House of Representatives

Veterans' Affairs Legislation Amendment (Veteran-Centric Reforms No.1) Bill 2018

Explanatory Memorandum

(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Michael McCormack MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Veterans' Affairs Legislation Amendment (Veteran-Centric Reforms No. 1) Bill 2018

The Veterans' Affairs Legislation Amendment (Veteran-centric Reforms No. 1) Bill 2018 (Veteran- centric Reform Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Schedule 1 - Family support

Human rights implications

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Schedule

The amendments made by Schedule 1, amend the Military Rehabilitation and Compensation Act 1986 (MRCA) to will create a new legislative scheme to provide additional support for families and members and former members of the Australian Defence Force (ADF) who have rendered warlike service, post 1 July 2004. The amendments will provide additional childcare arrangements, brief intervention counselling, additional household services and attendant care for prescribed current and former ADF members. Families have a crucial role in supporting veterans to achieve their rehabilitation goals and return to an active, fulfilling life following ADF service.

New Chapter 5A - Family support in the MRCA will enable the MRCC may make provision for a range of services with the aim of providing much needed support to current and former ADF members, specified family members and specified family members of deceased ADF members. It is intended the MRCC will provide, by legislative instrument, the following kinds of assistance and benefits:

·
Childcare up to $10,000 per child per annum (under school age) and/or $5,000 per child per annum (Primary School) and cover child day care and before and after school care.
·
Brief Intervention Counselling will be extended so current and former ADF members with a current Rehabilitation Plan, and their family members will be entitled to up to a total of 20 sessions (in addition to any 'treatment' provided under the DVA Health Card system) over five years.
·
Additional Household services, Home Care and Counselling assistance will provide for the widow/ers of an ADF member to receive financial assistance for a range of services (for example, garden maintenance; home help/domestic support) to assist them to adjust to life after the death of their partner.

These amendments commence on 1 May 2018.

Human rights implications

The Bill engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 9 of the ICESCR states "States Parties ... recognize the right of everyone to social security, including social insurance". General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including "States parties should ... ensure the protection of workers who are injured in the course of employment or other productive work".

The amendment does not derogate from human rights as it does not prohibit or limit access of financial support.

Conclusion

The Schedule is compatible with human rights.

Schedule 2 - Veteran Payment

Human rights implications

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Schedule

The amendments proposed in Schedule 2 would create the Veteran Payment. Veteran Payment is a form of interim income support available to veterans to bridge the gap between lodging a claim for a mental health injury and the claim being determined. This payment is designed to provide immediate short-term financial assistance to vulnerable people who may be experiencing financial difficulty. These amendments commence on 1 May 2018.

Human rights implications

The Bill engages the right to social security under Article 9, the right to an adequate standard of living under Article 11 and the right to health under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Right to social security

Article 9 of the ICESCR states "States Parties ... recognize the right of everyone to social security, including social insurance". General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including "States parties should ... ensure the protection of workers who are injured in the course of employment or other productive work".

Right to adequate standard of living

Article 11 of the ICESCR states "The States Parties... recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent".

Right to health

Article 12 of the International Covenant on Economic, Cultural and Social Rights refers to the "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health".

The amendment does not derogate from human rights as it does not prohibit or limit access of financial support.

Conclusion

This Schedule is compatible with human rights.

Schedule 3 - Coordinated Veteran Care mental health pilot

Human rights implications

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Schedule

The amendments made by Schedule 3, would amend the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) to create a new legislative scheme to provide a new pilot program to improve the mental health support available to veterans' in remote and regional areas.

In the 2017-18 Budget, funding was provided over the forward estimates for two new pilots on suicide prevention and to improve the mental health support available to veterans. The Coordinated Veterans' Care Mental Health Pilot (the CVC Mental Health Pilot) is funded at $3.6 million over forward estimates.

The CVC Mental Health Pilot will target those with anxiety or depression at the mild to moderate status and with co-morbid physical health conditions with pain.

The CVC Mental Health Pilot will build on the existing CVC Program which uses a team-based model of care led by a general practitioner and supported by a practice nurse. In this Pilot, the General Practitioner would assess and diagnose clients, undertake care planning, and refer clients to use an application on a smart device. The application is for veterans with mild to moderate mental health conditions, such as anxiety or depression who also have a physical condition requiring pain management.

The CVC Mental Health Pilot will recruit up to 125 participants each year over 2 years (250 in total) with the aim to provide support to veterans in rural and regional areas where mental health services may be more difficult to access.

These amendments commence on the 28th day after this Act receives Royal Assent.

Human rights implications

The Bill engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 9 of the ICESCR states "States Parties ... recognize the right of everyone to social security, including social insurance". General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including "States parties should ... ensure the protection of workers who are injured in the course of employment or other productive work".

The amendment does not derogate from human rights as it does not prohibit or limit access of financial support.

Conclusion

The Schedule is compatible with human rights.

Schedule 4 - Catastrophic injury and disease

Human rights implications

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Schedule

The amendments made by Schedule 4, would amend the existing provisions related to compensation for household and attendant care services where the person has suffered an injury or disease. The new provisions are specific to those members who have suffered a catastrophic injury or disease and will enable the Military Rehabilitation and Compensation Commission (the Commission) to specify the conditions and weekly amount of compensation it considers reasonable in the circumstances.

These amendments commence on the 28th day after this Act receives Royal Assent.

Human rights implications

The Bill engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 9 of the ICESCR states "States Parties ... recognize the right of everyone to social security, including social insurance". General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including "States parties should ... ensure the protection of workers who are injured in the course of employment or other productive work".

The amendment does not derogate from human rights as it does not prohibit or limit access of financial support. This amendment operates to ensure members who suffer from a catastrophic injury related to their service are compensated appropriately based on their actual need and circumstances. The amendments provide the Commission a discretion to exceed the financial limits specified in subsections 216(1) and 219(1) of the MRCA where it is reasonable given the member's circumstances.

Conclusion

The Schedule is compatible with human rights.

Schedule 5 - Qualifying service

Human rights implications

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Schedule

This amendment will operate to enable DVA and Defence to share information related to a veteran's qualifying service, so the Commission may make a qualifying service determination based on this information, removing the need for a veteran to make an application for a determination of qualifying service. A qualifying service determination is the first step in the assessment of a veteran's eligibility for some benefits and payments under veteran legislation.

These amendments commence on the 28th day after this Act receives Royal Assent.

Human rights implications

The Bill engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 9 of the ICESCR states "States Parties ... recognize the right of everyone to social security, including social insurance". General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including "States parties should ... ensure the protection of workers who are injured in the course of employment or other productive work".

The amendment does not derogate from human rights as it does not prohibit or limit access of financial support.

Conclusion

The Schedule is compatible with human rights.

Schedule 6 - DRCA

Human rights implications

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Schedule

Schedule 6 Part 1 - Defence-related Claims

The amendments made by Schedule 6, Part 1, would amend the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) to make technical amendments, such as replace redundant references to Comcare and other bodies and to repeal provisions not related to providing compensation and rehabilitation to current and former ADF members and other eligible persons. These amendments will not alter or amend any entitlement or eligibility to treatment or compensation under the Act.

These amendments the day after the Act receives Royal Assent.

Human rights implications

Schedule 6 Part 1 does not engage any of the applicable rights or freedoms.

Conclusion

Schedule 6 Part 1 is compatible with human rights as it does not derogate from human rights as it does not prohibit or limit access of human rights.

Schedule 6 Part 2 - Other amendments

Overview of the Schedule

The amendments made by Schedule 6 Part 2, reinserts section 43 into the SRCA. These were inadvertently omitted during the drafting of the DRCA. At the time of drafting it was thought the provisions in DRCA would provide sufficient compensation cover for peacekeepers. To ensure a peacekeeper does not experience any disadvantage, section 43 (as it was previously drafted) will be re-inserted into the SRCA. This does not reflect a policy change to any entitlement and/or benefits a peacekeeper may receive under the SRCA.

These amendments commence retrospectively on 12 October 2017, the commencement of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA). The purpose of the retrospective commencement is to ensure any person, who may have been disadvantaged, is placed into the same the position as they were prior to the commencement of the DRCA.

Human rights implications

Schedule 6 Part 2 does not engage any of the applicable rights or freedoms.

Conclusion

Schedule 6 Part 2 is compatible with human rights as it does not raise any human rights issues.

Schedule 7 - Specialist Medical Review Council

Human rights implications

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Schedule

Schedule 5 would amend the relevant provisions within Division 2 of the Veterans' Entitlements Act 1986 (VEA) that relates to a claim for a qualifying service determination. The amendments will enable the automation of a qualifying service determination prior to or at the time a veteran engages with DVA or makes an application for any benefit or payment.

These amendments commence the day after the Act receives Royal Assent.

Conclusion

The Bill is compatible with human rights because they do not impermissibly derogate from human rights.

Schedule 8 - Other amendments

Human rights implications

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Schedule

The amendments made by Schedule 8, Item 1, amend the existing provisions related to who is eligible for treatment under the Australian Participants in British Commonwealth Occupation Force (Treatment) Act 2006. The amendment will enable a person to be eligible for medical treatment, if they were a member of the Australian Defence Force and in Japan at any time during the period from the beginning of 16 August 1945 to the end of 30 January 1946. This amendment will extend the eligibility for medical treatment to those veterans who were in Japan prior to the British Commonwealth Occupation Force (BCOF).

The amendment made by Schedule 8, Item 2 will align the pension age in the Veterans' Entitlements Act 1986 with the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) this further aligns the pension age within veteran legislation with Commonwealth legislation.

The amendments made by Schedule 8, Items 3-6, are technical amendments to accurately reflect the intent and operation of the legislation. These amendments are related to the pensioner concession card amendments made in the Veterans Affairs Legislation Amendment (Omnibus) Act 2017 as it removes incorrect references and make amendments to more accurately reflect the intent and operation of the provisions.

These amendments commence the day after the Act receives Royal Assent.

Human rights implications

Right to social security and right to health

The Bill engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 9 of the ICESCR states "States Parties ... recognize the right of everyone to social security, including social insurance". General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including "States parties should ... ensure the protection of workers who are injured in the course of employment or other productive work".

The right to health is contained in article 12 of the International Covenant on Economic, Social and Cultural Rights and refers to the "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health".

The amendment made by Item 1 does not derogate from human rights as it does not prohibit or limit access of financial support or social security. This amendment operates to make specified veterans entitled to a gold card for medical treatment due to their service in Japan at the end of hostiles and prior to BCOF.

The amendments made by Items 2 and 3 - 7 does not derogate from human rights as it affirms the right to health, as they promote the access to the right to health care.

Conclusion

The Schedule is compatible with human rights.

Short Title Clause 1 provides that the Act is the Veterans' Affairs Legislation Amendment (Veteran-centric Reforms No.1) Act 2018.
Commencement Clause 2 sets out the commencement date of the provisions of the Act. For convenience the commencement information is replicated below.
Schedules Clause 3 provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent.
2. Schedule 1 1 May 2018. 1 May 2018
3. Schedule 2, Parts 1 and 2 1 May 2018. 1 May 2018
4. Schedule 2, Part 3, Division 1 1 May 2018.

However, the provisions do not commence at all if Part 2 of Schedule 2 to the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 commences on or before that day.

5. Schedule 2, items 495 and 496 The later of:

(a) immediately after the commencement of the provisions covered by table item 3; and

(b) immediately after the commencement of Part 2 of Schedule 2 to the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018.

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

6. Schedule 2, items 497 and 498 Immediately after the commencement of Schedule 1 to the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017. 2 July 2018
7. Schedule 2, item 499 Immediately after the commencement of the Social Services Legislation Amendment (Ending Carbon Tax Compensation) Act 2018.

However, the provisions do not commence at all if that Act does not commence.

This explanatory memorandum uses the following abbreviations:

ADF means the Australian Defence Force

BCOF means the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006

Commission means the Repatriation Commission

CVC Mental Health Pilot means the Coordinated Veterans' Care Mental Health Pilot

Defence means the Department of Defence

DRCA means the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

DVA means the Department of Veterans' Affairs

Legislation Act means the Legislation Act 2003

MRCA means the Military Rehabilitation and Compensation Act 2004

MRCC means the Military Rehabilitation and Compensation Commission

RMA means the Repatriation Medical Authority

SMRC means the Specialist Medical Review Council

SRCA means the Safety, Rehabilitation and Compensation Act 1988

The suicide report means the Senate Foreign Affairs, Defence and Trade Reference's committee report The Constant Battle: Suicide by Veterans

VEA means the Veterans' Entitlements Act 1986

Veteran-centric Reforms Bill means the Veterans' Affairs Legislation Amendment (Veteran- centric Reforms No.1) Bill 2018

VP means Veteran Payment


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