Conclusion and recommendations
Introduction
4.1
The committee considers that the bill is a positive change to ensure
that all three of the main legislative compensation and rehabilitation schemes
for ADF members, veterans and their dependents can be responsive to the
unique nature of military service. In particular, there are clear advantages if
benefits intended for this group are kept separate from reforms to the SRCA
which is mainly intended to support Commonwealth public servants.
4.2
Providing the Minister for Veterans' Affairs with full responsibility
will facilitate future reform to address issues of legislative complexity and
claims processing by DVA. The committee notes that veterans' entitlements and
eligibility will not be changed under the DRCA and provision has been made to
allow the Minister to make beneficial changes through regulation if any veterans
are disadvantaged. However, the evidence received during the inquiry has
indicated that there is room for improvement in the way in which DVA consults
on changes to legislation and engages with the veteran community.
A move in the right direction
4.3
The creation of the DRCA will ensure that entitlements for ADF members,
veterans and their dependents are excluded from reforms to compensation arrangements
for other Commonwealth employees covered by the SRCA. This will recognise the
unique nature of military service and the distinctive needs of those who have
undertaken military service.
4.4
Many submitters and witnesses mentioned the evidence received by the Senate
Foreign Affairs, Defence and Trade References Committee's inquiry into suicide
by veterans and ex-service personnel. The evidence to that inquiry highlighted
the complexity of veterans' entitlements and problems with processes for veterans
making claims through DVA, including the operation of the Statements of
Principle.
4.5
In the view of the committee, the bill is a positive step to commence
addressing several of these long-standing issues in the veterans' affairs
portfolio. This is a step to facilitate reform to simplify and harmonise the
legislative schemes, departmental practices and the claims processes for ADF
members and veterans. In particular, the bill will enable the Minister for
Veterans' Affairs to make beneficial changes for veterans which may not be
appropriate for Commonwealth employees.
4.6
Centralising policy authority for veterans' compensation and
rehabilitation is also likely to assist the implementation of existing measures
to address continuing matters of concern such as the out-of-date and disparate
information systems used by DVA and the consequent problems with the processing
of claims. For example, some key 2016-17 budget initiatives included $24.8 million
to develop a business case for transforming DVA's business operations and
technology systems to be client focused, responsive and connected. There was
also $23.9 million provided over two years to undertake urgent technical work
to ensure critical compensation and rehabilitation processing systems operate
effectively while the broader, detailed business case for the transformation
program is developed.
Protections for veterans
4.7
It is important to emphasise that the bill includes protections to
ensure that the eligibility and benefits under DRCA will be the same as those
currently available to serving and former ADF members under the existing SRCA. There
is an inherent tension in compensation claims processes between establishing
clear rules for clients while at the same time allowing decision-makers the
discretion to exercise judgement. In this context, it is appropriate that the
bill includes a broad capacity for the Minister to modify the operation of the
DRCA through making regulations for the benefit of veterans. The power is
limited in that it can only be utilised when the Minister is 'satisfied that is
necessary or desirable to make regulations to ensure that no person (except the
Commonwealth) is disadvantaged by the enactment' of the DRCA. This safeguard
ensures that any changes will be beneficial for veterans.
4.8
Some submitters and witnesses raised concerns regarding the level of
parliamentary scrutiny for amendments to legislation enabled by this Henry VIII
clause. Some of these concerns may result from a misunderstanding of
parliamentary scrutiny processes. As the EM to the bill notes 'any regulation
made under this provision may be subject to disallowance'.
4.9
The Legislation Act 2003 provides the framework for the standard
disallowance regime. In particular, it requires that legislative instruments
must be registered and tabled in each House within 6 sitting days of being
registered. Within 15 sitting days after tabling a senator or member of the
House of Representatives may give notice of a motion to disallow the instrument
(in whole or in part). If the motion is agreed to the instrument is disallowed
and it then ceases to have effect. If a notice of motion to disallow the
instrument has not been resolved or withdrawn within 15 sitting days after
having been given, the instrument is deemed to have been disallowed and it
ceases to have effect.
4.10
Further scrutiny of regulations and legislative instruments is also regularly
undertaken through the Senate Standing Committee on Regulations and Ordinances
(R&O Committee). All legislative instruments stand referred to the R&O Committee
for scrutiny and recommendation as to any further parliamentary action,
including disallowance. Established under the Senate's Standing Orders, this
long-standing parliamentary committee, assisted by independent legal advice,
scrutinises each legislative instrument to ensure:
- that it is in accordance with the statute;
- that it does not trespass unduly on personal rights and
liberties;
- that it does not unduly make the rights and liberties of
citizens
- dependent upon administrative decisions which are not
subject to review of their merits by a judicial or other independent tribunal;
and
- that it does not contain matter more appropriate for
parliamentary enactment.[1]
4.11
The committee agrees that, in most cases, proposed amendments to law should
be introduced to the Parliament as primary legislation in order to maximise
appropriate parliamentary scrutiny. However, in limited circumstances the uses
of Henry VIII clauses are justified.[2]
In this case, the committee considers that proposed new section 121B falls
within these limited circumstances and is justified in facilitating the
Minister to swiftly rectify compensation and rehabilitation issues for veterans
arising from the transitional arrangements for the DRCA.
Improving consultation practices
4.12
The committee welcomes the commitment of DVA to undertake appropriate
consultation with the veteran and Defence communities on any areas of potential
alignment between the DRCA and the MCRA.[3]
However, the committee is concerned with DVA's current consultation and
engagement practices in relation to proposed legislative changes. Partly, this
appears to be an issue with the limited resources available to ex-service
organisations to assess legislative proposals and provide informed feedback. While
representatives from ADSO noted this was a shared responsibility between all
stakeholders in the area of veterans' affairs, in practical terms, it is DVA
who is best positioned to effect improvements to this relationship.
4.13
There is a perception that DVA has an adversarial relationship with some
veterans' advocates, veterans' advocacy groups and lawyers acting on behalf of
veterans. In the view of the committee, DVA should be seeking out and
actively engaging with those persons who are best informed and capable of
providing analysis of proposed legislation. Critical feedback on proposed
legislative reforms should be encouraged at an early stage and utilised to
identify areas where communications strategies may be required to answer
questions raised in the veteran community. If DVA does not adequately consult
and respond to issues raised, it can create environments where misinformation
or unwarranted fears regarding legislative reform can flourish.
Recommendation 1
4.14
The committee recommends that the Department of Veterans' Affairs
conduct a review of its consultation and engagement practices in order to:
-
receive informed critical feedback on proposed legislative
amendments;
-
rapidly respond to concerns raised in the veteran community; and
-
increase the understanding of proposed legislation changes in the
veteran community.
Recommendation 2
4.15
The committee recommends the Senate pass the Safety, Rehabilitation and
Compensation Legislation Amendment (Defence Force) Bill 2016.
Senator
Chris Back
Chair
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