Chapter 2
Issues raised in evidence
Introduction
2.1
This chapter examines the issues raised in evidence during the
committee's inquiry into the Veterans' Affairs Legislation Amendment (Omnibus)
Bill 2017 (the bill). As participants of the inquiry were supportive of the
bulk of changes proposed by the bill, this chapter will focus on Schedules 1
and 5, and conclude with the committee's view and recommendation.
2.2
While the chapter focuses on evidence particular to this inquiry, it is
worth noting that many of the concerns raised go to larger issues that have
been forming within the Veterans' Affairs portfolio for some time. The veteran
community's experience with bureaucratic barriers to entitlements and an
existing general dissatisfaction with government handling of personal data has
likely contributed to concerns with elements of the bill. Indeed, submitters
expressed concerns that the amendments in Schedule 1 of the bill are a further
erosion of veterans' rights while Schedule 5 has been viewed with some suspicion
for its information sharing provisions. This chapter seeks to allay some of
those concerns.
Schedule 1
Power to dismiss frivolous
applications
2.3
Following recent amendments under the Budget Savings (Omnibus) Bill
2016, the Veterans' Review Board (VRB) is now the only avenue for internal
appeal of a decision. Concerns were raised by a number of submitters regarding Schedule
1 of the bill, which proposes to provide the Principal Member of the VRB with
the power to 'dismiss an application for review of a decision if he or she is
satisfied that the application is frivolous, vexatious, misconceived or lacking
in substance', as well as introduce the option to delegate this power.[1]
2.4
For example, it was argued by Mr Brian Briggs, National Military
Compensation Expert, Slater and Gordon Lawyers, in his submission that the
amendments contained in Schedule 1 could potentially interfere with the basic right
to a fair hearing by denying applicants the opportunity to present their case
before the board for deliberation.[2]
Mr Briggs contended that the bill's amendments reduce the ability of the VRB to
achieve its objective of maintaining a fair mechanism of review and—with an
expected increase in the board's workload—would also place applications at risk
of being dismissed to save time.[3]
2.5
Although Mr Briggs acknowledged the experience of members of the VRB, he
highlighted that even the Administrative Appeals Tribunal (AAT) had wrongly
dismissed genuine claims in the past. To introduce similar powers to the VRB
would increase the risk that genuine claims could be erroneously dismissed.
Mr Briggs pointed out that for many applicants, the Department of Veterans'
Affairs (DVA) compensation application process is already a difficult
experience—applicants seeking appeal of a summarily dismissed application by
the VRB would be required to spend additional time and resources to have the
decision reviewed by the AAT:
This can have a significant detrimental impact on applicants;
in addition to the costs spent on application to the VRB, the applicant must
potentially bear the costs of an appeal process through the AAT. According to
figures from the Department of Veterans' Affairs, this can easily compound the
average cost of the initial VRB hearing of approximately $1,450 with the
average costs of an AAT case—whether it proceeds to a hearing or not—of between
$2,600 and $14,620. This can be a stressful and lengthy process, and potentially
dangerous to applicants already experiencing enormous hardship.[4]
2.6
By way of comparison, Mr Briggs drew attention to the Safety,
Rehabilitation and Compensation Act 1988 which does not enable applications
brought by Commonwealth public servants to be summarily dismissed. He pointed
out that the proposed amendments contained in Schedule 1 could be interpreted as
a further attack on veterans, arguing:
In an environment where claimants frustrated with their
experience with the claims process are already taking their own lives, to widen
the Board's powers to dismiss claims is...a potentially fatal move.[5]
2.7
Similarly, the Returned and Services League of Australia (RSL) submission
contended that a lone decision of a Principal Member is likely to be perceived
by the community as less independent and impartial than a decision by a panel
of three members. The RSL also highlighted that whilst a small number of claims are frivolous, the
majority of applications are not:
[A]lmost all veterans who approach RSL DefenceCare for
assistance want to lodge a claim with the DVA as they believe that an injury or
illness they have is or maybe connected to their military
service. A few openly admit they are not sure if their injury or illness is connected to
service or that the connection is tenuous at best, but most of these accept the
DVA or VRB’s decision if it is in the negative. Many are grateful for the
opportunity to see if they qualify for assistance from the DVA...The panel
affords them the chance to be heard by three individuals in contrast to the one
delegate at the DVA. In our experience, members of a panel often make comments
during a hearing that indicate they are not in agreement about various aspects
of the case.[6]
2.8
Mr Briggs also argued against aligning the VRB's grounds for summary
dismissal with those that apply to the AAT and other review bodies:
While it is arguably appropriate that these review bodies
possessing a broad jurisdictional case have summary dismissal powers at their
disposal, appeals to the Veterans' Review Board are of a niche jurisdiction and
should not be considered to be in the same category.[7]
2.9
Indeed, Mr Briggs argued that the proposed delegation powers in Schedule
1 could potentially allow the Principal Member to delegate the dismissal power
to a Registrar or Senior Member who could be ill-equipped to identify whether a
claim has merit.[8]
Similarly, the Commonwealth Ombudsman submission suggested that the VRB
consider limiting the option to delegate the proposed dismissal power to senior
level officers.[9]
2.10
In addition to arguments around whether or not the proposed powers in
Schedule 1 should be granted, concerns were raised as to how the dismissal
powers would actually operate. For example, submitters noted that there is no
requirement for the Principal Member to provide reasons for a dismissal or notify
relevant parties within a reasonable amount of time. It was argued that instruction
on the form, content, and timing of dismissal notifications should be included
in the bill.[10]
In a similar vein, Mr Briggs also contended that there is ambiguity around when
the board would be able to dismiss a claim, arguing that:
The proposed amendment makes it is entirely unclear whether
the Principal Member can dismiss an application upon receiving it, or more
fairly, whether this order can only be made once the claimant has had the
opportunity to make their case at a hearing.[11]
Support for Schedule 1
2.11
A number of submitters were supportive of the bill's intent to improve
services to veterans.[12]
It was argued that by formalising provisions to deal with applications unlikely
to succeed, the proposed amendments in Schedule 1 would manage the board's
resources more efficiently. It was also pointed out that the power to dismiss
frivolous or vexations application would only be used in the rarest of cases
and abuse of the power would be prevented through the right of appeal to the
AAT.
2.12
Indeed, the Alliance of Defence Service Organisations (ADSO) submission
argued that, 'vexatious, frivolous, and hopeless appeals come at a cost to the
Australian taxpayer and to the detriment of veteran applicants through costly
and time-consuming appeals of this nature'.[13]
The ADSO contended that while the VRB continued to operate on a merits review
basis, the alignment of the objectives of the VRB and AAT would only enhance
the consistency and administration of the legislation.
2.13
In response to concerns raised by submitters as to the operation of the
proposed dismissal power, the Principal Member of the VRB, Mr Doug Humphreys
OAM, provided written clarification to the committee to explain his position on
the matter and help allay fears in the community.
2.14
Firstly, Mr Humphreys reassured members that the law on the area of
'frivolous and vexatious' is well settled and has a very high threshold, and
that the proposed dismissal power would only be used in the rarest of
circumstances.[14]
2.15
In terms of an expected increase in workload, Mr Humphreys pointed out
that the board's workload had in fact decreased when compared to the same time
last year:
To date, the VRB has not experienced a significant increase
in in appeals following the introduction of the Single Appeal Pathway. As at
the end of April 2017, new appeals at the VRB totalled 2227, which compares to
2324 appeals in April 2016. Given that applicants have more than 12 months to
lodge a MRCA appeal with the VRB, the single appeal pathway may not start to
impact on the VRB's level of appeals until well into 2017–18.[15]
2.16
With regards to concerns that the Principal Member would have the option
to delegate the power, Mr Humphreys wrote:
I can assure the Committee that I will not delegate the power
to other Board Members or Registrars. This would be set out in the VRB's
General Practice Direction, which is publicly accessible. The Practice
Direction would also clearly set out that adequate notice of any preliminary
hearing would be required to be given to the applicant, any hearing would be
required to afford full procedural fairness, including the opportunity to
address the Board on the issue.
2.17
Concerns that Schedule 1 does not contain any requirement for the
Principal Member to provide reasons for the dismissal were also addressed:
[A]s with all VRB decisions, a full and comprehensive set of
reasons would need to be provided if the power were exercised, in accordance
with section 140 of the VEA, which provides that the Board must give a copy of
its decision to each party to the review.[16]
2.18
Mr Humphreys also shed light on when an application could be dismissed, explaining
that:
The VRB's General Practice Direction would set out that in
the circumstances where the VRB was considering exercising its power to dismiss
an application, this would only be done following a preliminary hearing.
Parties would be given full notice of any preliminary hearing and they would be
invited to provide any submissions addressing the issue, preferably in writing.
At the preliminary hearing itself, an applicant would also be afforded full
procedural fairness, by being given an opportunity to address the Board orally
on the issue, in addition to any written submissions.[17]
2.19
The Principal Legal Advisor of DVA, Ms Carolyn Spiers, also assisted to
address some of the concerns raised by submitters. For example, in response to
Mr Briggs' concerns that claimants would potentially be burdened with
additional costs and stress by having to take their case to the AAT, Ms Spiers
argued:
First of all, taking a veterans' matter to the Administrative
Appeals Tribunal is exempt from filing fees and all of that, so they would not
have the cost of that. The tribunal allows people to be self-represented, and I
suspect the people we are talking about are likely to be the more was
self-represented people who are used to those environments. The other issue
would be that there is nothing stopping the board and the tribunal sitting
down—the two registrars—and actually having a discussion about being able to
streamline those sorts of cases so that they get an early hearing at the AAT.[18]
2.20
During the hearing, Ms Spiers provided the committee with a list of
bodies that currently possess the power to dismiss frivolous or vexatious
claims. There are over 20 on the list, including the Administrative Appeals
Tribunal, Australian Competition and Consumer Commission, Australian
Communications and Media Authority, Fair Work Commission, Office of the
Australian Information Commissioner, and Office of the Commonwealth Ombudsman.[19]
2.21
Indeed, Ms Spiers pointed out that the introduction of the single appeal
pathway may have actually increased appeal options for some individuals:
There has never been legal representation at the board, ever,
and the single appeal pathway does not remove that. It, in fact, gives those
people that only had one level of external merits review, the AAT, another
level so they actually have two now: the VRB and the AAT. So I think it is
actually broadening the scope, not lessening the scope.[20]
2.22
During the hearing, officers of the department took the opportunity to reassure
the committee that the VRB's power would only be exercised in an application-specific
rather than applicant-specific way and that an individual's right to review
would not be impacted by cases they may have brought before.[21]
2.23
During the hearing, Mr Noel McLaughlin, Chairman, ADSO advised that if
the bill was amended to include clear definitions, his organisation would be in
support of the proposed amendments.[22]
His colleague, Colonel David Jamison, AM (Retired), National Spokesman, ADSO,
explained:
[W]e believe the terms 'frivolous', 'vexatious' and
'misconceived' should be defined in the act and such definitions should relate
back to definitions that come out of case law. We emphasise that this is a
legislative issue that we are pursuing—it has nothing to do with the
performance of either the members of the board or its performance over the
years.[23]
2.24
During discussions on the expected increase to the VRB's workload, Mr
McLaughlin recommended that the board reintroduce the two-year period in which
applicants can bring an appeal before the board—with an extension of three
months allowed on appeal to the board—via its General Practice Direction:
The process then is: if you do not bring it before the board,
your appeal is dismissed. It does not mean that is the end of the world; you
are just put to the back of the queue, you resubmit and start again...We think
that the two-year window is more reasonable in all the circumstances for the board to exercise its powers and functions in
this regard...[24]
2.25
However, when committee members questioned the department on whether it
could review the two-year process, Ms Spiers provided the following
clarification:
There is a separate power of the Veterans' Review Board—a
strike-out power. That is when there is inactivity on the appeal for over two
years. I think that is what is being referred to. But this bill does not impact
on that at all. That power still sits there. There is a procedural fairness
process built into that as well, in that the individual is encouraged to
progress their claim. But, if there has been absolutely no activity for two
years, the head of the VRB can—reluctantly—strike out that matter for want of
action.[25]
Schedule 5
Information sharing
2.26
Submitters raised a number of privacy concerns with the amendments
proposed in Schedule 5. Specifically, the amendments which would allow the
Commonwealth Superannuation Corporation (CSC) to obtain medical and other
information from the Military Rehabilitation and Compensation Commission (MRCC)
in order to conduct superannuation investigations were the subject of
criticism.[26]
2.27
According to submitters, there is some confusion within the Defence
community as to what type of information is being shared, for what purposes,
and to whom. These concerns are magnified by scepticism around how personal
data is stored and shared on government systems. Following the Centrelink debt
recovery scheme and Australian Taxation Office system failures, it would appear
that the community's distrust of government handling of data has been
aggravated.[27]
2.28
The Office of the Australian Information Commissioner submission pointed
out that it can be difficult for current or former ADF members to understand
how their personal information is being handled. For example, it noted that whilst
the CSC is prohibited from using or disclosing information for purposes other
than a purpose relating to the performance or function of the CSC-related
legislation, 'the range of functions undertaken by the CSC and breadth of CSC
legislation may mean that the full extent of those purposes is unclear'.[28]
2.29
Indeed, the ADSO submission speculated whether information sharing
between the MRCC and the CSC would be a general requirement for access to
superannuation entitlements or whether it would be specific to veterans who are
medically discharged and entitled to access superannuation on the grounds of disability.[29]
2.30
The ADSO also expressed concern that increased information sharing
between agencies could potentially prejudice entitlements to superannuation
payments.[30]
2.31
Submitters drew comparisons with the recently enacted Veterans'
Affairs Legislation Amendment (Digital Readiness and Other Measures) Act 2017
arguing that similar criminal sanctions to those imposed on the Secretary of
DVA should be included in this bill.[31]
Under that legislation, the Secretary is required to comply with certain
safeguards before public interest disclosure of information about a case or
class of cases. If the Secretary does not comply with the requirements before
disclosing personal information, he or she commits an offence punishable by 60
penalty units.[32]
2.32
Many submitters encouraged the department to promote greater
transparency by undertaking a Privacy Impact Assessment (PIA) of Schedule 5 of
the bill. It was argued that a PIA would go some way toward allaying fears in
the community by explaining to individuals why the sharing of information is
necessary, what information would be shared, and how personal information would
be handled.[33]
Support for Schedule 5
2.33
In support of the changes, the department argued that the proposed
amendments contained in Schedule 5 would reduce the need for individuals to
attend unnecessary medical assessments and retell their story multiple times.
The changes are expected to improve access to care and support, and be of
particular benefit to those with mental health conditions. It was argued that
the changes would ultimately be of most benefit to recipients by enabling
quicker determinations.[34]
2.34
Other submitters also highlighted the expected benefits of the Schedule
5 provisions, arguing that increased information sharing would reduce existing
complexity in the system, help to minimise errors, and speed up delivery times
for clients. [35]
2.35
At the public hearing, the Chief Executive Officer of the CSC, Mr Peter
Carrigy-Ryan, reassured the committee that there is currently a range of
protections in place which ensure his organisation engages in secure
information sharing practices:
All of our information is personnel-in-confidence and is
subject to all of the Commonwealth government security requirements. We have
obligations under each piece of legislation and all of the privacy principles,
as well as obligations under our superannuation licensing regime, to make sure
that the highest level of protection is provided to members' information and
members' data. I am not aware of any incident—that I can remember—in recent
years involving a breach of that privacy in relation to any of the military
cases that we are assessing.[36]
2.36
During the hearing, the committee brought to the attention of CSC officers
the Commonwealth Ombudsman's submission which raised concerns that delays in
information sharing between the CSC and DVA had resulted in debts being raised
many years afterwards. Following the hearing, the committee received written reassurance
from Mr Carrigy-Ryan that the CSC had been working with the department to mitigate
similar potential delays and errors:
CSC...are aware that debts can arise because of the
interrelationship between CSC and DVA payments, and tax legislation. To address
these issues, the CSC agreed with DVA to flag when CSC is paying a person. This
initiates a process within DVA to consider if DVA has an interest in any of the
funds CSC is about to release. DVA entitlements are means tested, CSC pensions
are not.[37]
2.37
Officers of the department advised the committee that consideration had already
been given to the privacy concerns raised by submitters, and an independent Privacy
Impact Assessment had been commissioned:
I can confirm with this committee that I have instructed the
Australian Government Solicitor to undertake that independent PIA of schedule
5. We instructed them earlier this week, so I am planning to have that PIA
available to me, hopefully, sometime later next week. Then obviously we would
be looking at making that available publicly.[38]
2.38
Ms Spiers also advised the committee that the department was continuing
to improve its communication with the veteran community and, to that effect, had
begun to update its website to include brief explanations on potential changes
to veterans' legislation. Although the webpage currently only contains one
bill, the service would continue to expand:
We have also produced short and non-bureaucratic—if I can put
it that way—summaries of the eight measures from the omnibus bill, which allows
people to download those pages. I spoke to the ex-service members that were
here in this committee as they walked out the door. I was telling them that we
will give them the link. They are going to disseminate that link across their
network. It will allow people to download. There is a broad summary of the bill
and the specific details of each of the measures. They can be printed off.
There is also an email address on the website...It is
www.dva.gov.au/about-dva/legislation. The format of it is a
very short overview of DVA's legislation on the first page, and then it
references any new bills that DVA might have...We clearly need to do a little
more work and put some more bills there, but the purpose of it was to ensure
that at least we had the omnibus details up and running...[39]
Committee View
2.39
While the committee acknowledges submitters' concerns regarding
Schedules 1 and 5 of the bill, it has been reassured by evidence received from
the Principal Member of the Veterans' Review Board, and from officers of the
Commonwealth Superannuation Corporation and the Department of Veterans' Affairs
in response to those concerns. It should be noted that a majority of submitters
supported most of the bill's proposed amendments, and that two out of the three
most pressing concerns discussed during the committee's public hearing have
already been addressed by the relevant agency.
2.40
With regards to Schedule 1, the committee is of the opinion that all of
the concerns raised by submitters have been adequately addressed by the
Principal Member of the VRB, Mr Humphreys. The committee is confident that the
board would appropriately exercise the proposed power to dismiss frivolous and
vexatious applications. The committee notes and agrees with the evidence given
by
Mr Humphreys' that there would be no delegation of the proposed dismissal
power. The committee considers that formalisation of such a provision would
improve the agency's efficiency, and would bring the agency into alignment with
other review bodies who have had access to similar powers for some time without
cause for concern.
2.41
The committee notes the suggestion by representatives of the Alliance of
Defence Service Organisations that the bill should be amended to include clear
definitions of the words 'frivolous' and 'vexatious' as derived from case law,
however, it agrees with the Principal Member that the law on the area of
'frivolous and vexatious' is well settled and already has a high threshold.
2.42
Turning to Schedule 5, the committee acknowledges submitters' concerns
regarding potential impacts to privacy; however it is reassured that the
department has listened to the community on this matter and worked to promptly
address the issue by commissioning an independent Privacy Impact Assessment from
the Australian Government Solicitor. The committee looks forward to the results
of the PIA being made publically available and disseminated to the community. The
committee expects that the proposed information sharing amendments will
ultimately be of benefit to veterans and their families by enabling the CSC to
conduct faster superannuation benefits assessments as well as prevent the need
for veterans to undergo unnecessary medical examinations where the MRCC already
holds the relevant information. The committee is satisfied that the
interference to privacy is reasonable and agrees that the amendments will result
in better access to care and support for veterans.
2.43
The committee commends the bill to the Senate.
Recommendation 1
2.44
The committee recommends that the bill be passed.
Senator Chris
Back
Chair
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