under the VEA or DRCA;
simplifying permanent impairment compensation assessments under the MRCA by commencing payment from the first day of the month, based on the treating doctor’s estimated date of effect;
incapacity payment recipients under the DRCA would be brought across and paid under the MRCA from the date of commencement, granting access to additional amount(s) for remuneration loading as part of their ‘normal earnings’ calculations, as well as removing the 5 per cent deduction that currently occurs under the DRCA for those eligible to receive superannuation;
adding a new provision to the MRCA allowing liability to be accepted for injuries that were sustained while a person was on duty as an Australian Defence Force (ADF) member, providing for a ‘temporal’ connection between service and medical conditions (such as heart attacks and strokes)—currently the MRCA requires a ‘causal’ link to service;
enabling legal personal representatives to have the option to convert a deceased veteran’s permanent impairment compensation entitlement (excluding the lifestyle components) to an age-based lump sum, for payment to the estate;
increasing the cap on common law damages from $110 000 to $177 000;
streamlining information sharing processes between the Repatriation Commission, the Department of Defence (Defence) and the ADF to improve claims processing timeframes;
consolidating the provisions for rehabilitation and motor vehicle compensation and setting out the arrangements for those accessing an existing program or support to transition to the MRCA, to improve equitable access to these services—previously, VEA veterans have not had access to a comprehensive medical and psychosocial rehabilitation scheme like that offered under the DRCA and MRCA; and
including an instrument-making power to allow the Repatriation Commission to specify circumstances and the classes of persons who are required to obtain financial and/or legal advice before compensation or other benefits are paid under the MRCA, such as receiving a lump sum.
Schedule 2
1.16Schedule 2 would make the following amendments to the MRCA:
retains the automatic death compensation in respect of certain VEA veterans under the MRCA, with an increased funeral benefit cap of $3 000 (up from the current $2 000) for those who would have met the relevant VEA criteria. Additionally, funeral compensation with a combined cap of $14 062.53 would be extended to all service-caused veteran deaths that occur on or after the date of commencement;
consolidating assistance and services provided under the acute support package, including enabling VEA veterans to access compensation for household services and attendant care services through the MRCA—which they previously did not have access to;
transfers the payment of Victoria Cross allowance to the MRCA (with no change to eligibility requirements) and adds a new instrument-making power in the MRCA to provide for decoration allowance to continue;
includes provisions relating to ex-gratia payments to former prisoners of war in other Acts and transfers the prisoner of war recognition supplement in the VEA to the MRCA, with no change to eligibility requirements;
consolidating arrangements for children’s education assistance into the MRCA, with access extended to the eligible children of DRCA veterans who transition to the MRCA—which they previously did not have access to;
broadening the Repatriation Commission’s instrument making power to provide special assistance to veterans and families under extenuating circumstances;
transfers elements of the framework for the provision of treatment, including Non-Liability Health Care, and the Repatriation Commission’s powers to determine specific treatment programs and classes of eligible persons, from the VEA to the MRCA, with no change in eligibility requirements;
ensuring that upon acceptance of a new or worsening compensable impairment under the MRCA, any existing VEA/DRCA impairment would be included for the points thresholds to be eligible for the Gold Veteran Card under the MRCA;
integrating travel entitlements into a single system, payable under the MRCA, improving arrangements such as removing the 50 km round trip minimum, and those currently receiving benefits under the VEA will receive the higher MRCA reimbursement rates;
introduces ‘presumptive liability’ provisions that would facilitate consistent and streamlined claims processing by allowing the Repatriation Commission to make an instrument specifying certain injuries or diseases that may be accepted on an assumed basis; and
introduces the Additional Disablement Amount (ADA) into the MRCA, which is modelled on a similar payment under the VEA known as Extreme Disablement Adjustment (EDA). The new payment would ensure there is equivalent coverage for veterans who are prevented from accessing the EDA rate of compensation due to implementation of the single-ongoing Act model. Dependants of deceased veterans who were eligible for ADA under the MRCA will have access to a Veteran Gold Card, wholly dependent partner payment and, if applicable, compensation and access to education assistance for eligible young persons.
Schedule 3
1.17Schedules 3, 4 and 5 make amendments to ensure all veterans and families access the same rights to review of their claims and entitlements and are overseen by the same statutory review bodies.
1.18Schedule 3 proposes amendments to the administrative review process for decisions made in relation to veterans’ compensation. The DRCA currently has a different review process to the VEA and MRCA. The proposed amendments will provide those seeking reviews of decisions made under the DRCA with a review process similar to that currently available under the other two schemes, including access to the Veterans’ Review Board (VRB). DVA described the VRB as an accessible, veteran-centric and non-combative environment for veterans and dependants to retest their claims, stating that ‘access to the VRB removes the need for veterans to obtain legal counsel simply for a review of their claims’.
1.19The Administrative Appeals Tribunal (AAT) reviews of decisions by the VRB would continue as a second step in the review pathway. The internal review process for DRCA decisions will also be aligned with that for VEA/MRCA compensation decisions.
1.20The main provisions in relation to the VRB, its functions, powers and processes, will be moved from the VEA to the MRCA. A range of changes would be made in relation to processes, terminology, offences, appointments, and travel expenses, and are summarised in the EM.
1.21The ‘Single Review Pathway’ is proposed to begin 60 days after Royal Assent—earlier than the broader changes in the Bill which commence from 1 July 2026.
Schedule 4
1.22Schedule 4 of the Bill would transfer the powers and functions of the Military Rehabilitation and Compensation Commission (MRC Commission) to the Repatriation Commission. Provisions dealing with the Repatriation Commission will be moved from the VEA into the MRCA.
1.23Currently, the MRC Commission and Repatriation Commission have equivalent functions with the MRC Commission having governance and decision-making powers in relation to the DRCA, and the Repatriation Commission having the same powers in relation to the VEA.
1.24The membership of the proposed new Repatriation Commission under the MRCA will have a different membership to the current commissions. Presently, the four members of the Repatriation Commission are also members of the MRC Commission. The MRC Commission also has two members nominated by the Minister for Defence and one by the Minister for Employment and Workplace Relations (who has responsibility for the DRCA). The President of the Repatriation Commission and the Chair of the MRC Commission is currently the Secretary of the DVA.
1.25The Bill proposes that the new membership will have the DVA Secretary continue as President. There would be two full-time commissioners, including the Repatriation Commissioner and the Veteran Family Advocate Commissioner, and a number of part-time commissioners, including:
a person nominated by the Minister for Defence—the nominee must be a permanent ADF member or a Defence public servant);
a person representing Comcare;
a person representing the Commonwealth Superannuation Corporation; and
up to three additional commissioners as determined by the Minister.
1.26This would provide for 6–9 members of the MRCA Repatriation Commission—up from a maximum of five members for the current VEA Repatriation Commission and seven for the MRC Commission.
Schedule 5
1.27Schedule 5 of the Bill moves provisions relating to the Repatriation Medical Authority and the Specialist Medical Review Council to the MRCA. This will transfer the legislative basis for the Statements of Principles (SoPs) used to establish liability to the MRCA.
Schedule 6
1.28Schedule 6 of the Bill would change the date a disability compensation payment under the VEA ceases to the date of the veterans’ death rather than the final payment instalment period preceding their death. This aligns with the MRCA.
Schedule 7
1.29Schedules 7 and 8 set out the transitional provisions and consequential amendments required for the move to the new scheme, including the interaction with the law that was in force immediately prior to the commencement of the scheme.
1.30Schedule 7 includes the following provisions:
allowing for claims which span the period before and after 1 July 2026 (where a claim is made prior to commencement but not determined until after commencement);
setting out the circumstances in which MRCA compensation can be paid for injuries or diseases previously compensated for under the VEA or DRCA, including cases where the veterans’ condition has deteriorated or worsened;
preserving the validity of functions previously done by the Repatriation Commission and the MRC Commission, the Repatriation Medical Authority and the Specialist Medical Review Council, in accordance with the legislation in place at the time. For example, SoPs previously issued by the Repatriation Medical Authority;
transferring DRCA incapacity payment recipients to MRCA incapacity payments;
transferring VEA Veterans’ Children Education Scheme recipients to the MRCA Education and Training Scheme; and
providing the Governor-General with a regulation-making power to prescribe transitional arrangements in relation to the reforms, including for providing a method to convert lump sum amounts into weekly amounts for the purpose of offsetting DRCA and VEA amounts against the new ADA. The EM states that this is a time-limited regulation-making power, but no time limit is imposed in the Bill.
Schedule 8
1.31Schedule 8 of the Bill makes consequential amendments to a wide range of legislation, such as in the areas of social services, treasury, and health, to update references to the veterans’ compensation schemes and the Repatriation Commission/MRC Commission—to reflect the MRCA as the primary statute for veteran matters and the merging of the commissions. The most significant consequential amendments are the updates to the Social Security Act 1991 and the Income Tax Assessment Act 1997 to take account of the new payment of ADA and the compensation payments and support schemes that have been shifted from the VEA to the MRCA.
1.32DVA stated that these amendments will ensure the same policy for the payments (and payments of a similar nature) currently listed, is applied to the tax and means test treatment for payments issued under the single ongoing Act.
Financial impact statement
1.33The EM’s financial impact statement states the measures in the Bill have a financial impact of $222 million over four years to 2027–28.
Compatibility with human rights and legislative scrutiny
Human rights
1.34The statement of compatibility with human rights in the Bill’s EM states that the Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
1.35The Parliamentary Joint Committee on Human Rights (Human Rights Committee) considered the Bill in its Human Rights Scrutiny Report 6 of 2024. The Human Rights Committee commented on and suggested amendments to the Bill in relation to the rights to freedom of assembly and expression.
1.36The Human Rights Committee outlined that the Bill would provide that a person commits an offence, punishable by imprisonment for six months, if they engage in certain conduct with respect to the VRB, including if they: insult a person in relation to the exercise of that person’s powers or functions under the MRCA; interrupt proceedings of the VRB; create a disturbance in or near a place where the VRB is sitting; or engage in conduct that would constitute a contempt of court.
1.37The Human Rights Committee considered that this engages and may limit the right to freedom of assembly, and questioned the proportionality of the offence with the purpose of the measure to promote the effective operation of the VRB.
1.38The Human Rights Committee suggested that the Bill be amended to assist the proportionality of this measure and that the statement of compatibility be updated to provide an assessment of the compatibility of the measure with the rights to freedom of assembly and freedom of expression which are currently not referred to.
1.39At the time of writing, the Minister had responded directly to the Human Rights Committee, but that response had not been published.
Legislative scrutiny
1.40The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) commented on the Bill in its Scrutiny Digest 9 of 2024 and requested advice from the Minister on the following matters:
what mechanisms are in place to report to the Parliament on any expenditure authorised by the standing appropriations;
whether incorporated documents under proposed subsection 287B(3) will be made freely available to all persons interested in the law, and why it is necessary to apply the documents as exiting from ‘time to time’ rather than when the instrument is first made;
undue trespass on rights and liberties, and the appropriateness of the broad scope of offence provisions and significant penalties proposed in subsection 353L;
the appropriateness of the reversal of the evidential burden of proof and strict liability offences under proposed sections 353H and 353J;
why it is necessary and appropriate for the delegation of the Minister’s and Commission’s administrative powers under proposed subsection 212(1) and 360DB.
1.41The Committee understands that the Minister had responded to the matters raised by the Scrutiny Committee, but at the time of writing the Minister’s response had not been published.
Conduct of the inquiry
1.42Details of the inquiry were made available on the Committee’s website. The Committee contacted a number of organisations and individuals inviting written submissions by 31 July 2024. In response to requests from submitters for an extension to the due date, the Committee agreed to extend the submission due date to 10 September 2024.
1.43The Committee received 32 submissions which are listed at Appendix 1.
1.44The Committee held two public hearings in Canberra on 16 August 2024 and 13 September 2024. The witness lists for these hearings can be found at Appendix 2.
Acknowledgement
1.45The Committee thanks the individuals and organisations that took the time to contribute to the inquiry.