Explanatory Memorandum
(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Michael McCormack MP)Schedule 1 - Family support
Military Rehabilitation and Compensation Act 2004
The amendments made by Schedule 1, amend the Military Rehabilitation and Compensation Act 2004 (MRCA) and will create a new legislative scheme to provide additional support for current and former members and the families of current and former members, including deceased members, of the Australian Defence Force (ADF). The amendments will provide additional childcare arrangements, counselling, household services and attendant care for prescribed current and former ADF members.
Recently the (then) Minister for Veterans' Affairs announced a range of initiatives in response to recommendation 19 of the Senate Foreign Affairs, Defence and Trade Reference's committee report The Constant Battle: Suicide by Veterans. Recommendation 19, at 6.109, states: the committee recommends that the Department of Veterans' Affairs review the support of partners of veterans to identify avenues for assistance. This review should include services such as information, advice, counselling, peer support and options for family respite care to support partners of veterans.
These proposed amendments will support the implementation of three initiatives aimed at addressing recommendation 19. The measures are intended to help families to maintain their connections to community and employment and to improve social function. Members returning from conflict may find settling back into home life stressful which may contribute to suicide or attempted suicide. Spouses/partners and families may experience increased pressure of having to care for a severely incapacitated veteran in addition to the other home duties, child rearing and any work or other activities they may undertake. Spouses/partners and families also require support to develop skills to care for a member who is incapacitated (physically and mentally) and to identify when to seek professional help for a member who may be at imminent risk of self-harm or harm to others.
These amendments to the MRCA will deliver key psychosocial interventions to members with complex needs and to assist in reducing family pressure.
A new Chapter 5A - Family support will be inserted into the MRCA to enable the MRCC to provide 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:
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- 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.
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- Brief Intervention Counselling will be extended so current and former ADF members with a current Rehabilitation Plan (within 5 years post-discharge) and their family members will be entitled to up to a total of 20 sessions (over 5 years). The counselling under this amendment will be in addition to any 'treatment' provided under the DVA Health Card system.
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- Additional Household services, Home Care and Counselling assistance will enable 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.
Notes of Clauses:
Item 1 amends section 3, Simplified outline of this Act, to omit "The Act also provides for compensation and other benefits to be provided for the dependants of some deceased members" and substitutes it to "The Act provides for compensation and other benefits to be provided for the dependants of some deceased members of the Defence Force who have suffered a service injury or disease; and compensation and other benefits to be provided for the dependants of some deceased members; and certain assistance (such as child care, counselling or household services) to members or former members or related persons of members, former members or deceased members".
This amendment specifies the intent and purpose of the Act. This amendment will complement the amendments made by Item 7 which will insert new Chapter 5A into the Act.
Items 2 amends section 3, Simplified outline of this Act, to omit in the second paragraph "Chapters 3 to 6 set out what the benefits are.", and substitutes it to "Chapters 3, 4, 5 and 6 set out what the benefits are. Assistance or benefits under Chapter 5A can be provided before the Commission has accepted such liability.".
The effect of this amendment to ensure new Chapter 5A is fully explained within the Simplified outline of the Act. This amendment includes a description of the intent of new Chapter 5A to be inserted by Item 7. The Commission referred to in these amendments is the Military Rehabilitation and Compensation Commission and is also abbreviated to the MRCC.
Item 3 amends subsection 5(1) to insert a new definition of related person. Related person will mean "of a member has the meaning given by subsection 15(2)".
Currently section 15 relates to the definition of dependant. Items 4 to 6 will reframe the current definition of dependant to define dependant and related person. This is a technical amendment to ensure the new definition is flagged within section 5 of the Act. For clarity, the amendment will not alter the definition of dependant for the purposes of the Act.
Item 4 amends section 15 (heading) to repeal the heading and amend it to 15 Definitions of dependant and related person. This is a technical amendment to ensure the heading reflects the purpose and intent of the section. The definition of dependant is not altered with this amendment.
Item 5 amends subsection 15(1) to omit "any person mentioned in subsection (2)" and substitute it to "a related person of the member". This amendment will alter subsection (1) to define a dependant of a member means a related person of the member. Subsection (2) will specify the family relationships are now defined as a related person for the purposes of the Act. This amendment reframes the current definition to be inclusive of the definition of dependant and related person.
Item 6 amends subsection 15(2) to omit "These are the persons who can be a dependant of a member for the purposed of subsection (1) and amend it to "a related person of a member is".
This amendment will specify who is a related person of the member for the purposed of the Act. New subsection 15(2) will specify a related person of a member is the members partner, a parent or step-parent of the member, a parent or step-parent of the member's partner, a grandparent of the member, a child or stepchild of the member, a child or stepchild of the member's partner, a grandchild of the member, the members brother, sister, half-brother or half-sister, a person in respect of whom the member stands in the position of a parent or a person who stands in the position of a parent to the member.
The new definition of related persons is purposefully broad to reflect the different family structures accepted as family in contemporary Australian society.
Item 7 inserts new Chapter 5A - Family support after Chapter 5. New Chapter 5A inserts new section 268A, Simplified outline and new section 268B Family support.
New section 268A, Simplified outline, specifies "The Commission may make a legislative instrument providing for assistance or benefits of a certain kind (such as child care, counselling or household services) to a member or former member or to a related person of a member, former member or deceased member. The member, former member or deceased member must have rendered warlike service on or after 1 July 2004.".
The effect of this new section is to set out the purpose and intent of new Chapter 5A. The intent of new Chapter 5A is enable the Commission to provide a range of assistance and services to specify current and former members and a related person to the current, former or deceased member. The new outline makes it clear the provision of assistance or benefits are dependent on the current or former member satisfying the warlike service requirement with warlike service rendered on or after 1 July 2004.
The purpose of this Chapter is to ensure the provision of assistance or benefits are provided quickly and without delay to those who are specified by the Commission in an instrument.
New section 268B, Family support, creates new five subsections to specify the requirements and kinds of assistance or benefits the Commission may grant. Subsection 268B(1) provides "the Commission may, by legislative instrument, make provision for and in relation to the granting of assistance or benefits of a specified kind to a person who is a member of former member or who is or was a related person of a member, former member or deceased member".
The effect of the new section is to create the legislative framework for the Commission to, by legislative instrument, provide assistance and benefits to current and former ADF members and their families (defined as related person).
The purpose of this new subsection is to enable the Commission to make a legislative instrument to provide assistance or benefits to a person specified under new paragraphs 268B(1)(a) and (b). The new paragraphs specify the assistance or benefits may be provided to current and former members of the Australian Defence Force (ADF) as well as related person of a current or former member of the ADF including deceased members.
The effect of this subsection will allow the Commission to identify the assistance or benefits to be provided to members, former members, related person of a member, former member or a deceased assistance or benefits to provide support. This will enable the Military Rehabilitation Compensation Commission (MRCC) to be flexible to ensure appropriate assistance or type of benefit is directed to the right ADF members and their families in order to deliver the required services.
The intention is the Commission will specify a kind of person to include a former or current veteran who has post 1 July 2004 warlike service and has a current rehabilitation plan in place, their partner and children and the partner, children, parents and siblings of a deceased member who rendered warlike service and committed suicide due to their service.
New subsection 268B(2) will provide "However, the instrument must not provide for the granting of assistance or benefits unless the member, former member of deceased member has rendered warlike service on or after 1 July 2004.".
Subsection 268B(2) links into the "warlike service" definition in paragraph 6(1)(a) and means service with the Defence Force of a kind determined in writing by the Defence Minister to be warlike service for the purpose of the Act. However, subsection 268B(2) also makes it clear the warlike service for the purposes of this Chapter must have been rendered from the commencement of the MRCA.
The effect of this subsection to ensure returned and certain deceased members who have rendered post 1 July 2004 warlike service are eligible to receive assistance or benefits under this section. The intent is to recognise the unique needs of these members and their families and provide an appropriate level of assistance and benefits to assist their health and employment outcomes and provide needed support to the family so they can support the member.
New subsection 268B(3) and paragraphs 268B(3)(a)-(c) will provide, "without limiting subsection (1), the kinds of assistance or benefits that may be granted include the following: child care, counselling and household services".
The intent of this subsection is to enable the Commission to make a legislative instrument to provide childcare, counselling and household services to a member, former member, a person who is or was a related person of a member or deceased member. However the kinds of assistance and benefits are not limited to childcare, counselling and household services. It is intended the Commission may, at a later date, prescribe other types of assistance or benefits.
The prescribing by instrument is intended to enable a flexible and responsive mechanism to ensure the needs of a member, former member, a person who is or was a related person of a member or deceased member may be taken into account.
New subsection 268B(4) and paragraphs 268(4)(a)-(c), will provide "without limiting subsection (1), the instrument may make provision for and in relation to the eligibility criteria for the assistance or benefits, and the conditions on which the assistance or benefits are granted and limits (whether financial or otherwise) on the provision of the assistance or benefits.".
The intent of this subsection is to enable the Commission to prescribe, by instrument, the mandatory criteria, conditions and limits to be satisfied in order to be entitled to receive the assistance or benefit prescribed under subsection 268B(3). The purpose of this subsection is to set eligibility criteria to be met.
New subsection 268B(5) will provide "despite subsection 14(2) of the Legislation Act 2003, an instrument under subsection (1) of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without, modification, any matter contained in an instrument or other writing as in force or existing from time to time.".
The subsection is required to ensure any determination made under paragraph 6(1)(a) in relation to 'warlike' service is applicable to the section. This provision will ensure that where any new or changes to an existing warlike service determination are made they are automatically incorporated into and effective for this section. However for the purposes of these provision warlike service is limited to war like service rendered on or after 1 July 2004 as prescribed in subsection 268B(2).
All documents incorporated by reference into Department of Veterans' Affairs' legislative instruments are available to view online at: http://clik.dva.gov.au/legislation-library . The Department would undertake to place any document incorporated by reference under an instrument made under subsection 268(5) on this web page.
Item 8 amends paragraph 423(ba) to insert new paragraph 423(bb) in Part 4 - Appropriations. New subsection 423(bb) will provide "assistance or benefits granted under an instrument made under section 268B".
The purpose of this amendment is to ensure the Consolidated Revenue Fund may be appropriated for the purposes of providing assistance or benefit provided under section 268B.