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Veterans' Affairs Legislation Amendment (Budget Measures) Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 113, 2016-17 15 JUNE 2017

Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2017 Michael Klapdor Social Policy Section

Contents

List of abbreviations ............................................................ 3

Purpose of the Bill ............................................................... 4

Background ......................................................................... 4

Overview of veterans’ legislation ............................................ 4

DVA Health Card—All Conditions/Totally and Permanently Incapacitated (Gold Card) .................................. 5

Eligibility for the Gold Card ................................................... 5

Other health cards ................................................................. 6

Participants in British Nuclear Tests ........................................ 6

Health impacts of the nuclear tests ...................................... 7

Compensation arrangements ................................................ 7

Assistance under veterans’ entitlements and military compensation schemes ......................................................... 8

2003 Clarke Review of Veterans’ Entitlements ................... 8

Howard Government response to the Clarke Review recommendations ............................................................... 9

Rudd-Gillard Government changes .................................... 9

Current entitlements for BNT participants ....................... 10

Gold Card campaign ............................................................ 10

British Commonwealth Occupation Forces ........................... 11

Issues around the nature of BCOF service .......................... 12

Assistance under veterans’ entitlements and military compensation schemes ....................................................... 12

2003 Clarke Review of Veterans’ Entitlements ................. 12

Howard Government’s response to the Clarke Review recommendations ............................................................. 13

Date introduced: 24 May 2017

House: House of Representatives

Portfolio: Veterans' Affairs

Commencement: 1 July 2017 with the exception of items 17-18 of Schedule 1 and items 11-25 of Schedule 3. Commencement of these items is dependent on the commencement of Part 2 of Schedule 1 to the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017. See table at clause 2 for details.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

June 2017.

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Rudd-Gillard Government review ..................................... 13

Work test for intermediate or special rate of Disability Pension .................................................................................. 13

Overview of disability pension payments ........................... 14

General rate ...................................................................... 14

Intermediate rate .............................................................. 14

Special rate ........................................................................ 14

Extreme disablement adjustment rate ............................. 15

Rehabilitation ........................................................................ 15

Committee consideration .................................................. 16

Senate Foreign Affairs, Defence and Trade Legislation Committee ............................................................................. 16

Senate Standing Committee for the Scrutiny of Bills ............ 16

Policy position of non-government parties/independents ... 16

Position of major interest groups ....................................... 17

Financial implications ........................................................ 17

Statement of Compatibility with Human Rights .................. 17

Parliamentary Joint Committee on Human Rights ................ 17

Key issues and provisions................................................... 17

Schedule 1—Australian participants in British nuclear tests and British Commonwealth Occupation Force ............. 17

Measure breaks with longstanding principle ...................... 17

Measure will benefit only a small number of survivors ...... 18

Key provisions...................................................................... 18

Australian Participants in British Nuclear Tests (Treatment) Act 2006 ........................................................ 18

Safety, Rehabilitation and Compensation Act (Defence-related Claims) Act 1988 .................................... 19

Schedule 2—work test for intermediate or special rate of pension .............................................................................. 19

Veterans’ Entitlements Act 1986 ....................................... 19

Schedule 3—rehabilitation programs .................................... 20

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List of abbreviations Abbreviation Definition

ADF Australian Defence Force

BCOF British Commonwealth Occupation Force

BNT British Nuclear Test

BNT Act Australian Participants in British Nuclear Tests (Treatment) Act 2006

Clarke Review Review of Veterans’ Entitlements (J Clarke, chair)

DVA Department of Veterans’ Affairs

Gold Card Department of Veterans’ Affairs Health Card—All Conditions

MRC Act Military Rehabilitation and Compensation Act 2004

MRCC Military Rehabilitation and Compensation Commission

SRC Act Safety, Rehabilitation and Compensation Act 1988

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

VE Act Veterans’ Entitlements Act 1986

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Purpose of the Bill The purpose of the Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2017 (the Bill) is to amend the Australian Participants in British Nuclear Tests (Treatment) Act 2006 (BNT Act); the proposed Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (SRC Defence Act), the Veterans’ Entitlements Act 1986 (VE Act), the Military Rehabilitation and Compensation Act 2004 (MRC Act) and a range of other Acts to implement three 2017-18 budget measures:

• to provide all those present at British Nuclear Test (BNT) areas during the test periods and Australian veterans of the British Commonwealth Occupation Force (BCOF) with treatment for all medical conditions by granting them a DVA Health Card—All Conditions (Gold Card)

• to amend the work history eligibility conditions for the Special and Intermediate rates of Disability Pension to require a period of ten continuous years of work in any field or vocation prior to application rather than the current requirement for ten continuous years of work with the same employer or in the same field or vocation and

• to provide instrument making powers to the Military Rehabilitation and Compensation Commission (MRCC) to determine a class of people eligible to participate in an early access to rehabilitation pilot program and to allow access to rehabilitation services prior to a liability claim under the SRC Defence Act or MRC Act being accepted.

Background Overview of veterans’ legislation There are three main Acts that provide for support and compensation for veterans and their dependents:

• the VE Act, which primarily provides benefits and entitlements for those who undertook wartime service, operational service, peacekeeping service and hazardous military service before 1 July 2004, and/or peacetime military service from 7 December 1972 up to 30 June 19941

• the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), which provides coverage for illness, injury or death arising from military service undertaken from 3 January 1949 to 30 June 2004; and for certain periods of operational service between 7 April 1994 and 30 June 20042 and

• the MRC Act, which provides coverage for illness, injury or death arising from military service undertaken from 1 July 2004.3

The Government has proposed removing provisions of the SRC Act that apply to defence personnel and placing them in a separate statute: the proposed Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (SRC Defence Act).4 The SRC Defence Act does not yet exist; it is proposed by the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016, which is currently before the House of Representatives.

Some VE Act benefits, such as income support payments, are not tied to periods of service but rather the type of service (for example, whether it involved service during wartime in an area where there was danger from hostile enemy forces). Other benefits, such as compensation payments and benefits, are tied to periods of service— eligibility under one or more of the three statutes will be determined by the period of service and the timing of the event giving rise to compensation (such as an injury or death).

In some cases, an individual will be eligible for compensation or benefits for the same condition under more than one of the three statutes—in such cases, compensation received under one of the Acts will be offset against the compensation received from another to ensure that the Commonwealth Government does not provide compensation for the same condition more than once.

1. Department of Veterans’ Affairs (DVA), ‘Veterans’ Entitlements Act (VEA)’, DVA website, n.d. 2. DVA, ‘Overview of the Safety, Rehabilitation and Compensation Act 1988 (SRCA)’, Factsheet MCS01, DVA, 13 October 2016. 3. DVA, ‘Military Rehabilitation and Compensation Act (MRCA)’, DVA website, n.d. 4. See P Pyburne, Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016, Bills digest, 56, 2016-17,

Parliamentary Library, Canberra, 2017.

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DVA Health Card—All Conditions/Totally and Permanently Incapacitated (Gold Card) The Gold Card is a health treatment and care card and provides access to the full range of medical, hospital, pharmaceutical, dental and allied health services in Australia funded by DVA.5 Medical services are subject to the requirements of the Medicare Benefit Schedule and prior approval from DVA may be necessary for some treatments.6 A patient contribution is required for pharmaceutical services and for nursing home care. The Gold Card also provides for the costs of transport to access treatment and medical services.

The Gold Card provides access to health treatments and care for any condition—regardless of whether that condition is related to a person’s service.

Those in receipt of a Disability Pension at the special rate (totally and permanently incapacitated) receive a Gold Card marked ‘Totally and Permanently Incapacitated’.7 Other eligible holders would receive a card marked ‘All Conditions’ signifying that the card can be used for medical treatment for any conditions.

State and territory governments also provide a range of concessions to Gold Card holders.

Eligibility for the Gold Card Eligibility for a Gold Card is determined primarily by an individual’s war or defence service (or their deceased partner’s/parent’s service in the case of dependents) or by a service-related impairment that qualifies the person for a certain rate of Disability Pension.

Gold Cards are issued to:

• Australian veterans, including:

- ex-prisoners of war - World War I veterans, nurses and mariners - ex-service women of World War II between 3 September 1939 and 29 October 1945 with qualifying service

- World War II veterans who served in Australia’s defence force or merchant navy between 3 September 1939 and 29 October 1945, who are aged 70 years or over and who have qualifying service from that conflict

- veterans who served in the Australian Defence Force (ADF) after World War II who are 70 years or over and who have qualifying service under section 7A of the VE Act (which sets out specific criteria for qualifying service) • some veterans of Commonwealth or allied forces with qualifying service during World War II

• veterans who receive a Disability Pension under the VE Act if:

- their rate of Disability Pension is 100 per cent of the general rate or higher - their rate of Disability Pension is 50 per cent of the general rate or higher and they receive any amount of the Service Pension - their Disability Pension includes an additional amount for specific service-related amputations or

blindness in one eye or - they were granted the Disability Pension for pulmonary tuberculosis before 2 November 1978 • some veterans who receive an Age or Invalidity Service Pension if they also satisfy the treatment benefits, income and assets test; are permanently blind in both eyes; or, also have an impairment for one or more

service injuries or diseases that constitutes at least 30 points under the MRC Act8

• former ADF members, cadets and reservists who conditions for which liability has been accepted under the MRC Act where:

5. DVA, ‘Using the DVA Health Card: All Conditions (Gold) or DVA Health Card Totally and Permanently Incapacitated (Gold)’, Factsheet HSV60, DVA, Canberra, 23 February 2017. 6. Ibid.

7. Disability Pension is paid at different rates based on the level of impairment, and, for some recipients, by their work capacity. See DVA, ‘Overview of disability pensions and allowances’, Factsheet DP01, DVA, Canberra, 11 April 2017. 8. The extent of an individual’s medical impairment is measured in impairment points on a scale from zero to 100 using the Guide to Determining Impairment and Compensation. DVA, ‘Ch. 5: permanent impairment: 5.1 overview’, Military Rehabilitation and Compensation

Act 2004 policy manual, DVA, Canberra, August 2014.

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- they have a permanent impairment from accepted conditions assessed at or above 60 points or - they have a permanent impairment from accepted conditions assessed at 30 points or above, and are receiving any amount of Service Pension or - they meet the criteria for the Special Rate Disability Pension (even if they have not chosen to receive this

payment) and • some widows and dependent children of deceased veterans.9

Other health cards DVA issues a number of other health cards including the DVA Health Card—Specific Conditions (White Card), the DVA Health Card—Pharmaceuticals Only (Orange Card) and the Commonwealth Seniors Health Card.

The White Card provides access to health treatments and care at DVA’s expense for disabilities and conditions accepted as war or service related. ADF members and former members can also access treatments for some specific conditions whether they are service related or not (known as non-liability health care), including: cancer (malignant neoplasm), pulmonary tuberculosis, posttraumatic stress disorder, depressive disorder, anxiety disorder, alcohol use disorder and substance use disorder.10

The Orange Card is issued to certain Commonwealth and allied veterans and mariners and provides access to subsidised medicines under the Repatriation Pharmaceutical Benefits Scheme (RPBS).11

The Commonwealth Seniors Health Card is available to those over pension age who do not receive an income support pension from DVA or a payment from Centrelink and who meet an income test.12 It provides access to subsidised medicines under Pharmaceutical Benefits Scheme and to some state and territory concessions.

Participants in British Nuclear Tests From October 1952 to October 1957, British atomic weapon detonation tests were conducted at Monte Bello islands off the west coast of Western Australia and at Emu Field and Maralinga in South Australia.13 There were also British tests (involving hydrogen bombs) at Christmas Island in the Indian Ocean and Malden Islands in the Pacific Ocean but Australians were not involved.

Table 1 sets out the detonation tests that were conducted in Australia with Australian participants:

Table 3: date and location of British Nuclear Tests in Australia

Location Operation Date/s

Monte Bello Islands Hurricane 2 October 1952

Emu Field Totem 15 October 1953

27 October 1953

Monte Bello Islands Mosaic 16 May 1956

19 June 1956

Maralinga Buffalo 27 September 1956

4 October 1956

11 October 1956

22 October 1956

Maralinga Antler 14 September 1957

25 September 1957

9. DVA, ‘Eligibility for the DVA Health Card All Conditions (Gold) or Totally and Permanently Incapacitated (Gold)’, Factsheet HSV59, DVA, Canberra, 22 February 2017. 10. DVA, ‘Veterans’ health cards’, DVA website. 11. Ibid.

12. Ibid.

13. Review of Veterans’ Entitlements (J Clarke, Chair), Report of the Review of Veterans’ Entitlements, (The Clarke Review), DVA, January 2003, p. 373.

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Location Operation Date/s

9 October 1957

Source: R Cross, Fallout, Wakefield Press, Kent Town, 2001, p. 208 cited in Review of Veterans’ Entitlements (J Clarke, Chair), Report of the Review of Veterans’ Entitlements, (The Clarke Review), Department of Veterans’ Affairs (DVA), January 2003, p. 373.

In addition to the detonations, six hundred minor trials were conducted between 1953 and 1963 at the test areas, including the testing of bomb components. Many of these trials involved large quantities of radioactive contamination.14

Both Australian and British military personnel were involved in the tests along with civilian participants such as scientists, engineers and police. The exact number of Australian participants has been difficult for DVA to verify, particularly in regards to the number of Indigenous people in the Maralinga area during the BNTs. DVA compiled a nominal roll of Australian participants in 2001 and this has been refined over time. Numbers published in 2001 suggested around 16,716 Australian participants (including 8,126 military personnel and 8,590 civilians— including ten Indigenous Australians).15 The 2003 Review of Veterans’ Entitlements stated the nominal roll contained 15,406 names including 8,035 military personnel and 7,371 civilians—including 25 Indigenous people.16

The term ‘participants’ refers not only to those who witnessed or were present when the main detonations occurred, but also to those involved in test-related activities including the cleaning of equipment and vehicles, and to those involved in activities at the sites up to 1965.17

Health impacts of the nuclear tests There has been a series of studies and reports on the health outcomes for BNT participants and their families. There have also been a number of government inquiries on the impact of the BNTs and a Royal Commission was established in 1984 to examine the safety standards observed during the tests.18 A detailed discussion of the health studies and reports, and previous government inquiries can be found in the Bills Digest for the Australian Participants in British Nuclear Tests (Treatment) Bill 2006.19

Compensation arrangements BNT participants who were members of the ADF or the Australian Public Service were covered by workers’ compensation arrangements under the SRC Act and its predecessor the Compensation (Commonwealth Government Employees) Act 1971. In 1986, an administrative scheme based on the SRC Act was created to provide compensation to civilian participants including Indigenous people and pastoralists who were at the test sites.20 This scheme has closed.21

BNT participants also had access to a separate Special Administrative Scheme (which provided compensation to participants who developed leukaemia other than chronic lymphatic leukaemia within 25 years of participating in the tests) and an Act of Grace Scheme, both administered by what is now the Department of Employment.22 The Act of Grace scheme enabled certain plaintiffs with common law actions, issued and served on the Commonwealth in 1988 and up to 4 September 1989, to have their cases assessed outside the court system.23 It

14. M Carter, F Robotham, K Wise, G Williams and P Crouch, Australian participants in British nuclear tests in Australia: Dosimetry 2006, DVA, Canberra, 2006, p. 6. 15. N Minchin, ‘Answer to question on notice: Atomic Testing: Compensation’, [Questioner: L Allison], Question 3625, Senate, Debates, 22 August 2001, p. 26428. 16. Review of Veterans’ Entitlements, op. cit., p. 375. 17. Ibid.

18. Royal Commission into British Nuclear Tests in Australia, Report of the Royal Commission into British Nuclear Tests in Australia, (McClelland Royal Commission), Australian Government Publishing Service, Canberra, 1985. 19. P Yeend and A Biggs, Australian Participants in British Nuclear Tests (Treatment) Bill 2006, Bills digest, 31, 2006-07, Parliamentary Library, Canberra, 9 October 2006. A summary of selected health studies on the impact on participants from other countries is available at:

Preparatory Commission for the Comprehensive Nuclear Test-Ban Treaty Organisation (CTBTO PC), ‘The United Kingdom’s nuclear testing programme’, CTBTO PC website. 20. Explanatory Memorandum, Australian Participants in British Nuclear Tests (Treatment) Bill 2006, p. iii. 21. Australian Safety and Compensation Council (ASCC), Comparison of workers’ compensation arrangements in Australia and New Zealand, ASCC, Canberra, 30 June 2007, p. 104. 22. Ibid.

23. Ibid.

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was intended as an opportunity for some common law applicants to have their cases resolved under the SRC Act.24

Further to these specific compensation schemes, a number of common law claims were made for compensation relating to the BNT program.25

The Australian and United Kingdom (UK) Governments signed an agreement in 1993 under which the UK agreed to pay Australia £20 million ‘in an ex gratia settlement of Australia’s claims concerning the British nuclear test program in Australia’.26 This money was put towards compensation payments by the Australian Government.27

Assistance under veterans’ entitlements and military compensation schemes For a long time, governments considered that as the illness, injuries and death suffered by participants in the BNTs occurred as a result of events during peacetime, they should be covered by workers’ compensation arrangements that apply to public servants generally (under the SRC Act and its predecessors) and the other compensation schemes set out above. Access was precluded to the kind of payments and treatment provided to those with qualifying service under the VE Act (and its predecessors). For example, former Minister for Industry, Science and Resources Nick Minchin stated in answer to a question on notice in 2001:

No disability pension paid by DVA would be paid for illnesses relating to atomic testing. Atomic testing is not service covered by the Veterans’ Entitlements Act 1986. Therefore, all pensions paid by DVA [to BNT participants] are for conditions arising from service other than atomic testing. 28

2003 Clarke Review of Veterans’ Entitlements In its terms of reference, the 2003 Review of Veterans’ Entitlements (the Clarke Review) was specifically asked to examine the claims by BNT participants and consider what would be appropriate assistance by government. The Clarke Review recommended the accreditation of participation in the nuclear tests for ADF personnel as ‘non-warlike hazardous service’.29

The Review received 160 submissions regarding the BNTs with many arguing for compensation coverage under the VE Act by classifying participation in the BNTs as ‘non-warlike hazardous service’.30 Coverage as hazardous service would, at the time, have enabled access to:

• the Disability Pension and War Widow(er)’s Pension or Orphan’s Pension (where a person’s condition was deemed linked to their service)

• a Repatriation Health Card—For Specific Conditions (White Card) which would provide treatment for accepted, service-related conditions

• a Gold Card, where the person meets relevant criteria such as a Disability Pension payment rate above 100 per cent and

• a White Card for malignant neoplasm and posttraumatic stress disorder, irrespective of whether the condition is service-related (known as non-liability health care).31

A small number of submissions also sought classification of participation in the BNTs as ‘qualifying service’. This is treated the same as war or warlike service and would basically have allowed access to the Service Pension and an automatic grant of the Gold Card for those aged 70 or above. This proposal was not supported by the Clarke Review.32

24. Ibid.

25. P Yeend and A Biggs, op. cit., p. 7. 26. N Minchin, ‘Answer to Question on notice: Nuclear tests: compensation’, [Questioner L Allison], Question 3865, Senate, Debates, 27 September 2001, p. 28304. 27. Ibid.

28. N Minchin, ‘Answer to Question on notice: Atomic testing: compensation’, [Questioner L Allison], Question 3625, Senate, Debates, 22 August 2001, p. 26428. 29. Clarke Review, op. cit., p. 399. 30. Ibid., p. 371. 31. Ibid., p. 372. 32. Ibid., pp. 371, 398-399.

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The Clarke Review considered that the particular circumstances of the BNT warranted a one-off extension of VE Act coverage to participants:

Apart from involvement in wars, other conflicts and overseas deployments, it is difficult to conceive of another Australian military operation in the 20th century comparable to the tests’ scale and risk of harm to individuals.

The concerns of the participants in the British atomic tests have been a long-standing issue. There has been an inadequate response by successive governments over many decades. It is a sad fact that the recognition of the unusual hazards faced by the participants has not led to prompt action to ensure a more appropriate compensation arrangement with ready access, given the nature of the hazards.

33

Howard Government response to the Clarke Review recommendations The Howard Government rejected the Clarke Review recommendation to accord ADF personnel involved in the nuclear testing with accreditation as being involved in non-warlike hazardous service. However, while the Howard Government chose not to change the service classification for participants, it made a loose commitment to meeting their needs in other ways. Then Prime Minister John Howard stated:

The Government also had decided to respond positively to the needs of those affected by the British Atomic Test programme when the outcomes are available of the Australian Participants in the British Nuclear Test Programme - Cancer Incidence and Mortality Study.

The Government will continue to provide special recognition and comprehensive assistance to those who have served Australia in times of war, at personal risk of injury or death from an armed enemy.

In keeping with this approach, we have accepted the Clarke Report’s recommendation that there be no change in the incurred danger test for Qualifying Service. However, we reject the view that this test has been interpreted too narrowly. 34

Upon releasing the cancer incidence and mortality studies in 2006, the Howard Government announced that it would extend to BNT participants free testing and treatment for all cancers:35

“Although the study found that the rate of some cancers among the nuclear test participants was higher than in the general Australian population, it did not find any link between the increase in cancer rates and exposure to radiation," Mr Billson said.

"Despite the lack of association between cancer rates and radiation exposure, the Government has decided that it would be appropriate to provide health cover for nuclear test participants who have any form of cancer.” 36

The extension of this health treatment to BNT participants was legislated through the BNT Act and both defence and civilian participants were eligible where they were in the test areas (or involved with vehicles or equipment used in the test areas) during specific periods. Civilian participants covered by this arrangement at the time included employees of the Commonwealth (Australian Public Servants) and those who were contracted by the Commonwealth to provide construction, maintenance or support services relating to the BNTs in the test area.

Rudd-Gillard Government changes In 2008, the Rudd Government expanded the period for which federal police officers could be considered as BNT participants (for the purposes of cancer screening and treatment) at Maralinga from 30 April 1965-30 June 1988. These police performed guard duties and the expanded coverage was in recognition that they may have been exposed to conditions causing adverse health outcomes over a longer period of time.37

33. Ibid., p. 394. 34. J Howard (Prime Minister), Additional benefits for veterans, government response to the Clarke Report, media release, 2 March 2004. 35. M Carter et al, op. cit. 36. B Billson (Minister for Veterans’ Affairs), Nuclear test participants to receive additional health care, media release, 28 June 2006. 37. P Yeend, Veterans' Affairs Legislation Amendment (International Agreements and Other Measures) Bill 2008, Bills digest, 103, 2007-08,

Parliamentary Library, Canberra, 23 May 2008.

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In the 2010-11 Budget, the Rudd Government announced that it would classify the service of BNT participants who were members of the ADF as ‘non-warlike or hazardous peacekeeping service’ under the VE Act in line with the Clarke Review recommendation. The Veterans’ Affairs Legislation Amendment (2010 Budget Measures) Act 2010 inserted a new classification of ‘British nuclear test defence service’ into the VE Act and provided those eligible with access to the Disability Pension (for illnesses and injuries arising from BNT defence service) and to the War Widow/er’s Pension (where the death of the service person was attributable to their BNT defence service).38

Only members of the ADF who participated in the BNTs were made eligible for assistance under this amendment to the VE Act. Civilian participants were not given access to benefits under the VE Act, unlike the cancer screening and treatment measures.

Also in 2010, the Government amended the BNT Act to include Australian Protective Service officers who performed guard duties at Maralinga between 20 October 1984 and 30 June 1988 as ‘nuclear test participants’. These officers were not considered members of the Australian Federal Police from 20 October 1984 and were therefore not eligible for the cancer screening and treatment (following the 2008 changes described above).39

In 2011, the Gillard Government enabled the Repatriation Commission to determine, by way of legislative instrument, additional eligibility requirements for BNT participants to access VE Act payments or the cancer testing and treatment program. The measures in the Veterans’ Affairs Legislation Amendment (Participants in British Nuclear Tests) Act 2011 were intended to allow the Repatriation Commission to provide eligible personnel, who were excluded from the available BNT assistance because of the legislated definitions, with access to VEA benefits or cancer screening and treatment.40

Current entitlements for BNT participants BNT participants who were members of the ADF and Australian Public Servants who were injured or suffered loss as a result of their participation in the BNT program have access to compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRCA). Civilian BNT participants are covered by the SRCA-like scheme administered by the Department of Employment.

Both military and civilian personnel who were BNT participants are able to access screening and treatment for all cancers.41

ADF members who were participants in the BNT, where their condition is accepted under the VE Act as being related to their participation in the BNT, are eligible for Disability Pension. Widow/ers of former ADF members whose death is accepted under the VE Act as related to their BNT service can access the War Widow/er’s Pension. Access to these pensions can entitle eligible recipients to other benefits including Veterans Supplement and the Veterans’ Children’s Education Scheme as well as assistance with medical costs via a White or Gold Card.42

Gold Card campaign There has been an ongoing campaign from representatives of BNT participants, the Australian Greens and independent Senator Nick Xenophon to automatically grant a Gold Card to BNT participants who are former members of the ADF.43 These groups claim that DVA seldom accepts that BNT participants’ impairments are directly linked to their radiation exposure and as a result they are unable to access either the Disability Pension or a White or Gold Card.44 ADF members who were participants in the BNT believe that they should be treated in

38. P Yeend, Veterans' Affairs Legislation Amendment (2010 Budget Measures) Bill 2010, Bills digest, 164, 2009-10, Parliamentary Library, Canberra, 8 June 2010. 39. L Buckmaster, Veterans' Affairs and Other Legislation Amendment (Miscellaneous Measures) Bill 2010, Bills digest, 22, 2010-10, Parliamentary Library, Canberra, 2010. 40. P Yeend, Veterans' Affairs Legislation Amendment (Participants in British Nuclear Tests) Bill 2011, Bills digest, 55, 2011-12, 2011,

Parliamentary Library, Canberra, 2011. 41. DVA, ‘British Nuclear Tests: frequently asked questions’, DVA website. 42. See list of supplements and concessions at DVA, ‘Income support’, DVA website. 43. N Xenophon, Major parties continue to neglect Maralinga veterans, media release, 12 September 2011. 44. Australian Greens, Nuclear veterans deserve gold card health care, Australian Greens policy document, 2013.

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a similar way to veterans of conflicts such as World War II and provided with a Gold Card automatically when they reach the age of 70.45

Before the 2013 Election, the Australian Greens requested the Parliamentary Budget Office (PBO) cost a policy of providing all former ADF members who were BNT participants with a Gold Card. The PBO estimated that the cost would be $82.5 million over four years from 2013-14. Estimates provided by DVA to PBO found the population that would be eligible for the Gold Card under this policy would be 1,500 on 1 July 2014, declining to approximately 1,300 by 1 July 2016. The cost per Gold Card would be $22,800 in 2014-15 rising to $25,000 by 2016-17.46

During the 2016 Election, the Australian Greens had a new policy costed by the PBO to provide a broader compensation package to BNT participants. This policy included an inquiry into the effects of the BNTs on affected communities, the provision of lump-sum compensation payments worth a total of $60 million, provide all ADF BNT participants with a Gold Card and provide 1,200 ‘atomic survivors’ with an ‘Atomic Survivors Health Care Card’ based on the Gold Card (for other BNT participants and to survivors of BNT participants).47

The 2016 policy was expected to cost a total of $189.8 over the four years from 2016-17 (including $72.0 million for the Gold Card measure and $55.0 million for the Atomic Survivors Health Care Card measure).48

British Commonwealth Occupation Forces BCOF consisted of the armed forces from Australia, the United Kingdom, New Zealand and India who occupied Japan after the surrender in 1945.49 Australian occupation forces were located in Japan from 1945 to 1951 and were initially based in the Hiroshima and Yamaguchi prefectures.50 This was later expanded to include the Shimane, Tottori and Okayama prefectures on Honshu, and the Kagawa, Ehime, Kochi and Tokushima prefectures on Shikoku.51

According to the Clarke Review:

The primary objective of BCOF was to enforce the terms of the unconditional surrender that had ended the war in September 1945. BCOF was required to maintain military control, and to supervise the demilitarisation of the country and the dismantling of the remnants of Japan's war infrastructure.

The main body of Australian troops arrived in Japan on 21 February 1946, some seven months after the atomic bombs were dropped on Hiroshima and Nagasaki. The Australian contingent of BCOF was made up of members of the Australian Imperial Force, the Permanent Defence Force and the Interim Forces. The Army was responsible for the Hiroshima Prefecture, while the Air Force element was stationed at Bofu in the Yamaguchi Prefecture. The naval shore establishment was located at the former Japanese naval base at Kure.

From June 1947, BCOF numbers began to decline from a peak of over 40,000 service personnel from the four Commonwealth countries. By the end of 1948, BCOF was composed entirely of Australians. The force was effectively dismantled during 1951, as responsibilities in Japan were handed over to the British Commonwealth Forces Korea.

52

DVA has estimated there were around 17,000 Australians who served in BCOF.53 There were 77 deaths recorded among the Australian BCOF contingent, some were attributed to munitions exploding, a third were due to motor vehicle accidents but none were attributed to direct hostile action by Japanese forces.54

45. See, for example, T Shepherd, ‘Bomb test survivors still suffer the fallout’, The Advertiser, 11 May 2013. 46. Parliamentary Budget Office (PBO), ‘Australian Greens: Gold Card for nuclear veterans’, Policy costing—election caretaker period, PBO, Canberra, 23 August 2013. 47. Australian Greens, Nuclear weapons: addressing the past: protecting the future, Australian Greens policy document, 2016. 48. PBO, ‘Appendix G: Costing documentation for the Greens’ election commitments’, Post-election report of election commitments: 2016 general

election, PBO, Canberra, August 2016, pp. 919-921. 49. For a history of Australia’s involvement see J Wood, The Australian military contribution to the occupation of Japan, 1945-1952, Australian War Memorial, Canberra, n.d. 50. Clarke Review, op. cit., p. 362. 51. Ibid.

52. Ibid.

53. Ibid.

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The Australian BCOF contingent was a mix of World War II veterans and newly recruited soldiers. A key issue for BCOF members is the different entitlements for members recognised as having qualifying service (such as prior service during the VE Act’s defined period of hostilities for World War II—3 September 1939 to 29 October 1945) and those who are not considered to have qualifying service. There has been ongoing contention around the way service in BCOF has been defined (under the VE Act and its predecessors), how particular periods of BCOF service should be defined, and how BCOF service was advertised and recognised at the time of the occupation.55

Issues around the nature of BCOF service The issues around what kind of entitlements BCOF members should be entitled are manifold and relate to commitments at the time, the way qualifying service was classified in repatriation legislation, as well as the nature of the service in Japan. In summary they include:

• a commitment by Prime Minister Chifley in 1946 that those who enlisted in the occupation force in Japan before the end of a ‘state of war’ would be entitled to ‘full benefits’ under repatriation legislation56

• recruitment advertisements at the time which promised full repatriation benefits and a declaration by the then Governor-General that BCOF service was ‘active service’57

• that BCOF was formed and deployed as a combat force and Japanese forces did fire weapons at BCOF members on occasion58

• dispute about when the state of war or period of hostilities should be determined as having ended: for example, following the surrender, the signing of the peace treaty in 1952 or when certain military operations had ceased59

• the definition of key terms such as ‘theatre of war’ used in the repatriation legislation60

• the conditions faced by BCOF members including dangers inherent in occupying Japan61 and

• possible exposure to radiation arising from the atomic bomb dropped on Hiroshima in 1945.62

Assistance under veterans’ entitlements and military compensation schemes Under the VE Act, BCOF service is not considered qualifying service (for payment of the Service Pension or automatic issue of a Gold Card when a veteran turns 70). Those with service in BCOF up to 1 July 1951 are considered to have operational service and can therefore access Disability Pension and other compensation payments where their condition is linked to that service.

BCOF members have, over a long period, pushed for recognition of their service as qualifying service for the purposes of the Service Pension and for automatic issue of the Gold Card.63 However, governments have resisted this campaign—primarily on the basis that the service did not meet the relevant ‘incurred danger’ test for qualifying service.64

2003 Clarke Review of Veterans’ Entitlements The Clarke Review examined the issue of BCOF entitlements and made one recommendation in relation to how the BCOF service should be classified. The Review recommended that service with BCOF be declared:

• warlike from 21 February 1946 to 30 June 1947 and

54. Ibid.

55. See P Sutherland, ‘Analysis of the possible entitlement to service pension of members of the British Commonwealth Occupation Force’, DVA, Canberra, 2011. 56. Ibid., pp. 2-3. 57. Clarke Review, op. cit., p. 364. 58. Ibid., p. 363. 59. Sutherland, op. cit., pp. 6-8. 60. Ibid., pp. 3-4. 61. Clarke Review, op. cit., pp. 366-368; Sutherland, op. cit., p. 10. 62. Clarke Review, op. cit., p. 365. 63. See Clarke Review, op. cit. and Sutherland, op. cit., for background. 64. Sutherland, op. cit., p. 9.

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• non-warlike from 1 July 1947 to 30 June 1951 inclusive.65

The Clarke Review stated that had the ‘warlike’ definition been in existence at the time (in 1946) it would have been used for the initial BCOF period. It also held that the nature of the service would have been reviewed and downgraded in June 1947 when most of the force left Japan (the families of servicemen arrived in Japan at this time and a township was established in August 1947).66

If the Government had adopted the Clarke Review’s approach to service classifications, declaring the pre-30 June 1947 service as warlike would mean that the BCOF members would be considered as having qualifying service and would be eligible for the Service Pension and the Gold Card (as they would be 70 years or older). However, the Clarke Review stated that ‘blanket extension of the Gold Card is not warranted for all veterans of the Australian armed services who served with the BCOF on the grounds of BCOF service only’.67

Howard Government’s response to the Clarke Review recommendations The Howard Government’s response to the Clarke Review, delivered by then Minister for Veterans’ Affairs Danna Vale, stated that the Government did not accept the report’s recommendations to extend qualifying service to certain BCOF members. The response stated:

Public support and confidence in the generosity of our Repatriation System depends on the 'incurred danger test' remaining objective. We would create anomalies if we were to confuse a state of readiness, or presence in a former enemy's territory, with the real and tangible risks of facing an armed and hostile enemy. 68

The response also stated that it had ‘accepted all of the Committee’s recommendations that there be no further extensions of the Gold Card’.69

Rudd-Gillard Government review In 2008, the Rudd Government initiated a review of Clarke Review recommendations that had not been supported by the previous government, including those relating to BCOF service.70

Upon announcing its response to this review of the Clarke Review recommendations, the Government stated that the classification of BCOF service would be subject to further review within Government.71

The Rudd Government requested that an independent review be conducted of BCOF service—examining the historical evidence and its interpretation by DVA and the Department of Defence. This review was completed by Peter Sutherland, a Visiting Fellow at the Australian National University’s College of Law, in August 2011. Sutherland’s opinion was that BCOF members should not be considered to have qualifying service based on their BCOF service alone (as set out in the VE Act and its predecessors).72 Sutherland’s approach to the review was to consider whether BCOF service and the commitments to benefits made at the time meant that it should have been considered as qualifying service for the Service Pension ‘in the context of the legislation and policy extant at the time of the service being reviewed’.73 This approach meant that the Clarke Review’s warlike/non-warlike framework was disregarded.74

Work test for intermediate or special rate of Disability Pension Schedule 2 of the Bill amends work history restrictions that apply in relation to eligibility for the intermediate and special rate of Disability Pension for those aged over 65. The current eligibility criteria are set out below. The

65. Clarke Review, op. cit., p. 369. 66. Ibid., p. 369. 67. Ibid., p. 504. 68. D Vale (Minister for Veterans’ Affairs), Response to the Clarke Committee Report on Veterans' Entitlements, speech, 2 March 2004. 69. Ibid.

70. A Griffin (Minister for Veterans’ Affairs), Government kicks off Clarke review: nuclear veterans and BCOF a priority, media release, 9 September 2008. 71. A Griffin (Minister for Veterans’ Affairs), Government delivers response to Clarke Review of Veterans' Entitlements, media release, 14 May 2010. 72. Sutherland, p. 14. 73. Ibid., p. 5. 74. Ibid., p. 10.

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proposed changes will require ten continuous years of work in any field or vocation rather than ten years with the same employer (or in the same field if self-employed).

Overview of disability pension payments There are four separate Disability Pension payments provided under the VE Act, each with different origins, purposes and evolutions.75 Each is not payable concurrently and each has a different payment rate. The payments are:

• general rate paid from 10 per cent up to 100 per cent, currently from $55.43 to $485.00 per fortnight (pf)

• intermediate rate, currently $926.20 pf

• special rate (totally and permanently incapacitated (TPI)), blinded, or totally and temporarily incapacitated (T&TI) currently $1,364.30 pf and

• the extreme disablement adjustment (EDA) rate, currently $753.60 pf.76

The disability pensions provided under the VE Act are paid as compensation for a war or service caused/related illness or injury. Being compensation, they are not means tested (income or assets tested) and are not taxable income.

General rate The general rate is linked to an individual’s level of assessed impairment. The level of impairment is assessed using the Guide to the assessment of rates of veterans’ pensions (GARP).77

Intermediate rate The intermediate rate disability pension is potentially payable where a person is assessed as having a 70 per cent or more disability (using the assessment for the general rate) and it is also assessed that the person is unable to work for at least 20 hours a week (or more than 50 per cent of full-time hours normally worked). In this case, the intermediate rate is paid instead of a general rate disability pension of 70 per cent or more.78

The intermediate rate is not always payable where the disability assessment is 70 per cent or more. For example, a person may be assessed as having an 80 per cent disability but may also be able to work for more than 20 hours a week. In this case the intermediate rate is not payable, only the 80 per cent general rate.

The intermediate rate, which is paid at a higher rate than the 100 per cent general rate, recognises the work inability of the person arising from their war/service caused/related illness or injury, so, the intermediate rate has a component for income replacement.

Additional qualification criteria apply where a person is aged 65 or more. The last paid work, which is precluded by the incapacity, must have commenced prior to 65 and the person must have been employed in it for at least 10 years.

Individuals aged 65 or more with very severe disabilities but ineligible for the intermediate rate, may be entitled to the extreme disablement adjustment rate of disability pension (see below).

Special rate The special rate disability pension is commonly referred to as the totally and permanently incapacitated (TPI) disability pension. The special rate works very much like the intermediate rate with a more stringent inability to work test. The special rate is potentially payable where the person is assessed as having a 70 per cent or more disability (using the assessment used for the general rate) and is also assessed as unable to work for at least eight hours a week.79 The special rate is the only amount of disability pension paid and is not paid in addition to any general rate disability pension.

75. DVA, ‘Overview of disability pensions and allowances’, Factsheet DP01, DVA, Canberra, 11 April 2017. 76. DVA, ‘Disability pension and war widow(er’s) pension rates and allowances’, Factsheet DP43, DVA, Canberra, 11 April 2017. 77. Guide to the Assessment of Rates of Veterans’ Pensions (No. 2) 2016. 78. DVA, ‘Special and intermediate rates’, Factsheet DP29, DVA, Canberra, 15 November 2016. 79. Ibid.

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Separate to the work test, there are a few other situations where the special rate can be paid, for example where the person is blinded in both eyes due to their accepted conditions.80

The special rate as applied under the VE Act, which is paid at a higher rate than the 100 per cent general rate, recognises the work inability of the person arising from their war/service caused/related illness or injury, so has a component for income replacement.

Additional qualification criteria apply where a person is aged 65 or more. The last paid work, which is precluded by the incapacity, must have commenced prior to 65 and the person must have been employed in it for at least 10 years.

Individuals aged 65 or more with very severe disabilities but ineligible for the special rate, may be entitled to the extreme disablement adjustment rate of disability pension (see below).

Extreme disablement adjustment rate The EDA disability pension can only be considered for veterans who have reached 65 years of age and who are entitled to a disability pension at 100 per cent general rate but are not eligible to receive a special rate or intermediate rate pension (for example, because they do not meet the work history requirements). As the veteran is aged 65 or more, the work tests are not applied. Instead a test requiring 70 medical impairment points or more and at least six out of seven lifestyle points (determined under the GARP) is applied to qualify for EDA.81

Rehabilitation Rehabilitation programs are aimed at improving the potential for a person with a service injury or disease to return to their previous physical and psychological state, and to return to the same social and vocational status.82 Programs can include medical, dental and psychiatric care; exercise and physiotherapy; psychosocial training and counselling; aids and appliances; and modifications to homes, workplaces and vehicles.83

Current and former service personnel can be eligible for different rehabilitation programs under different access rules based on their service status and the compensation scheme they are eligible for. Full-time serving members of the ADF are able to access the Australian Defence Force Rehabilitation Program with no requirement that liability for an injury or disease be established under a compensation scheme.84

Some former members of the ADF and part-time reservists are eligible for rehabilitation programs provided by the Military Rehabilitation and Compensation Commission (MRCC) but liability for their injury or disease must first be established under the MRC Act or the SRC Act (or future SRC Defence Act).85

Some former members of the ADF with eligibility under the VE Act are eligible for rehabilitation programs provided by the Veterans’ Vocational Rehabilitation Scheme. Those with service eligibility under the VE Act (see ‘Overview of veterans’ legislation’ section above) can access this scheme without submitting a claim for liability.86

A 2011 Review of Military Compensation Arrangements recommended that the ADF and DVA develop further options to improve access to early intervention rehabilitation services.87 The Government has proposed a six month pilot program providing early access to rehabilitation services to 100 people in 2017-18.88

80. Ibid.

81. The Guide to the Assessment of Rates of Veterans’ Pensions can be used to assess physical, functional and other medical impairments as well as the effect of those medical impairments on aspects of a person’s lifestyle such as their personal relationships and activities such as domestic routines or recreation. Guide to the Assessment of Rates of Veterans’ Pensions (No. 2) 2016; DVA, ‘Extreme disablement adjustment’, Factsheet DP30, DVA, Canberra, 24 November 2016.

82. Review of Military Compensation Arrangements, Report to the Minister for Veterans’ Affairs: volume 2: detailed analysis, DVA, Canberra, 2011, p. 29 83. Ibid.

84. Ibid.

85. Ibid.

86. Explanatory Memorandum, Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2017, p. 14. 87. Review of Military Compensation Arrangements, op. cit., p. 30. 88. Explanatory Memorandum, Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2017, p. 14.

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Schedule 3 proposes amendments to allow the MRCC to determine a class of people eligible to participate in an early access to rehabilitation pilot program and to allow for rehabilitation services to be provided to these people without the need for them to first have a claim for liability accepted under the MRC Act.

Committee consideration Senate Foreign Affairs, Defence and Trade Legislation Committee The Bill was referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by 13 June 2017. Details are on the Committee homepage.89

The Committee determined that there were no substantive matters requiring examination.90

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.91

Policy position of non-government parties/independents The Australian Labor Party (Labor) supports the Bill. Shadow Minister for Veterans’ Affairs, Amanda Rishworth, stated in her second reading speech on the Bill:

Labor welcomes the expansion of full health cover to BNT participants, BCOF veterans and civilians, which will enable them to receive the treatment that they need and acknowledges the ongoing impact this exposure had on the individuals who were present on the test sites.

This recognition is the result of a long campaign by BNT and BCOF participants. These individuals, nearly all of whom are over 80 years of age, have spent their lives fighting for recognition of the risks they endured and the need for increased support … 92

The former Minister for Veterans’ Affairs (in the Gillard Government) Warren Snowdon offered an apology to those affected by the BNTs, particularly Indigenous people:

But sadly, I am standing here as a former minister and as a member of governments who over the period really failed to recognise, apart from in the Maralinga royal commission, the personal impact that this has had on individuals and families. For that I am sorry.

It is very difficult, for me particularly, because I have lived and worked in the Pitjantjatjara lands with the Yankunytjatjara Pitjantjatjara people, and I know families who are directly affected by these bomb tests … They are right. This is 60 years too late. I apologise, because as a member of this parliament I should have been advocating a lot more strongly than I have done for their cause. I pay tribute to the minister for at last cooperating in recognition of their suffering. Whilst we are talking about the veterans—and I pay my great respect to those veterans who are impacted by these bomb tests—I cannot let pass the opportunity to try and get people to understand the absolutely horrific impacts these bomb tests had on the Aboriginal people of South Australia. I suspect there may be a few people who will be properly recognised in terms of treatments as a result of this legislation, but absolutely nothing we can do here will ever alleviate the pain and suffering of those who have passed, and their families who have felt that in an ongoing way.

93

89. Senate Foreign Affairs, Defence and Trade Legislation Committee, ‘Inquiry into the Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2017’, The Senate, 2017. 90. Senate Foreign Affairs, Defence and Trade Legislation Committee, Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2017, The Senate, 13 June 2017, [p. 1]. 91. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 6, 2017, The Senate, Canberra, 14 June 2017, p. 74. 92. A Rishworth, ‘Second reading speech: Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2017’, House of Representatives,

Debates, proof, 1 June 2017, p. 21. 93. W Snowdon, ‘Second reading speech: Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2017’, House of Representatives, Debates, proof, 1 June 2017, p. 35

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The Nick Xenophon Team has welcomed the Gold Card measures as announced in the Budget.94 Senator Xenophon has campaigned on behalf of BNT participants and BCOF members for automatic access to a Gold Card over a long period.

Australian Greens Senator Scott Ludlam, who has also campaigned on this issue over a long period, also welcomed the Gold Card measure.95

Position of major interest groups The national offices of the major ex-service organisations have not issued statements on the proposed measures.

Financial implications According to the Explanatory Memorandum to the Bill, the measures will cost a total of $136.0 million over the forward estimates period.96 The Gold Card measure in Schedule 1 will cost $133.1 million and the Disability Pension changes in Schedule 2 will cost $2.9 million. The measures in Schedule 3 are expected to have a minimal financial impact over the forward estimates.97

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.98

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.99

Key issues and provisions Schedule 1—Australian participants in British nuclear tests and British Commonwealth Occupation Force Schedule 1 will amend the BNT Act to provide for medical treatment and support for any health condition (via a DVA Gold Card) to all those who were in a nuclear test area during the BNT periods and to all BCOF members in Japan at any time from 31 January 1946 to 28 April 1952. Those granted a Gold Card through these amendments will also be eligible for a small pharmaceutical supplement unless they are already in receipt of an equivalent supplement paid with a social security or veterans’ payment.

DVA estimates that 1,800 surviving BNT participants and 1,100 surviving BCOF members will be benefit from the measure.100

Measure breaks with longstanding principle As discussed in the background section above, BNT participants, BCOF members and their families have long campaigned for greater compensation and access to veterans’ entitlements, particularly the Gold Card. While many BNT participants and BCOF members have been eligible for veterans’ entitlements as a result of other service, a large group of service personnel and civilians have not been able to access their various compensation schemes and have been ineligible for what the Clarke Review described as the ‘single most sought-after benefit under the VE Act’: the Gold Card.101

94. N Xenophon, Finally, some justice for Australia's Nuclear Test Veterans, media release, 8 May 2017. 95. S Ludlam, Great win for nuclear veterans, but still more to do, media release, 8 May 2017. 96. Explanatory Memorandum, Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2017, p. ii. 97. Ibid.

98. Ibid., pp. iii-v. 99. Parliamentary Joint Committee on Human Rights, Report, 5, 2017, The Senate, Canberra, 14 June 2017, p. 50. 100. Australian Government, Portfolio budget statements 2017-18: budget related paper no. 1.4B: Defence Portfolio (Department of Veterans’ Affairs), p. 18.

101. Clarke Review, op. cit., p. 485.

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Governments have consistently denied this group access to the Service Pension and automatic access to the Gold Card on the principle that such entitlements should be reserved for those who served in times of war and who faced danger from an armed enemy.102 The extension of the Gold Card to BNT participants and BCOF members will break with this longstanding principle.

Minister for Veterans’ Affairs Dan Tehan stated in his second reading speech that this significant change in policy is ‘in recognition of the possible exposure to ionising radiation experienced by both Australian veterans of BCOF and the BNT veterans’.103 This suggests that while the classification of these periods of service has not changed (there are no changes to the definition of qualifying service under the VE Act), there is now much greater recognition of the dangers to health posed by the testing and use of nuclear weapons.

Measure will benefit only a small number of survivors With BCOF service commencing more than 70 years ago, and the first BNT more than 65 years ago, only a minority of those who served or were near the nuclear test sites are alive to benefit from this measure. DVA’s estimates for the costing of the 2013 Australian Greens policy to provide a Gold Card to all ADF BNT participants suggested that numbers who would benefit would decline from 1,500 in 2014 to 1,300 in 2016.

It is unclear how many surviving BNT participants and BCOF members have been entitled to a Gold Card under the other eligibility rules but it is clear that many who would have benefited from the health treatment entitlements have died in the decades since the tests and the occupation.

Key provisions

Australian Participants in British Nuclear Tests (Treatment) Act 2006 Items 1 and 2 amend the long and short title of the BNT Act, respectively. The short title will now be Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006.

Item 3 inserts a new definition of British Commonwealth Occupation Force participant at subsection 4(1). A British Commonwealth Occupation Force participant is a person who was a member of the ADF who served in the BCOF in Japan at any time during the period 31 January 1946 to 28 April 1952.

Item 4 repeals the definition of testing at subsection 4(1) and item 5 removes the words ‘of malignant neoplasia, and includes testing’ from the definition of treatment at subsection 4(1). These definitions of terms are no longer needed as the Gold Card entitlement will provide for treatment for any health conditions (that is, it will not be limited to malignant neoplasia).

Item 7 repeals paragraph 5(1)(b). Subsection 5(1) provides for a person to be considered a nuclear test participant if they were an Australian resident in a nuclear test area at any time during:

• if the area was the Monte Bello Islands area—the period from the beginning of 3 October 1952 to the end of 19 June 1958 or

• if the area was the Emu Field area—the period from the beginning of 15 October 1953 to the end of 25 October 1955 or

• if the area was the Maralinga area—the period from the beginning of 27 September 1956 to the end of 30 April 1965.

The specific boundaries of the nuclear test areas are defined at subsection 5(4) of the BNT Act.

Currently, paragraph 5(1)(b) requires the person to also have been, at the time they were in the nuclear test area, a member of the ADF, an employee of the Commonwealth, or a person contracted by the Commonwealth to provide construction, maintenance or support services relating to the conduct of nuclear tests in the nuclear test area. By repealing paragraph 5(1)(b), the requirement for being considered a nuclear test participant under this subsection will be only that a person was in the nuclear test area at the times set out above and an Australian resident. This will allow all civilians in the nuclear test areas to be considered nuclear test participants under the Act.

102. Howard, op. cit. 103. D Tehan, ‘Second reading speech: Veterans’ Affairs Legislation Amendment (Budget Measures) Bill 2017’, House of Representatives, Debates, proof, 24 May 2017, p. 15.

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Item 9 amends paragraph 7(1)(a) to enable British Commonwealth Occupation Force participants to be considered eligible for treatment under the BNT Act alongside nuclear test participants.

Item 10 substitutes subsection 7(2). Subsection 7(2) currently prevents access to treatment under the BNT Act for those members of the ADF and Australian Public Service who had liability for treatment accepted under one of the compensation schemes described above (see Background section). The amendments will prevent access to treatment under the BNT Act to those eligible for treatment for all conditions under the VE Act or the MRC Act. This will ensure that individuals eligible for a Gold Card under the VE Act and the MRC Act will not also be eligible for a Gold Card under the BNT Act.

Item 13 inserts Part 3A—Pharmaceutical supplement which will provide for payment of a pharmaceutical supplement to all persons eligible for treatment under the BNT Act. The pharmaceutical supplement is intended to assist with the cost of co-payments for prescription pharmaceuticals. The pharmaceutical supplement payable under the BNT Act will be different from the pharmaceutical allowance payable under the VE Act.104 The rate of the pharmaceutical supplement payable under the BNT Act will be equivalent to the ‘low rate’ of veterans supplement (currently $6.20 per fortnight).105

Under proposed subsection 23C(4) pharmaceutical supplement will not be payable to certain recipients of veterans supplement under the VE Act, the MRCA Supplement under the MRC Act or a pharmaceutical allowance under the Social Security Act 1991 or to:

• those considered wholly dependent partners of a deceased member (within the meaning of the MRC Act)

• those receiving a social security payment with which a pension supplement is included (most pension payments such as the Age Pension and Carer Payment)

• and those receiving certain pension payments under the VE Act.

People in the above categories would generally receive an amount equivalent to the pharmaceutical supplement, or for the same purpose as the pharmaceutical supplement.

Item 14 inserts section 48A which will allow for the recovery of certain medical treatment costs where a person has received treatment under the BNT Act and subsequently receives compensation from another source for the same incapacity treated under the BNT Act. Section 48A will allow for the application of section 93 of the VE Act in such cases so that, in such cases of double compensation, the person would be required to repay the relevant amount to the Repatriation Commission or have the amount offset against any veterans’ payments the person might receive.

Item 16 is an application provision that provides for the compensation recovery provision at new section 48A (inserted by item 14) to only apply to claims, entitlements and payments made after 1 July 2017.

Safety, Rehabilitation and Compensation Act (Defence-related Claims) Act 1988 Items 17 and 18 amend the proposed SRC Defence Act so that those eligible for treatment under the BNT Act will not be eligible for treatment under the SRC Defence Act.

Schedule 2—work test for intermediate or special rate of pension Schedule 2 will make the work history test for eligibility for the intermediate and special rates of Disability Pension less stringent. Rather than requiring ten consecutive years of work for the same employer or in the same field (for those self-employed), the Bill will allow access to those with at least ten years of continuous paid work for any number of employers and in any field.

This is a sensible change and reflects the fact that people are much less likely to stay with one particular employer over a long period.

Veterans’ Entitlements Act 1986 Item 1 substitutes paragraph 23(3A)(g) of the VE Act to amend the work history requirement for the intermediate rate of Disability Pension. Currently, the paragraph requires a veteran aged over 65 claiming this rate of Disability Pension to have worked for the same employer or in the same field (if self-employed) for at

104. DVA, ‘Veterans’ pharmaceutical reimbursement scheme’, Factsheet HSV132, DVA, Canberra, 22 March 2017. 105. DVA, ‘Veterans supplement’, Factsheet IS18, DVA, Canberra, 20 September 2016.

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least ten years in a continuous period prior to turning 65. The new paragraph will require only that the veteran was undertaking paid work for a continuous period of at least ten years, with that period commencing before they turned 65.

Item 2 makes a similar amendment to the work history requirement for the special rate of Disability Pension at paragraph 24(2A)(g).

Schedule 3—rehabilitation programs As discussed in the background section above, the Government will implement a pilot program to provide earlier access to rehabilitation services for those whose claim for liability under the MRC Act has not yet been determined. Schedule 3 makes the necessary amendments to the MRC Act to allow for this pilot to commence.

Part 2 of Chapter 3 of the MRC Act provides for rehabilitation programs to be provided to individuals deemed eligible under this Part. Section 43 of the MRC Act currently stipulates that rehabilitation programs can only be provided to individuals who are incapacitated for service or work, or who have impairment as a result of a service injury or diseases, where the MRCC has accepted liability for the injury or disease.

Item 5 adds proposed subsections 43(3), (4) and (5) to the MRC Act to allow for the MRCC to determine, by legislative instrument, a class of persons eligible for rehabilitation programs under Part 2 who have made a claim for liability under the MRC Act but the MRCC has not yet determined the claim. This will allow the MRCC to determine a group of people eligible for the early access to rehabilitation pilot program.

Items 11 and 15 insert similar provisions as item 5 into relevant sections of the proposed SRC Defence Act.

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