Revised Explanatory Memorandum
(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Dan Tehan MP)Schedule 5 - Disclosure of information
Overview
The purpose of this Schedule is to amend the Military Rehabilitation and Compensation Act and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act to facilitate information sharing between the MRCC and the CSC with respect to certain service related compensation claims.
The proposed amendments would implement a recommendation by the Review of Military Compensation Arrangements (the 2011 MRCA Review) intended to improve the information sharing framework for incapacity and superannuation benefits between the Department and CSC.
While the Department is authorised to request information from the CSC to assist with the calculation of incapacity payments, there is no express provision to allow the Department to provide information to CSC to assist with the CSC's assessment of superannuation benefits. At present, all requests to the Department for information from CSC are undertaken in accordance with the Freedom of Information Act 1982. This process is cumbersome and time consuming, and accounts for approximately 20 per cent of all Freedom of Information requests received by the Department.
Background
Under the Military Rehabilitation and Compensation Act and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act, weekly incapacity payments are calculated taking into account superannuation entitlements.
To ensure that the calculations are correct, decision-makers need accurate information from the CSC about: the type of superannuation benefit paid to the claimant; the effective date from which benefits were granted; details of any lump sum payments and productivity benefits; and information about any subsequent variations.
The 2011 MRCA Review considered issues relating to the interaction and information sharing processes between the Department and CSC. Recommendation 12.5 of the report was to consider the operation of superannuation and compensation arrangements across Government, with a view to streamlining these arrangements wherever possible. The Military Superannuation Compensation Scoping Working Group (comprised of representatives from the Department, CSC, the Department of Defence and the Department of Finance) was established to comprehensively review the superannuation and compensation arrangements.
The Military Superannuation Compensation Scoping Working Group recommended that options be explored to improve information sharing processes for incapacity and superannuation benefits between the Department and CSC. These amendments seek to implement that recommendation.
While the Military Rehabilitation and Compensation Act and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act contain information gathering powers that allow the MRCC to request information from CSC, these amendments would provide a stronger foundation for the MRCC to provide CSC with the information needed to make an assessment of superannuation benefits. Requests by CSC for claims information from the Department are increasingly being received for the purpose of conducting superannuation investigations. This is because the Department's records contain useful and relevant medical and rehabilitation information that assists CSC to make speedier superannuation benefits assessments.
Enabling the CSC to use medical information and reports held by the MRCC to determine superannuation claims would also avoid the need to send Defence Force members for further medical assessment, where DVA already holds relevant medical evidence that could be used by the CSC to determine superannuation benefits. In turn, Defence Force members would be spared from any re-traumatisation from having to retell their stories. This is particularly significant for Defence Force members who suffer psychological conditions, including those that have arisen as a result of physical or psychological abuse.
Obstacles to information sharing also delay compensation payments to veterans. While the Australian Government has recently amended the Military Rehabilitation and Compensation Act and the Safety, Rehabilitation and Compensation Act 1988 to ensure that Defence Force members can receive interim compensation payments at 100% of their Normal Weekly Earnings while their claims are being investigated, the measures proposed in this Schedule will prioritise providing Defence Force members with greater certainty at an earlier time. The earlier a Defence Force member's superannuation benefits are determined, the earlier the Department can accurately calculate incapacity payments.
Explanation of the Items
Part 1 - Main amendments
Military Rehabilitation and Compensation Act 2004
This Part gives effect to amendments to the Military Rehabilitation and Compensation Act with respect to information sharing powers.
Item 1 inserts new table item 2A in the table in subsection 409(2). This table lists the people to whom the MRCC or a staff member assisting the MRCC may provide information and the purposes for which such disclosures may be made. In the normal course, staff members assisting the MRCC will be staff of the Department who the Secretary has made available for this purpose under section 196 of the Veterans' Entitlements Act.
New table item 2A will empower the MRCC or a staff member assisting the MRCC to provide information to the CSC for a purpose relating to the performance of a function, or the exercise of a power, by the CSC under an Act administered by the CSC or an instrument made under an Act administered by the CSC. This will provide clear authority for MRCC and assisting staff members to provide information to, and respond to requests from, the CSC.
As outlined in the Background section, this amendment is highly significant to Defence Force members who will be saved the imposition of having to attend unnecessary further medical assessments and retelling their stories. Currently, if the CSC wants to access the Department's records, they must ask the client for the information or make a request under the Freedom of Information Act 1982, which is administratively cumbersome.
Importantly, the purposes for which, and the persons to whom, information may be disclosed are appropriately prescribed and limited, consistent with existing subsection 409(2). The information may only be provided to the CSC for the purpose of exercising a function or power under the Governance of Australian Government Superannuation Schemes Act 2011, or an instrument under that Act.
Item 2 adds a definition section to define the term 'Act administered by CSC' as having the same meaning as given by the Governance of Australian Government Superannuation Schemes Act 2011 (GAGSS Act). Presently, the GAGSS Act defines this term by reference to a list of eleven Acts, namely:
- (a)
- the Defence Act 1903, to the extent that the Act deals with superannuation benefit in Part IIIAA; or
- (b)
- the Defence Force Retirement and Death Benefits Act 1973; or
- (c)
- the Defence Forces Retirement Benefits Act 1948; or
- (d)
- the Military Superannuation and Benefits Act 1991; or
- (da)
- the Australian Defence Force Superannuation Act 2015; or
- (db)
- the Australian Defence Force Cover Act 2015; or
- (e)
- the Papua New Guinea (Staffing Assistance) Act 1973, to the extent that the Act deals with superannuation; or
- (f)
- the Superannuation Act 1922; or
- (g)
- the Superannuation Act 1976; or
- (h)
- the Superannuation Act 1990; or
- (i)
- the Superannuation Act 2005.
Item 3 provides that Items 1 and 2 will apply in respect of information provided on or after the commencement of Item 3 regardless of when the information was obtained. That is, once Part 1 of Schedule 5 commences, the CSC may ask the MRCC to provide information that the MRCC had obtained before the new arrangements commenced.
Part 2 - Contingent amendments
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988
This Part gives effect to amendments to the information sharing powers in the Safety, Rehabilitation and Compensation (Defence-related Claims) Act.
Item 4 will repeal existing subsection 151A(1) and substitute it with a new subsection which enables the MRCC or a staff member assigned to assist the MRCC to provide information obtained in the performance of their duties under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act to a person, and for a purpose, specified in the table.
The specified people and the specified purposes are the same as those currently stipulated in subsection 151A(1) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act, but with the addition of the CSC through table item 6 (discussed below.) Item 4 restructures subsection 151A(1) into tabular form to aid readability and improve clarity.
Consistent with the amendments made by Items 1 and 2 (described above), table item 6 will enable the MRCC or a staff member assisting the MRCC to provide information to the CSC. This information can only be provided for a purpose relating to the performance of a function, or the exercise of a power, by the CSC under an Act administered by the CSC or an instrument made under an Act administered by the CSC.
Again, for the same reasons as outlined in the Background and with respect to Item 1 , this amendment is highly significant to veterans who will be saved the imposition of having to attend unnecessary further medical assessments and retelling their stories.
As noted above, the purposes for which, and the persons to whom, information may be disclosed are appropriately prescribed and limited, consistent with existing subsection 151A(1) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act. The information may only be provided to the CSC for the purpose of exercising a function or power under the Governance of Australian Government Superannuation Schemes Act 2011, or an instrument under that Act.
Item 5 makes a minor amendment to subsection 151A(2) to reflect the expansion of the information sharing powers to the CSC. Instead of referring to the 'Secretary or Chief Executive', amended section 151A(2) will refer to 'the person', reflecting the legal status of each of the named entities as well as the wording of proposed new subsection 151A(1).
Item 6 defines 'Act administered by CSC' in the same way as Item 2 above, that is by reference to a definition in the GGAGS Act.
Item 7 provides that the changes made to subsection 151A(1) will apply to information provided on or after the commencement of Item 7 regardless of when the information was obtained. That is, once Part 2 of Schedule 5 commences, the CSC may ask the MRCC to provide information that the MRCC had obtained before the new arrangements commenced.
Commencement
Clause 2 provides that the amendments made by Part 1 of Schedule 5 commence on the day after the Act receives Royal Assent.
Clause 2 provides that the amendments made by Part 2 of Schedule 5 commence on the later of:
- •
- day after the Act receives Royal Assent; or
- •
- immediately after the commencement of Part 2 of Schedule 1 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 2017.