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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
VETERANS' AFFAIRS LEGISLATION AMENDMENT
(MENTAL HEALTH AND OTHER MEASURES) BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Veterans Affairs,
Senator The Honourable Michael Ronaldson)
Table of Contents
Outline and Financial Impact ............................................................. ii
1 Short Title .......................................................................................... v
2 Commencement ................................................................................. v
3 Schedule(s) ........................................................................................ v
Schedule 1 - Non-liability health care .................................................. 1
Schedule 2 - Veterans and Veterans Families Counselling Service............... 4
Schedule 3 - Seniors supplement and seniors health card ................................ 6
Schedule 4 - Veterans' Review Board ................................................. 8
Schedule 5 - Operational service ....................................................... 25
Schedule 6 - Eligible young persons wholly dependent on a member .............. 26
Schedule 7 - Membership of the Military Rehabilitation and Compensation
Commission .................................................................. 29
Statement of Compatibility with Human Rights ....................................... 31
i
VETERANS' AFFAIRS LEGISLATION AMENDMENT
(MENTAL HEALTH AND OTHER MEASURES) BILL 2014
OUTLINE AND FINANCIAL IMPACT
The measures in the Bill will enable the expansion of mental health services for veterans and
members of the Defence Force and their families, enhance the operation of the Veterans Review
Board and make other minor improvements to Veterans Affairs services and administration.
Schedule 1 - Non-liability health care
Schedule 1 will amend the Veterans' Entitlements Act 1986 with effect on and from 1 July 2014,
to enable the expansion of the mental health conditions and persons eligible for non-liability
health care. The conditions to be covered under non-liability health care will be expanded to
include alcohol use disorder and substance use disorder. Persons covered for non-liability health
care for eligible mental health conditions will be expanded to include members of the Australian
Defence Force with at least three years continuous full-time peacetime service on or after
7 April 1994 (or before and on or after 7 April 1994) or those with less than 3 years continuous
full-time peacetime service on or after 7 April 1994 (or before and on or after 7 April 1994), who
were discharged on the ground of invalidity or physical or mental incapacity to perform duties.
Schedule 2 - Veterans and Veterans Families Counselling Service
The amendments to the Veterans' Entitlements Act 1986 in Schedule 2 will enable the expansion
of the client groups eligible for the Veterans and Veterans Families Counselling Services
(VVCS) from 1 July 2014.
Schedule 3 - Seniors supplement and seniors health card
The amendments in Schedule 3 change the portability status of seniors supplement and
Commonwealth seniors health card to reduce the administrative demand on clients.
Schedule 4 - Veterans' Review Board
The amendments to the Veterans' Entitlements Act 1986 and the Military Rehabilitation and
Compensation Act 2004 in Schedule 4 will enhance the operation of the Veterans Review Board
and include providing for the use of modern and effective alternative dispute resolution
processes and improving the case management powers and administrative and business
procedures of the Veterans Review Board.
Schedule 5 - Operational service
The amendment in Schedule 5 changes the end date of item 7 of the table describing operational
areas in Schedule 2 of the Veterans' Entitlements Act 1986.
Schedule 6 - Eligible young persons wholly dependent on a member
ii
Schedule 6 amends the Military Rehabilitation and Compensation Act 2004 to expand the
circumstances under which an eligible young person is taken to be wholly dependent on a
member.
Schedule 7 - Membership of the Military Rehabilitation and Compensation Commission
Schedule 7 amends the Military Rehabilitation and Compensation Act 2004 to enable the Chief
Executive Officer of Comcare to be nominated for appointment to the Military Rehabilitation
and Compensation Commission.
iii
FINANCIAL IMPACT STATEMENT
Schedule 1 - Non-liability health care
Cost of $14.6 million over 4 years
Schedule 2 - Veterans and Veterans Families Counselling Service
Cost of $6.4 million over 4 years
Schedule 3 - Seniors supplement and seniors health card
No financial impact.
Schedule 4 - Veterans' Review Board
No financial impact.
Schedule 5 - Operational service
No financial impact.
Schedule 6 - Eligible young persons wholly dependent on a member
No financial impact.
Schedule 7 - Membership of the Military Rehabilitation and Compensation Commission
No financial impact.
iv
Veterans' Affairs Legislation Amendment
(Mental Health and Other Measures) Bill 2014
Short Title Clause 1 sets out how the Act is to be cited.
Commencement Clause 2 provides a table that sets out the commencement dates of the
provisions of this Act.
Schedules Clause 3 provides that each Act that is specified in a Schedule to this Act
is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect
according to its terms.
This explanatory memorandum uses the following abbreviations:
,,ADF means the Australian Defence Force;
,,Military Rehabilitation and Compensation Act means the Military Rehabilitation and
Compensation Act 2004;
,,MRCC means the Military Rehabilitation and Compensation Commission;
,,Safety, Rehabilitation and Compensation Act means the Safety, Rehabilitation and
Compensation Act 1988;
,,Veterans Entitlements Act means the Veterans' Entitlements Act 1986; and
,,VVCS means the Veterans and Veterans Families Counselling Services .
v
Schedule 1 - Non-liability health care
Overview
Schedule 1 will amend the Veterans Entitlements Act with effect on and from
1 July 2014, to enable the expansion of the mental health conditions and persons
eligible for non-liability health care. The conditions to be covered under non-liability
health care will be expanded to include alcohol use disorder and substance use
disorder. Persons covered for non-liability health care for eligible mental health
conditions will be expanded to include members of the Australian Defence Force with
at least three years continuous full-time peacetime service on or after 7 April 1994 (or
before and on or after 7 April 1994) or those with less than 3 years continuous full-
time peacetime service on or after 7 April 1994 (or before and on or after
7 April 1994), who were discharged on the ground of invalidity or physical or mental
incapacity to perform duties.
Background
Non-liability health care for specified conditions is provided to veterans and eligible
members of the Defence Force or of a Peacekeeping Force (as defined under the
Veterans Entitlements Act) under subsection 85(2) and section 88A of the Veterans
Entitlements Act. Under the Veterans Entitlements Act, veterans and eligible
members can be provided with treatment for cancer (malignant neoplasia), pulmonary
tuberculosis, and PTSD under subsection 85(2) and anxiety and depressive disorders
through an instrument made under section 88A. The condition does not need to be
determined to be service-related for the person to be entitled to treatment for that
condition.
,,Veteran is defined under subsection 5C(1) and ,,member of the Forces and ,,member
of a Peacekeeping Force, are defined under subsection 68(1) of the Veterans
Entitlements Act.
This measure will expand the mental health conditions, and persons, eligible for non-
liability health care. The mental health conditions covered under non-liability health
care will be expanded to include alcohol use disorder and substance use disorder.
Coverage for non-liability health care for eligible mental health conditions will be
expanded to include members of the ADF with at least 3 years continuous full-time
peacetime service on or after 7 April 1994 (or before and on or after 7 April 1994), or
those with less than 3 years continuous full-time peacetime service on or after
7 April 1994 (or before and on or after 7 April 1994), who were discharged on the
ground of invalidity or physical or mental incapacity to perform duties. From
1 July 2014, these ADF members will be eligible for non-liability health care for the
mental health conditions of PTSD, anxiety and depressive disorders and the newly
included conditions of alcohol and substance use disorders. However, they will not
be eligible for non-liability health care for cancer or tuberculosis. Veterans and
members currently eligible under the Veterans Entitlements Act will, from
1 July 2014, also be eligible for non-liability health care for the newly included
conditions of alcohol use disorder and substance use disorder.
1
,,Alcohol use disorder and ,,substance use disorder are conditions defined in the
Diagnostic and Statistical Manual of Mental Disorders (DSM- 5).
The amendments will expand the legislative instrument making power in section 88A
of the Veterans Entitlements Act. Section 88A of the Veterans Entitlements Act is
an instrument making power that enables the Repatriation Commission to determine
specified veterans and others are eligible to be provided with specified treatment.
Subsection 88A(3) provides that a determination under section 88A is a legislative
instrument. The expanded instrument making power will enable the Repatriation
Commission to make a written determination extending eligibility for non-liability
health care for mental health conditions of PTSD, anxiety, depressive disorders and
the newly included conditions of alcohol and substance use disorders to ADF
members with at least 3 years continuous full-time peacetime service on or after
7 April 1994 (or before and on or after 7 April 1994), or those with less than 3 years
continuous full-time peacetime service on or after 7 April 1994 (or before and on or
after 7 April 1994), who were discharged on the ground of invalidity or physical or
mental incapacity to perform duties.
An expanded instrument making power is necessary as the existing instrument
making power under section 88A is restricted to ,,veterans, a ,,member of the
Forces or a ,, member of a Peacekeeping Force, ,,dependants and former
,,dependants of a ,,veteran or a ,,member of the Forces or a ,,member of a
Peacekeeping Force as defined under the Veterans Entitlements Act. The existing
section 88A cannot apply to the targeted ADF members as the service rendered by
these ADF members does not qualify them as a ,,veteran, a ,,member of the Forces or
a ,,member of a Peacekeeping Force under the Veterans Entitlements Act. The
military service for these ADF members is currently covered by either the Safety,
Rehabilitation and Compensation Act or the Military Rehabilitation and
Compensation Act.
Explanation of the items
Veterans' Entitlements Act 1986
Item 1 amends subsection 85(2) to include references to the new conditions of
,,alcohol use disorder and ,,substance use disorder. This will mean that veterans,
members of the Forces and members of a Peacekeeping Force are eligible for
treatment for ,,alcohol use disorder and ,,substance use disorder.
Item 2 adds a new paragraph at the end of subsection 88A(1). Section 88A is a
legislative instrument making power and provides the Repatriation Commission with
the authority to make a legislative instrument determining that specified veterans,
members or dependants are eligible to be provided with treatment as specified. For
example, the paragraph 88A(1)(a) was used to extend non-liability health care to
include treatment for anxiety disorder and depressive disorder for veterans and
eligible members.
2
New paragraph 88A(1)(d) provides the Repatriation Commission with the power to
make a determination in writing that a person who is not already covered by
paragraph 88A(1)(a), (b) or (c), and who is in a specified class is eligible to be
provided with treatment of a specified kind under Part V of the Veterans
Entitlements Act.
Under new paragraph 88A(1)(d), it is intended that the Repatriation Commission will
determine that members of the ADF with at least 3 years continuous full-time
peacetime service on or after 7 April 1994 (or before and on or after 7 April 1994),
and who are not otherwise eligible, are eligible for treatment for PTSD, anxiety
disorder, depressive disorder and the new conditions of alcohol and substance use
disorder.
It is also intended that the Repatriation Commission will determine that members of
the ADF with less than 3 years continuous full-time peacetime service on or after
7 April 1994 (or before and on or after 7 April 1994), who were discharged on the
ground of invalidity or physical or mental incapacity to perform duties and who are
not otherwise eligible, are eligible for treatment for PTSD, anxiety disorder,
depressive disorder and the new conditions of alcohol and substance use disorder.
Commencement
Item 2 of the table in clause 2 provides that the amendments are to commence on and
from 1 July 2014.
3
Schedule 2 - Veterans and Veterans Families Counselling
Service
Overview
The amendments to the Veterans Entitlements Act in Schedule 2 will enable the
expansion of the client groups eligible for the VVCS from 1 July 2014.
Background
The VVCS is a free, confidential and specialised counselling service dedicated to
supporting the mental health and wellbeing of the Australian veteran and ex-service
community and their families. VVCS provides direct intake, counselling and referral
services, group treatment and psycho-educational programs, health promotion,
community development and liaison and case management. Both the range of
services provided and the client cohorts have expanded over the years, reflecting the
changing nature of the Australian Defence Force and acceptance of the impact of
military service on the mental health and wellbeing of members.
Eligibility for VVCS is mainly provided by sections 88A and 92 of the Veterans
Entitlements Act. An increase in military operations since 1999 has resulted in a new
cohort of veterans and over the years, eligibility for VVCS has been expanded.
This measure will provide, from 1 July 2014, VVCS eligibility to otherwise ineligible
current and former members with the following peace-time service:
border protection service;
service in an Australian or overseas disaster zone;
members involved in training accidents;
members who were medically discharged; and
submariners.
The measure will also, from 1 July 2014, expand VVCS eligibility to:
partners and dependant children up to the age of 26 of the above;
partners, dependant children up to the age of 26 and parents of members killed
in service-related incidents.
Unless they are eligible for VVCS on other grounds (for instance because they have
also been deployed on operations), these individuals do not currently have any
entitlement for VVCS or other treatment or benefits under the Veterans Entitlements
Act as the service rendered by the ADF member or former member does not qualify
the ADF member or former member as a ,,veteran or a ,,member of the Forces or a
,,member of a Peacekeeping Force under the Veterans Entitlements Act. The
military service for these groups is covered by either the Safety, Rehabilitation and
Compensation Act or the Military Rehabilitation and Compensation Act.
4
Persons in the above groups will be eligible for VVCS irrespective of whether or not
the member or former member has an accepted service injury or service disease
(within the meaning of the Military Rehabilitation and Compensation Act) or an
accepted injury (within the meaning of the Safety, Rehabilitation and Compensation
Act).
The amendments will create a new instrument making power to enable the
Repatriation Commission to extend eligibility for VVCS to specified current and
former ADF members, and dependants and former dependants of specified current
and former ADF members, whose service is covered under the Military Rehabilitation
and Compensation Act and the Safety, Rehabilitation and Compensation Act and who
do not meet the definition of a ,,veteran or a ,,member of the Forces or a ,,member of
a Peacekeeping Force under the Veterans Entitlements Act.
Explanation of the items
Veterans' Entitlements Act 1986
Item 1 adds a new subparagraph at the end of subsection 92(1)(a) of the Veterans
Entitlements Act. New subparagraph 92(1)(a)(iii) provides that the Repatriation
Commission may arrange for the provision of counselling services for a person
included in a class of persons specified in an instrument made under new subsection
92(2).
Item 2 inserts new subsection 92(2). New subsection 92(2) authorises the
Repatriation Commission to make a legislative instrument in which it may specify a
class of persons for whom counselling services may be provided in accordance with
new subparagraph 92(1)(a)(iii).
Commencement
Item 3 of the table in clause 2 provides that the amendments are to commence on and
from 1 July 2014.
5
Schedule 3 - Seniors supplement and seniors health card
Overview
The amendments in Schedule 3 change the portability status of seniors supplement
and Commonwealth seniors health card (CSHC) to reduce the administrative demand
on clients.
Background
From 1 January 2013, the portability period for both CSHC and seniors supplement
was reduced from thirteen weeks to six weeks. A person is eligible for seniors
supplement if the person is the holder of a CSHC and is not in receipt of an income
support payment. Seniors supplement is paid automatically and a claim is not
required. CSHC holders are eligible for subsidised pharmaceuticals in Australia and
certain concessions from State Governments.
The change in portability provisions meant that CSHC holders lost eligibility for the
CSHC and seniors supplement if they travelled outside Australia for longer than six
weeks. Thus, under the existing provisions, after a short period abroad the CSHC
holder had to re-claim the CSHC to be eligible for seniors supplement. To re-claim
the CSHC, the applicant must reclaim in writing and provide proof of income details.
These amendments to the Veterans Entitlements Act move the portability restriction
from the CSHC eligibility provisions to the seniors supplement eligibility provisions
for CSHC holders so that seniors supplement can be paid automatically upon a
persons return to Australia after a short period abroad without the need for the person
to re-claim the CSHC.
Explanation of the items
Veterans' Entitlements Act 1986
Item 1 inserts new subparagraph 118P(1)(aa). New subparagraph 118P(1)(aa)
provides that for a person to be eligible for seniors supplement, the person must,
among other requirements, be the holder of a CSHC and be in Australia or
temporarily absent from Australia for no more than six weeks.
Item 2 is a technical amendment to correct a typographical error.
Items 3 to 10 repeal the provisions and associated notes in section 118V that require a
person to be in Australia or temporarily absent for no more than six weeks to be
eligible for a CSHC.
6
Item 11 is an application provision. Subclause 11(1) provides that in working out
eligibility for seniors supplement for days on or after the day item 1 commences, the
change made by item 1 is to apply regardless of whether the absence from Australia
began before, on or after the commencement of item 1.
Subclause 11(2) provides that the changes made by items 3 to 10 are to apply on and
after the day the items commence, to work out whether a person is eligible for CSHC.
Commencement
Item 3 of the table in clause 2 provides that the amendments are to commence on and
from the day after the Act receives Royal Assent.
7
Schedule 4 - Veterans' Review Board
Overview
The amendments to the Veterans Entitlements Act and the Military Rehabilitation
and Compensation Act in Schedule 4 will enhance the operation of the Veterans
Review Board and include providing for modern and effective alternative dispute
resolution processes and improving the case management powers and administrative
and business procedures of the Veterans Review Board.
Background
The Veterans Review Board (the Board) is a statutory authority whose role is to
provide independent merits review of decisions about:
disability pension, war widow and widower pensions and attendant allowance
under the Veterans Entitlements Act; and
rehabilitation, compensation and other benefits under the Military
Rehabilitation and Compensation Act.
Merits review means the Board makes a fresh decision that it considers is the correct
or preferable decision in all the circumstances. In doing so, the VRB exercises the
same statutory powers, and is subject to the same limitations that are conferred on the
Repatriation Commission under the Veterans Entitlements Act, or the Military
Rehabilitation and Compensation Commission (MRCC) or a service chief under the
Military Rehabilitation and Compensation Act.
In conferring additional jurisdiction on the Board, the Military Rehabilitation and
Compensation Act applies provisions of the Veterans Entitlements Act with some
modifications. This means that the VRB operates under the Veterans Entitlements
Act, as modified, when deciding matters under the Military Rehabilitation and
Compensation Act or the Military Rehabilitation and Compensation (Consequential
and Transitional Provisions) Act 2004.
The Board does not have a general power to review decisions made under the
Veterans Entitlements Act or the Military Rehabilitation and Compensation Act. As a
statutory tribunal it has only those powers given to it by legislation. The VRB must be
able to identify a specific provision that authorises it to make a particular decision or
take a particular action. Each decision must relate to a prior decision - the decision
under review.
The Principal Member is responsible for the overall operations of the Board. The
Board comprises a Principal Member, Senior Members, Services members and other
members. A National Registrar, Registrars, Deputy Registrars and other staff provide
administrative assistance to the Board.
8
The proposed amendments are intended to enhance the operations of the Board and
include:
providing for modern and effective alternative dispute resolution processes,
including case conferencing, similar to other Commonwealth merits review
tribunals, particularly the Administrative Appeals Tribunal;
improving case management powers that will also facilitate alternative dispute
resolution processes as recommended by the 2011 Review of Military
Compensation Arrangements;
making the Veterans Review Board legislative framework more consistent
with the Administrative Appeals Tribunal (AAT) legislative framework; and
allowing the Board to implement more effective administrative and business
procedures.
Explanation of the items
Part 1 - Main Amendments
Veterans' Entitlements Act 1986
Item 1 is a technical amendment to section 133 of the Veterans Entitlements Act.
Item 2 inserts into subsection 133(1) of the Veterans Entitlements Act definitions for
the terms:
alternative dispute resolution processes;
Conference Registrar;
Deputy Registrar;
National Registrar; and
Registrar.
Alternative dispute resolution processes are procedures and services for the resolution
of disputes. Arbitration or court services are expressly excluded from the definition.
The National Alternative Dispute Resolution Advisory Council described the
available processes as follows:
Conference/Conferencing is a general term, which refers to meetings in
which the parties and/or their advocates and/or third parties discuss issues in
dispute. Conferencing may have a variety of goals and may combine
facilitative and advisory dispute resolution processes. Therefore the definition
of ,,alternative dispute resolution processes clarifies that conferencing is not
limited by the inclusion of other processes. In addition to its alternative
dispute resolution role, conferencing is also used as a case management tool.
For example, the person conducting a conference may advise the applicant
what further evidence may be necessary in order to seek a positive outcome;
9
Mediation is a process in which the parties to a dispute, with the assistance of
a dispute resolution practitioner (the mediator), identify the dispute issues,
develop options, consider alternatives and endeavour to reach an agreement.
The mediator has no advisory or determinative role in regard to the content of
the dispute or the outcome of its resolutions, but may advise on or determine
the process of mediation whereby resolution is attempted;
Neutral evaluation is a process in which the parties to a dispute present, at an
early stage in attempting to resolve the dispute, arguments and evidence to a
dispute resolution practitioner. That practitioner makes a determination as to
the key issues in dispute, and the most effective means of resolving the
dispute, without making any determination as to the facts of the dispute;
Case appraisal is a process in which a dispute resolution practitioner (the case
appraiser) investigates the dispute and provides advice regarding possible,
probable and desirable outcomes and the means whereby these may be
achieved;
Conciliation is a process in which the parties to a dispute, with the assistance
of a dispute resolution practitioner (the conciliator), identify the disputed
issues, develop options, consider alternatives and endeavour to reach an
agreement. The conciliator may have an advisory role on the content of the
dispute or the outcome of its resolution, but not a determinative role. The
conciliator may advise on or determine the process or conciliation whereby
resolution is attempted, and may make suggestion for terms of settlement, give
expert advice on likely settlement terms, and may actively encourage the
participants to reach an agreement.
Item 3 inserts new subsection 133(2) at the end of subsection 133(1). New
subsection 133(2) provides that, for the purposes of paragraph (f) of the definition of
alternative dispute resolution processes, the Minister for Veterans Affairs may
prescribe additional alternative dispute resolution procedures or services by legislative
instrument.
Item 4 inserts new section 133A which states the objective of the Board. This
objective is similar to the objective of the Administrative Appeal Tribunal.
It is not intended that the objectives statement will be a basis by which a person may
seek judicial review of a decision made by the Board. However, it will serve as an
accountability measure by which the Board can assess its own performance and the
Boards performance may be measured by the Government.
Item 5 inserts a new remittal power in new section 138A. Subsection 138A(1)
provides that the Board may, at any stage of a review of a decision of the
Commission, remit the decision to the Commission for the Commission to reconsider
the decision. This section applies where the Board has not made a decision in relation
to a review.
10
New subsection 138A(2) provides that, if a decision is remitted to the Commission
under subsection 138A(1), the Commission must reconsider the decision and must
either affirm the decision, vary the decision or set aside the decision and substitute a
new decision for the set aside decision.
New subsection 138A(3) provides that if the reconsideration by the Commission
results in the Commission affirming the decision, the review by the Board resumes.
This means that the applicant does not need to make another application to the Board
for a review of the decision affirmed by the Commission.
New subsection 138A(4) sets out the situation that applies if the reconsideration by
the Commission results in the Commission varying the decision. Under these
circumstances the application for review by the Board is taken to be an application for
review of the decision as varied by the Commission following remittal by the Board.
The applicant can then either proceed with the application for review by the Board of
the varied Commission decision or withdraw the application for review by the Board.
New subsection 138A(5) sets out the situation that applies if the reconsideration by
the Commission results in the Commission setting aside the decision and substituting
a new decision for the decision it set aside. Under these circumstances the application
for review by the Board is taken to be an application for the Board to review the new
decision of the Commission and the person who made the application has the choice
to either proceed with the application for review by the Board or withdraw the
application for review by the Board.
Item 6 repeals paragraph 139(3)(c) of the Veterans Entitlements Act and substitutes
a new paragraph 139(3)(c). Section 139 sets out the duties and powers of the Board
in making its decision on a review of a Commission decision.
Under existing subsection 139(3), in making its decision, the Board may affirm, vary
or set aside the Commissions decision. Where the Board sets aside the Commission
decision it must make a decision in substitution for the set aside Commission
decision.
New paragraph 139(3)(c) will provide the Board with broader remittal powers that are
expected to provide more effective means for determining certain reviews. It is also
expected to facilitate decisions being made at the appropriate decision making level
and encourage the early provision of evidence at the primary level. The broader
remittal power will avoid the need for the Board to adjourn a review hearing to allow
the Secretary of the Department of Veterans Affairs to investigate any associated
matters and provide a report to the Board. The associated matters may instead be
remitted to the Commission for reconsideration. The broader remittal power will also
be particularly useful in its application under the Military Rehabilitation and
Compensation Act under which a much wider range of decisions of the MRCC may
be reviewable by the Board.
New subparagraph 139(3)(c)(i) will maintain the Boards current power to set aside a
Commission decision and substitute a decision for the set aside Commission decision.
11
New subparagraph 139(3)(c)(ii) gives the Board the option of setting aside a decision
of the Commission, substituting a new decision and remitting one or more matters
relating to the substituted decision, to the Commission for reconsideration. The Board
may give directions or recommendations to the Commission in relation to the matter
or matters remitted.
New subparagraph 139(3(c)(iii) gives the Board the option of setting aside a decision
of the Commission, not substituting a new decision and remitting one or more matters
to the Commission for reconsideration. The Board may give directions or
recommendations to the Commission in relation to the matter or matters remitted.
Item 7 repeals subsection 139(4). Under subsection 139(4) where the Board had
substituted a decision granting a pension to a person, the Board had the choice of
assessing the rate or rates of pension to be paid to the person itself or remitting the
matter to the Commission to assess the rate or rates of pension to be paid to the
person. The ability to remit a matter to the Commission following a decision of the
Board was limited to assessing the rate or rates of pension to be paid.
Subsection 139(4) is no longer necessary. In exercising all the powers and discretions
of the Commission in relation to all of the matters relevant to the decision, the Board
may, where relevant, choose to assess the rate or rates of pension to be paid to the
person. Alternatively, in accordance with new subparagraphs 139(c)(ii) and (iii), the
Board may remit the matter to the Commission for reconsideration and may give
directions or recommendations to the Commission.
Item 8 repeals section 140 of the Veterans Entitlements Act and substitutes a
simpler, more modern section 140. New subsection 140(1) states that the Board must
give a copy of its decision under section 139 to each party to the review.
New subsection 140(2) enables the Board to give reasons for its decision under
section 139, either orally or in writing.
Where the Board gave oral reasons for its decision under section 139, new subsection
140(3) enables a party to the review to request a written statement of the Boards
reasons for its decision. The request for a written statement of reasons for the Board
decision must be made within 28 days of the Boards decision being given to the
party. In accordance with new paragraph 140(3)(b), where a party has requested a
written statement of the Boards decision, the Board must comply with the request
within 28 days of receiving the request.
New subsection 140(4) requires the Board to, where the Board has given written
reasons for its decision, include in those reasons its findings on material questions of
fact and reference to the evidence or other material on which those findings were
based.
12
Where the Boards has given written reasons for its decision, and the reasons contain
or refer to any information, opinion or other matter that in the Boards opinion is
confidential or may be prejudicial to the physical or mental health or wellbeing of the
review applicant, new subsection 140(5) requires that the written statement of the
Boards reasons for its decision given to the applicant must not contain or refer to that
information, opinion or other matter. The provision also applies in relation to a
written statement of reasons given to a person authorised by the review applicant.
New subsection 140(6) requires the Board to give the review applicant, notice of their
right of review to the Administrative Appeal Tribunal under section 175(1) of the
Veterans Entitlements Act. The provision also applies in relation to a person
authorised by the review applicant.
New subsection 140(7) requires the Board to file its written decision made under
section 139 and any written statement of reasons with the records of the case.
Item 9 updates subsection 140A(1) to include a reference to the National Registrar
and makes a technical change to the drafting style.
Item 10 amends subsection 141(2) regarding the constitution of the Board. Under the
existing provisions, generally three members are required to constitute a Board. New
subsection 141(2) will enable the Board to be constituted by a single member for a
particular review or a particular class of reviews. The member may be either the
Principal Member or a Senior Member, or a member who is not the Principal Member
or a Senior Member.
It is intended that this provision will be utilised to more cost effectively decide
favourable applications for review on the material before the Board, without the need
for a hearing.
Item 11 inserts new section 141A about the management of the administrative affairs
of the Board, after section 141 of the Veterans Entitlements Act.
New section 141A(1) provides that the management of the administrative affairs of
the Board is the responsibility of the Principal Member.
New subsection 141A(2) provides that the National Registrar may assist the Principal
Member in managing the administrative affairs of the Board.
New subsection 141A(3) provides that the National Registrar has the power to do all
things necessary or convenient to be done for the purpose of assisting the Principal
Member in managing the administrative affairs of the Board.
New subsection 141A(4) specifies that the National Registrar may act on behalf of the
Principal Member in relation to the administrative affairs of the Board.
13
New subsection 141A(5) provides that the Principal Member may give written
directions to the National Registrar regarding the exercise of the National Registrars
powers in relation to the administrative affairs of the Board under Part IX of the
Veterans Entitlements Act.
The inclusion of these provisions is expected to assist in the efficient management of
the Boards functions.
Item 12 repeals section 142 and substitutes a more modern section 142 of the
Veterans Entitlements Act about the arrangement of the business of the Board.
New subsection 142(1) provides that, subject to the Act, the expeditious and efficient
discharge of the business of the Board is the responsibility of the Principal Member.
New subsection 142(2) enables the Principal Member to give written directions on the
following matters:
the operations of the Board, both generally and at a particular place;
the procedure of the Board, both generally and at a particular place;
the conduct of reviews by the Board;
the arrangement of the business of the Board; and
the places in Australia at which the Board may sit.
For example, the Principal Member may issue a General Practice Direction which
would take account of the new alternative dispute resolution process. Other examples
may include a Listing and Adjournment Practice Direction or a Practice Direction
relating to section 137 documents.
Item 13 repeals section 145 of the Veterans Entitlements Act as it is incorporated
within new section 142.
Item 14 inserts new Division 4A after Division 4 of Part IX of the Veterans
Entitlements Act.
New subsection 145A(1) provides that in relation to an application to the Board for
review of a decision, the Principal Member may in writing:
direct that a conference of the parties (or their representatives) be held in
relation to the review, any part of the review or any matter arising out of the
review; or
direct that a particular alternative dispute resolution process, other than
conferencing, be held in relation to the review, any part of the review or any
matter arising out of the review.
14
New subsection 145A(2) provides that the Principal Member may direct in writing
that a conference of the parties (or their representatives) be held in relation to reviews
of a kind specified in the direction.
New subsection 145A(3) provides that the Principal Member may direct in writing
that a particular alternative dispute resolution process (other than conferencing) be
held in relation to reviews of a kind specified in the direction.
New subsection 145A(4) clarifies that if the Principal Member has directed the
holding of a conference or another alternative dispute resolution process under new
subsection 145A(1), the Principal Member may make another direction under new
paragraphs 145A(1)(a) or (b) or new subsection 145A(2) or (3), regardless of whether
a direction was given previously under those paragraphs or subsections.
New subsection 145A(5) requires the parties to an alternative dispute resolution
procedure to act in good faith. As no sanction is associated with the provision, it is
intended to educate parties about the importance of alternative dispute resolution
processes and encourage them to participate fully.
New subsection 145B(1) gives the Principal Member the power to give written
directions about alternative dispute resolution processes.
New subsection 145B(2) makes it clear that directions under new subsection 145B(1)
may relate to one or more of the following matters:
the procedure to be followed in the conduct of an alternative dispute resolution
process;
the person who is to conduct an alternative dispute resolution process; and
the procedure to be followed at the end of an alternative dispute resolution
process.
New subsection 145B(3) clarifies that the Principal Members power to issue
directions in relation to the matters mentioned in new subsection 145B(2) does not
limit the Principal Members powers under new subsection 145B(1).
New subsection 145B(4) requires a person who conducts an alternative dispute
resolution process to be either:
a member of the Board;
the National Registrar, a Registrar, a Deputy Registrar or a Conference
Registrar of the Board; or
a person engaged under new section 145G.
This subsection ensures that only persons with appropriate qualifications and
experience will conduct alternative dispute resolution processes.
15
New subsection 145B(5) clarifies that the National Registrar, a Registrar, a Deputy
Registrar of the Board may conduct an alternative dispute resolution process and
when conducting an alternative dispute resolution process the person does so in the
persons capacity of a Conference Registrar of the Board. This subsection clarifies
the different roles that an officer of the Board may undertake.
New subsection 145C enables parties to a review to give effect to an agreement
reached in an alternative dispute resolution process. New paragraph 145C(1)(a)
allows parties to give effect to an agreement if it relates to the review, any part of the
review or a matter arising out of the review.
Preconditions on the Boards power to give effect to an agreement are listed in new
paragraphs 145C(1)(b), (c) and (d). These preconditions are:
a written record is made of the terms of the agreement;
the written record is signed by or on behalf of the parties to the review;
the signed written record is lodged with the Board;
a seven day ,,cooling off period has passed after the lodging of the agreement;
no party has notified the Board in writing that the party wishes to withdraw
from the agreement during the seven day ,,cooling off period; and
the Board is satisfied that a decision in the terms of the agreement or
consistent with the terms of the agreement would be within the powers of the
Board.
Once these preconditions have been satisfied, the Board may give effect to the
agreement pursuant to new subsection 145C(2) or (3).
If the agreement relates to the terms of the decision in the review, new subsection
145C(2) allows the Board to give effect to that decision without holding a hearing. If
the agreement relates to part of the review, new paragraph 145C(3)(a) allows the
Board to give effect to the agreement without dealing any further with that part of the
review. Similarly, if the agreement relates to a matter arising out of a proceeding,
new paragraph 145C(3)(b) allows the Board to give effect to the agreement without
dealing any further with that matter.
New subsection 145D(1) provides that evidence of anything said, or any act done, at
an alternative dispute resolution process under this Division is not admissible in the
following jurisdictions:
any court;
any proceedings before a person authorised by a law of the Commonwealth or
of a State or Territory to hear evidence; or
any proceedings before a person authorised by the consent of the parties to a
review to hear evidence.
16
The meaning of ,,evidence of anything said or any act done" in new subsection
145D(1) is intended to be broad and would include any document submitted during an
alternative dispute resolution process.
New subsection 145D(2) contains the first exception, providing that the general rule
set out in new subsection 145D(1) does not apply to any evidence that parties to the
review agree should be admissible in the hearing.
The second exception in new subsection 145D(3) provides that the general rule in
new subsection 145D(1) does not apply to prevent the admission of a case appraisal
report or neutral evaluation report prepared by a person conducting an alternative
dispute resolution process. However, the exception would not apply if a party to the
review notifies the Board before the hearing that they do not want the report admitted
in evidence.
New subsection 145E relates to the eligibility of a person conducting an alternative
dispute resolution process to sit as a member of the Board. It provides that a member
is not entitled to be a member of the Board constituted for the purposes of the review
if:
the member conducted an alternative dispute resolution process in relation to
the review; and
any party to the review notifies the Board before the hearing that they do not
want the member to participate in the hearing.
New section 145F enables the person conducting an alternative dispute resolution
process to permit a party to the review to participate by telephone, closed-circuit
television or any other means of communication. Any other means of communication
is intended to include any efficient means of conveying information that may be
available for use in the Board.
New subsection 145G(1) enables the National Registrar to, on behalf of the
Commonwealth, engage persons to conduct one or more kinds of alternative dispute
resolution process under this Division. New subsection 145G(2) provides that the
National Registrar must not engage a person under new subsection 145G(1) unless the
National Registrar is satisfied that the persons qualifications and experience make the
person a person suitable to conduct the relevant kind or kinds of alternative dispute
resolution process under this Division.
Item 15 repeals the note after subsection 147(2).
Item 16 inserts new subsections 148(4A) and (4B) after subsection 148(4) of the
Veterans Entitlements Act.
New subsection 148(4A) gives a Member of the Board the power to hold a directions
hearing in relation to a review.
17
New subsection 148(4B) gives a member, the National Registrar, a Registrar, a
Deputy Registrar or a Conference Registrar the power to give directions about the
procedure to be followed in a review if the hearing of a review has not commenced.
The directions must be consistent with subsections 148(1) - (4) or directions under
subsection 142(2). The direction may:
require any person who is a party to the review to provide further information
in relation to the review; or
require the Commission to provide a statement of the grounds on which the
application will be resisted at the review hearing; or
require any person who is a party to the review to provide a statement of
matters or contentions that it is intended to rely upon at the review hearing;
but is not limited to these matters.
Item 17 makes a technical amendment to paragraph 148(5)(a) to include a reference
to subsection 142(2). Directions given by the Principal Member under paragraph
148(5)(a) must be consistent with subsections 148(1) - (4) or directions under
subsection 142(2).
Item 18 makes a technical amendment to paragraph 148(5)(b) to include a reference
to subsection 142(2). Directions given by the Principal Member under paragraph
148(5)(b) must be consistent with subsections 148(1) - (4) or directions under
subsection 142(2).
Item 19 amends paragraph 148(5B)(e) and substitutes a new paragraph to reflect the
that new subsection 155(2) relates to documents withdrawing or discontinuing
applications for review communicated to the Board.
Item 20 is a consequential amendment repealing paragraphs 148(5B)(f) to (i).
Item 21 makes a technical amendment to paragraph 148(6) to include a reference to
subsection 142(2). Directions given by the Principal Member under paragraph 148(6)
must be consistent with subsections 148(1) - (4) or directions under subsection
142(2).
Item 22 amends subsection 148(7) to reflect the insertion of the new objectives
provision in new subsection 133A.
Item 23 inserts new subsections 148(8) and (9) at the end of section 148 of the
Veterans Entitlements Act.
New subsection 148(8) enables the member holding a directions hearing or the Board
in the review hearing to allow a person to participate by telephone, closed-circuit
television or any other means of communication. Any other means of communication
is intended to include any efficient means of conveying information that may be
available for use in the Board.
18
New subsection 148(9) makes it clear that in a review under Part IX, the Commission
must use its best endeavours to assist the Board to make its decision.
Item 24 repeals sections 155 to 155AC and substitutes a new section 155.
New subsection 155(1) provides that with the consent of the parties to the review, the
Principal Member may dismiss the application for review without proceeding to or
completing the review, whichever is applicable.
New subsection 155(2) enables a person who has made an application for review to
withdraw the application by notifying the Board in writing that the application is
withdrawn or discontinued. New subsection 155(3) gives the Principal Member the
power to dismiss an application without proceeding to review where the applicant has
notified the Board in accordance with new subsection 155(2).
New subsection 155(4) gives the Principal Member the power to dismiss an
application for review without proceeding to review if the applicant fails to appear or
to arrange a representative to appear on their behalf, at a directions hearing or an
alternative dispute resolution process, or hearing relating to their review. If the
Principal Member dismisses the application, the Principal Member must notify each
party to the review of the dismissal.
New subsection 155(5) clarifies when a person or representative is taken to appear in
person for the purposes of new subsection 155(4).
New subsection 155(6) requires the Principal Member to be satisfied that the review
applicant was given appropriate notice as to the time and place or the directions
hearing or alternative dispute resolution process or review hearing before exercising
the power under new subsection 155(4).
New subsection 155(7) enables the Principal Member to dismiss an application if:
the National Registrar has notified the applicant in writing that the decision
does not appear to be reviewable by the Board; and
before the end of a period prescribed in a legislative instrument made by the
Minister, the person is unable to show that the decision is reviewable.
New subsection 155(8) gives the Principal Member the power to dismiss an
application for review without proceeding to review if the applicant fails to proceed
with the application or comply with a direction given under Part IX of the Veterans
Entitlements Act in relation to the application for review. If the Principal Member
dismisses the application, the Principal Member must notify each party to the review
of the dismissal.
19
New subsection 155(9) makes it clear that if an application is dismissed under section
155 and not reinstated under subsection 155(10) or (11), the associated review is
taken to be concluded.
If the Principal Member dismisses an application under new subsection 155(4), new
subsection 155(10) provides the applicant with the opportunity to apply to have the
application reinstated. The application for reinstatement must be made within 28 days
of the notification of dismissal. If the Principal Member considers it appropriate, the
Principal Member may reinstate the application and give appropriate directions in
relation to the reinstated application.
New subsection 155(11) gives the Principal Member the power to reinstate an
application that has been dismissed in error under section 155AA and give appropriate
directions in relation to the application. The reinstatement may be initiated by the
Principal Member or a party to the review.
Item 25 repeals subsection 155A(1) and substitutes a new subsection. New
subsection 155A(1) provides that a decision by the Principal Member to dismiss an
application under new subsection 155(4), (7) or (8) may be the subject of an
application to the Administrative Appeals Tribunal. It should be made clear that this
right of appeal is limited to the decision of the Principal Member to dismiss the
application and not the substantive matters relating to the application for review.
Item 26 amends subparagraph 157(2)(b)(ii) to reflect the changed language in new
subsection 140 relating to the giving of a copy of the Boards decision
Item 27 inserts new subsection 157(4A) after section 157(4) of the Veterans
Entitlements Act.
New subsection 157(4A) provides that if the Board sets aside a decision of the
Commission under new subparagraph 139(3)(c)(iii), the setting aside of the
Commission decision by the Board takes effect on the day the Board made the
decision or an earlier or later date. The Board when determining the date of effect
shall apply a date it considers to be fair and reasonable in all the circumstances
applicable to the review of the decision.
Item 28 repeals subsection 166(1A) and substitutes new subsections 166(1A) and
(1B). New subsection 166(1A) gives the Principal Member the power to delegate, in
writing, to the National Registrar, all or any of the Principal Members powers under
sections 142, 143, 144, 148 or 155.
New subsection 166(1B) gives the Principal Member the power to delegate, in
writing, to a Registrar, a Deputy Registrar or a Conference Registrar, all or any of the
Principal Members powers under subsection 148(6A) or 155.
20
Giving the Principal Member the ability to delegate the powers of the Principal
Member under the specified sections to the various Registrars is expected to promote
the more efficient running of the Board by enabling certain management functions to
be undertaken by the various Registrars.
For example, the delegation to the National Registrar may include issuing a direction
in relation to the listing of a panel for hearing, where a member has become
unavailable at short notice, or the power to issue a summons.
Items 29 and 30 insert new headings.
Item 31 inserts new subsections 167(1A) and (1B). New subsection 167(1A) gives
the same protection and immunity as a Justice of the High Court to the National
Registrar, a Registrar, a Deputy Registrar or a Conference Registrar in the
performance of their duties as the National Registrar, a Registrar, a Deputy Registrar
or a Conference Registrar.
New subsection 167(1B) gives the same protection and immunity as a Justice of the
High Court to an alternative dispute resolution practitioner in the performance of their
duties as an alternative dispute resolution practitioner.
Items 32 and 33 insert new headings.
Item 34 adds a definition of ,,alternative dispute resolution practitioner for the
purposes of section 167.
Item 35 repeals section 170 and substitutes a new section 170 to strengthen the
Contempt of the Board provisions.
New subsection 170(1) provides that it is an offence if a persons conduct insults a
person in the exercising of that persons powers under Part IX of the Veterans
Entitlements Act. The penalty associated with this offence is 6 months imprisonment.
New subsection 170(2) ) provides that it is an offence if a persons conduct interrupts
the proceedings of the Board. The penalty associated with this offence is 6 months
imprisonment.
New subsection 170(3) provides that it is an offence if a persons conduct creates a
disturbance in or near a place where the Board is sitting. The penalty associated with
this offence is 6 months imprisonment.
New subsection 170(4) provides that it is an offence if a person takes part in creating
or continuing a disturbance in or near a place where the Board is sitting. The penalty
associated with this offence is 6 months imprisonment.
21
New subsection 170(5) provides that it is an offence if a persons conduct would
constitute contempt of court if the Board were a court of record. The penalty
associated with this offence is 6 months imprisonment.
Item 36 is a technical amendment.
Item 37 adds new subsection 172(2) after subsection 172(1). New subsection 172(2)
makes it clear that, without limiting subsection 172(1), the staff required to assist the
Board may include one or more of the following positions:
a National Registrar;
Registrars;
Deputy Registrars; or
Conference Registrars.
Item 38 repeals subsection 175(1) and substitutes a new subsection 175(1) and
(1AA). New subsection 175(1) provides that an application may be made to the
Administrative Appeals Tribunal for review of a decision of the Board if the decision
of the Commission has been reviewed by the Board and either:
the Board affirmed or varied the decision of the Commission; or
the Board set aside the decision and substituted a decision under subparagraph
139(3)(c)(i) or (ii).
New subsection 175(1AA) provides that, for the purposes of an application to the
Administrative Appeals Tribunal under subsection 175(1), the decision made by the
Board is taken to be:
if the Board affirms a decision of the Commission - that Board decision as
affirmed; or
if the Board varies a decision of the Commission - that Board decision as
varied; or
if the Board sets aside a decision and substitutes a decision under either
subparagraph 139(3)(c)(i) or (ii) - that Board decision in substitution for the
Commission decision set aside.
Item 39 makes a technical amendment to paragraph 176(3)(a).
Item 40 makes a technical amendment to paragraph 176(3)(b).
Item 41 is an application and saving provision. Subitem 41(1) makes it clear that the
amendments made by the items specified, apply in relation to an application for
review that is made on or after the commencement of the specified items.
22
Subitem 41(2) makes it clear that the amendments made by the items specified, apply
in relation to decisions made by the Board on or after the commencement of the
specified items.
Subitem 41(3) makes it clear that new subsections 145A(1), (2) and (3) of the
Veterans Entitlements Act apply in relation to an application for review that is made
on or after the commencement of item 41.
Subitem 41(4) clarifies that the amendment made by item 28 does not affect the
validity of a delegation in force under section 166(1A) of the Veterans Entitlements
Act immediately before the commencement of item 41.
Subitem 41(5) makes it clear that item 31 applies in relation to duties performed on or
after the commencement of item 31.
Subitem 41(6) makes it clear that item 35 applies in relation to conduct engaged in or
after the commencement of item 35.
Part 2 - Consequential Amendments
Military Rehabilitation and Compensation Act 2004
Items 42 and 43 insert a reference to new sections 133A and 138A respectively in
subsection 353(1) of the Military Rehabilitation and Compensation Act. These
amendments ensure that new sections 133A and 138A of the Veterans Entitlements
Act apply for the purposes of a review by the Board under Part 4 of Chapter 8 of the
Military Rehabilitation and Compensation Act.
Item 44 inserts a reference to Division 4A in subsection 353(1). This amendment
ensures that new Division 4A of Part IX of the Veterans Entitlements Act relating to
alternative dispute resolution processes applies for the purposes of a review by the
Board under Part 4 of Chapter 8 of the Military Rehabilitation and Compensation Act.
Item 45 repeals the cell in table item 6 of the column headed "Modification" in
subsection 353(2) of the Military Rehabilitation and Compensation Act and
substitutes a new cell. The new cell makes it clear that references to a decision
having effect as a reference to an original determination applies only in cases where
the reference to a decision is to a decision of the Repatriation Commission.
Item 46 repeals table item 11 in subsection 353(2) and substitutes a new table item
11. New table item 11 provides that, for the purposes of the Military Rehabilitation
and Compensation Act, subsection 140(6) of the Veterans Entitlements Act applies
as if a reference in that provision to subsection 175(1) is a reference to subsection
354(1) of the Military Rehabilitation and Compensation Act.
Item 47 repeals table items 17 and 18 of the table in subsection 353(2) that referred to
repealed subsections in sections 155, 155AA and 155AB.
23
Item 48 repeals section 353A. The remittal powers provided by the repealed section
are incorporated in new paragraph 139(3)(c) of the Veterans Entitlements Act which
apply for the purposes of a review by the Board under Part 4 of Chapter 8 of the
Military Rehabilitation and Compensation Commission in accordance with subsection
353(1).
Item 49 is an application provision.
Subitem 49(1) makes it clear that the amendments made by the items specified apply
in relation to an application for review that is made on or after the commencement of
the specified items.
Subitem 49(2) makes it clear that item 46 applies in relation to a decision of the Board
made on or after the commencement of item 46.
Commencement
Item 4 of the table in clause 2 provides that the amendments are to commence on and
from the 28th day after Royal Assent.
24
Schedule 5 - Operational service
Overview
The amendment in Schedule 5 changes the end date of Item 7 of the Table describing
operational areas in Schedule 2 of the Veterans Entitlements Act.
Background
Schedule 2 of the Veterans Entitlements Act describes operational areas for the
purposes of operational service under section 6C of the Veterans Entitlements Act.
,,Operational area is defined in subsection 5B(1). Defence Force members with
operational service are eligible for disability and income support pensions and other
associated benefits under the Veterans Entitlements Act.
Item 7 of the table in Schedule 2 relates to service in the territories of Malaysia,
Brunei and Singapore and the waters adjacent to those countries. The current end
date for item 7 of the Table in Schedule 2 is 30 September 1967. Eligibility under the
Veterans Entitlements Act for service covered by Schedule 2 exists only where a
person who served in an operational area, or the unit in which the person served, is
covered by an Instrument of Allotment for duty for the relevant period. The existing
Instruments of Allotment refer only to service during the period from 17 August 1964
to 14 September 1966.
Allotments for this service are required to be provided by the Defence Force, and
advice from the Assistant Minister for Defence supported previous information from
the Department of Defence that there are no grounds for any allotments (on either a
unit or individual basis) after 14 September 1966.
No veteran will be disadvantaged by the change of end date as no member or unit of
the Defence Force was allotted for duty, with the meaning of the Veterans
Entitlements Act, in the area after 14 September 1966.
Explanation of the items
Veterans' Entitlements Act 1986
Item 1 amends column 2 of item 7 of the table in Schedule 2 of the Veterans
Entitlements Act. Column 2 of item 7 of the table in Schedule 2 is amended by
omitting the end date of ,,30 September 1967 and substituting the end date of
,,14 September 1966.
Commencement
Item 5 of the table in clause 2 provides that the amendment is to commence on and
from Royal Assent.
25
Schedule 6 - Eligible young persons wholly dependent on a
member
Overview
Schedule 6 amends the Military Rehabilitation and Compensation Act to expand the
circumstances under which an eligible young person is taken to be wholly dependent
on a member.
Background
Currently, under the Military Rehabilitation and Compensation Act, an eligible young
persons eligibility for compensation requires the establishment of a level of
economic dependence on a member. (A reference to a ,,member includes a reference
to a former member). The level of dependence may be categorised as wholly, mainly
or partly dependent. Depending on the level of dependence, an eligible young person,
may be entitled to:
lump sum compensation;
education assistance;
weekly compensation;
a Gold Card; and
MRCA supplement.
The categories of ,,wholly and ,,mainly dependent attract all of the entitlements listed
above, whilst the entitlements granted to a ,,partly dependent child are limited to
lump sum compensation and education assistance.
Section 5 of the Military Rehabilitation and Compensation Act defines ,,dependent as
dependent for economic support.
Section 15 of the Military Rehabilitation and Compensation Act defines the term
,,dependant as any person specified in subsection 15(2). An eligible young person
may meet the definition of dependant if they were the child, step-child, grandchild,
sibling or half-sibling of the member or the child or step-child of the members
partner or a person to whom the member stands in the position of a parent and the
eligible young person:
is wholly or partly dependent on the member; or
would be wholly or partly dependent on the member but for the service-
related incapacity of the member.
Section 17 of the Military Rehabilitation and Compensation Act further provides that
an eligible young person is taken to be wholly dependent on a member if the eligible
young person lives with the member or would be living with the member except for a
temporary absence or an absence due to illness or infirmity.
26
Subsection 5(1) of the Military Rehabilitation and Compensation Act defines the term
,,eligible young person as:
(a) a person under 16; or
(b) a person who:
(i) is 16 or more but under 25; and
(ii) is receiving full-time education at a school, college,
university or other educational institution; and
(iii) is not in full-time employment or engaged in work
full-time on his or her own account.
Aside from section 17, there are no formal guidelines for determining the level of an
eligible young persons dependency, i.e. wholly, mainly or partly. The level of
dependency is determined on a case-by-case basis having regard to a number of
factors. To date, all eligible young persons have been compensated under the Military
Rehabilitation and Compensation Act as wholly or mainly dependent.
The amendments will expand the circumstances under which an eligible young person
is taken to be wholly dependent on a member by including an eligible young person
for whom the member is liable to provide child support under the Child Support
(Assessment Act) 1989.
The amendments will align the wholly dependent status of an eligible young person
not living with the member but for whom the member is liable to provide child
support, with that of an eligible young person living with the member.
Explanation of the items
Military Rehabilitation and Compensation Act 2004
Item 1 repeals section 17 of the Military Rehabilitation and Compensation Act and
substitutes a new section 17. Section 17 sets out certain circumstances under which a
partner or young person is taken to be wholly dependent on a member. These
circumstances are not exhaustive.
New subsection 17(1) provides that partner of a member is taken to be wholly
dependent on the member if the partner lives with the member. The partner of a
member is also taken to be wholly dependent on the member if, in the Commissions
opinion, the partner would, except for either persons temporary absence or absence
due to illness or infirmity, be living with the member.
27
New subsection 17(2) provides that an eligible young person is taken to be wholly
dependent on a member if:
the young person lives with the member; or
in the Commissions opinion, the young person would be living with the
member but for the temporary absence of the member or young person; or
in the Commissions opinion, the young person would be living with the
member but for the absence of the member or young person due to illness or
infirmity; or
the member is liable to provide child support under the Child Support
(Assessment) Act 1989 in respect of the young person.
Notes after subsections 17(1) and (2) advise that, in accordance with section 20 of the
Military Rehabilitation and Compensation Act, subsections 17(1) and (2) also apply to
former members.
Commencement
Item 5 of the table in clause 2 provides that the amendment is to commence on and
from Royal Assent.
28
Schedule 7 - Membership of the Military Rehabilitation
and Compensation Commission
Overview
Schedule 7 amends the Military Rehabilitation and Compensation Act to enable the
Chief Executive Officer of Comcare to be nominated for appointment to the Military
Rehabilitation and Compensation Commission (MRCC).
Background
Membership of the MRCC is set out in section 364 of the Military Rehabilitation and
Compensation Act and consists of the three members of the Repatriation Commission,
a member nominated by the Minister administering the SRCA (the Minister for
Employment and Workplace Relations), and two members nominated by the Minister
of Defence.
Amendments made to the SRCA with effect from 1 January 2012, unintentionally
prevented the nomination of the Chief Executive Officer of Comcare for appointment
to the MRCC. It was the intention of the Military Rehabilitation and Compensation
Act that the membership of the MRCC include the Chief Executive Officer of
Comcare, to enable the benefit of expertise from a member with whole-of-government
knowledge on workers compensation issues.
The amendments to the Military Rehabilitation and Compensation Act will again
enable the Chief Executive Officer of Comcare to be nominated for appointment to
the MRCC.
Explanation of the items
Military Rehabilitation and Compensation Act 2004
Item 1 inserts a definition for Comcare in subsection 5(1) of the Military
Rehabilitation and Compensation Act.
Item 2 inserts a reference to the ,,Chief Executive Officer of Comcare in
subparagraph 364(1)(b)(ii) of the Military Rehabilitation and Compensation Act. The
effect of this is that the person nominated for appointment to the MRCC by the
Minister administering the SRCA may be:
the Chief Executive Officer of Comcare; or
a person described in subsection 89E(1) of the SRCA; or
a person engaged under the Public Service Act 1999 and performing duties in
the Department administered by the Minister administering the SRCA.
Item 3 is a technical amendment to subparagraph 364(1)(b)(ii) of the Military
Rehabilitation and Compensation Act.
29
Item 4 inserts a reference to the ,,Chief Executive Officer of Comcare in paragraph
367(2)(a) of the Military Rehabilitation and Compensation Act. The effect of this is
that the Minister may appoint a person to act in the vacant office of the MRCC
member described in subparagraph 364(1)(b)(ii) of the Military Rehabilitation and
Compensation Act, a person who is nominated by the Minister administering the
SRCA and who is:
the Chief Executive Officer of Comcare; or
a person described in subsection 89E(1) of the SRCA; or
a person engaged under the Public Service Act 1999 and performing duties in
the Department administered by the Minister administering the SRCA.
Item 5 is a technical amendment to paragraph 367(2)(a) of the Military Rehabilitation
and Compensation Act.
Item 6 amends the table at the end of section 372. Paragraph (a) of item 2 of the
column headed "Circumstances in which termination is required" is repealed and a
new paragraph substituted. The new paragraph provides that a persons appointment
as a member of the MRCC must be terminated if the person is not:
the Chief Executive Officer of Comcare; or
a person described in subsection 89E(1) of the SRCA; or
a person engaged under the Public Service Act 1999 and performing duties in
the Department administered by the Minister administering the SRCA.
Commencement
Item 5 of the table in clause 2 provides that the amendments are to commence on and
from Royal Assent.
30
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Veterans' Affairs Legislation Amendment (Mental Health and Other Measures)
Bill 2014
Schedule 1 - Non-liability health care
This Schedule is compatible with human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the legislative amendments
The Schedule will enable the expansion of the mental health conditions, and persons,
eligible for non-liability health care.
Non-liability health care for specified conditions is provided to veterans and eligible
members of the Defence Force or of a Peacekeeping Force under the existing
provisions of Part V of the Veterans Entitlements Act.
Eligibility for those groups for treatment for cancer (malignant neoplasia), pulmonary
tuberculosis, and PTSD is provided under subsection 85(2) and eligibility for
treatment for anxiety and depressive disorders is provided through an instrument
made under section 88A. Under both provisions the conditions do not need to be
determined to be service-related for the eligible person to be entitled to treatment.
The amendments to subsection 85(2) expand the specified conditions for non-liability
health care to include alcohol use disorder and substance use disorder.
The amendments to section 88A expand the legislative instrument making power to
enable the Repatriation Commission to make a written determination expanding
eligibility for non-liability health care to include the mental health conditions of
PTSD, anxiety, depressive disorders and the new conditions of alcohol and substance
use disorders.
The determination will cover Defence Force members with at least 3 years continuous
full-time peacetime service on or after 7 April 1994, or those with less than 3 years
continuous full-time peacetime service on or after 7 April 1994, who were discharged
on the ground of invalidity or physical or mental incapacity to perform duties and who
are not otherwise eligible.
31
Human rights implications
The Bill engages the following human right:
Right to health
Article 12 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognises ,,the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.
The amendments engage with and promote, the right to health by increasing the
mental health conditions for which treatment will be provided under the Veterans'
Entitlements Act on a non-liability basis to include persons with an ,,alcohol use
disorder or a ,,substance use disorder and by the inclusion of a related measure to
expand the groups of Defence Force members who will be eligible for treatment for
specified mental health conditions.
Conclusion
The amendments are compatible with human rights because they advance the human
rights to health.
Schedule 2 - Veterans and Veterans Families Counselling Service
This Schedule is compatible with human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the legislative amendments
Schedule 2 of the Bill amends the Veterans' Entitlements Act to enable the expansion
of eligibility for the Veterans and Veterans Families Counselling Service (VVCS) to
current and former Australian Defence Force members with certain peacetime service.
The VVCS is a free, confidential, specialised counselling service dedicated to
supporting the mental health and wellbeing of the Australian veteran and ex-service
community and their families.
The amendments will enable the expansion of the client groups eligible for the VVCS
to include otherwise ineligible current and former Defence Force members with the
following peace-time service:
border protection service;
service in an Australian or overseas disaster zone;
members involved in training accidents;
members who were medically discharged;
submariners.
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The amendments also enable the expansion of VVCS eligibility to:
partners and dependant children of the above;
partners, dependant children and parents of Defence Force members killed in
service-related incidents.
The individuals in those client groups do not currently have any entitlement for
VVCS or other treatment or benefits under the Veterans' Entitlements Act as the
service rendered by the member does not qualify under the Veterans' Entitlements
Act.
The military service for individuals in these groups is covered by either the Safety,
Rehabilitation and Compensation Act or the Military Rehabilitation and
Compensation Act.
The Schedule 2 amendments will create a new instrument making power to enable the
Repatriation Commission to extend eligibility for VVCS to persons, and dependants
and former dependants of persons, whose service would otherwise be covered under
the Military Rehabilitation and Compensation Act and Safety, Rehabilitation and
Compensation Act.
Human rights implications
The Bill engages the following human right:
Right to health
Article 12 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognises ,,the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.
The amendments engage with, and promote, the Right to Health by expanding the
eligibility criteria to allow more clients to access the counselling and support services
provided by the VVCS.
The broadening of VVCS eligibility to encompass additional groups from within the
veteran and ex-service community, was announced as part of the 2013 Mental Health
Service - Expansion (Strengthening Veteran Mental Health) Budget initiative.
The amendments expand the client groups eligible to access VVCS services and as
such increases the accessibility of health care options for a greater number of people
in the veteran and ex-service community.
Conclusion
The Bill is compatible with human rights because it advances the human rights to
health by increasing access to health care options for members of the veteran and ex-
service community.
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Schedule 3 - Seniors supplement and seniors health card
This Schedule is compatible with human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the amendments
Schedule 3 contains minor amendments to the Veterans' Entitlements Act in relation
to the eligibility for payment of the seniors supplement and the retention of the
Commonwealth seniors health card following short periods of overseas travel.
As part of the 2012-13 Budget the portability period of certain payments and benefits
under the Social Security Act 1991, the Veterans' Entitlements Act and the Military
Rehabilitation and Compensation Act was reduced from thirteen weeks to six weeks
from 1 January 2013.
As a result the portability period for the Commonwealth seniors health card (CSHC)
was reduced to six weeks from 1 January 2013.
The change meant that CSHC holders would lose eligibility for the CSHC if they had
travelled outside Australia for a period longer than six weeks. CSHC holders were
required to re-claim the CSHC once they returned to Australia.
A person is eligible for seniors supplement if the person is the holder of a CSHC and
is not in receipt of an income support payment. Seniors supplement is paid
automatically on a quarterly basis and a claim is not required. Following those
amendments, after a short period abroad the CSHC holder had to re-claim the CSHC
in order to be eligible for seniors supplement even in the circumstances where the
person would otherwise have been eligible for the payment.
The Schedule 3 amendments to the Veterans' Entitlements Act have moved the
portability eligibility restriction from the CSHC eligibility provisions to the seniors
supplement eligibility provisions. The seniors supplement can now be paid
automatically upon a persons return to Australia after a short period abroad without
the need for the person to re-claim the CSHC.
Human rights implications
The Bill engages the following human right:
Right to social security
Article 9 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognises the right of everyone to social security.
The amendments made by Schedule 4 will promote the right to social security by
ensuring that holders of the CSHC will retain eligibility for the payment of the seniors
supplement following short periods of overseas travel.
34
Conclusion
This Schedule is compatible with human rights as it advances the human rights of
CSHC holders who travel overseas for short periods.
Schedule 4 - Veterans' Review Board
This Schedule is compatible with human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the amendments
Schedule 4 contains amendments to the Veterans' Entitlements Act relevant to the
operation of the Veterans Review Board.
The Veterans Review Board (the Board) is a statutory authority whose role is to
provide independent merits review of decisions about:
disability pension, war widow and widower pensions and attendant allowance
under the Veterans' Entitlements Act; and
rehabilitation, compensation and other benefits under the Military
Rehabilitation and Compensation Act.
The Board exercises all of the powers and discretions that are conferred on the
Repatriation Commission under the Veterans' Entitlements, or the Military
Rehabilitation and Compensation Commission (MRCC) or a service chief under the
Military Rehabilitation and Compensation Act.
The Principal Member is responsible for the overall operations of the Board. In
making its decision the Board must apply the law as set out in the Veterans'
Entitlements Act or the Military Rehabilitation and Compensation Act and other
related legislation. A National Registrar, Registrars, Deputy Registrars and other staff
provide administrative assistance to the Board.
Schedule 4 includes amendments which:
set out in new sections 145A to 145G (new Division 4A of Part IX of the
Veterans' Entitlements Act) modern and effective alternative dispute
resolution processes, including case conferencing, mediation, neutral
evaluation, case appraisal and conciliation; which are similar to other
Commonwealth merits review tribunals, particularly the Administrative
Appeals Tribunal (AAT); and
provide for improved case management powers that will also facilitate
alternative dispute resolution processes as recommended by the 2011 Review
of Military Compensation Arrangements.
Other amendments will make the Veterans Review Board legislative framework
more consistent with the AAT legislative framework and will also implement
procedures to make the operations of the Board more efficient. The measures include:
35
a remittal power in new section 138A to provide that the Board may, at any
stage of a review of a decision of the Commission, remit the decision to the
Commission for reconsideration for it to either affirm the decision with the
applicant not needing to make another application, vary the decision or set
aside the decision and substitute a new decision;
amendments to section 139 setting out the duties and powers of the Board in
making its decision on a review of a Commission decision by broadening the
power of remittal to provide the Board with more flexible options when it sets
aside a decision to either substitute a new decision or not substitute a new
decision and remit matters relating to the decision to the Commission for
reconsideration along with directions or recommendations;
repealing section 140 setting out the duties of the Board in giving notice of its
decision and reasons to the various parties and substituting a simpler section
which protects confidential information and information prejudicial to the
physical or mental health or wellbeing of the applicant and enables the Board
to give reasons for its decision under section 139, either orally or in writing
and requires the Board to inform the applicant of their AAT review rights;
amend section 141 referring to the constitution of the Board to enable the
Board to be constituted by a single member for a particular review or a
particular class of reviews;
provide the National Registrar with specific administrative powers under new
section 141A to provide assistance to the Principal Member in the
administration of the operation of the Board;
extend the powers of the Principal Member under section 142 of the Veterans'
Entitlements Act to give directions as to the operations of the Board,
procedures of the Board and the conduct of reviews by the Board;
amend section 148 of the Veterans' Entitlements Act to provide specific
powers to a member or a registrar to give directions where the hearing has not
commenced or for the member to give directions where a hearing has
commenced;
further amend section 148 to provide that the person who made the decision
under review must use his or her best endeavours to assist the Board to make
its decision;
repeal and substitute at new section 155 to provide the Principal Member with
the power of dismissal for non-appearance, failure to proceed or comply with a
direction and the power to provide for the reinstatement of an application;
insert new subsection 155A(1) to provide that certain decisions made by the
Principal Member under new section 155, may be the subject of an application
to the AAT;
expand the delegation power of the Principal Member in section 166 to
include a power to delegate certain powers to the national registrar, a registrar
or a deputy registrar as are deemed necessary to facilitate the efficient
operation of the Board;
amend section 167 which provides Board members with the same immunity
from prosecution and protection as provided to a Justice of the High Court by
36
extending the same protection to the National Registrar, Registrars, Deputy
Registrars and Conference Registrars;
amend the contempt provision in section 170 to align it with the equivalent
section of the AAT Act and broaden the set of actions that can be regarded as
being in contempt of the Board;
amend section 172 to clarify that the staff required to assist the Board may
include one or more of the following positions:
o a National Registrar;
o Registrars;
o Deputy Registrars; or
o Conference Registrars.
amend section 175 to provide that an application may be made to the AAT for
review of a decision of the Board if the decision of the Commission has been
reviewed by the Board and the Board affirmed or varied the decision or the
Board set aside the decision and substituted a new decision.
Human rights implications
The Bill engages the following human rights:
Right to a fair hearing
Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR)
provides that: ,,All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or his rights and obligations in a
suit at law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law.
All of the proposed amendments that are intended to allow the Veterans Review
Board to operate more efficiently and effectively as a merits review tribunal are
consistent with the aims stated in Article 14(1) of the ICCPR.
The introduction of modern and effective alternative dispute resolution processes
including improved case management powers will benefit applicants seeking a review
of a decision concerning an entitlement under the Veterans' Entitlements Act or the
Military Rehabilitation and Compensation Act.
The amendments to align the operations of the Board to be more consistent with the
AAT legislative framework and the amendments that will allow the Board to
implement procedures to make the operations of the Board more efficient will also
benefit applicants by ensuring that applicants will receive ,,a fair and public hearing
by a competent, independent and impartial tribunal established by law.
None of the proposed amendments will have an adverse impact on the access to
justice by applicants for a review of a decision.
37
Right to equality and non-discrimination
Article 2(2) of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) guarantees the right to non-discrimination in the exercise of economic,
social and cultural rights.
Article 5 of the Convention on the Rights of Persons with Disabilities (CPRD) states
that ,,all persons are equal before and under the law and are entitled without any
discrimination to the equal protection and equal benefit of the law.
New section 140 refers to the need for the Board to give notice of its decisions and
reasons to the relevant parties. Subsection 140(5) refers to the provision in writing of
the reasons for a decision and provides the Board with the discretion to exclude
information it considers to be confidential or prejudicial to the physical or mental
health or wellbeing of the applicant.
While it is recognised that the provision is potentially discriminatory it is justified on
the basis that the differential treatment is legitimate.
The UN Human Rights Committee has recognised that ,,not every differentiation of
treatment will constitute discrimination, if the criteria for such differentiation are
reasonable and objective and if the aim is to achieve a purpose which is legitimate
under the Covenant.
The provision only allows for the withholding of information on the grounds that to
disclose it ,,might be prejudicial to the physical or mental health or wellbeing of the
applicant.
It is intended that the withholding of such information is to prevent the applicant from
self harm or harming other persons. Such an intention can be considered to
reasonable and objective with the aim of achieving purposes which are legitimate
under the various Conventions.
Right to freedom of opinion and expression
The right to freedom of opinion and expression is contained in articles 19 and 20 of
the International Covenant on Civil and Political Rights (ICCPR).
New section 170 sets out the conduct which can be regarded as being in contempt of
the Board. The new section replicates section 63 of the AAT Act and is one of the
measures which aligns the legislative framework of the Board with that of the AAT.
The new section extends the conduct from that which was previously regarded as
being in contempt of the Board to include conduct which creates a disturbance in or
near a place where the Board is sitting and clearly limits the right to freedom of
expression as set out in Article 19 of the ICCPR.
There are circumstances in which the right to freedom of opinion and expression can
be limited. One of those circumstances is ,,public order which is understood to mean
the rules which ensure the peaceful and effective functioning of society.
38
Article 14(1) of the ICCPR in setting out the right to a fair hearing refers to the
exclusion of the press and the public ,,from all or part of a trial for reasons of morals,
public order or national security.
The limitation on the right to freedom of opinion and expression in section 170 is
reasonable and objective and achieves the purpose of a right to a fair hearing which is
legitimate under Article 14(1) of the International Covenant on Civil and Political
Rights (ICCPR).
Conclusion
The amendments included in Schedule 4 are compatible with human rights because
they advance the human right to a fair hearing because they ensures that applicants
will receive ,,a fair and public hearing by a competent, independent and impartial
tribunal established by law.
Where the amendments limit the human rights to equality and non-discrimination by
withholding information the limitation is justified on the basis that the purpose is to
prevent the applicant from self harm or harming other persons.
The limiting of the human right to freedom of opinion and expression is justified on
the grounds that such a limitation is for the purposes of public order which is
consistent with the right of the applicant to a fair hearing.
Schedule 5 - Operational service
This Schedule is compatible with human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the amendments
Schedule 5 of the Bill concerns a technical amendment to Schedule 2 of the Veterans'
Entitlements Act to align the end date of operational service in Malaysia, Brunei and
Singapore and adjacent waters, with the date referred to in the relevant Instruments of
Allotment.
Schedule 2 of the Veterans' Entitlements Act describes operational areas for the
purposes of operational service under the Veterans' Entitlements Act. Under the
Veterans' Entitlements Act, Defence Force members with operational service are
eligible for disability and income support pensions and other associated benefits.
Item 7 of Schedule 2 refers to an operational area that includes the Malayan Peninsula
and covers a period that includes the Confrontation between Malaysia and Indonesia.
The current end date for item 7 of the table in Schedule 2 is 30 September 1967. The
existing Instruments of Allotment refer only to service during the period from
17 August 1964 to 14 September 1966.
39
Allotments for this service are required to be provided by the Defence Force, and
advice from the Assistant Minister for Defence supported previous information from
the Department of Defence that there are no grounds for any allotments (on either a
unit or individual basis) after 14 September 1966.
The change of end date will not disadvantage any veteran as no members of any unit
of the Defence Force were allotted for duty in the area described in Item 7 of
Schedule 2 after 14 September 1966.
Human rights implications
This Schedule does not engage any of the applicable rights or freedoms.
Conclusion
This Schedule is compatible with human rights as it does not raise any human rights
issues.
Schedule 6 - Eligible young persons wholly dependent on a member
This Schedule is compatible with human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the amendments
Schedule 6 amends the Military Rehabilitation and Compensation Act to expand the
circumstances under which an eligible young person is taken to be wholly dependent
on a Defence Force member.
While it will depend on the level of dependence, an eligible young person, may be
entitled to lump sum compensation, education assistance, weekly compensation, a
Gold Card and the payment of the MRCA supplement.
The amendments expand the circumstances under which an eligible young person is
taken to be wholly dependent on a member by including an eligible young person for
whom the member is liable to provide child support under the Child Support
(Assessment Act) 1989.
The amendments also align eligibility for compensation for an eligible young person
not living with the member but for whom the member is liable to pay child support
with that for an eligible young person living with the member.
40
Human rights implications
The Bill engages the following human right:
Right to social security
Article 9 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognises the right of everyone to social security.
The amendments made by Schedule 4 promote the right to social security by ensuring
that that all young persons for which a Defence Force member is providing child
support under the Child Support (Assessment Act) 1989 will be regarded as being an
,,eligible young person who is wholly dependent on a member for the purposes of the
Military Rehabilitation and Compensation Act.
Conclusion
This Schedule is compatible with human rights as it advances the human rights of
eligible young persons who are wholly dependent on a Defence Force member.
Schedule 7 - Membership of the Military Rehabilitation and Compensation
Commission
This Schedule is compatible with human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the amendments
Schedule 7 amends the Military Rehabilitation and Compensation Act to provide for
the nomination of the Chief Executive Officer of Comcare for appointment to the
Military Rehabilitation and Compensation Commission.
Human rights implications
The Schedule does not engage any of the applicable rights or freedoms.
Conclusion
The Bill is compatible with human rights as it does not raise any human rights issues.
41