Bills Digest No. 71, 2018–19
PDF version [698KB]
Michael Klapdor
Social Policy Section
David Watt
Foreign Affairs, Defence and Security Section
28 March 2019
Contents
Purpose of the Bill
Structure of the Bill and Bills Digest
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Date introduced: 14 February 2019
House: House of Representatives
Portfolio: Veterans Affairs
Commencement: The Treatment Benefits (Special Access) Bill 2019
commences on the day after Royal Assent. The substantive provisions of the
Treatment Benefits (Special Access) (Consequential Amendments and
Transitional Provisions) Bill 2019 commence at the same time as the Treatment
Benefits (Special Access) Bill 2019, and will not commence at all if that
Bill does not commence
Links: The links to the Bills, their Explanatory Memoranda and second reading speeches can be found on the Bills’ home pages for the Treatment Benefits (Special Access) Bill 2019 and the Treatment Benefits (Special Access) (Consequential Amendments and Transitional Provisions) Bill 2019, 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
March 2019.
Purpose of
the Bill
The purpose of the Treatment Benefits (Special Access)
Bill 2019 (the main Bill) is to provide a Department of Veterans’ Affairs (DVA)
Treatment Card (Gold Card) to members of the Australian civilian surgical and
medical teams that provided medical aid, training and treatment to Vietnamese
people during the Vietnam War. The Gold Card provides access to medical
treatments at DVA’s expense for any injuries and illnesses.
The Treatment Benefits (Special Access) (Consequential
Amendments and Transitional Provisions) Bill 2019 (the companion
Bill) will amend the Aged
Care Act 1997, the A New Tax System
(Medicare Levy Surcharge— Fringe Benefits) Act 1999, the Healthcare
Identifiers Act 2010, the Income Tax
Assessment Act 1936, the Income Tax
Assessment Act 1997, the Military
Rehabilitation and Compensation Act 2004, the National Cancer
Screening Register Act 2016, the National Health Act
1953, the Safety,
Rehabilitation and Compensation Act 1988, the Safety,
Rehabilitation and Compensation (Defence-related Claims) Act 1988, the Social Security Act
1991 and the Veterans’
Entitlements Act 1986 to provide for the effective operation of the
provisions in the main Bill. Amendments include making certain payments to
individuals exempt from income tax, making individuals eligible under the main
Bill exempt from the Medicare levy and ensure medical treatment for these
individuals is not provided under multiple Acts.
The measures were announced in December 2018 and were
intended to commence on 1 July 2020.[1]
On 14 February 2019 it was announced that the commencement would be brought
forward to 1 July 2019.[2]
The measures are expected to cost $22.2 million from 2018–19 to 2022–23.[3]
Structure of the Bill and Bills Digest
The main Bill will establish a new Act, the Treatment
Benefits (Special Access) Act 2019. The companion Bill will amend a range
of other Acts to provide for the operation of the new Act. Background and
analysis of the Bills will be provided together, with the focus of this Bills
Digest on the provisions of the main Bill.
Background
DVA 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.[4]
Medical services are subject to the requirements of the Medicare Benefit
Schedule and prior approval from DVA may be necessary for some treatments.[5]
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. Some recipients may be eligible for a small
fortnightly payment to assist with the costs of medicines, the Veterans
Supplement.
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 veterans’ Disability Pension at the
special rate (totally and permanently incapacitated) receive a Gold Card marked
‘Totally and Permanently Incapacitated’.[6]
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 dependants) 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
- First
World War veterans, nurses and mariners
- ex-service
women of the Second World War between 3 September 1939 and 29 October 1945
with qualifying service
- Second
World War 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 the Second World War who
are 70 years or over and who have qualifying service under section 7A of the Veterans’
Entitlements Act 1986 (the VE Act)—which sets out specific
criteria for qualifying service
- ADF
members who served in Japan between 16 August 1945 and 30 January 1946, and
those who served in Japan as part of the British Commonwealth Occupation Force
at any time between 31 January 1946 and 28 April 1952
- some
veterans of Commonwealth or allied forces with qualifying service during the
Second World War
- 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 Military
Rehabilitation and Compensation Act 2004 (MRC Act)[7]
- former
ADF members, cadets and reservists who have conditions for which liability has
been accepted under the MRC Act where:
- 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)
- some
widows and dependent children of deceased veterans and
- participants
in the British nuclear test program in Australia.[8]
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 and any mental health condition.[9]
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).[10]
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.[11]
It provides access to subsidised medicines under the Pharmaceutical Benefits
Scheme and to some state and territory concessions.
Recognition of civilians in veterans’ legislation
The VE Act, the MRC Act and the Safety,
Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the DRC
Act) contain provisions which allow for certain civilian personnel to be
declared as members for the purposes of the legislation.
The 2011 Review of Military Compensation Arrangements
report (Review Report) noted that extending military compensation to civilians
has its origins in 1943 when the War Cabinet approved the provision of benefits
to certain categories of civilians for their service in the Second World War.[12]
Benefits were generally provided through act of grace payments but were at a
consistent level with repatriation benefits. Recipients included accredited
representatives of philanthropic organisations attached to the armed services;
New Guinea civilians imprisoned by the Japanese and the dependants of those who
had died as a result of the Japanese invasion; and, telegraphists working for
Amalgamated Wireless Australia who were attached to the Royal Australian Navy
Volunteer Reserve.[13]
The Repatriation
Act 1920 was amended in 1982 to include a specific provision for the
extension of benefits to civilians following a recommendation by the 1975 Toose
Review of the repatriation system.[14]
The VE Act includes a provision (section 5R)
allowing the Minister to determine that certain persons or classes or persons
undertaking relevant service are to be considered under the Act as if they were
a member of the Defence Force rendering continuous full-time service or a
member of a specified unit of the Defence Force. The 2003 Review of Veterans
Entitlements led by John Clarke QC (the Clarke Review) listed the following
civilian groups as having had determinations made under section 5R or the
similar provision under the Repatriation Act 1920:
- Commonwealth
employees attached to the Australian armed forces who provided services as
members of field broadcasting units, telegraphists, camouflers, war
correspondents, photographers or cinematographers in the Second World War; the
Korean War; the Malayan Emergency; the Malay-Thai border; Borneo, Singapore,
Malaysia and Brunei during the Indonesian Confrontation; and the Vietnam War
- representatives
of approved philanthropic organisations (including the Red Cross, Salvation
Army, YWCA and YMCA) providing welfare services to the Australian armed
services during the above conflicts and between 7 December 1972 and 7 April
1994
- canteen
staff on Royal Australian Navy ships in the Korean War and the Malayan
Emergency
- persons
who assisted the Australian armed forces in the Second World War including
Aboriginal and Torres Strait Islander people in northern Australia
- merchant
mariners who served as part of the crew of HMAS Boonaroo and HMAS Jeparit while
the ships were under Navy command and
- official
war artists in East Timor.[15]
Section 88A of the VE Act provides for the
Repatriation Commission to determine that certain persons of a specified class
are eligible to receive medical treatments that are set out in Part V of the VE
Act (those eligible for these medical treatments are generally provided
with one of the treatment cards set out above).
The Military
Compensation Act 1994 amended the Safety,
Rehabilitation and Compensation Act 1988 to specify certain persons as
being covered by that Act and the MRC Act includes a provision, section
8, which allows for certain categories of personnel to be declared 'members’
for the purposes of that Act. The DRC Act includes a provision, at
section 5, for the Minister to make a determination that certain categories of
personnel or people are to be taken as members of the Defence Force or
Commonwealth employees for the purposes of that Act.
Section 8 of the MRC Act provides:
8 Ministerial determination that other people are
members
- The
Defence Minister may make a written determination that a person, or a class of
persons, who engage, or have engaged, in activities, or who perform, or have
performed, acts:
- at the
request or direction of the Defence Force; or
- for the
benefit of the Defence Force; or
- in
relation to the Defence Force, under a requirement made by or under a
Commonwealth law; are taken to be, or to have been, members for the purposes of
this Act.
Note: The determination may be varied or revoked (see
subsection 33(3) of the Acts Interpretation Act 1901).
- The
determination must specify:
- the date
(which may be retrospective) from which the determination applies; and
- the
person, or class of persons, to whom the determination applies; and
- the
activities or acts, or classes of activities or acts, to which the
determination applies.
- The date
referred to in paragraph (2)(a) must be, or be after, the date on which
this section commences.
- A
determination, or a variation or revocation of a determination, is a
legislative instrument.[16]
The 2011 Review Report stated that this provides a
mechanism for certain categories of personnel, such as official entertainers,
war artists, photographers and members of philanthropic organisations to be
declared as members for the purposes of the MRC Act.[17]
Determinations that have been made under this section include one to list war
photographer Robert Nugent as a member in 2006, and determinations to list
certain musical performers, entertainers, and war artists.[18]
Recognition of British Nuclear Test participants
In the 2017–18 Budget, the Coalition Government announced
that it would provide a DVA Gold Card to all of those present at British
Nuclear Test (BNT) areas during the test periods (and to Australian veterans of
the British Commonwealth Occupation Force (BCOF) in Japan).[19]
This included public servants and other civilians present at the nuclear test
areas.
BNT participants had long campaigned for greater
compensation than had already been provided to them and for access to veterans’
entitlements, particularly the Gold Card.[20]
Governments consistently denied this group access to the veterans’ Service
Pension and to 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.[21]
The extension of the Gold Card to this group from 1 July
2017 was a significant change in policy, which then Minister for Veterans’
Affairs Dan Tehan stated was ‘in recognition of the possible exposure to
ionising radiation experienced by both Australian veterans of BCOF and the BNT
veterans’.[22]
SEATO medical teams
Australia provided both civilian and military medical
teams to South Vietnam during the Vietnam War. The civilian teams provided
assistance and training to under resourced and poorly equipped hospitals in
South Vietnam.[23]
The civilian medical teams who provided this service did so under the auspices
of a Southeast Asian Treaty Organization (SEATO) aid program administered by
the Australian Department of External Affairs (now the Department of Foreign
Affairs and Trade).[24]
SEATO was a multi-national collective defence arrangement established between
1954 and 1977 and included Australia, New Zealand, Thailand, France, the United
States of America, the United Kingdom, the Philippines and Pakistan.[25]
The medical teams were sent by various Australian
hospitals or recruited generally from each of the mainland Australian states.
The teams consisted of doctors, nurses, other medical professionals and other
hospital workers. Doctors did three to six month rotations and nurses generally
did six months (some as much as a year). Approximately 240 doctors and 210
nurses and other medical professionals served in these teams.[26]
The first team (containing staff from the Royal Melbourne
Hospital) arrived in October 1964 and were stationed at Long Xuyen in the
Mekong Delta. The Australian teams developed close working relationships with
the hospitals in which they worked.[27]
Some of the teams worked in dangerous proximity to the
fighting. This was especially true of the teams stationed at Bien Hoa in Gia
Dinh province and a Repatriation Commission team located at Phuoc Le (Baria) in
Phuoc Tuy province.[28]
Some of these people worked with Australian Defence Force
(ADF) personnel for extended periods.
Status of the medical teams
As noted, the medical teams went to Vietnam as part of a
SEATO aid program which was administered by the Department of External Affairs.
However, many worked closely with ADF personnel, performed similar functions to
military medical teams, and were exposed to similar dangers. This has led to a
long term debate about the status of the SEATO teams in relation to medical
compensation and whether they should be entitled to the same compensation
available to those who went to Vietnam under the command of the ADF. Members of
the medical teams have argued that illnesses and medical conditions they have
suffered as result of their time in Vietnam are comparable to conditions
suffered by Vietnam War veterans.[29]
During 1999 a nurse who had served in one of the SEATO
teams applied for compensation under the VE Act and was rejected. This
decision was subsequently upheld by the Veterans Review Board.[30]
Mohr Review
The service of the civilians who worked in Vietnam was
reviewed in a 2000 report by Major General Robert Mohr entitled Review of Service
Entitlement Anomalies in Respect of South-East Asian Service 1955–75 (known
as the Mohr Review).[31]
This review inquired into the possibility that former members of Australian civilian
surgical and medical teams who served in Vietnam should receive the full range
of benefits similar to military personnel and designated civilians serving in
Vietnam during the same period. The Review concluded that the civilian surgical
and medical teams should be deemed as performing qualifying service for the
purposes of repatriation benefits (benefits under the VE Act).[32]
This decision was based on the awarding of the Australian Active Service Medal
(AASM) to members of the teams because they were ‘integrated with the
Australian military and performed like functions’, and anecdotal evidence presented
to the Review.[33]
The Mohr Review also agreed that some civilian medical
personnel had been attached to ADF units:
There was one occasion where it is officially noted that an
anaesthetist who was serving with one of the Australian Civilian Medical Teams
was called upon in an emergency to ‘fill in’ at the ADF 1 General Hospital Vung
Tau.
Also there is strong anecdotal evidence that on occasions
both nursing and surgical members of the Teams also ‘filled in’ at the ADF 1
General Hospital at Vung Tau and on numerous occasions allied wounded
personnel, notably ARVN [Army of the Republic of Vietnam] personnel, were
brought to the Teams’ hospitals.[34]
The Howard Government’s response to the Mohr Review’s
recommendations included the following changes relating to warlike service
(which would determine eligibility for entitlements under the VE Act):
The qualifying criteria for all operations involving the AASM
1945–75 and the current AASM will be standardised in line with modern criteria
given to warlike medals. This is basically 'one day or more on the posted
strength of a unit allotted (or assigned) to and serving in an operational
area, one operational sortie into the area, 30 non-operational sorties or 30
days for visitors'.[35]
In other words, the civilian medical teams would not get
full veterans’ entitlements.
In response to criticisms of the Government’s position,
then Minister for Veterans’ Affairs Bruce Scott stated:
The purpose of the VEA [VE Act] is to provide
repatriation benefits to entitled persons for death or disability incurred as a
direct result of their service with the Australian Defence Force in warlike
operations.
...
The men and women who comprised the SEATO civilian surgical
and medical teams in South Vietnam during the war are to be commended on the
valuable work they undertook, some under harsh and stressful conditions.
However, let me stress, they were never considered to be a
part of Australia’s military contribution to Vietnam.
They were not allotted for duty, they were not attached to
units of the ADF, they were not subject to military discipline and they were
not uniformed, billeted or victualled by the ADF.
They were employed by the Department of External Affairs, now
DFAT, under a SEATO aid program. They are, however, covered for compensation
under the Commonwealth Employee’s compensation legislation, now the Safety,
Rehabilitation and Compensation Act 1988, and are entitled to make claim for
any illness or disability arising from their SEATO sponsored employment.
The recent Review of Service Entitlement Anomalies in
Respect of South-East Asian Service 1955-75 provided no evidence that the
SEATO sponsored civilian doctors or nurses served under direct ADF command.[36]
Veterans’ Affairs Legislation (Budget Measures) Bill 2000
This issue continued to gain public attention during the
rest of 2000 when the Australian Labor Party and the Australian Democrats
attempted to amend the Veterans’ Affairs Legislation (Budget Measures) Bill
2000 (which, among other things, was implementing some of the Mohr Review’s
recommendations) in order to give veteran’s entitlements to members of the
civilian medical teams.[37]
The Government rejected this:
The more than 400 men and women who comprised the SEATO
Civilian Surgical and Medical teams in South Vietnam during the Vietnam War are
to be commended on the valuable work they undertook, some under harsh and
stressful conditions, however let me stress, there is no evidence that they
served under direct Australian military command.
By allowing VEA entitlement to a person, or persons, who has
not come under the direct command of the Australian Defence Force in warlike
operations will undermine the integrity of the VEA and could destroy the
ability of the Act to exclusively provide for the men and women of Australia’s
veteran community.[38]
The Senate Foreign Affairs, Defence and Trade Legislation
Committee inquired into the Veterans’ Affairs Legislation Amendment (Budget
Measures) Bill 2000 and the Veterans' Affairs Legislation Amendment Bill (No.
1) 2000.[39]
The Committee gave further consideration to the arguments put by the nurses but
also rejected them:
The nurses have contended that by incurring danger from the
hostile forces of the enemy during hostilities, they performed ‘qualifying
service’ as defined in subsection 7A(1)(a) of the Veterans’ Entitlements’
Act 1986 (VEA 1986), and are therefore eligible for repatriation benefits.
There can be no question that the teams were exposed to danger, but the words
“incurred danger”, described by the Federal Court as constituting an ‘objective’
rather than a ‘subjective’ test, were accepted as being applicable to members
of the Australian Defence Force only. Mr Peter Reece, Head, Compensation
Division, Department of Veterans’ Affairs, told the Committee:
We would not dispute any of the evidence contained in
their submissions. The critical test at the end of the day is not where they
were or what that did or the risk that they involved; it is whether they were
under the command of the ADF–that is the law.
...
The civilian nurses and surgical teams undeniably made a
significant contribution to medical services in those areas of Vietnam in which
they served. They did so, however, as an aid program under the administrative
control of the Department of External Affairs. They were not under the control
of the ADF. Nevertheless, if any member of the civilian medical teams served
under the control of the ADF (such as in an Australian field hospital), even
for short periods, that person may be eligible for benefits under the Act.
Accordingly, the Committee does not believe that any amendment to this area of
the Bill is warranted.[40]
Clarke Review of Veterans’ Entitlements
The entitlements of the civilian medical teams who served
in Vietnam were also considered as part of the 2003 Clarke Review. The
conclusion of this review in relation to the civilian medical teams was the
exact opposite to the Mohr Review:
The Committee concludes that the civilian surgical and
medical teams were part of the civilian aid effort in Vietnam and not the
military effort. The teams were not attached and under the command of the
Australian armed services and their work did not warrant such an attachment.[41]
In reaching this conclusion the Clarke Review rejected the
Mohr Review’s view that awarding the Australian Active Service Medal implied a
right to veterans’ entitlements.[42]
The Clarke Review agreed with the aforementioned statement by the then Minister
for Veterans’ Affairs that the civilian teams were not under the authority of
the Australia armed forces.[43]
The Clarke Review did agree that those civilians who had
served under military command would be eligible to apply for compensation under
the VE Act.[44]
Rudd and Gillard Government position
Despite the attempted amendments in 2000, the Labor
Government did not make any changes to the status of the SEATO civilian medical
teams. In a statement published in the Hospital and AgedCare magazine,
then Minister for Veteran’s Affairs Warren Snowdon said:
Successive government policy on repatriation benefits for
civilians has consistently required that they be attached to the defence forces
and be subject to its command and control.
The members of the civilian surgical and medical teams who
worked in Vietnam were not integrated with the defence forces, nor were they
subject to military control and command.[45]
Minister Snowdon reiterated that these medical teams were
covered for compensation under Commonwealth Employees’ Compensation legislation
(now the Safety, Rehabilitation and Compensation Act 1988) administered
by Comcare.[46]
The subject was raised again in a 2012 Senate Estimates
hearing under questioning from Australian Greens Senator Penny Wright to
Department of Veterans’ Affairs officials:
Senator WRIGHT: Let me turn now to the
Vietnam nurses entitlements. My questions related to Australian volunteer
nursing staff who served on civilian surgical units under the banner of the
South- East Asia Treaty Organisation—SEATO. Can you please advise what
treatment or benefits and support these nurses are entitled to under the
Veterans' Entitlements Act for physical and mental illnesses resulting from
their service in the Vietnam War?
Mr Farrelly: The SEATO nurses are covered
by the Safety, Rehabilitation and Compensation Act rather than the VEA.
Senator WRIGHT: Would that be encompassed under the Comcare
system?
Mr Farrelly: Yes.
Senator WRIGHT: I understand there is a provision under the
Veterans' Entitlements Act which allows the act to be applied to civilians. So
I would be interested to know why it does not apply to the civilian volunteers
who served through SEATO?
Mr Farrelly: The distinction is that the civilians need to be
under military command, and the SEATO nurses were not ever under military
command.
Senator WRIGHT: Would that preclude that discretion being
applied at all or is that just a policy?
Mr Farrelly: No.
Senator WRIGHT: Is that a legal requirement under the act?
Mr Farrelly: Yes.[47]
Ongoing campaign
Members of the civilian medical teams, the Australian
Nursing and Midwifery Federation and the Vietnam Veterans Association of
Australia have run lengthy campaigns seeking recognition for SEATO nurses to
receive veterans’ entitlements for their health care.[48]
During 2013, The Australian newspaper published a
number of articles about civilian medical teams claiming that a leaked official
document established a chain of command between the teams and the South
Vietnamese and Australian armed forces.[49]
This claim was backed up by former Chief of the Defence Force Peter Cosgrove
who reportedly said:
... he had no doubt the volunteer teams of doctors,
anaesthetists and nurses who worked in the Vietnam battle zones between 1964
and 1972 were under the control of the military.[50]
Former Chief of Army Lieutenant General Frank Hickling
(Retd) was also quoted as saying ‘it would have been impossible for the
civilian surgical teams to operate outside military command’.[51]
Abbott, Turnbull and Morrison Government position
The Coalition Government did not offer a change in policy
in regards to the SEATO civilian medical teams during the period from the 2013
Election until the Gold Card announcement in December 2018.
In October 2017, in response to a petition on the issue,
then Minister of Veterans’ Affairs Dan Tehan stated:
I am advised that prior to deploying to South Vietnam, team
members signed an acceptance of general public service terms and conditions of
employment, including coverage under the Commonwealth employees compensation
legislation that applied at the time, which is now the SRCA. Whilst in South
Vietnam, the civilian employees came under the jurisdiction of the Australian
Ambassador in Saigon and on a day to day basis were administered by the
Counsellor (Aid) at the Embassy.
...
I thank you for raising this matter with me, however, there
is no basis for the provision of the Gold Card to this group under military
compensation legislation. As they were civilians employed by the then
Department of External Affairs and were not under ADF command and control, I
would suggest that issues relating to treatment and compensation for this group
are best placed with Ms Bishop [then Minister for Foreign Affairs Julie Bishop]
and the Department of Foreign Affairs and Trade.[52]
Committee consideration
At the time of writing the Bills had not been referred to
any committees.
Senate Standing Committee for the Scrutiny of Bills
At the time of writing the Senate Standing Committee for
the Scrutiny of Bills had yet to consider the Bills.
Policy position of non-government parties/independents
The Australian Labor Party supports the Bills with Shadow
Minister for Veterans’ Affairs, Defence Personnel and Early Childhood Education
Amanda Rishworth stating in her second reading speech for the main Bill:
Labor welcomes the expansion of the gold card to this group
of brave men and women who provided invaluable service in Vietnam.
...
These individuals volunteered their time and their skill to
look after the South Vietnamese population. They were subject to many of the
dangers and the traumas experienced by others who served in Vietnam. They
continue to suffer as a result of volunteering their service. While the teams
were awarded with the Australian Active Service Medal, this bill will finally
recognise the injury and risk to their health and lives that travelling to
Vietnam had caused.[53]
It is unclear what the position of other non-government
parties and independents is on the Bill.
Position of major interest groups
Convenor of the Civilian Nurses Group, Dot Angell,
welcomed the announcement when it was made, but criticised the initial
commencement date of 1 July 2020:
It means everything. It covers
absolutely everything. The only condition that is recognised in me is PTSD and
I was talking to somebody from Queensland this morning who’d been very ill and
they’re not recognising her cancers at all and yet under the Veterans’ Entitlement Act all cancers are recognised regardless of whether
they can be proved to be war related.[54]
The Australian Nursing and Midwifery Association also
welcomed the announcement but argued that the nurses who were part of the
civilian medical teams should not have to wait until July 2020 to receive a
Gold Card.[55]
Financial implications
The Explanatory Memorandum to the main Bill states that
the measures will cost $22.2 million over the period 2018–19 to 2022–23.[56]
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
Bills’ 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 Bills are compatible.[57]
Parliamentary Joint Committee on Human Rights
At the time of writing, the Parliamentary Joint Committee
on Human Rights had yet to consider the Bills.
Key issues and provisions
Measure reverses long-standing principle
As set out in the background section, Australian
governments have consistently argued that as the civilian medical teams were
not under the command of the ADF, they could not be entitled to veterans’
benefits. The former Minister of Veterans’ Affairs, Dan Tehan, had reiterated
this position as recently as October 2017. In announcing the reversal of this
position, the current Minister for Veterans’ Affairs, Darren Chester, stated:
... while these medical teams were not a part of the Australian
Defence Force at the time, the Government has listened to their concerns
relating to their time in Vietnam.
We have determined that it is appropriate to provide them
with the DVA Gold Card which will ensure they receive the support they need.[58]
The measure does not provide access to the full-range of
veterans’ entitlements, such as Service Pensions and compensation payments, and
it does not provide recognition of the civilian medical teams’ work as
qualifying service under the VE Act.
Measure will benefit only a small number of surviving
members
The first civilian medical teams entered Vietnam more than
54 years ago and around 450 doctors, nurses and other medical professionals
went to Vietnam as part of the SEATO aid program during the period from 1964 to
1972.[59]
DVA estimates there are approximately 200 surviving members of the civilian
medical teams who will benefit from the Bills.[60]
As with the British Nuclear Test participants and the
members of the British Commonwealth Occupation Forces, many members of the
SEATO medical teams have died during the long campaign for access to a Gold
Card.
Key provisions
Treatment Benefits (Special Access) Bill 2019
The general structure of the main Bill, its provisions and
the entitlements it provides, are similar to the Australian
Participants in British Nuclear Tests and British Commonwealth Occupation Force
(Treatment) Act 2006 (the BNT BCOF Act). This Act
provides a Gold Card to participants in the British Nuclear Tests and members
of the British Commonwealth Occupation Forces.
The main Bill provides for medical treatment, the payment
of travelling expenses, and a pharmaceutical supplement to eligible persons. An
eligible person is someone who is considered an Australian surgical-medical
team member (as defined in subclause 5(1) and clause 7) who is an
Australian resident. Where a person is also eligible for other treatment
schemes (such as under the VE Act) then they will not be eligible under
the Bill.[61]
Subclause 5(1) provides a list of definitions for
the purposes of the Bill. An Australian surgical-medical team member
is defined as a person who worked in Vietnam (Southern Zone) as a member of an
Australian surgical medical team under the Commonwealth Government’s SEATO aid
program at any time during the period beginning 1 October 1964 and ending
31 December 1972.
Part 2 of the main Bill provides for the medical
treatments available to eligible persons. The treatment provisions largely
replicate those contained in the BNT BCOF Act. Generally, medical
treatments are arranged by the Repatriation Commission and are typically
provided through arrangements made by the Commission with Commonwealth, state
and territory governments (for the provision of treatments at public hospitals
or other institutions) or with private providers.[62]
The Repatriation Commission may reimburse an eligible person for treatments the
person has already paid for, where the Commission approves the treatment.[63]
The approval of medical treatments under the Bill must be made in accordance
with the Treatment Principles set out at section 90 of the VE Act, or
those principles as modified in writing by the Commission and approved by the
Minister under clause 18. Such modifications are stated by clause 18
to be legislative instruments.
Similarly, the Repatriation Private Patient Principles and
the Repatriation Pharmaceutical Benefits Scheme, as set out in the VE Act,
are binding on the Commission unless modified in writing and approved by the
Minister (clauses 19 and 20).
Part 3 of the main Bill provides for a person to be paid
for any travelling expenses incurred for the purpose of obtaining medical
treatment. The provisions largely replicate those contained in the BNT BCOF
Act. Travel must be approved by the Repatriation Commission in order for
travel expenses to be paid.[64]
A person accompanying the person receiving medical treatment as an attendant
may also be paid travel expenses.[65]
In some cases, the Commission may approve for advance payments to be made but
the person must repay any amounts paid in excess of their actual travel costs.[66]
Part 4 of the main Bill provides for the payment of a
pharmaceutical supplement to those eligible for treatment under the Act. Clause
30 provides that the pharmaceutical supplement is paid at the rate of the
Veterans Supplement under section 118C of the VE Act. This is a small
fortnightly payment intended to assist eligible recipients with the
out-of-pocket costs of medicines.[67]
The rate of the payment is currently $6.20 per fortnight for Gold Card holders.[68]
A person will not be eligible for the payment where they are in receipt of a
veterans’ or social security income support payment such as the Service Pension
or Age Pension.[69]
Those payments attract their own supplement which includes a payment component
intended to assist with the cost of medicines. The provisions in this part
replicate those in the BNT BCOF Act.
Parts 5 and 6 of the main Bill provide for review
procedures and administration and enforcement procedures, respectively. These
provisions replicate those in the BNT BCOF Act.[70]
Part 7 includes an appropriation provision (clause 62—for
funds to be appropriated from the consolidated revenue fund for the purposes of
the Bill); and a rule making power (clause 63) which allows the Minister
to, by legislative instrument, make rules for matters under the Bill or
necessary/convenient for carrying out or giving effect to the Bill.
Treatment Benefits (Special Access) (Consequential
Amendments and Transitional Provisions) Bill 2019
Clause 1 of Schedule 1 of the companion Bill
provides that the main Bill applies in relation to treatment, travel expenses
and payment of pharmaceutical supplement on and after 1 July 2019.
Schedule 2 proposes amendments to the Aged Care Act 1997, the A New Tax System
(Medicare Levy Surcharge—Fringe Benefits) Act 1999, the Healthcare
Identifiers Act 2010, the Income Tax
Assessment Act 1936, the Income Tax
Assessment Act 1997, the Military
Rehabilitation and Compensation Act 2004, the National Cancer Screening
Register Act 2016, the National Health Act
1953, the Safety,
Rehabilitation and Compensation Act 1988, the Safety,
Rehabilitation and Compensation (Defence-related Claims) Act 1988, the Social Security Act
1991 and the Veterans’
Entitlements Act 1986 to provide for the effective operation of the
provisions in the main Bill. Amendments include making the pharmaceutical
supplement and travelling expenses that are payable under the main Bill exempt
from income tax (items 9-11), making individuals eligible under the main
Bill exempt from the Medicare levy (items 5, 6 and 8), providing
for appropriate information sharing related to the main Bill (items 1-3
and 13), and ensuring that medical treatment for these individuals and
any related payments are not provided under multiple Acts (for example, items
4, 12, 21 and 22-38).
[1]. J
Frydenberg (Treasurer) and D Chester (Minister for Veterans’ Affairs and
Defence Personnel), Gold
Card for doctors and nurses from the Vietnam War, media release, 16
December 2018.
[2]. J
Frydenberg (Treasurer) and D Chester (Minister for Veterans’ Affairs and
Defence Personnel), Fast-tracking
support to SEATO doctors and nurses, media release, 14 February 2019.
[3]. Explanatory
Memorandum, Treatment
Benefits (Special Access) Bill 2019, p. iii.
[4]. Department
of Veterans’ Affairs (DVA), ‘Using
the DVA Health Card – All Conditions (Gold) or DVA Health Card Totally and Permanently
Incapacitated (Gold)’, factsheet HSV60, DVA website, last updated 18 May
2018.
[5]. Ibid.
[6]. 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 website, 11
April 2017.
[7]. 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.
[8]. DVA,
‘Eligibility
for the DVA Health Card - All Conditions (Gold) or Totally and Permanently
Incapacitated (Gold)’, factsheet HSV59, DVA, 8 January 2019; DVA, ‘DVA
Health Card For All Conditions (Gold Card)’, Compensation and Support
Policy Library, DVA website, 3 July 2017.
[9]. DVA,
‘Veterans’
health cards’, DVA website.
[10]. Ibid.
[11]. Ibid.
[12]. Review
of Military Compensation Arrangements, Report to the
Minister for Veterans’ Affairs, vol. 2: detailed analysis, DVA,
Canberra, February 2011, p. 386.
[13]. Review
of Veterans’ Entitlements, Report
of the Review of Veterans’ Entitlements (Clarke Review), vol. 2,
Department of Veterans’ Affairs, January 2003, pp. 445–446.
[14]. Ibid.,
p. 446.
[15]. Ibid.,
pp. 447–448.
[16]. Military
Rehabilitation and Compensation Act 2004, section 8.
[17]. Review
of Military Compensation Arrangements, Report to the
Minister for Veterans’ Affairs, volume 2, op. cit., p. 386.
[18]. Military
Rehabilitation and Compensation (Members) Determination 2006; Military
Rehabilitation and Compensation (Members) Determination 2006 (No. 2).
[19]. Australian
Government, Portfolio
budget statements 2017–18: budget related paper no. 1.4B: Defence Portfolio
(Department of Veterans’ Affairs), p. 18.
[20]. See
M Klapdor, Veterans'
Affairs Legislation Amendment (Budget Measures) Bill 2017, Bills
digest, 113, 2016–17, Parliamentary Library, Canberra, 15 June 2017, pp.
6–11.
[21]. See,
for example, J Howard (Prime Minister), Additional benefits for veterans, government response to Clarke Report, media release, 2 March 2004.
[22]. D
Tehan, ‘Second
reading speech: Veterans’ Affairs Legislation Amendment (Budget Measures) Bill
2017’, House of Representatives, Debates, 24 May 2017, p.
4910.
[23]. B
O’Keefe, Medicine at war: medical aspects of Australia’s involvement in
Southeast Asia 1950–1972, Allen and Unwin, Sydney, 1994, p. 367.
[24]. Ibid.
[25]. United
States Department of State, ‘Southeast Asia
Treaty Organization (SEATO), 1954’, Milestones in the History of U.S.
Foreign Relations, Department of State website.
[26]. O’Keefe,
op. cit., p. 367.
[27]. Ibid.
[28]. Ibid.,
p. 368.
[29]. G
Kearney and L Thomas, SEATO
nurses - 10 years on, Australian Nursing Federation, Canberra, June 2009, p. 3.
[30]. Ibid.,
p. 2.
[31]. R
Mohr, Review
of service entitlement anomalies in respect of South-East Asian service 1955–75,
(Mohr Review), [Defence Publishing Service, Canberra], February 2000, pp.
76–80.
[32]. Ibid.,
p. 80.
[33]. Ibid.
[34]. Ibid.,
p. 77.
[35]. B
Scott (Minister for Veterans’ Affairs), 42 000 new medal entitlements for South East Asian service 1955-75, media release, 30 August 2000.
[36]. B
Scott (Minister for Veterans’ Affairs), Understanding
the Veterans' Entitlement Act, media release,
11 October 2000.
[37]. Parliament
of Australia, ‘Veterans'
Affairs Legislation Amendment (Budget Measures) Bill 2000 homepage’,
Australian Parliament website.
[38]. B
Scott (Minister for Veterans’ Affairs), Government rejects Senate amendment on SEATO civilian nurses, media release, 29 November 2000.
[39]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Veterans'
Affairs Legislation Amendment Bill (No. 1) 2000 and Veterans' Affairs
Legislation Amendment (Budget Measures) Bill 2000, The Senate, August
2000.
[40]. Ibid.,
pp. 8–9.
[41]. Clarke
Review, op. cit., p. 461.
[42]. Ibid.,
p. 459.
[43]. Ibid.
[44]. Ibid.,
pp. 458, 461.
[45]. D
Hutchins, ‘VA Minister blind on SEATO nurse benefits’, Hospital and AgedCare,
September 2011, p. 8.
[46]. Ibid.,
p. 9.
[47]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Official
committee Hansard,
17 October 2012, pp. 163–4.
[48]. Australian
Nursing and Midwifery Federation (ANMF), ‘Governments must act for
SEATO nurses’, ANMF website.
[49]. M
Day, ‘Oz
medics in Vietnam “were run by military”’, The Weekend Australian,
23 February 2013, p. 6.
[50]. M
Day, ‘Top
brass back Vietnam medics’, The Weekend Australian, 27 April
2013, p. 2.
[51]. Ibid.
[52]. D
Tehan, ‘Petitions:
Veterans’, House of Representatives, Debates, 23 October 2017, p.
11452.
[53]. A
Rishworth, ‘Second
reading speech: Treatment Benefits (Special Access) Bill 2019, Treatment Benefits
(Special Access) (Consequential Amendments and Transitional Provisions) Bill
2019’, House of Representatives, Debates, 20 February 2019,
p. 14074.
[54]. D
Angell quoted in R Fedele, ‘Justice
for SEATO nurses?’, Australian Nursing and Midwifery Journal, 17
December 2018.
[55]. Australian
Nursing and Midwifery Association, SEATO
nurses shouldn’t have to wait any longer for Gold Card, media release,
18 December 2018.
[56]. Explanatory
Memorandum, Treatment
Benefits (Special Access) Bill 2019, p. iii.
[57]. Ibid.,
pp. iv–v; Explanatory
Memorandum, Treatment Benefits (Special Access) (Consequential Amendments and
Transitional Provisions) Bill 2019, p. iv.
[58]. Frydenberg
and Chester, Gold Card for doctors and nurses from the Vietnam War, op.
cit.
[59]. O’Keefe,
op. cit., p. 367.
[60]. K
Andrews, ‘Second
reading speech: Treatment Benefits (Special Access) Bill 2019’, House of
Representatives, Debates, 14 February 2019, p. 13411.
[61]. Main
Bill, subclause 7(2).
[62]. DVA,
‘Treatment
of your health conditions’, DVA website.
[63]. Clause
14.
[64]. Clause
22.
[65]. Subclause
22(2).
[66]. Clause
23.
[67]. DVA,
Veterans
Supplement, factsheet IS18, DVA website, last updated 24 September
2018.
[68]. Gold
Card holders in receipt of certain rates of the veterans’ Disability Pension
can receive a higher rate of $12.40 per fortnight. The $6.20 rate will apply
for those eligible under the proposed Act. Ibid.
[69]. Clause
29.
[70]. See
A Biggs and P Yeend, Australian
Participants in British Nuclear Tests (Treatment) Bill 2006, Bills
digest, 31, 2006–07, Parliamentary Library, Canberra, 2006, pp. 16–17.
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