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Thursday, 29 August 2002
Page: 3989


Senator MARK BISHOP (1:07 PM) —I would like, if I may, to make some further comments on Veterans' Affairs Legislation Amendment Bill (No. 1) 2002. It is worth noting that the Veterans' Entitlements Act is a very complex and difficult piece of legislation to come to grips with simply because it effectively contains over 80 years of law dealing with the care and recognition of veterans throughout a period of enormous change in Australian society. In this period we have had two major world conflagrations, the second of which saw Australia attacked directly for the first time, with mass mobilisation. Since then we have served with the United Nations in Korea and the British during the Malayan crisis, in the Indonesian confrontation, and with the US in Vietnam, the Gulf and now Afghanistan. We have also joined with the UN in a wide range of peacekeeping missions all around the world, the last of which has been in East Timor.

In this time, society has changed enormously, and you do not have to look very far in the veterans jurisdiction to find examples of discriminatory or contradictory policies which appear to have arisen more by budgetary considerations than by any principle of equity or consistency. Because of this complexity, it is therefore not the least bit surprising that from time to time we are presented with amendments such as those in this bill which are corrections to outcomes unforeseen at the time of the original legislation. In fact, one could well conclude that it is time that we drew a line and started again, which I understand the government is planning by the drafting of a new military compensation scheme. But the trouble is that the current act will continue to operate while ever there are people alive with entitlements granted by it. No doubt, we will continue to see complex amendments coming into the parliament to fix an unintended shortcoming or, more to the point, to provide consistency with the Social Security Act where there seems to be a capacity to overlook the linkages with the Veterans' Entitlements Act far too often.

Going beyond the context of the bill then, its provisions are largely of the nature I have described, although I must say that they are so numerous and detailed that it is almost impossible to make reference to all of them. In the majority of amendments the changes proposed are of a purely technical nature and are necessary to clarify or to make terminology consistent. In some cases there have been oversights where people have been affected unintentionally and, so again, corrections need to be made. It is worth noting that in some cases the bureaucracy does seem to be able to manage by way of ex gratia payments or simply by turning a blind eye. For this reason alone, the law needs to be corrected, though this is long overdue. We have no quibble with this type of amendment, and so I will not go through the detail as it is set out in the explanatory memorandum.

Before proceeding to make some specific remarks on a few items in the bill, however, I wish to make a point about the government's attitude to this legislation and, indeed, to other legislation where ministers' second reading speeches and explanatory memorandums seem to regard the legislative process as a rubber stamp—that it is all too complex to explain and that any policy implications should be swept under the carpet and ignored. This bill is a good case in point because there are a number of serious policy and administrative issues which are simply not referred to.

The first policy issue arises, in fact, with the very first amendment proposed in this bill, as set out in schedule 1, which deals with changes to the income support supplement for war widows and widowers. These amendments, in essence, are simply to correct drafting omissions made at the time the income support supplement was legislated, both in the Social Security Act and in the Veterans' Entitlements Act, in that the policy being applied at the time was that war widows' access to social security benefits was severely limited. Those in payment for the ISS thereafter were to have no access to benefits, including the disability support pension, unemployment benefits—now known as Newstart—or any other benefit. All rates payable at the time were frozen.

We have no quibble with the need to make sure that the intended policy is correctly provided for in the legislation—and hence this long list of drafting amendments—but what we must make clear right now is that the policy itself is flawed and is, in fact, being reversed in part by other legislation currently before the parliament. Here I refer to the Veterans' Affairs Legislation Amendment (2002 Budget Measures) Bill 2002, which was dealt with just a few moments ago. Yet nowhere in the minister's second reading speech for either bill is this referred to—nor is mention made that the second bill effectively reverses in part the policy basis of the ISS as it was introduced.

Whatever the reasons behind the 1986 amendments which have brought us to this bill today, we in the Labor Party agree that war widows enjoy a traditional place in Australian veterans law whereby their unique loss is worthy of recognition, in addition to their separate needs for support from the social security system. It should be noted, however, that in supporting the bill we also agree with the government that, given the history of the war widows pension and the linkage with the social security system, there should be a trade-off when it comes to income support. It is not appropriate that war widows should have full access to both.

However, there is more to it than this because this bill seeks to alter only one part of the suite of 1986 measures. In short, we can see no logical reason why war widows in receipt of a war widows pension, which recognises the death of their husband due to war-caused injury or disease, should not be able to access benefits other than the ISS, particularly Newstart with which comes access to training and the work force. We accept it should be fully means tested, but to change only part of the 1986 policy, as indexation of the ISS does, is to continue the attitude that war widows should have no access to any other program. This is, in fact, a penalty for all war widows under the age of 57 and should not be tolerated.

Putting that major point of criticism aside, however, we accept that, for technical reasons alone, the amendments in schedules 1 and 2 of the bill are necessary to correctly express this flawed policy in the Social Security Act and the Social Security (Administration) Act. Schedule 3 of the bill amending the Aged Care (Consequential Provisions) Act also contains technical amendments to definitions of `in care', which are supported and therefore need no elaboration beyond that set out in the explanatory memorandum. Schedule 4 contains a minor amendment worthy of note in that it corrects an earlier amendment providing for the removal of rent assistance to those sharing public housing which is already subsidised. This effectively closes that loophole and is supported, as it was in the first instance. Schedule 5 also makes a minor amendment to give effect to an earlier amendment transferring carers' allowances from the VEA to the Social Security Act. This amendment corrects another misdescription to allow that to happen and is similarly supported. Schedule 6 contains a wide range of technical amendments to correct previous misdescriptions, invalid references and incorrect expressions. These do not warrant further comment.

There are no policy implications except on two specific matters which I need to mention. The first of these is item 51, which corrects an inconsistency within the VEA whereby third-party compensation paid to a widow is treated differently within two separate sections of the act, in that there is a difference in the way the cause of death is described. The original provision of the act was that, where there is a third-party settlement to a widow for the death of her husband—for example, from a car accident—the widow's pension was offset in full or in part. A later amendment to another section incorrectly limited this offset to a death which was defence caused. This clearly was inconsistent and contrary to policy, and so now needs to be rectified.

The second is a provision to be inserted into a number of sections of the act, allowing for the easier incorporation of non-legislative external documents or other delegated legislation into statutory instruments governing the operation of some benefit schemes in the VEA. I refer here specifically to items 20, 55, 59, 63, 66 and 68. These amendments provide that changes made in external instruments will flow through automatically to the VEA where relevant thus avoiding the need for separate regulatory processes on every occasion.

This may seem to be a practical proposal to reduce the amount of work and the need for subordinate legislation, but my concerns are twofold. First, this is a device with little precedent, yet it has not been acknowledged at all in the minister's second reading speech, nor is it dealt with adequately in the explanatory memorandum. At face value these amendments appear vague, referring to external documents `existing from time to time' and to those which might `not yet exist'. In terms of the scrutiny of delegated legislation the parliament must in every instance be aware of and approve, even by default, changes to regulation and delegated authority, particularly for budgetary consequences, and also ensure that policy is not being altered by stealth. Second, the automatic provision for flow-on from one instrument or external document to another within the Veterans' portfolio is something to be watched carefully. I draw the attention of the clerks and the Regulations and Ordinances Committee to this matter for ongoing scrutiny and consideration. Accordingly, I seek leave to have incorporated in Hansard the specific advice provided to me by the minister, dated 23 April 2002, as a matter of record.

Leave granted.

The document read as follows—

MINISTER FOR VETERANS' AFFAIRS

MINISTER ASSISTING THE MINISTER FOR DEFENCE

Senator Mark Bishop

Shadow Minister for Veterans' Affairs Parliament House

CANBERRA ACT 2600

Dear Senator Bishop

VETERANS' AFFAIRS LEGISLATION AMENDMENT BILL (No. 1) 2002

I refer to the meeting on 12 April 2002 between our advisers and departmental officers that included a discussion about the above Bill. At that meeting some concern was expressed relating to seven items in Schedule 6 to Bill. Items 20,55,58,59,63 and 68 of Schedule 6 all deal with the proposed inclusion of a power in the Veterans' Entitlements Act 1986 that would enable the incorporation of documents in legislative instruments.

I am advised that the above provisions have given rise to some concern regarding the scope of the proposed power and the manner in which it would be exercised. A Paper was promised to outline further details of the practical effect of the proposed power.

Please find attached a copy of a Paper which outlines the intended operation of the proposed power and identifies the types of documents that are likely to be specified in the disallowable instrument. I trust that the Paper is of assistance is addressing any concerns.

Yours sincerely

(signed)

Danna Vale

23 April 2002

Encl

Veterans' Affairs Legislation Amendment Bill (No. 1) 2002

An Explanation of “Incorporation by Reference” Provisions

Background

1. The purpose of this Paper is to provide additional information on a number of clauses contained in the Veterans' Affairs Legislation Amendment Bill (No. 1) 2002 (`the Bill'). Those clauses have already been explained in the Explanatory Memorandum that accompanies the Bill.

2. The impetus for this document arose out of concerns being expressed by the veteran community about the clauses in question. It is anticipated that this document will be widely published to all interested parties in an attempt to address any concerns and to ensure that any debate is fully informed.

What clauses are we talking about?

3. The clauses in the Bill that have apparently given rise to some concern can loosely be described as “Incorporation by Reference” provisions. There are seven of these clauses in the Bill. They all have the same purpose which is to enable certain Instruments made under the Veterans' Entitlements Act 1986 (`the VEA') to be able to incorporate documents in force from time to time.

4. The clauses involved are all contained in Schedule 6 to the Bill and involve:

· item 20—which amends section 29 of the VEA which deals with the “Guide to the Assessment of Rates of Veterans' Pensions”;

· item 55—which amends section 90 of the VEA which deals with the “Treatment Principles”;

· item 58—which amends section 90A of the VEA which deals with the “Repatriation Private Patient Principles”;

· item 59—which amends section 91 of the VEA which deals with the “Repatriation Pharmaceutical Benefits Scheme”;

· item 63—which amends section 105 of the VEA which deals with the “Vehicle Assistance Scheme”;

· item 66—which amends section 115B of the VEA which deals with the “Veterans' Vocational Rehabilitation Scheme”; and

· item 68—which amends section 117 of the VEA which deals with the “Veterans' Children Education Scheme”.

Why do we want to incorporate documents into Instruments?

5. Usually legislation is self-contained and set out in one text. But if all the relevant aspects of a piece of legislation were contained in the one document it could become unwieldy and virtually impossible to use. To overcome these problems it is often convenient to set out brief items in the body of the legislation and refer to the more detailed items as being contained in other documents. This practice is known as incorporation by reference.

6. An example of the above practice is where other legislation is referred to in the primary document. For example, the “Treatment Principles” made under section 90 of the VEA incorporate by reference the Medicare Benefits Schedule made under the Health Insurance Act 1973. A further example is where an Australian Standard is being referred to in legislation. The relevant legislation will say that an object or good is to comply with AS 12345, but the legislation will not contain the full text of the Australian Standard because it is voluminous. The document containing the detailed requirements of the standard will not be included in the legislation.

7. By referring to other documents in the main body of the legislation, the legal principle is that these other documents then become incorporated by reference into the main body of the legislation and become part of the legislation. This is a standard legislative procedure that is utilised in many pieces of legislation and is currently used in Instruments made under the VEA.

8. However, while it is permissible for Instruments to incorporate documents by reference, there is a rule that, generally speaking, such external documents are “frozen in time”. Thus, if an Instrument refers to Australian Standard 12345 then only the terms of that Standard as they existed at the time the relevant Instrument was made are incorporated into the Instrument. This results in any subsequent amendment to the Standard not being part of the Instrument. In order to make the amended Standard part of the Instrument, the Instrument would need to be amended to refer to the new amended Standard. The rule governing the incorporation of documents into Instruments is contained in section 49A of the Acts Interpretation Act 1901 (`the AIA')

9. The primary reason for the rule relating to the incorporation of documents is that the law should be certain and if Instruments refer to documents that keep changing then those affected by the Instrument might have difficulty in learning of those changes (see Chapters 22 and 24 in “Delegated Legislation in Australia” by Pearce and Argument, 2”d Edition, Butterworths).

The rule in the AIA can be very inconvenient in some circumstances

10. The AIA recognises that the rule can operate negatively and hinder effective administration so it provides an override mechanism. It allows for a Statute to provide that an Instrument made under the Statute can incorporate documents in force from time to time (ie. amended) and that is what is proposed to be done to the VEA by this Bill. Put simply, the purpose of the provisions of the Bill under discussion is to override section 49A of the AIA which prohibits Instruments from incorporating non-legislative documents in force from time to time.

Will veterans be disadvantaged in any way?

11. Veterans will NOT be disadvantaged by these provisions. Repatriation Law is not regulatory law in the sense that the activities of veterans are regulated. Rather; Repatriation Law mainly regulates the Department of Veterans' Affairs (DVA) and the Repatriation Commission in their dealings with veterans meaning that Repatriation Law is more an internal-working tool for DVA/Commission than a body of rules that veterans must observe. Thus, if an incorporated document is amended and becomes part of an Instrument, it is highly unlikely that a veteran will be disadvantaged in some way because he or she does not have immediate access to the changed document.

12. In addition, the invariable practice of both DVA and the Commission is to ensure that information relating to eligibility and entitlements is widely published. Accordingly, if the Instrument was to include a reference to a document that was not widely available, DVA would undertake to make the document available through either an office of the Department or through the Department's Internet Site.

What about service providers?

13. Unlike veterans, service providers are regulated by Repatriation Law and would need to know about changes to incorporated documents. However, it is not envisaged that any difficulties will arise in this regard and this assumption is based on current DVA arrangements. Under these arrangements, service providers are notified promptly of any changes that affect them and the system works well. This is particularly the case as most service providers also have contractual obligations with DVA and the Commission. These contracts and service agreements contain mechanisms for the notification and variation of the terms of the agreements. Unless these mechanisms are complied with, any such variation would not be legally effective.

How could the public generally be aware of changed incorporated documents?

14.A11 of DVA's legislation, including Instruments, are available on the DVA Internet Home Page and consideration is being given to providing links on that page to documents incorporated in DVA Instruments so that a member of the public will always have access to a changed incorporated document.

What other pieces of legislation incorporate documents in force from time to time?

15. Other legislation which enables the incorporation of non-legislative documents that are in force from time to time include:

· Public Service Act 1999 (section 23)

· Radiocommunications Act 1992 (section 314A)

· Telecommunications Act 1997 (section 589)

What are the VEA Instruments that will incorporate documents in force from time to time?

16. Only the following seven Instruments identified in the Bill will be able to incorporate non-legislative documents in force from time to time. These Instruments are all made by the Commission, approved by the Minister and are required to be tabled before both Houses of the Parliament. The Instruments are:

· The Guide to the Assessment of Rates of Veterans' Pensions made under section 29 of the VEA;

· The Treatment Principles made under section 90 of the VEA;

· The Repatriation Private Patient Principles made under section 90A of the VEA;

· The Repatriation Pharmaceutical Benefits Scheme made under section 91 of the VEA;

· The Vehicle Assistance Scheme made under section 105 of the VEA;

· The Veterans' Vocational Rehabilitation Scheme made under section 115B of the VEA; and

· The Veterans' Children Education Scheme made under section 117 of the VEA.

What sort of documents will be incorporated from time to time in these Instruments?

17. At present it is envisaged that only two of the abovementioned Instruments will incorporate non-legislative documents in force from time to time. However, it is considered that the other Instruments should also have that facility to incorporate such documents.

18. The two Instruments that are currently proposed to incorporate documents in force from time to time are the Treatment Principles and the Repatriation Pharmaceutical Benefits Scheme.

19. The Treatment Principles are intended to incorporate at least the following documents as in force from time to time:

· the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, being the standard for assessing post-traumatic stress disorder. Paragraph 2.4.2A currently only incorporates the 4h Edition;

· Memorandum of Understanding between the Commonwealth, the Repatriation Commission and the Australian Medical Association Ltd setting out, among other things, doctor's fees. Currently only the MOU of 10 December 1995 is incorporated;

· Notes for Local Medical Officers setting out the terms for doctors' contracts with the Repatriation Commission. Currently only the Notes of December 1995 are incorporated (see paragraph 4.1.2);

· Dental Officer Scheme setting out the terms for dentists' contracts with the Repatriation Commission. Currently only the conditions in force at 1 June 1993 are incorporated (see paragraph 5.1.2);

· Dental Schedules setting out the dental services that may be provided to veterans etc (see paragraph 5.2.1);

· Guidelines for the Provision of Community Nursing Care which contain the standards of care to be provided. Currently only the Guidelines in force at 1 May 2001 are incorporated (see paragraphs 7.3.2 and 7.3.5);

· The Schedule of Prescribable Items for optometrical services (see paragraph 7.4.2);

· Rehabilitation Appliance Schedule setting out the appliances that may be provided to veterans etc to assist with their rehabilitation;

· The Schedule of Prescribable Items for visual aids (see paragraph 11.4.1);

20. The Repatriation Pharmaceutical Benefits Scheme is intended to incorporate at least the following documents as in force from time to time:

· Schedule of Pharmaceutical Benefits for Approved Pharmacists and Medical Practitioners dated 1 February 2002 setting out, among other things, notices to doctors and pharmacists;

· Repatriation Pharmaceutical Benefits Schedule dated 1 February 2002 setting out the Pharmaceutical Benefits that may be prescribed and supplied to veterans etc.

How would the Instruments refer to the incorporated documents?

21. It is envisaged that the Treatment Principles and the Repatriation Pharmaceutical Benefits Scheme would be amended in a manner similar to that described in Attachment A. In essence, the incorporated document would need to be identified with sufficient certainty to enable each document and its contents to be readily identified.

How do you incorporate a document that “does not yet exist”?

22. This power would be used to incorporate a draft or interim document before it has been formally made. For example, in relation to Australian Standards, there is a process that must by followed before a new Standard is said to formally exist. Interim Standards can exist that are yet to be formally made by Standards Australia. Similarly, in relation to the Medicare Benefits Schedule, DVA has been made aware of some recommendations made by the Medicare Benefits Advisory Committee to amend the Medicare Benefits Schedule to include a new item. The Commission may wish to include the new item for treatment to veterans prior to its inclusion in the Medicare Benefits Schedule. The terms of the proposed amendment contained in the Bill would enable this to be actioned.

23. The common law rules relating to “uncertainty” impact on the exercise of this power. Clearly the Commission could not make an Instrument that referred to a document that could not be identified or the terms of which could not be ascertained. The incorporated document would need to be identified with some degree of detail and be made available to the public. This would be achieved through either direct publication by DVA or via the DVA Internet Site.

Conclusion

24. The circumstances involving the relevant DVA Instruments are such that it is appropriate for the rule in section 49A of the Acts Interpretation Act 1901 to be overridden. Those circumstances being:

· the need to provide new services to veterans quickly without having to amend the relevant Instrument to refer to an updated incorporated document;

· the fact that Repatriation Law does not regulate the activities of veterans etc meaning that they are unlikely to be disadvantaged by not being aware of changed incorporated documents;

· the effective arrangements in place for informing service-providers (who are regulated by Repatriation Law) of changed incorporated documents; and

· the proposal to publicise incorporated documents on DVA's Internet Site.

Further queries

25. The above information has been prepared by the Legal Services Group in the Department of Veterans' Affairs. As you will appreciate, both the legal issues and details are complex. Further queries on the legal issues can be directed to the Branch Head of the Legal Services Group, Mr Paul Pirani on 62896003.

DANNA VALE MP

Minister for Veterans' Affairs

—————

Attachment A

Treatment Principles

Fourth Edition American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders

2.4.2A The Commission will provide, arrange, or accept financial responsibility for, treatment of a veteran under paragraph 2.4.1 in respect of post-traumatic stress disorder if the veteran has been assessed and diagnosed as suffering from post-traumatic stress disorder, by a psychiatrist, in accordance with the criteria for such assessment and diagnosis as set out in the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (commonly known as DSM IV) in force from time to time.

Memorandum of Understanding

3.5.1 The extent of the financial responsibility accepted by the Commission for the provision of treatment for eligible persons is, subject to the Act and these Principles, as follows:

(a) in respect of the fees payable to DVA Registered Local Medical Officers—the fees set out in clauses 18 and 29 of the Memorandum of Understanding;

“Memorandum of Understanding” means the Memorandum of Understanding between the Commonwealth of Australia as represented by the Department of Veterans' Affairs, the Repatriation Commission and the Australian Medical Association Ltd, relating to the provision of medical services by Local Medical Officers to entitled persons, dated 10 December 1995 in force from time to time;

Notes for Local Medical Officers of December 1995

4.1.2 Compliance with the conditions of the Local Medical Officer Scheme set out in the Notes for Local Medical Officers of December 1995 in force from time to time is a condition of the contract for services with each Local Medical Officer, including a DVA Registered Local Medical Officer.

Dental Officers Scheme

5.1.2 Compliance with the Local Dental Officer Scheme, as in force at 1 June 1993

in force from time to time, is a condition of the contract for services with each Local Dental Officer.

Dental Schedules

5.2.1 The Commission may, from time to time, prepare Dental Schedules A, B and C and a Dental Prosthetist Schedule, that list dental services provided or arranged by the Commission and the limits of financial responsibility accepted by the Commission.

Note: Copies of the Local Dental Officer and Dental Prosthetists Fees Bulletins that contain details of these Schedules may be obtained from any office of the Department.

Rehabilitation Appliance Schedule

11.1.1 The Commission may, from time to time, prepare a RAP Schedule that lists the surgical appliances and appliances for self-help and rehabilitation that may be provided by a health provider to an entitled person and for which the Commission may accept financial liability.

(a) surgical appliances; and

(b) appliances for self help and rehabilitation purposes;

Repatriation Pharmaceutical Benefits Scheme

Schedule of Pharmaceutical Benefits for Approved Pharmacists and Medical Practitioners

4. Where it is provided for the Department or the Commission to notify of certain matters, the publication of the Explanatory Notes shall be taken to constitute such notification to the extent that the Explanatory Notes are relevant and are not inconsistent with other notification given by the Department or the Commission.

“Explanatory Notes” means the text entitled “Explanatory Notes” and the text entitled “RPBS Explanatory Notes” that is published, from time to time, in the document, Schedule of Pharmaceutical Benefits for Approved Pharmacists and Medical Practitioners, having the International Standard Serial Number 1037-3667, and dated 1 November 2000 to the extent that that text is not inconsistent with this Scheme;

Repatriation Pharmaceutical Benefits Schedule

7. Restrictions apply to the prescribing of certain items. These include:

(a) items—quantities and repeats: those listed in the RPBS Schedule or PBS Schedule; ...

“RPBS Schedule” means the Schedule of Pharmaceutical Benefits prepared by the Department of Veterans' Affairs, entitled “Repatriation Schedule of Pharmaceutical Benefits” and dated 1 November 2000 in force from time to time;