Purpose of the Bill

The Veterans’ Affairs Legislation Amendment (Supporting the Wellbeing of Veterans and Their Families) Bill 2020 (the Bill) amends the Military Rehabilitation and Compensation Act 2004 (the MRC Act) and the Veterans’ Entitlements Act 1986 (the VE Act) to:

• create a new commissioner known as the Veteran Family Advocate who will be a member of the Repatriation Commission and the Military Rehabilitation and Compensation Commission (MRCC) to represent the perspectives of families of veterans
• enable Regulations to be made to provide pre-employment and post-employment assistance to former Australian Defence Force (ADF) members and
• extend the quarterly payment of the Energy Supplement to the one group of Repatriation Health Card - For All Conditions (Gold Card) holders who do not currently receive the payment—cardholders under the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006.

The appointment of a Veteran Family Advocate was announced on 5 February 2020, together with the announcement of National Commissioner for Defence and Veteran Suicide Prevention.[1] The National Commissioner for Defence and Veteran Suicide Prevention is not provided for in this Bill and no legislation related to this position has been introduced to date.

Structure of the Bill

The Bill contains three schedules covering modest measures. This Bills Digest will provide background and analysis of the three schedules in separate sections.

Committee consideration

Senate Standing Committee for the Selection of Bills

In its reports on 14 May and 12 June 2020, the Senate Standing Committee for the Selection of Bills deferred consideration of the Bill until its next meeting.[2]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills made two comments on Schedule 2 of the Bill—relating to the reliance on regulations, rather than primary legislation to set out the details of the employment assistance scheme for former members of the ADF and the incorporation of external documents into those regulations. The Committee’s comments on these matters are discussed under Schedule 2—Transition into civilian work, below.[3]

Policy position of non-government parties/independents

At the time of writing, comments on the Bill by non-government parties and independents have not been identified.

Position of major interest groups

At the time of writing, comments on the Bill by major interest groups have not been identified.

Financial implications

According to the Explanatory Memorandum, the Bill’s measures total $6.4 million over the forward estimates, broken down by:

• $2.0 million to establish the new Veteran Family Advocate position
• $4.3 million for the Support for Employment program and
• $0.1 million to extend the quarterly energy supplement to all Gold Card holders.[4]

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.[5]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights had no comment on the Bill.[6]

Schedule 1—Veteran Family Advocate

Schedule 1 proposes to create a new commissioner position known as the Veteran Family Advocate who will be a member of the Repatriation Commission and the MRCC to represent veterans’ families. The Advocate’s role will be to engage, liaise and advocate with and on behalf of veterans’ families on veteran policy, entitlements and compensation.

Background

Repatriation Commission

The functions of the Repatriation Commission are prescribed by section 180 of the VE Act. These functions include administering the VE Act (subject to ministerial control); advising the Minister for Veterans’ Affairs and Defence Personnel; granting pensions and other benefits to veterans, their dependants and other eligible persons; and providing services to veterans, ADF members and their partners, widows and children. The VE Act confers on the Repatriation Commission the ‘power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions, duties and powers’.[7] The Commission delegates its powers under the VEA Act to Department of Veterans’ Affairs (DVA) staff.[8]

The Repatriation Commission must have no less than three and no more than five commissioners.[9] The Secretary of the Department of Veterans’ Affairs may be appointed President; the President will also serve as Chair of the MRCC.[10] There must also be a Deputy President and at least one commissioner.[11] The Department of Veteran’s Affairs refers to the latter as the ‘Services Member’.[12]

Repatriation Commission members are appointed by the Governor-General and hold full-time positions.[13]

Military Rehabilitation and Compensation Commission

Chapter 9 of the MRC Act establishes the MRCC.[14] The MRCC provides rehabilitation, compensation and other benefits to existing and former ADF members, including reservists and cadets, with injuries or diseases due to their service (applicable from 1 July 2004 and after). This also applies to ‘dependants of members whose deaths were the result of an injury or disease due to service on or after 1 July 2004’.[15] The MRCC has powers to make determinations and manage claims within this remit.[16] All decisions must be ratified by the full MRCC.[17] Under the MRC Act, the MRCC can delegate its functions and powers to individual members, staff assisting the MRCC, public servants (primarily DVA staff), ADF members and consultants.[18]

Section 364 of the MRC Act deals with membership of the MRCC.[19] The MRCC currently has six members:

• the President, Deputy President, and one member of the Repatriation Commission
• the Chief Executive Officer of Comcare or another person nominated by the Minister administering Division 3 of Part VII of the Safety, Rehabilitation and Compensation Act 1988 and
• two people nominated by the Defence Minister, who are members of either the ADF or the Defence public service workforce.

MRCC members are appointed by the Governor-General and hold part-time positions.[20] The Secretary of DVA, Liz Cosson, is the current President of the Repatriation Commission and Chair of the MRCC.[21]

Creation of Veteran Family Advocate position

The Bill proposes amendments to the VE Act and MRC Act to facilitate the inclusion of the new Veteran Family Advocate position as part of the Repatriation Commission and the MRCC. It does not propose changes to the functions or powers of either commission.

Veterans’ Entitlement Act 1986

Section 182 of the VE Act deals with the membership of the Repatriation Commission. Item 5 of Schedule 1 of the Bill proposes to amend subsection 182(1) of the VE Act to increase the minimum number of commissioners appointed to the Repatriation Commission to four. The Bill does not propose to change the maximum number of five commissioners.

Subsection 182(3) allows the Minister to request organisations representing veterans to submit lists of names of recommended persons to serve as commissioners.

Proposed subsection 182(4) would require the Minister, when making recommendations to the Governor-General of persons for appointment to the Repatriation Commission, to ensure:

• one of the commissioners recommended is from a list submitted to the Minister under subsection 182(3) (that is, the Services Member)
• one of the commissioners recommended will represent families of veterans (that is, the Veteran Family Advocate).

Items 7 and 8 are consequential amendments to update the quorum for Repatriation Commission meetings to three commissioners instead of two.

Military Rehabilitation and Compensation Act 2004

Section 364 of the MRC Act sets out the membership of the MRCC.

Item 1 of Schedule 1 of the Bill proposes to amend subparagraph 364(1)(b)(i) of the MRC Act to state that two commissioners (instead of one member) of the Repatriation Commission will be members of the MRCC, nominated by the Veterans’ Affairs Minister.

Item 2 requires the Veterans Affairs Minister to nominate the Services Member and Veterans Family Advocate of the Repatriation Commission as those two commissioners on the MRCC. The Explanatory Memorandum states that this ‘ensures the Minister for Veterans’ Affairs nominates the same persons who are members of the Repatriation Commission representing veterans and their families’.[22]

The President and Deputy President of the Rehabilitation Commission will remain members of the MRCC.

Items 3 to 4 propose complementary amendments to the provisions of the MRC Act that deal with the appointment of acting members of MRC Act if members of the Rehabilitation Commission with the relevant qualifications have not been appointed.

Schedule 2—Transition into civilian work

Schedule 2 proposes to amend the MRC Act to provide assistance and benefits to former ADF members as they transition from military to civilian work. The Support for Employment program is expected to be the conduit for providing pre-employment and post-employment assistance such as writing résumés, preparing for interviews and adjusting to the civilian workplace.[23]

The proposed amendments are intended to complement the Government’s Veterans’ Employment Program which was announced on 17 November 2016.[24] The Veterans’ Employment Program seeks to encourage businesses to employ veterans in an effort to increase employment opportunities and assist former military personnel transition to civilian life.[25] As part of the program, the government established an Industry Advisory Committee on Veterans’ Employment comprising Australian business representatives to consider strategies for transferring military skills to civilian employment. While the Veterans’ Employment Program is aimed at raising awareness with businesses about the benefits of employing veterans, the Support for Employment Program focuses on veterans by providing pre-employment and post-employment support that seek to ultimately lead to meaningful employment.[26]

Employment support to former members

Chapter 5A of the MRC Act currently deals with the provision of family support to members and former members of the ADF. Item 1 of Schedule 2 to the Bill would change the heading of Chapter 5A to ‘Family and employment support’, to reflect the additional support that will be provided under the proposed amendments.

Item 4 of Schedule 2 inserts new Part 2 into Chapter 5A, containing provisions dealing with employment support to former members of the ADF, to assist them to transition into civilian work. Proposed Part 2 consists of proposed sections 268C and 268D. Proposed section 268C provides a simplified outline of the Part.   

Proposed subsection 268D(1) allows the making of regulations for granting ‘assistance or benefits of a specified kind to former members to assist them to transition into civilian work’. The regulations may include:

• the eligibility criteria for support (proposed paragraph 268D(2)(a))
• the process former members need to follow to get support (proposed paragraph 268D(2)(b))
• the conditions for granting support (proposed paragraph 268D(2)(c)) and
• any limits (financial or otherwise) on the provision of support (proposed paragraph 268D(2)(d)).

Proposed subsection 268D(3) states that, without limiting paragraph 268D(2)(a), any eligibility criteria specified in the regulations may depend on the Commission being satisfied of specified matters.

As referred to above, the Scrutiny of Bills Committee noted that the approach of specifying the details of the employment support to former members in regulations results in significant matters being dealt with in delegated legislation, in a way that may limit Parliamentary oversight.[27] Accordingly, the Committee requested the Minister’s advice as to why it is considered necessary and appropriate to leave the details of the scheme to regulation and whether the Bill could be amended to include at least high-level guidance.[28]    

Proposed section 268D(4) overrides subsection 14(2) of the Legislation Act 2003,[29] to allow regulations made under section 268D to make provision for a matter by ‘applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time’.[30] The Explanatory Memorandum to the Bill does not indicate which instruments may be applied or incorporated into the regulations in this way. The Scrutiny of Bills Committee noted that it will generally have scrutiny concerns with ‘provisions in a Bill [that] allow the incorporation of legislative provisions by reference to other documents’ as that approach:

• raises the prospect of changes being made to the law in the absence of Parliamentary scrutiny, (for example, where an external document is incorporated as in force 'from time to time' this would mean that any future changes to that document would operate to change the law without any involvement from Parliament) 
• can create uncertainty in the law and
• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).[31]

Accordingly, the Committee requested the Minister’s advice as to the type of documents that it is envisaged may be applied, adopted or incorporated by reference; whether the documents will be made freely available to the public; and why it is necessary to apply the documents as they exist from time to time, rather than as at a particular time.[32]

Proposed paragraph 423(bc), at item 5 of Schedule 2, will allow appropriations from the Consolidated Revenue Fund to be applied to pay for support granted under the regulations made under proposed section 268D.

Schedule 3—Energy supplement

Background

The energy supplement is paid to all recipients of social security income support payments (such as the Age Pension and Newstart Allowance), to recipients of veterans’ payments (such as the Service Pension, Disability Pension and War Widow/Widower’s Pension), to recipients of the Farm Household Allowance and some DVA Gold Card holders.[33] Gold Card holders are eligible for the energy supplement if:

• the card is issued under the VE Act or the MRC Act and
• they have reached qualifying age (60 years old) and
• they are in Australia or temporarily absent from Australia for a period of less than six weeks and
• are not in receipt of a Service Pension, Income Support Supplement, social security pension or benefit or an Energy Supplement paid in respect of a Commonwealth Seniors Health Card under the Social Security Act 1991.[34]

Those who were Family Tax Benefit recipients or Commonwealth Seniors Health Card holders before September 2016 and who have not lost eligibility since can also receive the energy supplement.[35]

Rates of the energy supplement are based on the payment to which it is attached and range from $91.25 per annum for Family Tax Benefit Part A (child under 13 years) to $559.00 per annum for veterans receiving the Special Rate of Disability Pension.[36]

For Gold Card holders, the rate of energy supplement is around $91.65 per quarter for a single person and $68.90 per quarter for a partnered person (each).[37] These rates are not indexed or adjusted.

Schedule 3 proposes to extend the quarterly payment of the energy supplement to the three groups of Repatriation Health Card - For All Conditions (Gold Card) holders who do not currently receive the payment:

• Australian participants in the British nuclear tests (BNTs) in Australia
• members of the British Commonwealth Occupation Forces (BCOF) in Japan and
• Southeast Asian Treaty Organization medical teams in Vietnam.

History of the energy supplement

The Gillard Labor Government introduced the clean energy supplement in 2013 to reassure pensioners and other income support recipients that they would not be worse off as a result of the carbon price.[38] The clean energy supplement was payable to those who received the seniors’ supplement, which was paid to Commonwealth Seniors Health Card holders and some Gold Card holders (under similar eligibility conditions as set out above).

In 2014 the Abbott Coalition Government abolished the carbon price and renamed the clean energy supplement the ‘energy supplement’.[39] Even though this removed the original rationale for the clean energy supplement, the Coalition had made an election commitment that it would keep the previous Government’s compensation measures.[40] In April 2014 the Prime Minister, Tony Abbott, repeated this commitment stating: ‘the reassurance that I want to give to pensioners is that you will lose the carbon tax but keep the compensation’.[41]

Although the Government did not abolish the clean energy supplement, it did change it. When it was introduced, the clean energy supplement was indexed in the same way as payments such as Newstart Allowance—twice yearly by CPI.[42] In June 2014 the Government introduced a Bill to cease indexation on the clean energy supplement and to rename it the ‘energy supplement’.[43] This Bill failed to pass the Senate but the measure was reintroduced in the Social Services and Other Legislation Amendment (2014 Budget Measures No. 6) Bill 2014, which was passed in November 2014.[44]

In 2015, the seniors supplement was abolished but the energy supplement continued to be paid to Commonwealth Seniors Health Card holders and eligible Gold Card holders.[45] In 2016, payment of the energy supplement to Commonwealth Seniors Health Card holders was restricted to those who were cardholders on 19 September 2016 and who remained cardholders continuously after this date.^[46] New cardholders were not eligible for the energy supplement. The Turnbull Government had initially announced a policy to close the energy supplement to all new recipients of eligible payments or cards but it was unable to secure support in the Senate and the Budget Savings (Omnibus) Bill 2016 was amended to only limit the payment for new Commonwealth Seniors Health Card holders and Family Tax Benefit recipients.^[47]

Veteran health cards

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.^[48] Medical services are subject to the requirements of the Medicare Benefit Schedule and prior approval from DVA may be necessary for some treatments.^[49] 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.

State and territory governments and some businesses also provide a range of concessions to Gold Card holders.^[50]

Eligibility for the Gold Card is based on an individual meeting criteria relating to their service; being a prisoner of war; disability or impairment; or receipt of a certain veterans’ payment.

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 all mental health conditions.^[51] Most current and former ADF members and some reservists are eligible for a White Card to provide access to mental health treatments.

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.^[52]

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.^[53] It provides access to subsidised medicines under Pharmaceutical Benefits Scheme and to some state and territory concessions.

Extension of the Gold Card to British nuclear test participants and British Commonwealth Occupation Forces

Prior to July 2017, participants in the British nuclear tests (BNTs) in Australia and members of the British Commonwealth Occupation Forces (BCOF) in Japan were not eligible for a Gold Card on the basis of the involvement in the BNTs or service in BCOF—some individuals may have been eligible for a Gold Card under other eligibility criteria. Eligibility for the Gold Card was extended to BNT participants and BCOF members via the Veterans' Affairs Legislation Amendment (Budget Measures) Act 2017.

BNT participants—including military personnel as well as civilian workers and Indigenous people who resided in the Maralinga area—and BCOF members had campaigned for a long time for greater compensation and access to veterans’ entitlements, particularly the Gold Card.^[54] Governments 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.^[55] The extension of the Gold Card to these groups in 2017 was a break with this longstanding principle. Then Minister of Veterans’ Affairs stated that the policy change was ‘in recognition of the possible exposure to ionising radiation experienced by both Australian veterans of BCOF and the BNT veterans’.^[56]

Extension of the Gold Card to Southeast Asian Treaty Organization medical teams

Prior to April 2019, members of the Australian civilian surgical and medical teams that provided medical aid, training and treatment to Vietnamese people during the Vietnam War were not eligible for a Gold Card—although, some individuals may have been eligible for a Gold Card under other eligibility criteria. 

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.^[57] 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).^[58] 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.^[59]

Members of the SEATO medical teams had campaigned for access to the same compensation arrangements as those medical teams who went to Vietnam under the command of the Australian Defence Force (ADF). Many of the civilian teams worked closely with ADF personnel, performed similar functions to military medical teams, and were exposed to similar dangers. Members of the medical teams had argued that the illnesses and medical conditions they have suffered as result of their time in Vietnam are comparable to conditions suffered by Vietnam War veterans.^[60]

Governments consistently denied the SEATO medical teams claims for comparable compensation on the basis that these teams were not under military command.^[61] This position changed in December 2018 when the Turnbull Government announced it would extend the Gold Card to members of the SEATO medical teams. 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’.^[62] The Gold Card was extended to members of these civilian medical teams through the Treatment Benefits (Special Access) Act 2019.

Key issues and provisions

Unintended omission of certain Gold Card holders

When the Gold Card was extended to BNT participants and BCOF members in 2017, and to SEATO medical team members in 2019, no amendments were made to also pay the Energy Supplement to these new card holders. The Minister for Veterans’ Affairs, Darren Chester, stated in his second reading speech on the Bill that this was ‘an unintended omission’.^[63]

The Acts providing for the extension of the Gold Card to these previously excluded groups did make provision for payment of the Pharmaceutical Supplement to eligible recipients. The Pharmaceutical Supplement is paid at a rate of $6.20 per fortnight.^[64]

Amendments will provide a small benefit to a small number of people

It is unclear how many Gold Card holders will benefit from Schedule 3’s extension of the Energy Supplement. In 2017, DVA estimated that 1,800 surviving BNT participants and 1,100 surviving BCOF members would receive a Gold Card.^[65] However, updated estimates provided to the Senate in August 2018 stated that there were only around 1,721 surviving BNT participants.^[66] In 2019, DVA estimated there were approximately 200 surviving members of the civilian medical teams who would receive a Gold Card.^[67]

The Explanatory Memorandum states that the quarterly payments of $91.65 for singles and $68.90 for partnered people (each) will assist the elderly recipients ‘to meet rising energy costs and to maintain their standard of living’.[68]

Given the exclusion of the Energy Supplement for these cardholders was an unintended omission, it is unclear why the payments are not being backdated.

Provision

Item 1 of Schedule 3 amends the definition of ‘gold card’ in subsection 118P(3) of the VE Act to include Gold Cards provided under the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 and the Treatment Benefits (Special Access) Act 2019.

The amendment means that Gold Card holders under these two Acts will be eligible for the energy supplement if they:

• have reached qualifying age (60 years old) and
• are in Australia or temporarily absent from Australia for a period of less than six weeks and
• are not in receipt of a Service Pension, Income Support Supplement, social security pension or benefit or an Energy Supplement paid in respect of a Commonwealth Seniors Health Card under the Social Security Act 1991.^[69]