Many of the complaints made regarding the current system of
compensation and rehabilitation for veterans are related to the overall
legislative framework. In this context, this chapter will cover discussion
previous reviews of compensation arrangements;
recent proposed legislative reform;
key compensation issues;
issues concerning complexity and inconsistency;
support for a large scale review; and
issues raised regarding the role of the Repatriation Medical
Authority (RMA) and application of the Statements of Principles (SoPs).
Previous reviews of military compensation arrangements
DVA noted that Australia's military compensation arrangements
have been regularly reviewed and updated since their introduction prior to the
First World War. It listed 12 major reviews of compensation arrangements
between 1975 and 2000.
In particular, A Fair Go: Report on Compensation for Veterans and War Widows
undertaken by Professor Peter Baume (Baume review) in 1994 led to significant
changes. DVA highlighted findings of three previous reviews:
the Review of the Military Compensation Scheme (Tanzer review) in
the Review of Veterans' Entitlements (Clarke review) in 2003; and
the Review of Military Compensation Arrangements (MRCA review) in
The findings of the Independent Study into Suicide in the
Ex-Service Community by Professor David Dunt (Dunt review) in 2009 are also
The Baume review followed an Auditor-General report which
criticised compensation arrangements for veterans and their families and a
decision of the High Court in Bushell v Repatriation (1992) 175 CLR 408 which
impacted the way in which medical evidence was required to link a disease or
disability with war service.
The Baume review believed that the Bushell decision would have 'a
significant effect on the acceptance rates of claims, both in the first
instance, and on appeal'. It noted that the standard of proof used was unique
to the veterans' jurisdiction but characterised it as 'confusing and complex to
apply', 'subject to wide interpretation', 'excessively generous' and 'offers
potential for exploitation through "doctor shopping"'.
After weighing alternative options, the Baume review recommended
the standard of proof should be changed to 'one which is fair and generous,
while consistent in its application and legally unambiguous'. It recommended
that 'the standard on proof be based on the legally accepted "civil
standard" with the provision that the benefit of doubt be in the favour of
veterans with operational service'.
The intention of this amendment is to move away completely
from the inappropriate and confusing reverse criminal standard with the
reasonable hypothesis test. The aim is to use a test which already is well
tested but make it more beneficial than usual.
The Baume review also recommended that an independent expert
medical committee be established to resolve general medical issues and to
formulate statements of principle for application to all decision-making.
The Australian Government did not accept the Baume review's recommendation and
retained the concepts of 'reasonable hypothesis' and the reverse onus of proof
to the criminal standard. However, the Baume review led to the introduction of Statements
of Principles (SoPs) and the establishment of the Repatriation Medical
Authority and the Specialist Medical Review Council (SMRC).
The Tanzer review arose from issues relating to compensation
differences between the VEA and SRCA following the Black Hawk crash in
Townville in June 1996. The Tanzer review concluded that it would inappropriate
to attempt to amend the VEA and SRCA and considered that there should be new
scheme. It suggested 'a single self-contained military compensation scheme for
peacetime service which recognises the different nature of military service
from civilian employment'.
The recommendations of the Tanzer review led to the enactment of a new military
compensation scheme under the MRCA in 2004.
As the MRCA was being developed, the Clarke review was
established in 2002 to examine perceived anomalies in access to veterans'
entitlements and of levels of benefits available to disability pensioners. It
observed that '[a]lthough many legislative measures were consolidated with the
passage into law of the VEA in 1986, the eligibility provisions remain complex
and partly reflect historical concepts that are difficult to apply'.
The review's report in 2003 made 109 recommendations relating to the
extension of coverage under the VEA, changes to the disability compensation
pension structure and the establishment of an integrated and comprehensive
As noted above, an independent study into suicide in the
ex-service community was undertaken by Professor David Dunt. The terms of
reference of the study included 'highlighting changes in current policies,
procedures and practices that exist in DVA that would minimise potential
stress'. The Dunt review commented:
It is widely recognised that the three military compensation
schemes – Veterans' Entitlement Act (VEA), Safety Rehabilitation and
Compensation Act (SRCA) and Military Rehabilitation and Compensation Act (MRCA)
- are difficult for veterans to navigate and DVA delegates to advise and
process. They also have differing aims - VEA is essentially a military compensation
scheme, SRCA a worker's compensation scheme oriented to rehabilitation and MRCA
has features of both...It would simplify the scheme considerably if the three acts
could be rolled-up into one successor Act. It is worth noting that Canada and
US have one scheme only and the UK one past and present scheme operating.
The Dunt study review observed that 'the operation of MRCA and veterans'
compensation more generally will be reviewed in 2009' and the report did not
include a recommendation on this matter. The report acknowledged 'it is also
not clear if it is possible to roll-up VEA, SRCA, MRCA into a successor scheme
so that only one scheme exists and again do this without detriment to the
existing benefits that a veteran would otherwise be entitled to obtain under
The MRCA review was conducted by a steering committee chaired by
the then Secretary of DVA, Mr Ian Campbell PSM. DVA noted that MRCA review had broad
terms of reference which included 'the examination of the performance of DVA in
relation to the operation of the MRCA, review of the size of benefits payable
for death and serious injury under the MRCA' and an analysis of any anomalies
that existed between the MRCA and other veterans entitlements.
The MRCA review produced its report in March 2011. It concluded
that the objectives of the MRCA were sound and that the unique nature of
military service justified rehabilitation and compensation arrangements
specific to the needs of the military. It also made a large number of recommendations
concerning opportunities for improvements. Accepted recommendations have been
progressively implemented and the MRCA Review was formally closed with ministerial
approval in September 2016.
DVA emphasised that the MRCA review steering committee 'considered
the complexities which exist for clients who have eligibility across two or
three Acts and acknowledged that reducing the amount of military compensation
legislation would be highly desirable':
However, the Steering Committee also confirmed that
consolidating entitlements into one Act would require the resolution of several
complex, sensitive and potentially controversial issues.
Apart from the different entitlements under the three Acts,
other reasons why there is no simple, singular approach to address or fix the
current complexities include:
- there are accrued rights issues in changing entitlements once they have
been accrued through periods of service;
complex transitional arrangements would be needed to protect existing
entitlements and ensure no detriment to individuals; and
uniform compensation benefits could be seen as inconsistent with the
nature of military service, and would imply, or could be interpreted to mean,
that all military service is the same.
Given the complexity of these legislative issues, the MRCA
Review recommended that DVA concentrate on continuing to simplify the claims
process for potential claimants.
Recent proposed legislative reform
The Parliament is currently considering the Safety,
Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016.
This bill will duplicate the existing SRCA as a standalone act, with
appropriate amendments to give full control of the act to the Minister for
Veterans' Affairs. The standalone act created by the bill will be titled the
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988
DVA has noted that the DRCA was being created by the bill to
'enable the Minister for Veterans' Affairs to solely administer all legislation
relating to veterans' entitlements [allowing] the recognition of the unique
nature of military service that may not be appropriate for civilians under the
SRCA'. This would allow the Minister for Veterans' Affairs 'opportunities to
start examining streamlining, simplification and alignment of legislation'.
On 9 February 2017, the Senate referred the provisions of the
Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force)
Bill 2016 to the Senate Foreign Affairs, Defence and Trade Legislation
Committee for inquiry and report by 20 March 2017. The committee considered
that the amendments would be 'a positive change to ensure that all three of the
main legislative compensation and rehabilitation schemes for ADF members,
veterans and their dependents can be responsive to the unique nature of
military service'. This would facilitate 'reform to simplify and harmonise the
legislative schemes, departmental practices and the claims processes for ADF
members and veterans'.
Key issues concerning compensation arrangements
DVA characterised establishing appropriate compensation levels for
veterans as 'a fine balance of a number of principles'. It listed these
meeting the needs and expectations of veterans and their
recognition of the unique nature of military service;
meeting community expectations of support and care for veterans
and their families;
ensuring modern approaches to rehabilitation and compensation;
recognition of other Australian government compensation payments;
responsible economic management.
DVA acknowledged that a '[c]omparison of compensation levels
across the three Acts is not simple as there are different forms of
compensation and other support structures, eligibility rules, assessment methods
and scales of compensation in each Act'. It stated:
Compensation provided under each Act cannot be considered in
isolation. Each Act has different thresholds and other complementary benefits
that must be taken into consideration to make an accurate comparison. The
compensation provided must be considered in terms of the total benefits that
In this context, Mr Craig Orme from DVA highlighted the important
role of the Commonwealth Superannuation Corporation (CSC) and access to invalidity
class A, class B and class C benefits:
If a member is medically discharged, the first assessment
that is made on discharge, or prior to discharge, is the determination under
the [CSC], which is effectively the insurance scheme covering ADF employment,
which is not about liability but simply about the capacity of the individual to
work. If a member is injured outside of work hours in a private capacity, they
may not be covered under the [MRCA]. They are covered, however, by the [CSC].
If they are medically discharged, if their invalidity or impairment to work is
assessed at 60 per cent or higher they are given an invalidity class A pension;
if it is 30 to 59 per cent there is an invalidity class B pension, and below
that there is a capability to work and access to certain superannuation
In comparison to public servants covered by SRCA, Ms Carolyn
Spiers, Principal Legal Adviser, DVA observed:
The rates payable for permanent impairment under MRCA are
higher than that under SRCA. There are things like the Gold Card available
under MRCA that are not available under SRCA. There is the safety net of the
SRDP pension under MRCA that is not under SRCA.
DVA provided a table of indicative compensation outcomes for a
member of the ADF with paraplegia related to service under MRCA compared to
indicative compensation outcomes for a public servant with a work related
injury that results in paraplegia under the SCRA.
Table – indicative compensation
The DVA submission also provided the following summary of
entitlements for veterans and their dependents (as at October 2016).
Table – Summary of entitlements for
veterans and dependents
A range of views concerning compensation for veterans were raised
during the inquiry. For example, Mr Peter Reece, a former DVA
official, described the Australian system of military compensation as 'without
doubt the most generous in the world – not just for the quantums available, but
for the ease of access'. He considered the current system was 'more generous than
any scheme for civilians, and for other like careers such as police forces and
Mr Reece argued that implementing an appropriate system of income
support for veterans should be the direction of reform rather than overreliance
on the compensation system to deliver income support. He noted that '[c]ompensation
is there to give people redress for actual, substantial losses in their income
earning capacity and their career prospects and for the degree of suffering and
physical shortfalls that they have to endure—it is not an income support policy'.
He told the committee:
The system is designed for benefits that are in finality.
Access to their disability under their superannuation, to Centrelink benefits,
and all the rest of it is a complete mess. They are administered by different
authorities with different regulations and rules. These people are pushed
around from one to the other, and they come back to compensation because it is
the only thing that people know and understand—particularly in the ex-service
The RSL also raised issues about the appropriate balance between
compensation, rehabilitation and healthcare in the current arrangements:
A question that is rarely asked is whether this time, effort
and cost results in the best benefit to the veteran concerned? In other words
is the award of monetary compensation the optimum outcome or, might something
else, rather than a compensation payment, such as comprehensive lifetime health
care (i.e. the issue of a gold card) be more appropriate in some circumstances?...
What is in question is whether the balance between offering
monetary compensation and taking other forms of action such as the provision of
comprehensive through-life health care and rehabilitation are in the best
interests of individuals and of the nation. It should be noted that acceptance
of monetary compensation by those assessed as eligible for the Special Rate of
Pension significantly constrains their future lives by heavily restricting
their opportunities to work.
Mr Allan Anforth, a barrister, argued that the VEA would not
provide inadequate compensation for veterans compared to the SRCA and MRCA in
most cases. He noted that the level of incapacity benefits paid under SRCA and
MRCA for a veteran unable to work (at 75 per cent of the index normal weekly
earnings at the time of injury) is 'vastly greater than the level of disability
pension paid under VEA including the pension paid at the TPI rate under the VEA'.
While the VEA granted access to the Gold Card where the veteran is on the TPI
rate under VEA (and a few other special circumstances), Mr Anforth argued that
the value of the Gold Card to a veteran or their partner has to be discounted
by the sheer loss of incapacity payments, permanent impairment and death
benefits payable and the offset from Medicare.
Several advocates and ESOs argued that lump sum compensation
payments were inappropriate for many veterans, particularly younger veterans.
For example, the TPI Federation noted that a contentious issue with the
eligibility for Special Rate Disability Pension (SRDP) was that a veteran must
make a life-long choice of whether to take the incapacity payments along with a
lump sum or to take the SRDP. It stated:
There is no provision to change back to the other alternative
if an incorrect decision has been made. MRCA provides funding for the member to
gain advice from a Financial Adviser prior to making a decision on this course
of action. The TPI Federation contends that most Financial Advisers would, in
most cases, recommend the Lump Sum Payment, which comes with the Incapacity
Payment until age 65, as this is a bias to receive a commission.
Where a young person is faced with the proposition of
obtaining a very large sum of money or a small fortnightly compensation
payment, the overriding temptation to take the lump sum payment is extreme.
They do not think of the ramifications of when they 'hit the wall' and are no
longer able to work and earn a living. In this case they cannot double dip and
revert to the SRDP. DVA considers that their job has been done.
In relation to this issue, DVA noted that it provided compensation
up to a statutory limit (currently $2,549.31) to be paid for the cost of
financial or legal advice in three separate circumstances. In particular:
Where a person is chronically incapacitated and meets certain
eligibility criteria, a person may be offered the choice to receive the Special
Rate Disability Pension (SRDP) in lieu of ongoing incapacity payments. These
persons are also offered compensation for the cost of obtaining financial or
legal advice in respect of that choice. If the person wishes to choose SRDP,
obtaining financial advice is mandatory.
Complexity and inconsistency
DVA acknowledged that the 'current legislative framework for
veteran entitlements is complex, with individuals potentially having
compensation coverage under one, two or three Acts, depending on their date of
service and date of injury'. It observed that this situation 'reflects the evolution
of the repatriation system and Government decisions over decades in response to
changes in circumstances and expectations'.
The complexity of the three legislatives schemes and the
inconsistency of their application to veterans were a key issues raised during
the inquiry. It was identified as a key cause or contributing factor to a range
of problems for veterans seeking to access compensation, rehabilitation, health
services and other support. For example, the South Australian Government
This legislative framework is cumbersome, complex, confusing
and difficult to navigate for advocates, DVA staff and members of the serving and
ex-serving community. In some circumstances a veteran may have a claim under more
than one Act requiring the claimant (or their advocate) to make a number of applications
to more than one compensatory scheme. The assessment process within DVA
requires delegates to have a thorough understanding of all legislation in order
to assess the validity of a claim. The complexity of the legislative framework
can lead to significant delays to the processing of claims adding unwarranted
stress to those involved.
It is worth noting that both the US and Canada operate a
single scheme and the UK operates one past and one current scheme. This
approach removes any overlap between legislative elements simplifying the
process. Consideration should be given to a complete review of Commonwealth
veteran related legislation that preserves veterans' entitlements while
simplifying the process under a single Act.
Similarly, Mr John Burrows, an advocate, commented:
The current veteran legislation is very confusing, complex,
not client friendly and from my perspective adds a considerable barrier to
providing viable advice, practical guidance and support to veterans, their
families and supporting agencies. Having to consult three separate Acts on many
occasions to identify eligibility, entitlement and access to benefits can be
overwhelming, confusing and simply negates many endeavours to apply for an
obtain benefits and support!
The inability to interpret many aspects of the complexities
and various combinations available in duel and tri-eligible situations often
result in veterans and their families being disadvantaged.
Colonel David Jamison (rtd) from the Alliance of Defence Service
Organisations (ADSO) told the committee:
[W]e believe a significant factor contributing to the problem
lies in the legislative framework on which support to veterans is based. The
three rehabilitation and compensation schemes result in a very complicated
system that sets up an adversarial claims process and a bureaucratic structure
that many see as complicated and unfriendly towards veterans seeking support.
It is abundantly clear from social media groups that veterans from the more
recent conflicts feel alienated and see the system as biased against them.
Mr Peter Reece argued that it all 'comes back to the legislation'
and without 'dramatically simplified' law, policy and administration there
'there will be no improvement'.
In this context, he cautioned:
These changes need to be made before the current DVA I/T systems
are reengineered, as set out in the latest Budget. I fear that spending that
money on the DVA claims system, based on the current policy and administrative
framework will not just be excessively complex and expensive, but will lock in
a policy which is simply decrepit.
Other issues were also highlighted. For example, Mr Peter
Thornton considered that 'some of the issues surrounding claims processing
stems from legislation [and] regulation being too prescriptive [which] in turn
limits and restricts the flexibility and discretion departmental Claims and
Reviewing Officers have, when dealing with and satisfying claims'. He
recommended that DVA Claims and Reviewing Officers be provided with increased
levels of discretion in determining claims.
The impacts of the differences and inconsistencies between each
legislative scheme were also emphasised by submitters. For example, ADSO
submitted that the differences between the VEA and the MRCA 'colour the veteran
community's perceptions of MRCA'. It stated:
Advocates with long VEA experience perceive MRCA to be
complex. As a result, some advocates are known to refuse to support veterans
that are subject to MRCA. Through misunderstanding or otherwise, the resulting
grievances are aired angrily on social media.
For those advocates with long experience - and therefore
familiarity – with VEA, the recency of MRCA's enactment and, as yet, limited
number of judgements cause uncertainty for advocates. The [MRCA's] 'stable and
permanent provisions' (ss68, 71 and 199 in conjunction with ss68 and 71) and medical
examination provisions (s328, in conjunction with ss325 and 326) are known to
frustrate veterans awaiting PI, SRDP and INCAP compensation determinations.
The VVFA identified a number of 'anomalies or inconsistencies' in
the application of the VEA, SCRA and MRCA 'in determining necessary
compensation for veterans who have suffered some form of injury or damage while
a member of the ADF'. For example, the VVFA noted differences in the
measurement of incapacity:
Under the VEA, injuries and diseases do not have to meet a
minimum degree of incapacity indicated by percentages or impairment points.
However, SRCA uses a 'whole of body' impairment system and a minimum of 10% of 'whole
of body' impairment for an injury or disease must be reached before compensation
is awarded. Similarly, MRCA contains an 'impairment points system' requiring a
minimum of 10 impairment points before compensation is triggered.
The VVFA stated that the 'imposition of a higher standard of
evidence for one group of veterans visà-vis another, and between one Act and
another, is not only inconsistent, it is also confusing to veterans'. It
recommended a '[c]omprehensive review and comparison of all three Acts and identification
of same or similar provisions affecting veterans, including contemporary
veterans'. It considered this 'review is long overdue'.
Ms Lee Withers, a former ADF Transition Manager drew the
committee's attention to the unfairness of the inconsistencies between the
[I]t was horrendous to try and explain to different soldiers
and their partners or parents why, when both sustained the same life changing
injuries, one would receive enough money to support themselves and medical and
physical assistance paid for by DVA, while the other one would not get any
ongoing payments or support and a much reduced level of medical care. All they
see is they both served together and got hurt together and need the same care
and support. They don't care what government decisions changed the levels of
care for one because he/she joined on a different date or whatever. That kind
of perceived injustice is going to stick for years and years and coupled with
other issues post discharge such as lesser income, injury/pain management and
mental anguish, is enough to tip someone over the edge.
An advocate, Mr Rod Thompson, considered the three legislative
schemes are 'for the most part are not mutually compatible for veterans' who
have multiple deployments and eligibility'. He highlighted that there were many
'different types of service (warlike, non-warlike, hazardous, operational,
peacekeeping and peacetime) over approximately 84 gazetted and scheduled
conflicts / operations'.
An injured / ill veteran is the same whether they are 18 or
80, currently we are seeing SRCA and a significant number of MRCA veterans
becoming a sub-class of veteran not being provided with the Beneficial
provisions and concessions (both state and federal) provided to those solely
under the VEA.
The TPI Federation highlighted that currently some TPI veterans are
denied access to a number of DVA services 'purely because they don't have
operational service'. It stated:
This is discriminatory and a failure to recognise that a
non-operational TPI suffers the same consequences as an operational TPI even to
the extent of not having access to a service pension at age 60, but must rely
on a Centrelink Disability Support Pension. A salient point, worth remembering,
is more service people have been killed or injured in non-operational theatres
since the Vietnam War; by example the Black Hawk tragedy, the WESTRALIA
incident and other numerous non-operational occurrences that have caused
fatalities or injury.
To illustrate the range of differences between the schemes, TPI
Federation noted that 'under the MRCA, a DVA client's family is currently
eligible to $11,654 as a funeral allowance [but this] is markedly different
with the VEA client's family where the same allowance is $2,000'.
Similarly, Mr Frank O'Neill questioned the rules which could
impact veterans when their partner was employed:
The means tested Service Pension of a maximum amount of
$22,804 pa for single disabled is added to the TPI rate which at the combined
maximum amounts to $57,804 pa. However the Service Pension is withdrawn when
the single veteran marries someone participating in the workforce...I walked down
the aisle single as a $58,000 pa man. I walked back up the aisle married a
$35,000 pa man. There was no miracle health cure at the alter to explain why
the DVA System cut my replacement income by 40 percent.
Others argued that a realistic approach to reform of veterans' compensation
would be necessary. Mr Peter Larter advised the committee:
The complexities in the framework and legislation, in the [VEA]
and all the acts are better for some and worse for others. If you were to draw
a line in the sand—and I think there could be a future for this—the most
important person in the room would be the Treasury department that needs to
sign off. I do not think it would be fair to a veteran who, in certain
situations, in one act—and even in the MRCA Act, which is a new one—will be
worse off in his entitlements than someone under the VEA or SRCA. A roomful of
good advocates would be able to give you plenty of examples of that.
But that comes at a cost: a cost to government, a cost to the
taxpayer et cetera; I understand that. So, if we were to go forward, I do not
think it would be fair for the veteran to go backwards in entitlements. More
than likely we would be going forward with entitlements, and that will come
with a dollar value...
Non-liability health care
There was significant positive feedback during the inquiry
concerning the expansion of non-liability health care for all mental health
conditions. Some recommended that further expansion of non-liability heath care
should be explored to reduce complexity and simplify administrative processes.
For example, Dr Jon Lane, a consultant psychiatrist, noted
that since the expansion of non-liability healthcare coverage for mental health
and substance abuse problems he had seen an increase in veterans. He described
this as 'a very good thing', noting it 'demonstrates that opening access to
services with minimal administrative requirements works in terms of Veterans
accessing these services'. He recommended that the Government extend the
non-liability health care to all service veterans, for all health conditions.
This may have an initial higher cost, but as seen with the
limited access to specific mental health conditions now, it would improve
access to treatment, and therefore reduce the overall level of treatment
required, as well as the duration of that treatment. This should reduce the administrative
cost and workflow burden to DVA in terms of the liability determinations which are
the majority of the basis for complaints, as well as the ongoing administrative
and treatment costs by ensuring that veterans get adequate and early treatment
This proposal was also raised in the Joint Standing Committee on
Foreign Affairs, Defence and Trade's (Joint Committee) report on the Care of
ADF Personnel Wounded and Injured on Operations in 2013. The Joint
Committee was 'concerned that a significant difference exists in the treatment
of personnel who discharge with a condition that is recognised by DVA, and
those who discharge and subsequently develop a service-related condition'. It
recommended that the Government conduct a cost-benefit study of a comprehensive
uncontested veteran healthcare liability model and publish the results.
However, this recommendation was not supported. The Government response stated:
Any proposal to further extend "non-liability"
access to DVA health care arrangements to a broader group of former service
personnel would involve significant additional financial costs to the
Commonwealth and is not a priority at this time. Also under DVA arrangements
comprehensive health care is available for treatment of conditions which have
been accepted by the Department as service related.
DVA noted that any further expansion of on-liability health care
would need to be considered by Government in the Budget context:
Financial modelling can be based on existing non-liability
health care recipients and generally applied to extensions. Some costs will be
partially offset with the Department of Health. Data on incidence rates and
estimates of those with one or more additional mental health conditions
co-occurring with an existing non liability health care mental health condition
are also relevant when providing advice to Government on the costs associated
with extending non-liability health care options for veterans.
Support for a review
In the context of the issues raised above, many submitters
expressed support for a large scale review of military compensation and the
framework of entitlements for veterans often proposing a focus on
simplification. For example, Mr Peter Reece, a former DVA official,
critically assessed each of the previous reviews of military compensation
arrangements considering they had 'only deal superficially with operational
issues with the current legislation'.
He considered that there was a need for a comprehensive basic 'ground-up review
of military compensation'. Due to it being an 'enormous, longstanding, complex
and very detailed issue' he considered it would be a task for 'the Productivity
Commission or a judicial inquiry of some kind, something with a lot of
The outcomes, I would hope, would be the rationalisation of
the scheme into something which every other public servant and citizen in this
country enjoys—that is, good, sensible, transparent and fair compensation...The
outcomes ought to be rationalisation and, I dare say, some savings in costs,
because remember that Veterans' Affairs these days has a budget of $12½ billion,
which is the annual downstream cost of Defence. It is not counted in the
Defence budget. But is more than money: I do not really mind how much veterans
are paid, so long as it is fair, even, consistent, simple and easily
administered; it is none of those things.
The RSL noted that the last major review was in 2011 and
considered that 'it would be prudent to have another look at the interplay
between the various Acts and the effectiveness of the administration of those
Acts by the DVA'. It recommended:
That an independent Review be set up, with broad Terms of
Reference, to investigate the interplay between the three extant Acts
administered by DVA, their procedural interaction with ComSuper, and whether
having three separate Acts remains an effective approach to the support and
compensation of veterans in Australia.
Mr Arthur Ventham, Chair of the Northern Suburbs Veterans Support
Centre, also highlighted it was five years since the last review. He stated
that 'in the current environment, it would be prudent to have another look at
the interplay between the various Acts and the effectiveness of the
administration of those Acts by the DVA which on the surface appears to have
become extremely dysfunctional'.
Like many submitters, the Northern Suburbs Veterans Support Centre argued that
the objective of legislative reform should be a single piece of legislation to
cover compensation and rehabilitation for all veterans. It proposed:
A new Rehabilitation and Compensation Act be developed to
replace VEA, SRCA and MRCA so that unjust discrimination that is found today is
eradicated and all Members are treated equally when it comes to rehabilitation
Similarly, Mr Ben Johnson, a former senior public servant,
proposed that legal advice be sought from 'the Office of Parliamentary Council
(OPC) in the Attorney General's Department on options for either preparing an Omnibus
Amendment Bill to consolidate the current complexity of DVA managing both the
VEA and MRCA' and 'streamlining of the claim processes for veterans and the
assessment of compensation and support for injuries incurred as a result of
different periods of service'. Alternatively, an MRCA amendment which would 'effectively
triage or prioritise the claims from contemporary veterans to ensure that those
veterans with the most serious medical claims are assessed with the highest
level of priority accorded a rapid resolution of their claim'.
Some argued for the establishment of a Royal Commission.
For example, the Royal Commission into DVA Working Group had 'no faith in the
current senior and middle management of DVA’s capability to rectify over a
decade of neglect, we consider the only option to be a Royal Commission that
can make binding legal directions to DVA looking into all aspects of the
Repatriation System, Defence Transitions and the Wider Veteran Landscape
including ESOs'. It stated:
[A]ll the reports and findings of recent inquires have
contained the two words, COMPLEXITY and SIMPLIFICATION. Neither of which have been
addressed by DVA's senior management, in fact DVA has embarked on further
complication with the introduction of the proposed DRCA legislation making five
conflicting legislations creating sub-classes of veterans many falling below
the poverty line struggling with homelessness and financial stress all while
suffering in some cases significant mental and physical injuries exacerbated by
an adversarial and complex system and all the bureaucracy that comes with 5
separate and conflicting legislations.
However, DVA observed that the idea that there should be a single
piece of veterans' affairs legislation has been examined in a number of
inquiries, most recently by the MRCA review in 2011:
The [MRCA review] Steering Committee noted that the MRCA was
introduced to address the complexities created by the concurrent operation of
the [VEA] and the [SRCA]. However, as it is still possible for claims to be
made under the VEA or SRCA for conditions arising from service before 1 July
2004, the operation of these three Acts continues to create complexity and
confusion for some claimants, particularly for those who have coverage under
more than one of these Acts. It is likely that this situation will remain for
some time to come, because while MRCA claims will become the majority of claims
received in the decades to come, claims under the VEA and SRCA will not be
exhausted for many years.
After considering options for simplifying DVA's legislative
framework, the [MRCA review] Steering Committee concluded that consolidating
entitlements into one Act would be extremely difficult and would require the
resolution of several complex, sensitive and potentially controversial issues,
including the fact that compensation entitlements under the three Acts are
DVA outlined a number of reasons why 'there is no simple,
singular approach to address or fix the current legislative complexities'.
there are accrued rights issues in changing entitlements once
they have been accrued through periods of service;
complex transitional arrangements would be needed to protect
existing entitlements and ensure no detriment to individuals; and
uniform compensation benefits could be seen as inconsistent with
the nature of military service, and would imply, or could be interpreted to
mean, that all military service is the same.
DVA noted that it was 'identifying opportunities to align and
streamline its practices and procedures within the current legislative
framework to make it simpler for DVA clients to understand what they are
entitled to and how to claim'. It also highlighted that the amendments creating
the DRCA 'give the Minister for Veterans' Affairs policy responsibility for all
relevant compensation legislation for ADF members and veterans'. It pointed out
that the DRCA would 'enable the Minister and the Military Rehabilitation and
Compensation Commission to consider possible changes to align the Act with the
MRCA, which would not have been appropriate for civilians with coverage under
The Repatriation Medical Authority (RMA) and Statements of Principles
The Repatriation Medical Authority (RMA) is an independent
statutory authority, based in Brisbane, responsible to the Minister. The RMA
consists of a panel of five practitioners eminent in fields of medical science.
The role of the RMA is to determine Statements of Principles (SOPs) for any
disease, injury or death that could be related to military service, based on
sound medical-scientific evidence. The SOPs state the factors which 'must' or 'must
as a minimum' exist to cause a particular kind of disease, injury or death. The
SOPs are disallowable instruments which are tabled in Parliament and are
binding on various decision makers.
The RMA explained:
In determining SOPs, the RMA is required to rely upon sound
medical-scientific evidence (SMSE), as defined in section 5AB of the VEA...All
available SMSE is evaluated by the RMA against accepted epidemiological
criteria. These criteria include strength of association; consistency; specificity;
temporality; biological gradient; plausibility; experimental evidence; and
analogy and may not each be relevant in all decisions of whether or not a
factor should be included in a SOP.
The VEA and MRCA provide for two different standards of proof
which apply to claims for compensation by veterans and serving members. The RMA
is also required by the legislation to apply two standards of proof when
determining the contents of SOPs. For each condition, two SOPs are determined.
The more beneficial standard, known as the "reasonable
hypothesis" standard, applies to veterans and serving members who have
operational (or equivalent) service....The less beneficial "balance of
probabilities" standard (also known as reasonable satisfaction) applies to
eligible war service (other than operational service) and defence service
(under the VEA), and peacetime service (under the MRCA).
The different standards of proof will often lead to some
factors being included in the "reasonable hypothesis" SOP with weaker
evidence than is required for inclusion in the "balance of probabilities"
SOP. The "reasonable hypothesis" SOP will often contain more causal
factors and/or the specified exposure contained in a factor may be easier to
satisfy. The result is that it is generally easier for veterans and members
with operational service to successfully claim that a medical condition was
related to their service.
In 1997, a review was conducted of the RMA and the Specialist
Medical Review Council (SMRC) the body which was created to hear appeals
against decisions of the RMA relating to the making of SOPs. The reviewer,
Professor Dennis Pearce, while making recommendations for improvement,
concluded that the amendments creating the RMA and SMRC had created 'a more
equitable system for the compensation of veterans' which was 'more efficient
and non-adversarial than that previously existing'.
The Joint Committee report on Care of ADF Personnel Wounded
and Injured on Operations included a recommendation that DVA 'review the
Statements of Principles in conjunction with the Repatriation Medical Authority
with a view to being less prescriptive and allowing greater flexibility to
allow entitlements and compensation related to service to be accepted'. However,
the government response to the Joint Committee report did not support this
recommendation. It stated:
While the Department of Veterans' Affairs (DVA) seeks to be
flexible in its service delivery to clients, introducing flexibility to the
Statements of Principles regime would undermine its purpose and reduce its
value in underpinning evidence based decisions...The Statements of Principles
regime is a well established and core element of the Repatriation system. They
are internationally recognised as providing a quality decision making tool.
There is strong support for the Repatriation Medical Authority and the
Statements of Principles regime from ex-Service organisations and the ex-Service
The RMA has a schedule for regular review of its SOPs and reviews
the contents of each SOP at least once every 10 years (7 to 8 years on
average). The RMA monitors developments in medical science and epidemiological
understanding of disease aetiology. Where it becomes aware of significant new
sound medical-scientific evidence, it initiates reviews of the relevant SOPs
earlier than the usual cycle. SOPs are also reviewed more frequently where a
request is received from an eligible party to do so with sufficient relevant
information to support the request.
The RMA indicated that for the period January 2014 to December
2016, the RMA received 63 requests to undertake investigations or reviews.
In particular, during the inquiry, the RMA reconsidered the SOPs
concerning suicide and attempted suicide. Mr Peter Larter's submission included
his request to the RMA to review this SOP, in particular factors 3 and 4 which
'stipulate that a person must experience a 1A or 1B stressor within 2 and 5
years before the suicide in order to establish that death from suicide is
connected to a person's relevant service'. Mr Larter noted:
A situation presents itself where a spouse or dependent may
not be able to connect the person's suicide to relevant service where the
suicide occurred after 2 and 5 years from date of experiencing the category 1A
or 1B stressor and they cannot establish enough evidence to satisfy any other
factor in the SOP.
It is possible that a person with relevant service has a
delayed onset (more than 5 years) of a significant disorder of mental health
and has not received or being treated for any impairment regarding symptomology
of a mental health condition.
In this instance the surviving spouse or dependent claim for
compensation will fail and they will be ineligible for any entitlements as the
suicide occurred after the 2 and 5 year time period as stipulated in the SOP's.
Consequently, the RMA made beneficial changes regarding these
The RMA's assessment of the sound medical-scientific evidence
relating to suicide was that it supported a causal link between both exposure
to a category 1A stressor, and a clinically significant mental health disorder,
and suicide where the suicide took place within five years of exposure to the
stressor. Where a suicide occurred more than five years after experiencing the
stressor, the RMA considered that the suicide was likely to be related to the
stressor via another causal pathway, most probably one of the specified mental
In response to a request for review of the time frames, the
RMA has recently reviewed the available sound medical-scientific evidence. The
RMA has now concluded that the limited evidence in support of the timeframes,
together with the difficulties being experienced by claimants in posthumously
establishing the existence of a clinically significant disorder of mental
health, warranted removing the current time frames applying to category 1A and
1B stressors. The Amendment Statements of Suicide (Instruments Nos. 26 and 27
of 2017) have now been lodged with the Federal Register of Legislation and will
take legal effect from 27 March 2017.
There was dissatisfaction expressed amongst submitters with how
the SOPs were being developed and applied. Professor Nick Saunders, Chair of
the RMA, acknowledged:
The most common issues that have been raised seem to us to be
that the statements of principles are not up to date, that they are inflexible,
that they are too complex for non-expert people to use with ease, that they are
designed to hinder rather than assist veterans who are seeking to make a claim
and that the use of two standards of proof to write the statements of
principles is inherently unfair.
However, Professor Saunders noted that SOPs were introduced to
create a transparent and consistent system which now covers 93 per cent of
claims made. He commented:
Each statement of principle is based on sound medical
scientific evidence that is available to the authority at the time that the SOP
is written, and that evidence is identified by an extensive search of the
English-language medical and scientific literature. The SOPs provide an
exhaustive list of factors that are known to cause the disease, illness or
injury under consideration. The list of factors is based on a generous
interpretation of the evidence, and a veteran only needs to establish one
factor for the claim to be successful.
Criticisms of the SOPs focused on their rigid application to the
situation of veterans. The ADSO commented that while the SOPs provide a high
level of certainty for an ESO's Compensation Advocate when assessing the probable
viability of a claim or appeal, the 'inflexible application of the SOP Risk
Factors in determining veterans claims was inconsistent with the beneficial
intent and provisions of the legislation'.
Similarly, Mr Brian Briggs from Slater and Gordon Lawyers noted:
When compared to a common law claim, or a claim being
assessed under the SRCA, the Statements can be seen as quite limiting in terms
of the assessment of liability. This is because a claim will be rejected if at
least one of the factors in the applicable Statement is not proven, even if the
claimant has medical evidence or opinion from a qualified specialist, linking
the onset of their condition to some event, injury or activity occurring during
Further, the strict time frames within the Statements, which
relate to the date of onset of symptoms relative to the date of initial trauma
or injury cause particular difficulty. Often, our clients discover when going
through the claims process that an injury or trauma they have suffered has not
been properly documented by Defence medical staff...
He recommended that to alleviate these issues an acknowledgment
or direction be inserted within the legislation or SOPs to the effect that the SOPs
are to be used as a guide only. Further, he suggested amendment of the SOPs 'to
extend or remove the strict time frames frequently inserted to dictate when
"onset" must occur following specific events'.
A joint submission from Dr Catriona Bruce and others noted that 'the
RMA's definition of a condition does not necessarily correspond with a doctor's
diagnosis of a condition in terms of normal standards of modern medicine'. They
considered this discrepancy means that veterans are unlikely to be able to have
their medical conditions comprehensively categorised and recognised under the
RMA system. They proposed:
Restore benefit-of-doubt to veterans. Interpretation of
Veteran Legislation was intended to be in the interest of the veteran. This
concept has now been set aside, and the onus of proof is now on the veteran. Claims
outside a defined RMA Statement of Principles (SoP), but supported by
registered specialist Medical/Psychiatric practitioners should be accepted.
RSL (Tasmania) considered that while 'SOPs do provide a degree of
certainty and consistency in claims decisions when properly applied, they do
create an anomaly when military compensation claims are compared to civilian
claims where the circumstances of an injury are similar'. It noted that the
SoPs do not apply to claims under the SRCA, but that DVA has indicated that
delegates should be 'guided by' the SOPs.
One difficulty with SOPs is that they are based upon the
totality of available sound medical evidence for causative factors of a
condition, while claims not based upon an SOP are based upon medical opinion
and the suggestive evidence of a claim. This creates an anomaly in that, under
the balance of probabilities, medical opinion and the circumstances of a claim
may suggest a link between a condition or injury and a claimant's service.
However, the totality of available medical research may suggest that the
evidence for causation is not strong enough to create a statistically
significant link. This means that the research suggests that a link might be
possible, but not probable statistically and therefore not worthy of inclusion
in and SOP, while medical opinion available in a particular case, along with
the evidence available in a particular case might be sufficient to meet the
legal balance of probabilities test required by the Acts.
The difficulty here is that, under VEA and MRCA, SOPs have
the force of law, so they are required to be used, even though they may set the
bar higher than what is strictly required by the legal test required in the
The RSL (Tasmania) observed this situation raises a series of
difficult questions relating to 'the interactions of two potentially different
standards of proof (statistically significant evidence of causation in medical
research versus the legal balance of probabilities test, which is less rigorous),
potential disadvantages to military claimants introduced by these differences,
and public interest questions with regard to consistency of determinations'.
Mr Anforth observed that the SOPs were original introduced 'to do
away with the cost and repetition of veterans having to prove the medical
causation issues case after case'. However, he argued that this has been lost in
subsequent statutory amendments. He noted that in non-operational service
cases, even if a SOP is satisfied, a claim can still be denied on the basis of
other evidence that contradicts the proposition of the SOP. Further, even if there
is a large body of expert medical evidence pointing to the service cause of the
injury, if the SOP is not satisfied the claim fails. He described as 'unfair'
that if the 'SOP does not favour the veteran then the veteran cannot rely on
other evidence to support what may otherwise be a valid claim'.
DVA appeared to confirm this assessment of the rigid application
of the SOPs to claims. It stated:
The Commission must apply SoPs and accordingly, it does not
(and cannot) seek evidence which contradicts the relevant SoP in the
circumstances of an individual case. Claims are decided on the basis of the
totality of evidence available to the Commission, with the relationship of the
claimed condition to the veteran's service being determined according to the
DVA does not have any discretion in applying existing SoPs
and must apply the factors strictly as they appear in the SoPs to claims made
under the [VEA] and the [MRCA].
Other views were also expressed. The RSL was supportive of the
objective approach to evidence that is at the heart of the SOPs and noted that
New Zealand has recently moved to incorporate the idea of SOPs into their
veterans support framework.
An independent review
A key contextual factor in the administrative burdens described by
veterans in dealing with DVA is the complex legislative framework. With the
notable exception of DVA, there was broad support expressed for a review aimed
at simplification of the legislative framework. Many submitters argued for simplification
of the current arrangement under the VEA, SRCA and MRCA, others supported
reforms to create a single legislative scheme. Specific aspects of unfairness
and inconsistency in the current arrangements which could be rectified were
identified. The point was repeatedly made that excessive legislative complexity
was a burden on veterans, advocates and the operations of DVA itself.
The committee considers that a system which is as complex and
challenging to navigate as the current arrangements will compromise any efforts
to make claim processes 'veteran centric'. It is apparent that the Australian
Government, through recent legislative amendments (such as the DRCA), is laying
the groundwork for a simpler set of military compensation and rehabilitation
arrangements. Unfortunately, the committee does not have the resources to
determine the most effective arrangement of the complex range of benefits,
entitlements, rehabilitation and compensation schemes in relation to serving
members and veterans.
The terms of reference of the inquiry directed the committee to
investigate the 'failings' of previous reviews of military compensation
arrangements. However, in the view of the committee the previous reviews have
been undertaken diligently and appropriately. Incremental and beneficial
reforms have been made to military compensation arrangements based on the
findings of these reviews. It is also appropriate to acknowledge that not all
recommendations of these previous reviews have been accepted and implemented by
the Australian Government.
However, previous reviews of military compensation arrangements
and the incremental reforms which were adopted have contributed to the overall
complexity of arrangements. Many of these reviews have been undertaken or
primarily supported by DVA and Defence officials. While this has the advantage of
incorporating institutional knowledge, it also risks institutional inertia. The
committee considers that the previous recent reviews of military compensation
arrangements have been too willing to accept the status quo. The committee
agrees with the many submitters who argued that a robust independent review of
military compensation arrangements was needed to re-examine long-standing
issues in this portfolio.
It is time for a comprehensive rethink of how the current system
operates and will operate into the future. As Colonel Rob Manton, Director of
Veterans SA, advised the committee, any reforms will needs to be directed 'at
the next 50 years' taking into account the many veterans of the deployments
which have occurred since Australia's involvement in Timor-Leste in 1999.
In conducting this review, there should be no topics which are
off-limits including the differences in relation to operational service,
standards of proof and the provision of services through DVA or alternative
government agencies. The committee recognises this will not be an easy or
uncontroversial review process. Systemic reform may even moderately
disadvantage some individual veterans in the process of improving outcomes for
serving members and veterans overall.
A large scale review will require a public research organisation,
or an independent taskforce, with established policy and economic analytical
capabilities. In particular, it should be able to draw on the expertise of DVA
and Defence officials but should be substantially independent. In the view of
the committee, the Productivity Commission would be appropriate to undertake
this systemic review and make recommendations to the Australian Government for
changes to streamline the legislative framework for the benefit of serving
members and veterans. The terms of reference for this review should be directed
to simplification, efficiency and achieving fair outcomes.
Statements of Principle
The SOPs prescribe the factors which must as a minimum exist
before a reasonable hypothesis can be said to be raised connecting an injury or
disease with a person's service. While the SOPs prepared by the RMA appear to
promote consistency in decision making, examples were raised where they have
been applied rigidly and unfairly. In the view of the committee, this structure
can be unduly restrictive on claims in specific circumstances which is not in
keeping with the beneficial objective of veterans' entitlements.
During the inquiry the SOPs in relation to suicide and self-harm
were reviewed by the RMA and updated. Amendments such as this inevitably lead
to questions about earlier claims by veterans which were rejected due to
previous more restrictive interpretations of the factors listed in SOPs. It is
unfair that a person who has rendered military service and been injured would
be unable to claim for that injury because a body of sound medical evidence linking
that injury to their service has not been developed at that point. The psychological
impact on veterans of having a legitimate claim rejected in these circumstances
would be immense.
The committee considers that there is sufficient justification to
re-examine how the SOPs are utilised in the determination of compensation
claims. Given the frequently cited 'beneficial' nature of the VEA and the MRCA,
it is inappropriate that system of SOPs would be rigidly applied. This
situation is particularly acute in relation to veterans without operational
A better system might be one closer to that envisaged by the
Baume review with one standard of proof (the civil standard, with a benefit of
doubt in favour of veterans with relevant operational service), initially
determined by the delegates primarily guided by the SOPs prepared by the RMA. However,
delegates should not be completely bound by the SOPs. Keeping in mind, the
beneficial nature of entitlements for veterans, delegates should have within
their discretion the capacity to determine claims provided there is a
reasonable link to a person's service on the balance of probabilities. However,
this matter should be considered in detail by the review.
The committee recommends that the Australian Government make a reference
to the Productivity Commission to simplify the legislative framework of
compensation and rehabilitation for service members and veterans. In
particular, this review should examine the utilisation of Statements of
Principle in the determination of compensation claims. The report of this
systemic review should be completed within 18 months and tabled in the
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