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Thursday, 25 August 1994
Page: 319


Senator COLSTON —On behalf of the Standing Committee on Regulations and Ordinances, I give notice that, at the giving of notices on the next day of sitting, I shall withdraw business of the Senate notice of motion No.1 standing in my name for 10 sitting days after today. I seek leave to make a short statement.

  Leave granted.


Senator COLSTON —On 28 June 1994, I reported to the Senate on the Committee's concern with this instrument, which related to a discretion which may not be subject to review. The Minister has now provided the committee with information which meets our concerns. The committee is grateful for this cooperation. As usual, I seek leave to incorporate the committee's correspondence in Hansard.

  Leave granted.

  The correspondence read as follows

30 May 1994

The Hon Con Sciacca MP

Minister for Veterans' Affairs

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Veterans' Entitlements (Rehabilitation Allowance) Regulations, Statutory Rules 1994 No. 107, considered by the Committee at its meeting of 2 June 1994.

The Regulations several times mention a program of vocational rehabilitation and r. 5(a)(ii) refers to a program of vocational rehabilitation approved by the Repatriation Commission. This appears to imply that the Commission may exercise a discretion to approve or reject courses or presumably approve courses previously rejected or reject courses previously approved. This could have important financial and other consequences for veterans. The Committee would appreciate your advice on whether r. 5(a)(ii) is the only legislative reference to approval of courses and whether there is AAT review, similar to the appropriate review provisions of other discretions in the regulations, of decisions to reject courses. If there is no AAT review it may improve the rights of veterans if you undertook to provide such review.

Yours sincerely

Mal Colston

Chairman

Senator M Colston

Chairman

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Mal

Thank you for your letter of 30 May 1994 regarding the Veterans' Entitlements (Rehabilitation Allowance) Regulations.

In that letter you requested my advice as to whether the reference in regulation 5(a)(ii) to the Repatriation Commission approving a vocational rehabilitation program for the purposes of the vocational rehabilitation allowance is the only legislative reference to approval of programs. This is the case.

The second issue you raised is the issue of whether or not a person has any right of review by the AAT if the Commission rejects a vocational rehabilitation program. Review rights exist in relation to the assessment of the reduction of a person's income as a result of undertaking the program of rehabilitation (regulation 7) and in relation to the calculation of the amount of rehabilitation allowance to be paid to a person (regulation 8). As the regulations are currently drafted there is no right of review by the AAT of a decision to reject a vocational rehabilitation program for the purposes of rehabilitation allowance.

Originally it was considered that, as the Regulations would confer a discretionary power on the Commission to confer a benefit over and above the entitlements already provided under the Act, such a review was not warranted. Viewed from another perspective, if the Commission rejected a rehabilitation program, that rejection would not in itself result in any diminution of the person's ongoing right to pension.

This is consistent with the fact that section 106 is a special section, intended for limited use and entirely as the Commission deems fit. It contains no indication that decisions taken under it are to be subject to review, in contrast to very specific provisions elsewhere in the Act. It provides:

(1) Subject to sub-section (2), the Commission may, in such circumstances, and subject to such conditions (if any), as are prescribed, in its discretion, grant to a veteran, or to a dependant of a veteran or deceased veteran, assistance or benefits of such a kind, and of such an amount or value, as it deems fit in all the circumstances of the case.

(2) The Commission shall not grant assistance or benefits to a person under sub-section (1) in circumstances in which the person is eligible to be granted an allowance or assistance under another provision of this Act.

I have reviewed this aspect of the Regulations and have arranged for an amendment to be made to take account of the concerns raised by your Committee. I have also asked that the impact of the review right on the scheme be examined at the expiry of the Regulations in December 1995.

The amendment will provide that a decision of the Commission to approve or to reject a vocational rehabilitation program for the purposes of rehabilitation allowance will be required to be notified in writing to the person concerned. This written notification will be required to include reasons for a decision not to approve a program for the purposes of the rehabilitation allowance. The amendment will further provide that such a decision will be subject to review by the AAT.

I thank the Committee for drawing this matter to my attention.

Yours sincerely

CON SCIACCA

11 July 1994