Explanatory Memorandum
(Circulated by authority of the Minister for Veterans' Affairs and Minister for Defence Personnel, the Honourable Matthew James Keogh MP)Schedule 5 - Repatriation Medical Authority and Specialist Medical Review Council
This schedule transfers the legislative basis for the administration of the SOPs from the VEA to the MRCA, to reflect the application of only the MRCA to new compensation claims from the commencement date.
Divisions 4 and 5 of Schedule 7 set out the transitional provisions relating to the Authority and the Review Council, including the application of SOPs that are in force as at the commencement date.
Military Rehabilitation and Compensation Act 2004
Item 1 amend section 3 which describes the general purpose and practices of the Act to add that the Repatriation Medical Authority (RMA) and the Specialist Medical Review Council, which are dealt with in Chapters 9A and 9B respectively.
The RMA's role is to determine SOPs for any disease, injury or death that could be related to military service, based on sound medical-scientific evidence, while the Council reviews SOPs and decisions of the RMA.
Items 2 to 6 amend subsection 5(1) to update various definitions relating to the RMA and the Review Council, incorporating terms from section 5AB of the VEA:
- •
- Authority is added to mean the RMA as continued under section 370B, while the term Repatriation Medical Authority is repealed;
- •
- Authority member and Councillor are added and refer respectively to a member of the RMA, including the Chair, and to a member of the Review Council, including the Convenor;
- •
- presiding Councillor and related to service are added as signpost definitions, pointing readers to subsections 380DK(3) and 370C respectively;
- •
- Review Council is added to mean the RMA as continued under section 380B,
- •
- sound medical-scientific evidence is a signpost definition, pointing readers to subsection 380B.
- •
- Statement of Principles is repealed and replaced with references to provisions of this Act, reflecting the transfer of authority for these determination.
Items 6 updates the reference in sections 22 (simplified outline of Part 2 of Chapter 2) to reflect that SOPs are made under Chapter 9A.
Items 7 to 11 are technical amendments to section 332 (simplified outline of Part 2 of Chapter 7), to replace legislative references to the VEA with the corresponding provisions in this Act about the RMA and the Review Council. Changes are also made to adopt the abbreviation Authority in place of RMA.
Items 12 to 19 update references to actions of the RMA in sections 338 and 339, to reflect that SOPs provisions are contained in this Act.
Items 20 to 23 are technical amendments to section 340, which sets out that Commission may make determinations overriding an RMA decision in relation to SOPs. The items replace legislative references to the VEA with the corresponding provisions in this Act, and adopt the abbreviation Authority in place of RMA.
Item 24 repeals subsection 340(7), with the definition of related to service being set out in new section 370C.
Item 25 omits the reference to the VEA in paragraph 341(1)(b) which deals with the application of SOPs on review of a decision, in recognition of SOPs being made under this Act.
Item 26 inserts new Chapter 9A dealing with the RMA and Chapter 9B for the Review Council, drawing largely on Part XIA of the VEA. Some of the VEA sections are replicated with only technical updates to terminology or referenced legislative provisions, or to reflect conventional drafting and notification practices. Any substantive differences are described in the two summary tables below.
Chapter 9A dealing with the RMA is set out in the first table and Chapter 9B for the Review Council is set out in the second table.
| MRCA Chapter 9A - RMA | Based on VEA... | Extent of change |
| Section 370A Simplified outline of this Chapter | - | New – navigation guide |
| Section 370B Establishment | Section 196A | Includes standard reference that the Authority is a body corporate that can acquire and disposal of assets |
| Section 370BA Application of the Public Governance, Performance and Accountability Act 2013 to the Authority | Section 196AA | Limited – updates to terminology |
| Section 370BB Functions and powers of the Authority | Section 196B | Summarises the functions set out in the VEA section |
| Section 370C Meaning of related to service | Subsection 196B(14) | No change |
| Section 370CA Meaning of sound medical-scientific evidence | Subsection 5AB(2) | No change |
| Section 370CB Determining Statement of Principles - reasonable hypothesis | Subsection 196B(2) | Reflects service classifications as described under this Act |
| Section 370CC Determining Statement of Principles - balance of probabilities | Subsection 196B(3) | Reflects service classifications as described under this Act |
| Section 370CD Initial investigation | Subsections 196B(4) and (5) | Limited– updates to terminology and includes a note which refers to section 370CG |
| Section 370CE Subsequent investigation | Subsections 196B(7), (7A) | Limited – updates to terminology |
| Section 370CF Circumstances when investigation not required | Subsection 196C(4) and Section 196CA | Limited – updates to terminology |
| Section 370CG Action following investigation | Subsections 196B(5), (6), (8) and (9); section 196J | Provisions are grouped under the relevant heading:
Decision to determine etc a SOP Decision not to determine etc a SOP; and Notice of decision not to determine etc a SOP New subsection (7) provides that a declaration not to determine a SOP is not a legislative instrument. These decisions and the RMA's statements of reasons represent policy guidance for the exercise of decision-making functions and powers set out in legislation, on the particular circumstances in which the SOPS do not apply. |
| Section 370CH Request for investigation or review | Section 196E | Limited – updates to terminology and reflects drafting conventions |
| Section 370CI Authority may consolidate requests | Section 196CB | Limited – updates to terminology |
| Section 370CJ Notice of investigation | Section 196G | Limited– updates to terminology and notification practices
[No invalidity clause at subsection (3) is the case in the existing law. It is intended to give the practical effect of the outcome of an investigation or review by the RMA, where an administrative error may have resulted in non-compliance with the duty of notification. Whilst it is not a reviewable action, there is remedy through the courts on error of law.] |
| Section 370CK Powers of Authority with respect to investigations | Subsections 196C(1) to (3) | Limited – updates to terminology |
| Section 370CL Submissions to the Authority | Section 196F | Limited – updates to terminology |
| Section 370CM Authority to send information to Review Council | Section 196K | Limited – updates to terminology |
| Section 370CN Action following review by Review Council | Subsections 196B(10) to (13AA) | Updates to terminology and the order of the provisions.
Subsection 370CN(7) overrides subsection 12(2) of the Legislation Act 2003 to provide the same outcome as was produced by subsection 13AA of the VEA. The SOP commences from the day the Review Council directed the RMA to determine or amend the particular SOP, and this date is specified in the SOP. It is therefore appropriate to allow SOPs determined or amended under this section to operate retrospectively, rather than from the date of registration of the SOP. This approach reflects the distinct roles of the Review Council and the RMA and the sequential actions for managing SOPs. The transfer to the MRCA does not change the legal effect of the provisions. Subsection 370CN(8) also clarifies that the Authority may amend a SOP that is made under this section as a result of a direction from the Review Council, in the same manner as a SOP that it has determined or amended under sections 370CB or 370CC. |
| Section 370D Membership | Subsection 196L(1) | Limited – updates to terminology |
| Section 370DA Appointment of Authority members | Subsection 196L(3) & section 196M | Limited – reflects drafting conventions, including a note to inform readers that the Acts Interpretation Act 1991provides guidance on reappointment. |
| Section 370DB Basis and period of appointment | Subsection 196L(2) & Section 196N | Limited – updates to terminology and reflects drafting conventions |
| Section 370DC Acting appointments | Section 196Q | Limited – updates to terminology and reflects notification conventions |
| Section 370DD Remuneration | Section 196S | Limited – updates to terminology and reflects drafting and notification conventions |
| Section 370DE Other terms and conditions | - | New – sets out that other terms and conditions of an appointment may be set by the Minster, consistent with standard appointment practices |
| Section 370DF Resignation | Section 196O | Updates to terminology and sets out the effective date |
| Section 370DG Termination of appointment | Section 196P | Updates to terminology and reflects drafting conventions. Includes non-compliance with the PGPA as an additional ground for termination. |
| Section 370DH Convening meetings | Subsection 196R(1) | Limited – updates to terminology and reflects drafting conventions (see also Section 370EB) |
| Section 370DI Presiding at meetings | Subsection 196R(2) | No change. |
| Section 370DJ Quorum | Subsection 196R(3) | Additional clause to provide that, if necessary, as a result of an Authority member not partaking in deliberations due to a requirement under the PGPA rules, the remaining Authority members at the meeting would constitute a quorum. |
| Section 370DK Voting at meetings | Subsection 196R(4) | Updates to terminology and makes clear that the Chair does not have a casting vote. |
| Section 370DL Conduct of meetings | Subsection 196R(6) | Updates to terminology and includes a note to inform readers that the Acts Interpretation Act 1991provides for members to participate in meetings by telephone and other electronic means of communication. |
| Section 370DM Minutes | Subsection 196R(5) | Limited – updates to terminology and reflects drafting conventions |
| Section 370E Staff | Section 196T | Limited – updates to terminology and reflects drafting conventions |
| Section 370EA Consultants | Section 196U | Limited – updates to terminology and reflects drafting conventions |
| Section 370EB Delegation by Chair of the Section Authority | Subsection 196R(1) | Sets out the authority to delegate and reflects drafting conventions, including a note to inform readers that the Acts Interpretation Act 1991 provides further guidance |
| Section 370EC Annual report | Section 196UA | Limited – updates to terminology and reflects drafting conventions, including note to inform readers that the Acts Interpretation Act 1991 provides further guidance |
| MRCA Chapter 9B Review Council | Based on VEA... | Extent of change |
| Section 380A Simplified outline of this Chapter | - | New – navigation guide |
| Section 380B Establishment | Section 196A | Includes standard reference that the Review Council is a body corporate that can acquire and disposal of assets |
| Section 380BA Application of the Public Governance, Performance and Accountability Act 2013 to the Review Council | Section 196AA | No change |
| Section 380BB Functions and powers of the Review Council | Section 196W | Summarises the functions set out in the VEA section |
| Section 380C Review of decision relating to Statement of Principles | Subsections 196W(2) to (5) | Limited – updates to terminology and reflects notification conventions |
| Section 380CA Review of decision not to carry out investigation | Subsections 196W(6) to(8); Subsection 196X (2) | Limited – updates to terminology and reflects notification conventions |
| Section 380CB Request for review of contents of Statement of Principles | Section 196Y | Limited – updates to terminology |
| Section 380CC Request for review of decision of Authority not to carry out an investigation | Section 196Z | Limited – updates to terminology |
| Section 380CD Notice of investigation | Section 196ZB | Limited– updates to terminology and notification practices
[No invalidity clause at subsection (3) is the case in the existing law. It is intended to give the practical effect of the outcome of an investigation or review, where an administrative error may have resulted in non-compliance with the duty of notification. Whilst it is not a reviewable action, there is remedy through the courts on error of law.] |
| Section 380CE Submissions to Review Council | Section 196ZA | Limited – updates to terminology |
| Section 380CF Medical expenses | Section 196ZN | Limited – reflects drafting conventions |
| Section 380CG Travelling expenses for obtaining medical evidence | Section 196ZO | Limited – updates to referenced legislative provisions |
| Section 380CH Advance of travelling expenses for obtaining medical evidence | Section 196ZP | Limited – updates to referenced legislative provisions |
| Section 380CI Travelling expenses for making oral submissions | Section 196ZQ | Limited – updates to referenced legislative provisions |
| Section 380D Membership | Subsection 196ZE(1) | Limited – reflects drafting conventions |
| Section 380DA Appointment of Councillors | Subsections 196ZE(2) and (5) | Limited – reflects drafting conventions, including a note to inform readers that the Acts Interpretation Act 1991provides guidance on reappointment. |
| Section 380DB Qualification for appointment | Subsections 196ZE(3) and (4) and 196ZF | Limited – reflects drafting conventions |
| Section 380DC Basis and period of appointment | Subsection 196ZE(2) and section 196ZG | Limited – reflects drafting conventions |
| Section 380DD Acting appointments | Section 196ZJ | Reflects drafting and notification conventions, and clarifies the circumstance may include where the Convenor is unable to perform their duties for any reason |
| Section 380DE Remuneration | Section 196ZL | Limited – reflects drafting and notification conventions |
| Section 380DF Other terms and conditions | New – sets out that other terms and conditions of an appointment may be set by the Minster, consistent with standard appointment practices | |
| Section 380DG Resignation | Section 196ZH | Reflects drafting conventions and sets out the effective date |
| Section 380DH Termination of appointment | Section 196ZI | Reflects drafting convention and includes non-compliance with the PGPA as an additional ground for termination. |
| Section 380DI Constitution of Review Council for reviews | Subsection 196ZK(1) | Limited – reflects drafting conventions |
| Section 380DJ Convening meetings | Subsection 196ZK(4) | Limited – reflects drafting conventions (see also Section 380EA). |
| Section 380DK Presiding at meetings | Subsections 196ZK(2) and (3) | Limited – reflects drafting conventions |
| Section 380DL Voting at meetings | Subsections 196ZK(5) | Reflects drafting conventions and makes clear that the person presiding at the meeting does not have a casting vote |
| Section 380DM Conduct of meetings | Subsection 196ZK(7) | Includes a note to inform readers that the Acts Interpretation Act 1991provides for members to participate in meetings by telephone and other electronic means of communication. |
| Section 380DN Minutes | Subsection 196ZK(6) | Limited – reflects drafting conventions |
| Section 380E Staff | Section 196ZM | Limited – reflects drafting conventions |
| Section 380EA Delegation by Convener of the Review Council | Subsection 196ZK(4) | Sets out the authority to delegate and reflects drafting conventions, including a note to inform readers that the Acts Interpretation Act 1991 provides further guidance |
Item 27 inserts new sections 411A and 411B to set out copyright details and the arrangements to provide reasonable access to information considered by the RMA or the Review Council. As the details for the two entities are identical, the respective VEA provisions - sections 196H and 196ZC for copyright in submissions, and section 196I and 196ZD for access to information - are combined. The updates to reflect drafting conventions do not otherwise change the intent or operation of these provisions.
Veterans' Entitlements Act 1986
Item 28 repeals section 5AB, consequential to the definitions relating to the RMA and Review Council being inserted in the MRCA.
Item 29 inserts Authority in subsection 5Q(1) which has the same meaning as in the MRCA.
Item 30 repeals Review Council-related definitions in subsection 5Q(1), as the necessary terms are contained in the MRCA.
Item 31 repeals the note in subsection 5T(1) which refer readers to Parts IX, XIA and XIB for the lodgement of documents with the VRB, RMA and the Review Council, consequential of those parts being repealed.
Items 32, 33, 34 and 36 update references to RMA actions in section 120A(2) to reflect SOPs - reasonable hypothesis provisions being contained in the MRCA.
Item 35 replaces the reference to subsection 180A(2) in paragraph 120A(3)(b) in relation to relevant determinations to establish a reasonable hypothesis, with subsection 120C(2), consequential to section 180A contained in Part XI being repealed. This update does not change the intent or operation of the provision.
Items 37, 38, 39 and 41 update references to RMA actions in subsection 120B(2) to reflect SOPs - reasonable satisfaction provisions being contained in the MRCA.
Item 40 updates the reference to subsection 180A(3) in subparagraph 120B(3)(b)(ii) in relation to relevant determinations to establish a connection on the balance of probabilities, to subsection 120C(3), consequential to section 180A contained in Part XI being repealed. This update does not change the intent or operation of the provision.
Item 41 – see item 37.
Item 42 inserts new subsection 120C to deal with determinations by Commission overriding RMA's decisions in relation to SOPs. The item is consequential to section 180A contained in Part XI being repealed and does not change the intent or operation of the provision.
Items 43 and 44 replace paragraphs 129A(1)(a) and (d) in relation to the manner of issuing notices or other documents to remove references to the VRB, the RMA and the Review Council.
Item 45 repeals Parts XIA and XIB, which are the parts that deal with the RMA and the Review Council respectively, reflecting that legislative authority for these two bodies is being transferred to the MRCA.