Dissenting Report
Senator Jacqui Lambie
Introduction
1.1
I write in order to submit my official Dissenting Report to the Foreign
Affairs, Defence and Trade Legislation Committee into the Veterans’ Affairs
Legislation Amendment (2015 Budget Measures) Bill 2015, Schedule 2.
1.2
As you are aware I attended the committee hearings, participated in the
questioning of witnesses and followed proceedings closely.
1.3
You will recall I was one of the first elected representatives in the
Australian Parliament to raise concerns about the harm this proposed
legislative change will cause to our veterans.
1.4
I was also part of the group of Senators who lobbied to have this
legislation examined by the Foreign Affairs, Defence and Trade Legislation
Committee.
1.5
Given the articulate and compelling arguments presented to the Senate
Committee by expert legal witnesses and external service organisations – I am
stunned that the committee initially recommended that the Bill be passed,
however I’m relieved that after a phone conference yesterday a new 3rd
recommendation has been introduced which states:
2.40 The committee recommends that Schedule 2 of the Bill
be re-referred to the Committee for further consideration.
1.6
But, given the quality of the expert arguments against the passage of
this Bill in its current form - and the change in leadership of the coalition
government, I would have thought the only logical and fair recommendation would
be for the Committee to oppose the passage of the Bill in its current form.
1.7
Your original committee’s recommendation that the bill be passed, was nothing
short of a disgrace. And had it not been changed I would have called for your
resignation as committee chair.
1.8
It ignored the facts and followed a pattern of behaviour where the
dysfunction and misconduct by the members of the Department of Veterans’
Affairs is covered up, minimised and legitimised in an attempt to limit
political damage. This will surely occur when the general public discovers the
truth about the adverse effects that this proposed legislation will have on our
veterans
1.9
The original report and its recommendations are more reasons why an
independent Royal Commission into Defence Abuse and Veterans’ Welfare must be
established, in order for veterans and their representatives to have a chance
to detail their experiences and have them fairly heard and acted upon in a just
manner.
DVA’s Failures during the Committee Hearings
1.10
During Committee Hearings all the Department of Veterans’ Affairs and
government representatives failed to rebut any arguments from the expert legal
witnesses during committee hearings, by identifying or referencing any section
of various Acts, which contradicted their assertions or assuaged concerns.
1.11
The Department representatives offered assurances, affirmations and
advice to the committee knowing full well that - should the legislation pass,
veterans would have to rely on the better nature and kindness of government
officers to win fair entitlements – rather than their rights written into
Australian law.
1.12
The Department officers failed comprehensively to properly address the
following points and arguments and references in your committee’s original
report:
2.3 KCI Lawyers expressed concerns regarding the removal
of claimant-initiated internal reconsideration, noting that there is no
legislated requirement that an internal reconsideration will take place:
What was uncertain to me in the
proposed schedule of amendments is whether that internal review will be
undertaken...it appeared to be discretionary, so it will not necessarily always
be undertaken.
Efficiency of the proposed single appeal pathway
2.5 Slater & Gordon Lawyers and KCI Lawyers
questioned the efficiency of the proposed single appeal pathway, asserting that
it is faster for a claimant to initiate an internal reconsideration under
section 349 and appeal to the AAT than it is to seek a review by the VRB:
The practical effect of removing
the reconsideration appeal path is to deny a Veteran a quicker system of review
that is currently available...
In 2009, it took 418 days to hear
an appeal [at the VRB] whereas the internal review will take up to 127 days...
you can go through the internal review and get to the end of an AAT process
faster than you can even get through the VRB to begin with.
We believe Schedule 2 will further
weaken the DVA decision making process and is likely to lengthen delays in
processes that are already delay ridden...Veterans would no longer have the
right to request an internal reconsideration of a poor DVA decision through the
s 349 MRCC pathway. This is the quicker of the two review pathways, has
procedural and cost advantages for Veterans, and since the inception of the
dual appeal pathway is preferred by Veterans more often.
2.6 Slater & Gordon Lawyers and KCI Lawyers also
advocated for the introduction of timeframes within which decisions must be
made, stressing the importance of minimising the impact of the claims process
on the physical and mental health of veterans:
There needs to be time frames.
There needs to be times within which decisions need to be made because, as you
know, there are so many veterans that are essentially in limbo, waiting for
decisions to be made. It is during that time that their mental health
significantly suffers. Veterans who may well have physical conditions have the
prospect of developing psychological conditions as well because of the impact
and the stress of not understanding the time frames.
Cost of appealing to the AAT
2.19 A number of submitters raised concerns regarding the AAT's
ability to order that the costs of proceedings, outlined in section 357, be
paid by DVA in cases where the AAT finds in favour of the claimant. The Defence Force Welfare
Association described the retention of section 359, which states that sections
356, 357 and 358 do not apply to reviews of determinations of the VRB, as an
'oversight', commenting that:
We notice that the Bill contains
no provision for removal of that part of S359 which provides that S357 does not
apply to review by the AAT of a determination of the VRB. We feel sure that
retention of this provision is an oversight, and we think, a serious one. S357
provides for award of costs against the Commonwealth in some circumstances, in
the event of a decision by the AAT in favour of the Veteran...we hold strongly
to the view that just treatment of Veterans' claims ought not to depend on
their ability to meet the costs of access to the ordinary processes that are
put in place to deal with those claims.
2.20 The RSL expressed strong support for the proposed
single pathway but noted that it would not oppose an amendment to allow the
awarding of costs:
The Returned & Services League
of Australia (RSL), after consultation with the RSL's National Veterans'
Affairs Committee, would not oppose an amendment to the Veterans' Affairs
Legislation (2015 Budget Measures) Bill 2015 to the awarding of costs by the
Administrative Appeals Tribunal (AAT) to a claimant when a claim had followed
the single appeal path to the Veterans' Review Board (VRB) and then to the AAT.
This process should mirror Section 357 of the Military Rehabilitation and
Compensation Act 2004.
2.21 Legal firms and members of the legal community were
critical of the inability for veterans to be awarded costs, asserting that this
would place veterans at a disadvantage compared with the general community and
may limit their access to the AAT:
Even Veterans with very strong
cases will not be able to afford to appeal to the independent umpire as is
currently their right. Win, lose or draw Veterans cannot be awarded their costs
at the AAT if this Bill is passed...Injured civilian workers who come under
Comcare, including DVA staff, will continue to be awarded costs at the AAT when
they win, whilst no injured Veteran could be awarded costs against DVA under
any circumstances.
...the proposed changes would be
at odds with the current cost provisions in the civilian community and would
plainly place military personnel in a position of disadvantage and
discrimination.
The impact of this amendment
limits a Veterans' ability to access justice by proceeding to the Administrative
Appeals Tribunal – AAT as they will no longer have the right to payment for
their legal costs and disbursements.
The Law Council is concerned that
by restricting rights of appeal in the AAT to reviewable decisions of the VRB,
veterans will be forced into a 'no- costs' jurisdiction with serious
implications for access to justice...unlike public servants under the Safety
Rehabilitation and Compensation Act 1988 (Cth), veterans will be required to
meet their own legal costs, even if they successfully appeal the Commonwealth's
decision in the AAT.
Legal aid
2.24 Some submitters expressed concerns that legal aid may
not provide adequate support for veterans seeking to appeal to the AAT and that
some veterans may not be eligible for assistance from legal aid, Slater & Gordon Lawyers argued
that:
...the provision of legal aid is a
piece of fiction. The government has suggested that legal aid will be available
to veterans. This is simply not the case. Legal aid is administered by state
governments with funding provided by the federal government. Legal aid services
are already under enormous pressure due to inadequate funding which has been
declining year on year. Legal aid is also means and merit tested, and each
state and territory applies different eligibility requirements. Consequently,
the federal government cannot promise that legal aid will be granted without
agreement from the states and territories.
Inequity of access to legal representation
2.27 Some submitters raised concerns regarding unequal
access to legal advice and representation between veterans and DVA. Slater & Gordon Lawyers
asserted that DVA has access to internal and external legal advice and
representation, whilst veterans, if unable to recover costs at the AAT, will
not:
The DVA employs in-house lawyers
and private-sector lawyers chosen from a panel to defeat a veteran's claim, the
latter alone to the tune of some $6.2 million for external advice and $586,000
for barristers, as we understand to be at the last count... If this bill
passes, veterans who may wish to be represented by a lawyer will not be able to
afford such representation because no costs will be awarded, even upon a
successful outcome. A veteran with no legal experience will be fitted against a
[legal] expert.
2.28 KCI Lawyers pointed to a case in which a highly experienced barrister was
engaged to represent DVA against a self-represented veteran:
DVA engaged a private law firm,
Moray Agnew for the entire AAT preliminary process leading up to the hearing
and attended the AAT hearing with 2 staff members. Moray Agnew used a barrister
with over 20 years' experience, with the DVA lawyers sitting opposite him to
manage the case.
Mr Jensen [the veteran] sat there
on his own and did the best he could to argue technical points of law and
pleaded his case for income support as he no longer could work due to his
injury.
20 submissions were “generally supportive” - Misleading
1.13
The Senate Committee report gave the impression that the 20 submissions
were “generally supportive” of the government plans to amend the Veterans’
Affairs legislation by stating:
2.1 The committee received 20 submissions and two
supplementary submissions. The submissions were generally supportive of the proposed
single appeal pathway...
1.14
In my view this is an incorrect and misleading statement.
RSL forced to reconsider position
1.15
As the facts emerged during the hearings, bodies like the RSL, who in
the beginning acted like a schoolgirl cheer squad for the government, were
forced to reconsider their position.
1.16
The RSL’s striking change of tune and attitude was best captured by a
letter from the VVFA (Vietnam Veterans Federation Association – incorporating
Peacemakers and Peace keepers) distributed within the Australian veteran
community on Tuesday the 22nd of September.
1.17
It read:
Leadership Missing – The RSL
The National leadership of the RSL has failed again. Its
failure to effectively and positively represent its membership and the broader
Australian defence community was exposed at the recent Senate Inquiry into
the Veterans’ Affairs Legislation Amendment (2015) Budget Measures Bill
2015 where the National President Ken Doolan was wrong footed by the
astute Senator Xenophon (SA).
In an embarrassing admission the National President, Ken
Doolan was forced to reconsider the RSLs position.
The Senate Committee comprising Senators Back (Chair),
Fawcett, Gallacher, Lambie, McGrath and Xenophon was inquiring into Schedule 2
of the Veterans’ Affairs Legislation Amendment (2015 Budget Measures) Bill
2015.
The Labor Party sent the Legislation to this Senate Committee
and it swung on the proposal to take away the right under certain circumstances
to costs for a successful AAT appeal. The Government sought to deny that avenue
of appeal and the RSL meekly supported it.
While being conscious not to “threaten or disadvantage a
witness on account of evidence given to a committee, and such an action may be
treated by the Senate as a contempt.” it is evident that the National
President of the RSL and therefore the RSL was ill prepared to effectively
represent its case to the committee.
There were 20 written submissions to the inquiry. Some were
lengthy and detailed providing background and rationale for the position taken
by the particular ESO or, in several cases, legal firms and individuals.
The RSL submission was all of one page and simply
acknowledged that the appeal process as outlined on Schedule 2 of the
Legislation will best serve the MRCA claimant and therefore simply advised that
“The RSL supports this process unconditionally.’ No background, no
rationale.
Senator Xenophon politely suggested to Ken Doolan that with
some “negotiation and some sensible amendments ---- veterans would not be
disadvantaged.” Ken Doolan advised that “we (the RSL) will do that
and we will do it expeditiously.” This has since been done but in words
indicative of the hesitant approach of our once mighty organisation Ken Doolan
advised the Senate Committee that the RSL would “not oppose” the awarding of
costs to a claimant.
Whatever has happened to emphatic terms such as ‘fully
support’ or is there an issue of Government and RSL relations at play here?
The question needs to be asked. “Why did it take the prodding
of Senator Xenophon to get the RSL, the largest and best resourced ESO in the
country, to reconsider its position?
Sadly the RSL leadership has a track record of failing to
work with or acknowledge the expertise of other ESOs’ on the substantive issues
confronting the Australian defence community.
It recently stood aside from a joint Media Statement issued
by 10 ESO Leaders who are members of the ESO Round Table representing some
150,000 serving and former members of the ADF.
The Statement expressed concern at the imbalance in legal resources
available to the DVA while such is out of the reach of ordinary veterans.
Instead the RSL submitted that it supports the MRCA amendment proposal
unconditionally.
The government and DVA are being given a free pass to ignore
the aspirations of the Australian defence community because the leadership of
the RSL persists in the belief that it and it alone should project the voice of
the veteran and ex-service community.
That leadership ignores the reality of the 21st century
which says that advocacy and selling the issues of the Australian defence
community will be all the more effective by working in concert with all ESOs,
utilising their intellectual and personal expertise. Addressing the issues of
the Australian defence community is not a competition!
Kel Ryan 22
September 2015
Life Member RSL
VVFA Submission Ignored
1.18
I am disappointed the Foreign Affairs, Defence and Trade Legislation
Committee’s report into the Veterans’ Affairs Legislation Amendment (2015
Budget Measures) Bill 2015 — Schedule 2 also failed to mention, by name or
quote, a strong and comprehensive submission by the VVFA.
1.19
It reads as follows:
Inquiry into the Veterans’ Affairs Legislation Amendment (2015
Budget Measures) Bill 2015
This submission is made by the Vietnam Veterans Federation of
Australia Inc. We represent some 6,200 Veterans, former and serving ADF Members
and their families.
We strongly oppose the proposal in Schedule 2 of the Bill:
a. to remove the option for internal reconsideration, by the
Military Rehabilitation and Compensation Committee (MRCC), of a decision by the
Department of Veterans Affairs (DVA) to refuse a Veterans claim for benefits
under the Military Rehabilitation and Compensation Act (MRCA); and
b. to allow only for a ‘single pathway’ review of that
decision by the Veterans Review Board (VRB); and
This proposal is directly contrary to the recommendation by
the recent Review of Military Compensation Arrangements (the Review), which
recommended that the single pathway appeal process should involve internal
reconsideration by the MRCC first, then the VRB process, and then the AAT, thus
creating a faster and less costly process:
The (Review Committee) believes
that reconsideration by the MRCC should be the first step in the review
process. This would help ensure the quality of decisions that are considered by
the VRB and reduce VRB workloads and costs’ and would align with the review
process under the VEA.
The Government claims that the proposed changes give effect
to the Review recommendations. However, while implementing Recommendation 17.1
for a single appeal path, the proposed amendments ignore Recommendation 17.2,
i.e. for internal reconsideration by the MRCC to be the first step in this
review process.
Instead, the proposed amendments will remove internal
reconsideration by the MRCC from the appeals process altogether, so that the
VRB review becomes the first tier of the single appeal pathway.
The Government has provided no explanation for its failure to
adopt the Review’s Recommendation 17.2 in full. However it might be surmised
that the underlying policy of the more restrictive proposal is intended to have
a twofold effect-
1. first, without explanation, it will in effect
abolish the present long-standing arrangement, by which a Veteran may appeal an
unfavourable internal DVA ‘s349 decision’ direct to the AAT; if successful
there, the AAT is empowered to award costs in the Veteran’s favour; by
contrast, the AAT cannot award costs if the Veteran has appealed an
unfavourable VRB decision.
Plainly, the Government is concerned about the 'open-ended'
scope for the AAT to award costs against DVA if the Veteran wins. The new
policy will potentially save DVA money, but to the detriment of
Veterans.
2. second, perhaps less obvious but equally feasible in
the general context of the opaque official explanation of this proposal, it may
be that the policy is intended to ‘nudge’ Veterans away from seeking any review
of any kind of an unfavourable decision. The ‘nudge’ concept is by now
well-known and frequently used by governments in the Western world. [2] It is therefore not fanciful to
speculate that by depriving Veterans of the present relatively straightforward
process of seeking an internal review and thereby ‘nudging’ them into the more
complex process of the VRB, with no prospects of a favourable costs order on
appeal to the AAT, the policy is intended to discourage appeals against DVA
decisions. Once again, this is to the detriment of Veterans.
The Minister for Veterans’ Affairs has stressed the support
of the ESO Round Table (ESORT) members for the Government proposal. I have
dissented from the ESORT decision to support the proposed amendment. I now
suspect that the ESORT has also been influenced by ‘nudge’ tactics.
Our members are dismayed and in many cases, angry, about
those proposed changes, and also about the opaque and disingenuous method of
their presentation and explanation.
It is our submission that the Committee should-
1. recognise the disproportionate and seriously adverse
impact of the present proposal upon Veterans, and
2. recommend that the Government abandon the proposal
and instead implement the full recommendation by the recent Review of Military
Compensation that the single pathway appeal process should involve internal
reconsideration by the MRCC first, then the VRB process, and then the AAT,
retaining the right to have costs awarded if successful at the AAT.
James Wain
President
Vietnam Veterans Federation of Australia Inc
In Closing
1.20
In closing I refer you to 2.34 of the report where it says:
2.34 The committee is satisfied with DVA's assurance that
internal reconsiderations and screening will automatically take place before
matters proceed to the VRB. It appears that the Explanatory Memorandum, as
currently worded, has inadvertently given rise to confusion and
misunderstanding by legal firms as to how the proposed single review pathway
will operate in practice.
1.21
Given the current crisis with veterans’ suicide and self-harm, and given
most veterans I meet say they would rather face the enemy than the Department
of Veterans’ Affairs - I am not satisfied with any of DVA’s assurances.
1.22
DVA’s word and assurances have tragically failed many veterans and their
families.
1.23
I will be satisfied when veterans’ rights to fair compensation and
entitlements are properly enshrined and guaranteed in legislation passed by the
Federal Parliament, not at the whim of a government officer whose first
unwritten priority– but very real key performance indicator - is to save the
government as much money as possible at the expense of Australian veterans.
1.24
My advice to government members of this committee is if you can’t afford
to look after our veterans when they return from war or war-like service, then
don’t send them in the first place.
1.25
For too long this country has committed troops to battle in the Middle
East without consulting the people through Parliament and without debating the
true cost of war.
1.26
One measure that may alleviate the majority of
concerns relating to these amendments and still adopts the streamlined approach
advocated by the Committee is to amend the Bill so as to:
-
Allow legal representatives to appear in the VRB; and
-
Allow the recovery of costs and outlays for further medical
evidence and legal costs and representatives to the Tribunal for review of a
determination of the Board.
1.27
This would require the amendment of Sections 375, 358 and 359 of the
MRCA, and Section 147 of the VEA.
1.28
Concern would still remain as to the length of time that it takes for
matters to proceed through the VRB.
1.29
However, if the Government is willing to put measures in place to remedy
this, the adoption of the above recommendation will ensure that:
-
There is a streamlined pathway for review of decisions;
-
Veterans are not effectively denied access to legal representation;
-
Veterans remain on the same footing as the general community and
Commonwealth civilian employees in terms of recovery of costs and outlays in
Tribunal applications;
-
The anticipated further burden on the Legal Aid system will, in
turn, be reduced;
-
Many of the concerns raised by those who provided submissions to
the Committee will be addressed.
Senator Jacqui
Lambie
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