Chapter 22
Compensation and rehabilitation
22.1
The committee notes that the compensation and rehabilitation of
Australian peacekeepers was not specifically mentioned in the terms of
reference. In light of the concerns raised in submissions and during oral evidence,
the committee has decided to draw attention to them.
22.2
While sound training and effective health and safety programs help to
minimise the risks of harm to peacekeepers, they nonetheless may encounter
situations that have serious adverse effects on their wellbeing. It is
inevitable that some Australian peacekeepers will require care and support on
their return to Australia. In this chapter, the committee examines the legislation
governing the compensation and rehabilitation of peacekeeping veterans. It provides
some background to this legislation and the proposed scheme for the AFP. The committee
then considers the administration of the various schemes to determine whether they
are fair and effective.
Legislation
22.3
Currently, three major pieces of legislation govern the entitlements of
personnel who have served on an Australian peacekeeping operation. There is
some overlap in the application of the legislation.
Veterans' Entitlements Act 1986
22.4
A peacekeeper who suffers a disability or disadvantage because of
service on a mission, or the family of a peacekeeper, may be entitled to
compensation.
22.5
The Veterans' Entitlements Act 1986 (VEA) provides for the
payment and other benefits to, and medical and other treatment for, veterans and
certain other persons. This Act also provides for members of a peacekeeping force.[1]
Members of the AFP who served in a peacekeeping force were also covered under
the VEA as 'peacekeepers', entitling them to the same disability benefits as ADF
personnel.[2]
22.6
With the commencement of the Military Rehabilitation and Compensation
Act 2004 (MRCA) after 1 July 2004, the VEA ceased to apply to deployments
for Defence Force personnel who are now covered under the MRCA. Similarly,
police as peacekeepers have been excluded from the Act and are now covered
under the Safety Rehabilitation and Compensation Act 1988 (SRCA).
22.7
Although the VEA continues to apply, access to it is strictly limited
and is based on declarations by the Minister for Veterans' Affairs on a
mission-by-mission basis.[3]
People who have had that coverage will continue to have it under the VEA.[4]
Military Rehabilitation and
Compensation Act 2004
22.8
The MRCA established a new military rehabilitation and compensation
scheme to provide rehabilitation, compensation and other entitlements for ADF members
and their dependants. It is a single, stand-alone legislative scheme governing
compensation for injuries or conditions arising from service in the ADF. With
effect from 1 July 2004, rehabilitation and compensation of ADF members who
serve as peacekeepers came under the MRCA. The provisions of the MRCA apply to
service injuries, service diseases and service deaths occurring after the
commencement of this Act. It does not apply to injuries, diseases or deaths
occurring before this date even where the entitlement is not established until
after the commencement of the MRCA. This arrangement means that the provisions
of the VEA and the SRCA continue to affect the determination of compensation
entitlements of veterans and will do so for years to come.[5]
22.9
The new scheme is a military scheme and AFP members are not covered
under it. The compensation and rehabilitation of AFP peacekeepers continue to
be covered under the SRCA.
Safety, Rehabilitation and
Compensation Act 1988
22.10
The SRCA introduced a scheme of compensation and rehabilitation for
persons injured in the course of their employment by the Commonwealth. For
example, AusAID employees deployed to RAMSI are entitled to claim compensation
for work-related injury and death under the Act. Comcare administers the SRCA
and specific entitlements and benefits are listed on Comcare’s website.[6]
Proposed legislation for the AFP
22.11
As noted above, AFP peacekeepers are not covered under the MRCA but come
under the SRCA.
22.12
On 27 February 2006, the then Minister for Justice and Customs, Senator Chris
Ellison, announced that AFP officers serving overseas would soon benefit from
the support of a police-specific compensation and rehabilitation scheme relating
to dangerous foreign missions.[7]
In October 2006, the minister advised that the legislation would be available
shortly.
22.13
The AFP informed the committee that the package of enhanced benefits was
being developed by the Department of Employment and Workplace Relations (DEWR)
in consultation with the AFP and DVA. DEWR had held discussions with the Office
of Parliamentary Counsel on a preliminary draft bill which involves 'complex
drafting issues and requires extensive consultation with a number of
stakeholders'.[8]
22.14
The AFP stated that the new provisions would 'ensure AFP members receive
benefits comparable to those provided to ADF members on like overseas missions'.
Furthermore, it was of the view that any delay in the enactment of the bill would
'not prejudice any AFP beneficiaries, as the scheme will be backdated to 1 July 2004'.[9]
22.15
Both the Police Federation of Australia (PFA) and the United Nations
Police Association of Australia (UNPAA) expressed strong reservations about the
proposed legislation, especially the suggestion that the legislation simply be
an amendment to the Safety, Rehabilitation and Compensation Act.[10]
They argued that any legislation to cover police should be a stand-alone act
owned and controlled by the Justice Minister in an identical fashion to the Military
Rehabilitation and Compensation Act being owned and controlled by the Minister
for Defence. They also suggested that the Department of Veterans' Affairs have
responsibility for administering it.
22.16
The AFP informed the committee that the government had noted the views of
the PFA and the UNPAA on the machinery of government issues, and would consider
them in reaching its final decision.[11]
It also indicated that the 2006–07 Budget Papers provide for the administration
of the amended SRCA to come under DVA. According to the AFP, $6.1 million over
four years (including $0.4 million in capital) would be provided to DVA for
this initiative, with this funding to be 'offset by reductions in the current
administrative costs of COMCARE ($5.8 million over four years)'. In the AFP's view,
'This is an appropriate arrangement'.[12]
New South Wales Police
22.17
The PFA and UNPAA asserted that the NSW Police had declined to agree to
the secondment of their police while the matter of a police-specific workers
compensation and rehabilitation scheme remained unresolved.[13]
The AFP responded that this issue 'has not adversely affected IDG's ability to
recruit staff for deployments. It is a barrier only to the participation of NSW
Police in AFP peacekeeping deployments'.[14]
Committee view
22.18
The committee recognises the importance of having specific legislation that
would establish a rehabilitation and compensation scheme for AFP officers who
serve in overseas deployments. It notes the concerns of both the PFA and the UNPAA.
The committee urges the government to resolve the issue as a matter of priority.
Recommendation 28
22.19
The committee recommends that the Australian Government release a policy
paper outlining the options and its views on a rehabilitation and compensation
scheme for the AFP, invite public comment and thereafter release a draft bill
for inquiry and report by a parliamentary committee.
Processing claims
22.20
The APPVA raised concerns about the way in which claims are processed.
It was of the view that DVA case officers, who investigate claims for peacekeeping
veterans, have 'a distinct lack of understanding of the environment' in which
ADF members have served.[15]
DVA informed the committee that it has not undertaken any agency-wide survey
of its staff's experience with, or knowledge of, the operations of the ADF.[16]
Mr Johnson advised the committee:
A number of our staff are former Defence Force personnel or
serving reservists. We do organise sessions with Defence to try to get an appreciation.
We also have a fairly regular visiting program to bases to talk to people who
have claims or may be thinking about putting in claims under the various pieces
of legislation that we administer. And we do have regular contact with
ex-service organisations, both in our state locations and at the national
office, which bring various points of view to us on how we process claims and
how we can improve processes.[17]
22.21
The APPVA recommended that 'DVA Staff investigating claims of Peacekeeping
veterans undergo an education program in order to be provided [with] information
of the environmental conditions experienced by Peacekeepers'.[18]
Mr Johnson indicated that the department would have no concerns about the
suggestion to have some sort of education program for staff to provide them
with background in the sorts of conditions experienced by peacekeepers. He
said:
We actually have done that. We have invited various people who
have had various experiences in the Defence Force to speak to officers in the
department and, as I said, we have very regular contact with the Australian
Defence Force on what is happening, deployments, OH&S issues and those
sorts of things. [19]
22.22
Mr Paul Copeland noted and approved of an initiative to help DVA staff
gain a better appreciation of the conditions under which ADF members serve.[20]
Committee view
22.23
The committee notes the criticism that DVA case officers do not
adequately appreciate the environment in which Australian peacekeepers work. It
notes the measures taken by DVA to make their staff familiar with the
environment in which ADF peacekeepers may operate and encourages DVA to
continue with these initiatives. The committee also draws DVA's attention to
APPVA's recommendation that 'DVA Staff investigating claims of Peacekeeping
veterans undergo an education program in order to be provided [with] information
of the environmental conditions experienced by Peacekeepers'.[21]
Onus of proof
22.24
The APPVA also expressed concerns about the method of assessment and the
onus of proof:
...the Reasonable Hypothesis is used for Peacekeeping Operations
in claims under the [Veterans'] Entitlement Act 1986 (VEA), Safety
Rehabilitation and Compensation Act 1988 (SRCA), and the Military
Rehabilitation & Compensation Act 2004 (MRCA), there has been a continuing
demand by Case Officers to provide medical evidence on the Balance of
Probability, hence placing the onus of proof on the Peacekeeper claimant.[22]
22.25
DVA explained the approach taken by officers in assessing claims. It
stated:
Under the Veterans' Entitlements Act and the new act, the
Military Rehabilitation and Compensation Act, there is no onus of proof on the
member, either serving or former. The investigation is all with the department;
the responsibility for investigation is with the department. It is somewhat
different under the Safety Rehabilitation and Compensation Act, but under the
VEA and the MRCA the responsibility is with the department.[23]
22.26
The APPVA recommended an amendment to the SRCA to reflect the nature of service
of peacekeeping veterans, 'by providing a "beneficial approach" and
placing the onus of proof under the reasonable hypothesis'.[24]
Committee view
22.27
The committee notes the APPVA's recommendation for the government's
consideration regarding the SRCA and placing the onus of proof under the reasonable
hypothesis.
Medical records
22.28
The APPVA suggested that 'the lack of understanding of DVA Claims
Assessors and Supervisors is due to the fact that for most peacekeeping
operations foreign countries provide the Medical treatment'. It stated that this
situation has made it difficult to obtain medical evidence and documentation to
support the peacekeeping veterans' claim which, it argues, 'exacerbates the
veterans' anxiety as they fight long battles for their Entitlements under the
respective acts'.[25]
Mr Copeland said:
The hardest thing about the documentation is that we do not have
Australians over there providing the medical or hospitalised support. It is
actually done, in some cases, by Third World countries. They do not have such a
rigid recording system as we have for our Australian Defence Force.
Realistically, it is a case of chalk and cheese. For example, if you have a
head injury, you will probably be seeing an Indian doctor and dispatched back
and there will be nothing on your record, but you have sustained a head injury.
That was the case for one soldier. He was sent to Thailand and they could not
find him for six weeks. He was actually in a Thai military hospital.
These are the sorts of things that happen. It is not the cut and
dried recording system that one would expect.[26]
22.29
The Regular Defence Force Welfare Association also raised the problem of
the availability of medical treatment records when health care is provided by a
non-ADF health service:
Such services could be provided by a UN military health service
or a UN contractor. We understand that some veterans have had problems
establishing their entitlement to a DVA entitlement in that medical records
could not be obtained or those that were available were deemed inadequate. In
any such case the burden of proof should not rest with the individual.[27]
22.30
The Australian Veterans and Defence Services Council (AVADSC) agreed
with the view that medical records had been inadequate and was an area of
concern. It recommended: 'More care and handling of all medical documents and
member check the records before leaving the location'.[28]
Noting the difficulty obtaining appropriate medical documentation for given
illnesses or injury on peacekeeping operations, which is nominally provided by
another country as part of the multi-national force, the APPVA suggested:
...it would be beneficial to the Australian veteran to have
his/her claim considered for acceptance by the Repatriation Commission under
the VEA; or the Military Rehabilitation Compensation Commission (MRCC), under
the MRCA. This has been a difficult process to provide such evidence to DVA in
order to have claims accepted.[29]
22.31
Mr Johnson, DVA, said that the evidence presented to the committee about
incomplete medical records of Australian peacekeepers was the first time he had
heard of this complaint. He indicated that 'from time to time there are issues
around accessing a particular medical record that relates to a claim, but that
is a more general issue than relates just to peacekeeping'.[30]
He said:
When we receive a claim, we seek service records and relevant
medical records from the Department of Defence. I am not saying that sometimes
there are not difficulties in sourcing relevant medical records from defence on
claims that have been put forward, but I am not aware that particular issues
have arisen from peacekeeping forces.[31]
22.32
He expected that medical records of treatment provided by medical staff
from another country 'would still go back with the Australian peacekeeping
member and be part of their ongoing medical record that is held with defence'.[32]
DVA provided more detail in its answer to a written question on notice:
...some deployed health facilities provided by a number of
countries (eg. US Aid Post in Camp Victory Iraq) do not hold a record of any
treatment given to members of other nations' forces. Any documentation
generated is given to the individual and it is then the individual's
responsibility to ensure that it is put into his or her medical record.[33]
22.33
It explained further:
Until recently, ADF members did not deploy on operations with
their Unit Medical Record (UMR), so there was a reasonable likelihood that some
record of treatment would not be reflected in their UMR. This would especially
be the case if the treatment was provided early in the deployment, with the
record often being retained by members on their person for considerable periods
of time.
Whether to deploy with the UMR is now decided on a case by case
basis (eg. ADF members now deploy with the UMR to the Middle East Area of
Operations). Special Operations Command is currently developing an Operational
Health Record in the form of a small booklet in a plastic wallet which
could be issued to the individual. Key information would be transposed from the
UMR, with details of all treatment provided in the Area of Operations being
recorded in the booklet. The booklet would then be placed on the UMR on return
from the operation and would form part of the permanent record.[34]
22.34
With regard to police deployed on a peacekeeping operation, the AFP
informed the committee:
Copies of medical records created by other supporting health
service agencies during peacekeeping operations (such as United Nations Medical
Units, or contracted services such as Aspen Medical), are sent to AFP Medical
Services for inclusion in the AFP medical record relating to the member; these
records are likewise accessible upon request to the AFP PMO.[35]
22.35
It should be noted that in 2004, the committee inquired into the health
preparation arrangements for the deployment of ADF personnel overseas. It found
the state of service and medical records had declined in recent years to 'such
a state that claimants can have little confidence as to their accuracy or
completeness'.[36]
It went further to state that the maintenance of health records for serving
personnel had become 'chaotic due to incomplete information and shared
responsibility'.[37]
Committee view
22.36
The committee believes that agencies involved in peacekeeping operations
must develop better procedures for the management of health records. It also believes
that the evidence presented by the various veterans' associations about
incomplete medical records of ADF personnel serving in peacekeeping missions
requires further investigation by both Defence and DVA. Evidence suggests that
there are shortcomings in relation to the records of personnel who have
received medical treatment in the field. When considered in light of the
committee's previous findings in 2004 about the deficiencies in health records,
this evidence indicates that the ADF needs to identify the causes of the
shortcomings and rectify them.
Recommendation 29
22.37
The committee recommends that the ADF commission an independent audit of
its medical records to determine the accuracy and completeness of the records,
and to identify any deficiencies with a view to implementing changes to ensure
that all medical records are up-to-date and complete. The audit report should be
provided, through the Minister for Defence, to the committee.
Recommendation 30
22.38
The committee recommends that the Australian Government requests ANAO to
audit the hardware and software used by the ADF and DVA in their health records
management system to identify measures needed to ensure that into the future
the system is able to provide the type of detailed information of the like
required by the committee but apparently not accessible.
Recommendation 31
22.39
The committee also recommends that Defence commission the Centre for
Military and Veterans' Health to assess the hardware and software used by Defence
and DVA for managing the health records of ADF personnel and, in light of the committee's
concerns, make recommendations on how the system could be improved.
22.40
Although no concerns were raised about AFP medical recordkeeping, it may
be timely for the AFP to conduct an audit of the health records of its members
deployed overseas to determine whether there are any short-comings.
22.41
Another matter that was not covered in the terms of reference but which
drew significant comment from submitters was the recognition given to
Australian peacekeepers. The following and final chapter in this part of the report
looks at Australian peacekeepers and how their service is recognised.
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