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Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No. 2) Bill 2018

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2016-2017-2018

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

VETERANS’ AFFAIRS LEGISLATION AMENDMENT

(VETERAN-CENTRIC REFORMS No. 2) BILL 2018

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Veterans’ Affairs,

 The Honourable Darren Chester MP)

 



 

 

Table of Contents

 

 

 

Outline and Financial Impact

 

1

 

Statement of Compatibility

 

3

                1

Short title

9

                2

Commencement

9

                3

Schedules

 

9

Schedule 1

Compensation for incapacity for work for former members

 

11

Schedule 2

Veteran Suicide Prevention pilot

 

13

Schedule 3

Compensation for member’s death for wholly dependent partners

 

15

Schedule 4

Veterans’ Children Education Scheme

 

17

Schedule 5

Service on submarine special operations

21

 

 

 

Schedule 6

Claims for compensation

 

23





VETERANS’ AFFAIRS LEGISLATION AMENDMENT

(VETERAN-CENTRIC REFORMS No. 2) BILL 2018

 

OUTLINE AND FINANCIAL IMPACT

 

The Explanatory Memorandum to the Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No.2) Bill 2018 (the Bill) provides a description of amendments to the Bill being made.

 

Schedule 1 - Compensation for incapacity for work for former members

The amendments to be made by Schedule 1 would provide former members of the Australian Defence Force with incapacity payments at 100% of their normal weekly earnings where they are studying full time as part of their approved DVA rehabilitation plan.  This will remove any barriers to rehabilitation. 

Incapacity payments are compensation payments paid for a loss of normal earnings suffered as a result of a service-related physical and mental health condition. Under the current legislation, incapacity payments “stepdown” to 75 per cent (or a higher percentage depending on weekly hours worked) of normal earnings after a period of 45 weeks.

 

Schedule 2 - Veteran Suicide Prevention pilot

The amendments proposed to be made by Schedule 2 would amend the Veterans’ Entitlements Act 1986 to pilot a service aimed at improving the mental health services available to veterans and prevent veteran suicide.

The Veteran Suicide Prevention Pilot (also known as the Mental Health Clinical Management Pilot as part of the 2017-18 Budget measure Suicide Prevention Pilot) will provide intensive and assertive management services to support a veteran’s mental health outcomes after they have been discharged from a hospital following an attempted suicide, suicide crisis, or for those who may be at increased risk of suicide because of their mental health or other factors.  This will include support to access other relevant government and non-government treatment and services that will help reduce the risk of suicide and enhance their quality of life.

 

Schedule 3 - Compensation for member’s death for wholly dependent partners

The amendments proposed to be made by Schedule 3 to the Military Rehabilitation and Compensation Act 2004 (MCRA) would extend the time in which wholly dependent partners (“partners”) have to make a decision about whether to receive their compensation as a weekly payment or convert it, wholly or partly, into a lump sum payment, from six months to two years.

Partners of deceased members who have been granted compensation following a member’s death under the MRCA are eligible to receive weekly payments for life, or may convert 25%, 50%, 75% or 100% of this weekly amount to its lifetime equivalent as a lump sum.

Schedule 4 - Veterans’ Children Education Scheme

The amendments to be made by Schedule 4 would amend the Veterans’ Entitlements Act 1986 (VEA) to extend the eligibility of t he Veterans’ Children Education Scheme (VCES).  VCES is established under Part VII of the VEA and enables the Commission to establish a scheme to provide education and training for eligible children.  The Long Tan Bursary (LTB) is established by an instrument made under subsection 116A(1) to provide education and training to children of a Vietnam veteran.

 

Currently the LTB scheme is limited to children of a Vietnam veteran.  The proposed amendments would extend the eligibility so that the grandchildren of a Vietnam veteran who has operational service Vietnam, may apply for and be granted a Long Tan Bursary to enable them to undertake post-secondary education.



Schedule 5 - Service on submarine special operations

The amendments to be made by Schedule 5, would amend the Veterans’ Entitlements Act 1986 to create a deeming provision to ensure that a submariner who served on a submarine on a special submarine operation (SSO) between 1 January 1978 and 31 December 1992 is deemed to have operational service for any period they served on a submarine during this period.

 

This amendment creates a deeming provision to ensure that a submariner who served on a submarine on a SSO between 1 January 1978 and 31 December 1992 is deemed to have operational service for any period they served on a submarine during this period.

 

 

Schedule 6 - Claims for compensation

The proposed amendments in Schedule 6 would enable members and former members, during a needs assessment telephone call, to state that they are seeking some form of compensation under the Military Rehabilitation and Compensation Act 2004 (MRCA) and for that oral statement to be treated as a valid claim under the MRCA.

 

Financial Impact

Total: $17 million

·          Schedule 1, Compensation for incapacity for work for former members - $10.8 million

·          Schedule 2, Veteran Suicide Prevention Pilot - $6.2 million

No financial impact for Schedules 3 - 6

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011



 

 

VETERANS’ AFFAIRS LEGISLATION AMENDMENT

(VETERAN-CENTRIC REFORMS No. 2) BILL 2018

The Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No. 2) Bill 2018 (Veteran-centric Reform Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Schedule 1 - Compensation for incapacity for work for former members

 

Overview of the Schedule

 

The amendments made by Schedule 1 would amend the Military Rehabilitation and Compensation Act 2004 and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 to allow veterans who are studying fulltime as part of their approved rehabilitation plan to remain on 100% of their incapacity payments after 45 weeks.  Normally an incapacity payment is reduced after 45 weeks depending on a person’s circumstances.

 

These amendments commence on 1 November 2018 and sunset on 1 July 2022.

 

Human rights implications

Right to social security and Right to Education

The schedule engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 9 of the ICESCR, states “States Parties … recognize the right of everyone to social security, including social insurance”.  General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including “States parties should … ensure the protection of workers who are injured in the course of employment or other productive work”.

 

This schedule also engages the right to education under Article 13 of the ICESCR, which recognises the right of everyone to education. Relevantly, it recognises that secondary education, including technical and vocational secondary education, should be made generally available and accessible to all. 

 

Conclusion

 

This Schedule is compatible with the rights to social security and education as it enables eligible veterans to receive full incapacity payments while they participate in full time study in a course identified within their DVA rehabilitation plan.  This will lead to greater employment outcomes for the veteran and the community.

Schedule 2 - Veteran Suicide Prevention pilot

 

Overview of the Schedule

 

The amendments in Schedule 2 would amend the Veterans’ Entitlements Act 1986 to create a new pilot program, Veteran Suicide Prevention pilot, aimed at providing coordinated care to veterans who have attempted suicide, have suicidal ideation or are in crisis in order to improve their mental health and reduce their risk of suicide.

 

These amendments commence on 1 July 2018.

 

Human rights implications

 

Right to health

Article 12 of the International Covenant on Economic, Cultural and Social Rights refers to the “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.

 

Conclusion

This Schedule is compatible with the right to health as it will provide additional support to veterans at risk of suicide to improve their mental health and reduce their risk of suicide.

 



 

Schedule 3 - Compensation for member’s death for wholly dependent partners

 

Overview of the Schedule

 

The amendments to be made by Schedule 3, would amend the Military Rehabilitation and Compensation Act 2004 to allow a wholly dependent partner up to 2 years, extended from 6 months, to decide whether to take a lump sum, a pension or a combination of both as compensation for their partner’s death.

 

These amendments commence on the 28 th day after the Act receives the Royal Assent.

 

Human rights implications

Right to social security

The Bill engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 9 of the ICESCR states “States Parties … recognize the right of everyone to social security, including social insurance”.  General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including “States parties should … ensure the protection of workers who are injured in the course of employment or other productive work”.

 

Conclusion

 

This Schedule is compatible with the right to social security as it will enable a wholly dependent partner 2 years in which to decide how to be compensated for the death of their partner, this will ensure that they have sufficient time in which to make a choice that is to their benefit. 

 

 



 

Schedule 4 - Veterans’ Children Education Scheme

 

 

Overview of the Schedule

 

The amendments proposed to be made by Schedule 4, would amend the Veterans’ Entitlements Act 1986 to extend the eligibly of the Long Tan Bursary (LTB) scheme to the grandchildren of a veteran who has operational service in Vietnam.  Currently, the Long Tan Bursary is limited to a child of a Vietnam veteran with operational service in Vietnam.

 

These amendments commence on 1 July 2019.

 

Human rights implications

 

Right to Education

 

Article 13 of the ICESCR recognises the right of everyone to education. Relevantly, it recognises that secondary education, including technical and vocational secondary education, should be made generally available and accessible to all. Article 28 recognises the right of children to education.

 

Conclusion

 

This Schedule is compatible with the right to education as it benefits the grandchildren of Vietnam veterans by making them eligible to apply for the LTB scheme.  The LTB scheme is a financial scholarship that contributes to the financial cost of education and is paid to the children of Vietnam veterans to improve their education outcomes. 

 



 

Schedule 5 - Service on submarine special operations

 

Overview of the Schedule

 

The amendments to be made made by Schedule 5, would amend the Veterans’ Entitlements Act 1986 to create a deeming provision to ensure that a submariner who served on a submarine on a special submarine operation (SSO) between 1 January 1978 and 31 December 1992 is deemed to have operational service for any period they served on a submarine during this period.

 

This amendment creates a deeming provision to ensure that a submariner who served on a submarine on a SSO between 1 January 1978 and 31 December 1992 is deemed to have operational service for any period they served on a submarine during this period.

 

These amendments commence on the day after this Act receives the Royal Assent.

 

Human rights implications

Right to social security

The Bill engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 9 of the ICESCR states “States Parties … recognize the right of everyone to social security, including social insurance”.  General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including “States parties should … ensure the protection of workers who are injured in the course of employment or other productive work”.

 

Conclusion

 

This Schedule is compatible with the right to social security as it will ensure that specified submariners will be able to receive their full entitlement and benefit where they have been deemed to have operational service.  Operational service provides veterans with more favourable entitlements and benefits under the Acts.

 



 

Schedule 6 - Claims for compensation

 

Overview of the Schedule

 

The amendments to be made by Schedule 6, would amend the Military Rehabilitation and Compensation Act 2004 to enable a claim for compensation to be made orally as well as in writing.

 

These amendments commence the 28 th day after this Act receives the Royal Assent.

 

Human rights implications

 

Right to social security and right to health

 

The Schedule engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 9 of the ICESCR states “States Parties … recognize the right of everyone to social security, including social insurance”.  General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including “States parties should … ensure the protection of workers who are injured in the course of employment or other productive work”.

 

The right to health is contained in article 12 of the International Covenant on Economic, Social and Cultural Rights and refers to the “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.

 

Conclusion

 

This Schedule is compatible with the rights to social security and health as a veteran will not have to complete a separate form to make a claim for compensation where they have already made a claim for liability.  This will simplify the process and remove a barrier that may discourage a veteran from making a claim for compensation for an injury or disease.

 



VETERANS’ AFFAIRS LEGISLATION AMENDMENT (VETERAN-CENTRIC REFORMS No. 2) BILL 2018

 

Short Title                  Clause 1 provides that the Act is the Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No. 2) Act 2018 .

 

Commencement            Clause 2 sets out the commencement date of the provisions of the Act . For convenience the commencement information is replicated below.

 

Schedules                    Clause 3 provides that legislation 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.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent .

 

2.  Schedule 1

The later of:

(a) 1 November 2018; and

(b) the seventh day after this Act receives the Royal Assent.

 

3.  Schedule 2

The later of:

(a) 1 July 2018; and

(b) the seventh day after this Act receives the Royal Assent.

 

4.  Schedule 3

The 28th day after this Act receives the Royal Assent.

 

5.  Schedule 4

1 July 2019.

1 July 2019

6.  Schedules 5

The day after this Act receives the Royal Assent.

 

7.  Schedule 6

The 28th day after this Act receives the Royal Assent.

 

 

 



 

This Explanatory Memorandum uses the following abbreviations:

 

Act means the Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No. 2) Act 2018

ADF means the Australian Defence Force

Commission means the Repatriation Commission

Defence means the Department of Defence

DRCA means the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

DVA means the Department of Veterans’ Affairs

Legislation Act means the Legislation Act 2003

MRCA means the Military Rehabilitation and Compensation Act 2004

MRCC means the Military Rehabilitation and Compensation Commission

SRCA means the Safety, Rehabilitation and Compensation Act 1988

VEA means the Veterans’ Entitlements Act 1986

Veteran-centric Reforms Bill means the Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No. 2) Bill 2018



 

Schedule 1 - Compensation for incapacity for work for former members

 

Military Rehabilitation and Compensation Act 2004

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

 

Background

The amendments to be made by Schedule 1 would provide all former members of the ADF with incapacity payments at 100% of their normal weekly earnings where they are studying full time as part of their rehabilitation plan.  This is to remove any barriers to rehabilitation. 

Incapacity payments are compensation payments paid for a loss of normal earnings suffered as a result of a service-related physical and mental health condition. Under the current legislation, incapacity payments “stepdown” to 75 per cent (or a higher percentage depending on weekly hours worked) of normal earnings after a period of 45 weeks.

A former member may be participating in a rehabilitation plan.  Many rehabilitation plans have a return to work focus and some include participation in an approved study program, such as vocational or tertiary level study.  The basis for the study program is to equip former members with the skills and attributes necessary, or enhance those already held, to assist them in securing ongoing sustainable employment after their ADF service.

Former members are naturally concerned about their, and their family’s ongoing financial security.  To ensure that former members can focus on their study and not be concerned about financial matters, the amendments would allow those former members studying full time as part of their rehabilitation plan to be fully financially supported while they study.  This would assist in ensuring that a former member’s employment outcome fully utilises their expertise.

 

Notes on Clauses

 

The amendments in Schedule 1 would make similar amendments to the MRCA and the DRCA to provide all former ADF members with incapacity payments at 100% of their normal weekly earnings where they are studying full time as part of their rehabilitation plan. 

Items 1 and 3 would amend paragraphs 131(2)(f) and 19(3)(f) of the MRCA and the DRCA respectively.  Subsection 131(2) of the MRCA and subsection 19(3) of the DRCA deal with the reduction to a person’s incapacity payments after 45 weeks to a maximum of 75% of normal earnings if the person is not working.  Where the person returns to paid employment, incapacity payments are calculated as a higher percentage of normal earnings depending on the number of hours worked per week.

These amendments would ensure that, where proposed subsection 131(3) of the MRCA or 19(3AA) of the DRCA (i.e. the person is undertaking a rehabilitation plan and is undertaking approved full time study as part of that plan - see items 2 and 4 below) would apply to the person, they would be paid 100% of their normal weekly earnings, rather than 75% (or another adjusted amount.)

Items 2 and 4 would create new subsections 131(3) of the MRCA and 19(3AA) of the DRCA.  These would be the new subsections that would trigger a former member being eligible to be paid incapacity payments at 100% of their normal weekly earnings where the MRCC is satisfied that the person is undertaking an approved rehabilitation plan and, as part of that plan, the person is undertaking full time study. These new subsections would apply to a person from the week beginning on the day the Act receives the Royal Assent and before 1 July 2022. 

Schedule 1 applies in relation to a week beginning on or after the later of 1 November 2018, or the seventh day after the Act receives the Royal Assent.  1 November 2018 is a Thursday.  This would mean that, for the week commencing 29 October 2018, a person to whom these subsections apply would be paid their incapacity payment at 100% of their normal weekly earnings for the entire week that includes 1 November 2018.

The intention is that a person who has commenced their rehabilitation plan or their full time study as part of their approved rehabilitation plan before the amendments commence will be entitled to have their incapacity payments paid at 100% from the commencement of these amendments until 1 July 2022. 

This would mean, for example, that a person who has been undertaking full time study as part of their approved rehabilitation plan for more than 45 weeks when the amendments commence could be eligible to receive incapacity payments at 100% of their normal weekly earnings when these amendments commence and up until 1 July 2022.  In addition, as 30 June 2022 is a Thursday, a person to whom the new subsections apply would be paid their incapacity payment at 100% of their normal weekly earnings for the entire week that includes 30 June 2022, and not just the part of the week up to and including 30 June 2022.

I tems 2 and 4 would also create an instrument making power in the MRCA and the DRCA, which would enable the MRCC to determine the circumstances in which a person is undertaking full time study.

It is anticipated that the sorts of circumstances that may be prescribed by the MRCC could include where the person is undertaking the equivalent of full time study, which would be 75% of a full time study load, or where they are on a semester break.

Items 2 and 4 would also provide that the legislative instruments mentioned above may provide that a person is undertaking full time study for the duration of the study period including breaks within a study period.  For example, a semester break.  This would ensure that, over the break between study periods, a person would not stepdown their level of incapacity payments from 100% to 75% (or another adjusted amount).

Commencement

The amendments in Schedule 1 would commence on the later of 1 November 2018 or the seventh day after the Act receives the Royal Assent.



 

Schedule 2 - Veteran Suicide Prevention pilot

 

Veterans’ Entitlements Act 1986

 

Background

The amendments would create a new pilot aimed at veteran mental health.  The aim of the pilot is to provide mental health support for veterans who have been hospitalised after attempted suicide, suicide ideation or those who may be at increased risk of suicide because of their mental health or other factors.

The Veteran Suicide Prevention pilot (also known as the Mental Health Clinical Management Pilot) will target a small subset of veterans with complex mental and social health needs, including homelessness.

The “ Review of services available to veterans and members of the Australian Defence Force in relation to prevention of self-harm and suicide ” by the National Mental Health Commission (the Health Commission) on 30 March 2017, highlighted the need for coordinated care options for very vulnerable and ill clients and enhancing stepped care options available for those with mental health conditions.  The Health Commission recommended ‘step down’ services that take into account factors that may lead to suicide, such as primary health, financial stress, housing and employment. 

The Veteran Suicide Prevention pilot will provide coordinated support to ensure veterans are accessing treatment and social support to reduce the risk of suicide and enhance the quality of life for participating veterans.

 

Notes on Clauses

 

Item 1 will insert a new note, Note 1A, after Note 1 in subsection 85(2).  New Note 1A provides that a veteran or other person may be eligible to be provided with treatment, being treatment that is the provision of services under the program established by the Commonwealth and known as the Veteran Suicide Prevention pilot, in accordance with section 88B.

This Note acts as a signpost to draw the reader’s attention to new section 88B and the Veteran Suicide Prevention pilot.  This is a consequential technical amendment related to the amendment made by item 2, below.

Item 2 will insert new section 88B Provision of services under the Veteran Suicide Prevention pilot, after section 88A.

New subsection 88B(1) will provide that a person is eligible to be provided with treatment under this Part, being treatment this is the provision of services under the program established by the Commonwealth and known as the Veteran Suicide Prevention pilot, if the person is included in a class of persons determined under subsection (2).

The purpose of new subsection 88B(1) is to establish eligibility for a person to be provided treatment under the new pilot program, Veteran Suicide Prevention pilot where the person is included in a class of persons determined in an instrument under subsection (2).

New subsection 88B(2) would empower the Commission to determine a class of persons for the purposes of subsection 88B(1) by an instrument in writing.

The purpose of subsection 88B(2) is to enable the Commission to specify the eligibility criteria a person must satisfy in order to receive treatment under the Veteran Suicide Prevention pilot under subsection 88(1). 

New subsection 88B(3) would ensure that, despite subsection 14(2) of the Legislation Act 2003 , an instrument under subsection 88B(2) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

The subsection would ensure that any document incorporated into an instrument made under subsection 88B(2) in relation to the Veteran Suicide Prevention pilot is automatically incorporated into and effective for this section.

All documents incorporated by reference into Department of Veterans’ Affairs’ legislative instruments are available to view online at: http://clik.dva.gov.au/legislation-library .  The Department would undertake to place any document incorporated by reference under an instrument made under subsection 88B(2) on this web page. 

Item 3 will omit the reference to “or 88A” and substitute it with “, 88A or 88B” in subsection 90(8).  This is a technical consequential amendment to provide that an eligible person means a person under sections 85, 86, 88A or 88B to be provided with treatment.

Section 90, Guide to the provision of treatment, provides additional detail to treatment provided under the Act. 

 

Commencement

The amendments in Schedule 2 would commence on the later of 1 July 2018 or the seventh day after the Act receives the Royal Assent.



 

Schedule 3 - Compensation for member’s death for wholly dependent partners

 

Military Rehabilitation and Compensation Act 2004

 

Background

The amendments proposed to be made by Schedule 3 to the MCRA would extend the time in which wholly dependent partners (“partners”) have to make a decision about whether to receive their compensation as a weekly payment or convert it, wholly or partly, into a lump sum payment, from six months to two years.

Partners of deceased members who have been granted compensation following a member’s death under the MRCA are eligible to receive weekly payments for life, or may convert 25%, 50%, 75% or 100% of this weekly amount to its lifetime equivalent as a lump sum.

Currently under the MRCA, partners have six months to decide whether they would like to receive their compensation as a weekly payment, or convert the whole or part of the payment into a lump sum. 

Where the MRCC is satisfied that there are special circumstances justifying an extension of time in which to make the choice, a longer period than six months may be granted.  Generally, a request by a partner to extend the timeframe within which to make a decision under subsection 236(3) of the MRCA will be granted by the MRCC.  However, it does require a partner to write to the MRCC and apply to have their election period extended. 

The changes proposed to be made by Schedule 3 would provide partners, in what is a very difficult period, with sufficient time to make a decision about whether to receive their compensation as a weekly payment or convert it, wholly or partly, into a lump sum payment.  No changes to subsection 236(4) of the MRCA are proposed.  This would mean that, where the MRCC is satisfied that special circumstances exist, the MRCC could further extend this time period beyond two years.  This may be the case where there are complicated family law issues to be resolved, for example.

This issue was raised at the Department’s inaugural legislation workshop, held on 9 November 2017, and has also arisen during other consultations with Ex-Service Organisations.  These amendments would address concerns raised by Ex Service Organisations that six months is not a long enough period of time in which to make the important decision about how to receive compensation, particularly during a difficult period. 

 

These amendments commence on the 28th day after this Act receives Royal Assent.

 

Notes on Clauses

 

Item 1 would amend subsection 236(3) of the MRCA by changing “6 months” to “2 years.”  This amendment would give a partner more time in which to make the decision about whether to receive their compensation as a weekly payment or convert it, wholly or partly, into a lump sum payment, from six months to two years.

Item 2 is an application provision which would ensure that the amendments in this Schedule apply to notices to a partner under section 235 of the MRCA given on or after the 28 th day after this Act receives the Royal Assent, as well as notices given before the commencement, where a partner has not yet made a choice under section 236 of the MRCA before this Schedule commences.

Commencement

The amendments in this Schedule commence on the 28 th day after this Act receives the Royal Assent.

 



 

Schedule 4 - Veterans’ Children Education Scheme

 

Veterans’ Entitlements Act 1986

 

Background

The amendments to be made by Schedule 4 would amend the VEA to extend the eligibility of the Veterans’ Children Education Scheme (VCES).  VCES is established under the Part VII of the VEA and enables the Commission to establish a scheme to provide for the education and training for eligible children.  The Long Tan Bursary (LTB) is established by an instrument made under subsection 116A(1) to provide post-secondary school education and training to children of a Vietnam veteran.

Currently the LTB scheme is limited to children of a Vietnam Veteran.  The proposed amendments would extend the eligibility so that a grandchild of a Vietnam veteran who has operational service in Vietnam, may apply for and be granted a Long Tan Bursary to enable them to undertake post-secondary education to help address intergenerational disadvantage.

 

It is intended that the grandchildren of a Vietnam veteran would be assessed against similar criteria as a child of a Vietnam veteran to be eligible for the LTB scheme.  The intention is that the criteria will include a requirement that a grandchild is considered by an appropriately qualified professional as vulnerable.  The factors taken into account for this assessment will include social demographics, disadvantage due to socioeconomic status and family stability.  In addition, consideration will be given to applicants who are both deserving and have the aptitude and potential to achieve solid educational outcomes.

These amendments commence on the 28th day after this Act receives Royal Assent.

 

Notes on Clauses

 

Item 1 inserts the definitions of “eligible grandchild of a Vietnam veteran”, “grandchild”, and “Vietnam service” into subsection 116(1).

An eligible grandchild of a Vietnam veteran means a person determined under subsection 116CC(2) to be included in a class of persons that has been determined by the Commission under subsection 116CA(1) for the purposes of this definition. 

A grandchild of a veteran means a person who is a child of a person who is a child of the veteran.  The definition of child in subsection 5F(1) does not apply for the purposes of this definition.

Vietnam service means operational service in Vietnam that is covered by sections 6C, 6E or 6F.

The definitions inserted into subsection 116(1) are all related to enable a grandchild of a Vietnam veteran with Vietnam service to be eligible to apply for and be granted assistance under the Veterans’ Children Education Scheme.   These definitions are in particular aimed at enabling a grandchild of a veteran with Vietnam service, to be eligible to apply and be granted a scholarship under the LTB scheme.

For clarification, the amendments in this Schedule do not affect or alter the exiting eligibility criteria in relation to a child of a Vietnam veteran.

Item 2 will repeal the heading at section 116B and substitute it with “116B Eligible child of a veteran - person may apply for determination under subsection 116C(2)”.

The new heading makes it clear that section 116B applies to an eligible child of a veteran and removes the reference to, “a person may apply for determination under subsection 116C(2)”.

This is a minor technical change and does not affect or alter the existing eligibility of a child of a Vietnam veteran or the policy of the LTB.

Item 3 will repeal the heading at section 116C and substitute it with “116C Eligible child of a veteran - Commission may determine that a person is a member of a class under section 116A”.

Section 116C provides that, where an application has been made under section 116B the Commission must make a determination under section 116A whether the person falls within a class of persons under subsection 116(1).  The new heading makes it clear that this provision applies to an eligible child of a veteran with Vietnam service. 

This is a minor technical change and does not affect or alter the existing eligibility of a child of a veteran with Vietnam service or the policy of the LTB.

Item 4 will insert new sections 116CA, 116CB and 116CC after section 116C.  These new provisions would create the framework for the grandchildren of a Vietnam veteran with Vietnam service to be eligible for the grant of the Long Tan Bursary.

New subsection 116CA(1) provides that the Commission may, by legislative instrument, determine a class of persons for the purposes of the definition of eligible grandchild of a Vietnam veteran, under subsection 116(1), who has rendered Vietnam service. 

A new Note after subsection 116CA(1) provides that the Veterans’ Children Education Scheme already covers the children of veterans’ who have rendered Vietnam service.

This is a minor technical change and does not affect or alter the existing eligibility of a child of a veteran with Vietnam service or the policy of the LTB.

New subsection 116CA(2) enables the Commission, by legislative instrument, to vary or revoke a determination under subsection (1).

The purpose of this new provision is to provide the Commission the power to vary or revoke an instrument made under subsection 116CA(1).  This amendment will enable to Commission to further specify the eligibility criteria to ensure the LTB Scheme operates as intended and achieves the programme’s aim.

New subsection 116CB(1) prescribes who may make an application, in writing, for a determination under subsection 116CC(2) in relation to a person who is, or was, the grandchild of a veteran with Vietnam service to the Commission.

New paragraphs 116CB(1)(a) and (b) specify who may make an application for a grandchild of a veteran with Vietnam service where the grandchild is over or under 18 years of age.

New paragraph 116CB(1)(a) provides in the case of a person who is, or was, the grandchild of a veteran with Vietnam service and who is over 18 years; the application may be made by the grandchild, or with the approval of the grandchild, by another person on behalf of the grandchild, or if the grandchild is unable, due to a physical or mental incapacity, to approve a person to make the application on the grandchild’s behalf - by another person, being a person approved by the Commission on behalf of the grandchild.

New paragraph 116CB(1)(b) provides in the case of a person who is, or was, the grandchild of a veteran with Vietnam service and who is under 18 years of age the application may be made by a parent or guardian of the grandchild, or by another person approved by the parent or guardian of the grandchild, or if there is no parent or guardian of the grandchild alive or willing and able to make, or approve a person to make, such an application on behalf of the grandchild, another person approved by the Commission on behalf of the grandchild.

New subsection 116CB(2) would provide that an application is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to be made on a day determined under that section.

The intent of this section is to specify how an application for a scholarship under the Long Tan Bursary scheme may be made in relation to a grandchild over or under 18 years of age. 

New subsection 116CC(1) would provide that, if an application has been made under section 116CB in respect of a person, the Commission must decide whether the person the subject of the application falls within the class of persons determined by the Commission under subsection 116CA(1).

The purpose of the new subsection is to ensure that, where a person makes an application under the LTB scheme, the Commission must decide whether the person is in the class of persons specified in an instrument under subsection 116CA(1).

Item 5 would repeal the heading at section 116D and substitute it with “116D Review of Commission’s decisions”.  This is a technical consequential amendment and removes the words ‘under subsection 116C(1)’.  This is because review will be available under both subsections 116C(1) and 166CC(1).

Item 6 would insert “or 116CC(1)” after subsection “116C(1)” in subsections 116D(1) and (5).  This is a technical consequential amendment to ensure that subsection 116D(1) and (5) enable a review of a Commission decision under subsection 116CC(1).

Item 7 would add “and eligible grandchildren of Vietnam veterans” at the end of subsection 117(1).  This is a technical consequential amendment to ensure that the Commission may, from time to time, by an instrument in writing, prepare a scheme to be called the Veterans’ Children Education Scheme, for providing post-secondary education and training for eligible children and eligible grandchildren of a Vietnam veteran.

Item 8 would insert “or eligible grandchildren of Vietnam veterans” in paragraphs 117(5)(a) and (c) after “eligible children”.  These are technical consequential amendments to ensure that the Commission, under subsection 118(1), may make provision for and in relation to the provision of free scholarships for post-secondary school education or training (TAFE, college and university) for allocation under the Scheme and the making of applications for the provision of post-secondary school education or training for eligible children and grandchildren of a veteran with Vietnam service.

Item 9 would insert “or eligible grandchildren of Vietnam veterans” in subsection 118(1) after “eligible children”.  This is a technical consequential amendment to ensure that the Commission may provide benefits for, and in respect of, eligible children and eligible grandchildren of a veteran with Vietnam service under and in accordance with the Scheme.

Item 10 would insert “or 116CC(1)” in paragraph 175(5)(a) after “subsection 116C(1)”.  This is a technical consequential amendment to ensure that a decision of the Commission made under subsection 116CC(1) is a reviewable decision under section 175. 

Section 175 provides that if the Commission under subsection 116D(2) affirms a decision of the Commission under subsections 116C(1) or 116CC(1) or sets aside such a decision and substitutes another decision for it then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for review of the decision so affirmed, or of the decision made by the Commission in substitution for the decision so set aside.

The purpose of this amendment is to provide review rights for a decision of the Commission.

 

Commencement

The amendments in this Schedule commence on 1 July 2019.

 



 

Schedule 5 - Service on submarine special operations

 

Veterans’ Entitlements Act 1986

 

Background

In 2010 the Government reclassified any service on a submarine on Submarine Special Operation (SSO) during the period 1 January 1978   - 31 December 1992 (relevant period) as operational and qualifying service for the purposes of the VEA.  Due to the continuing high level of secrecy around these clandestine operations, the eligibility test implemented for this service was almost unique in the history of veterans’ entitlements.

Specifically, eligibility for both qualifying and operational service on SSO is determined on the basis of the claimant being eligible for, or having received, the Australian Service Medal with clasp “SPECIAL OPS” in respect of SSO during the relevant period.  Given the very high level of security classification which applies to these operations, DVA relies on advice from the Department of Defence in order to determine these claims, and the only information provided is confirmation as to whether or not a particular claimant has the relevant service.  This information is sought and provided on a case-by-case basis.

With the inherent difficulties in obtaining precise information regarding SSO an alternative method to efficiently process veterans’ claims for the disability pension is required.  This amendment creates a deeming provision to ensure that a submariner who served on a submarine on a SSO between 1 January 1978 and 31 December 1992 is deemed to have operational service for any period they served on a submarine during this period.

This would overcome the difficulty of establishing that an injury sustained or disease contracted by a submariner is related to service on a classified operation.  This amendment will ensure that SSO submariners have access to the benefits to which the operational service classification entitles them, i.e. it provides that SSO veterans who lodge a claim will have access to the more favourable ‘reasonable hypothesis’ Statements of Principles (SOP), which provide for a greater range of causal factors or thresholds which are easier to meet than those in the SOP which apply to peacetime service. 

 

Notes on Clauses

 

Item 1 would repeal and replace section 6DB, Operational service - service on submarine special operations from 1978 to 1992.

The amended section 6DB would provide that, a member of the ADF who has rendered continuous fulltime service on a submarine for a period that started on or after 1 January 1978 and ended before 31 December 1992 and who was on a SSO at any time during that period and has been awarded, or is eligible to be awarded, the Australian Service Medal with Clasp “SPECIAL OPS” for the special service, will be deemed to have rendered operational service for each period that started after 1 January 1978 and before the end of 31 December 1992.

The amendment will ensure those submariners who served on a submarine while on SSO at any time between 1 January 1978 and 31 December 1992 and met the requirements for the award of the Australian Service Medal with Clasp “SPECIAL OPS” to be deemed to have operational service for the purpose of establishing their eligibility to receive a disability pension where they were injured during that service.

 

Commencement

The amendments in Schedule 5 commence the day after this Act receives the Royal Assent.

 



 

Schedule 6 - Claims for compensation

 

Military Rehabilitation and Compensation Act 2004

 

Background

Under the MRCA, a claim for compensation is distinct from a claim for liability.  While a claim for liability must be determined before a claim for compensation can be determined, a claim for liability can be made without a claim for compensation being made.  Likewise, compensation can be claimed before, or after, a claim for liability is determined.

In many cases, compensation is claimed concurrently with liability by a member or former member indicating on the liability claim form that he or she is also seeking a certain kind of compensation.  However, in some cases, a member or former member will lodge a claim for liability without any concurrent indication in writing that he or she is also seeking to claim compensation.

Under the MRCA, a needs assessment may be carried out any time after a claim for liability is accepted.  Needs assessments are often carried out over the telephone, and during this needs assessment process, a member or former member will sometimes orally state that they would like to seek some form of compensation under the MRCA.

Currently, section 319 of the MRCA requires a claim for compensation to be put in writing. This is unnecessarily burdensome on members and former members and creates administrative inefficiencies for the MRCC.

The proposed amendments would enable members and former members to state orally that he or she is seeking some form of compensation under the MRCA and that oral indication is to be treated as a valid claim under the MRCA.

Notes on Clauses

Items 1 and 2 would amend section 319 of the MRCA, to enable a claim for compensation under paragraph 319(1)(d) of the MRCA to be either made orally to the MRCC, or to continue to be made in writing and given to the MRCC.  Item 1 would ensure that liability claims under paragraphs 319(1)(a) - (c) of the MRCA must continue to be made in writing and given to the MRCC.  However, item 2 would give members or former members the option of making their compensation claim orally to the MRCC.  Should members or former members prefer to do so, they can still continue to make a claim for compensation in writing and give it to the MRCC.

Items 3 and 4 would make consequential amendments that flow from the change to be made by item 2 .  Subsection 319(3) of the MRCA requires the MRCC to give copies of liability claims under paragraphs 319(1)(a) - (c) of the MRCA to the Chief of the Defence Force in certain circumstances.  This will continue to happen. 

As claims for compensation would be able to be made orally after this Schedule commences, subsection 319(3) would now only apply to liability claims under paragraphs 319(1)(a) - (c) of the MRCA ( item3 ). 

Item 4 would repeal and substitute subsection 319(4) of the MRCA.  New subsection 319(4) would require the MRCC to advise the Chief of Defence (CDF) of the making of a claim for compensation under Part 2 of Chapter 4 where the person was a member of the Defence Force when the claim was made.

The new paragraph alters the way in which the CDF is notified of a claim for compensation for permanent impairment.  Under the new arrangement, the MRCC needs to advise the CDF rather than providing a copy of the claim made. 

Commencement

The amendments in Schedule 6 commence the 28 th day after this Act receives the Royal Assent.