Wednesday, 25 October 2017
Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017; Second Reading
I rise today to speak about the Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017. This bill contains eight schedules, which deal with different elements of veterans legislation that seek to clarify, improve and streamline the operation of law and processes within the Department of Veterans' Affairs. Given the detail in the bill, it was referred to the Senate Standing Committee on Foreign Affairs, Defence and Trade. The committee thoroughly examined the legislation, held public hearings and reported back to the parliament on 13 June 2017. I would like to thank the committee members and all those submitters on their work in reviewing this legislation.
As we understand it, schedule 1 seeks to amend the provisions under which the Veterans' Review Board operates by aligning certain provisions of the board with similar provisions to that of the Administrative Appeals Tribunal. As members may be aware, the board is a statutory authority whose role is to provide independent merits review of decisions about disability pensions, war widow and war widower pensions and attendant allowances under the Veterans' Entitlements Act, rehabilitation compensation and other benefits under both the Military Rehabilitation and Compensation Act and the new Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2017.
The amendment in schedule 1 seeks to modernise and improve the operations of the board in a number of ways. Item 1 deals with the board's objectives. As it stands, the board's objectives are listed as providing a mechanism of review that is fair, just, economical, informal and quick. These amendments do align the VRB with the changes made to the AAT under the Tribunals Amalgamation Act 2015. It provides that, in carrying out its functions, the board must pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick, is proportionate to the importance and complexity of the matter and promotes public trust and confidence in the decision-making of the board. This section also imposes an ongoing obligation on both the claimant and the Department of Veterans' Affairs during the period until the board has determined the matter to lodge with the board a copy of any document that is in possession which is relevant to the review that has not been lodged previously.
In addition, it provides the board with the power to vary or revoke a decision made under the alternative dispute resolutions process with the consent of the parties and where the board is satisfied that it is within its powers and otherwise appropriate to do so. The section also requires the Repatriation Commission and any person representing the commission in a review to use their best endeavours to assist the board in fulfilling its legislative objective in line with the expanded objective, which deals with the proportionality and public trust.
Finally, this section provides the principal member with the power to dismiss an application for a review of a decision if they are satisfied that the application is frivolous, vexatious, misconceived or lacking in substance, has no reasonable prospect of success or is otherwise an abuse of process. The final element which gives the principal member the power to dismiss an application has caused some angst within the veterans community for a number of reasons. The Veterans' Review Broad is a unique board that recognises the exceptional nature of military service. It provides an opportunity for veterans to be heard and, while rulings are legal, it is meant to operate in a less adversarial way. It is for this reason that veterans historically have been unable to be represented by lawyers at this point. As stated by the Returned and Services League of Australia in their submission to the Senate inquiry, the Veterans' Review Board has always been the first level of appeal. The veteran should always have his or her say and this should remain as such. In addition, the RSL argued that individuals should be able to present to the board, as it gives them the opportunity to be heard by three individuals in contrast to one DVA delegate.
There was also concern raised during the Senate committee process about the ability to delegate these powers, which the bill was silent on. Consequently, during the Senate committee process, the principal member of the board, Mr Doug Humphreys, provided written information to the committee to allay these concerns, stating that the power would rest wholly with the principal member. In his correspondence, Mr Humphreys also stated that there were few occasions where he would utilise this provision, claiming that, during the current principal member's tenure of seven years, there have been only three matters where it may have been appropriate to hold a preliminary hearing to consider whether the matter should be dismissed on these grounds. Given the small number of times that this would be utilised, Labor does not believe the benefits outweigh the significant concerns.
Labor believes that the Veterans' Review Board was always meant to be a chance where a veteran could be heard. It is meant to be a less adversarial process which accounts for the unique nature of military service. We do support the intention of the bill to align the principles of the VRB and the AAT and are supportive of the broader changes. While we respect that the principal member has outlined their process and how they will engage with an individual, we do not believe that this clause is fitting with regard to the overriding philosophy of the board. As such, Labor proposed—and communicated with the government on this—an amendment which would remove this section. However, it is my understanding that, in the third reading stage, the government will move this amendment, along with a number of other changes. We welcome this change. Labor made very, very clear that this is something that we believe, as a result of consultation with the community, needs to occur. I am very, very pleased that the government has taken that on board and will relieve us of having to move our amendment. We will support the amendment of the government.
Schedule 2 seeks to simplify the appointment process of individuals to the Specialist Medical Review Council, progress whole-of-government requirements for digital transformation, remove red tape in commencing reviews and provide reimbursement of certain travel expenses. The Specialist Medical Review Council is an independent statutory body that reviews the contents of the statements of principles or a decision of the Repatriation Medical Authority not to issue such a statement. The council consists of medical practitioners and medical scientists appointed as councillors by the minister and selected by the convenor of the council for a particular review on the basis of their expertise on the injury or the disease relevant to the statement of principles subject which is under review. Essentially, if someone believes there is an issue with a statement of principle, they will take it to the council for review. The council then appoints a panel which reviews the statement of principle. If they agree there is an issue, it is then returned to the RMA for review.
Under the current arrangements, the minister must select members for the panel from a list or lists of nominations submitted by colleges or other bodies of medical practitioners or scientists. In practice, colleges forward the names of candidates who have responded to advertisements without assessing or recommending candidates. In addition, when making appointments, the minister must have regard to the branches of science or the expertise as necessary to decide review matters and must appoint not fewer than two councillors with experience in each branch. Given these requirements, the process of appointing members takes around three months or longer. This affects the council's ability to perform its functions. It's our understanding that under the amendments the requirements which fix the number of councillors with experience at each branch of medical science will be repealed.
While the minister is still required to have regard to the branches for the expertise needed to decide matters referred to the council, they will have greater discretion as to the number of councillors needed. While it makes sense to have a standing membership from which to draw councillors, there are not necessarily always at least two members from each area of expertise, particularly when it relates to uncommon specialities. This section also includes a requirement that at least one councillor must have at least five years experience in the field of epidemiology, the branch of medicine which deals with the study of the distribution and determinants of disease in populations, and with investigation into the sources and causes of infectious disease.
The review process, as it stands, also requires the council to advertise the date of its first meeting with respect to a particular review. This is described as unnecessary and prescriptive, given the practicalities of arranging a meeting with specialists with busy schedules. Changes to this section will still require notice published in the Gazette at least 28 days before the first meeting of councillors.
Schedule 2 also seeks to provide financial assistance for individual representatives of organisations for any necessary attendance to accompany individuals or representatives to attend a council to make an oral submission. It will make several amendments which enable the convenor of the council to give written directions about the manner of lodging requests for reviews or applications, enabling the council to adopt electronic lodgement of requests for reviews rather than requiring a hard copy form as required by the Veterans' Entitlements Act.
In the light of the ongoing Digital Transformation Agenda, it is appropriate that the council should have the capacity to develop online forms and lodgements. This will streamline the processes and reduce unnecessary red tape. The government assures us that these amendments will not change the threshold for the specialists who are appointed to the panel; rather, the amendments focus on streamlining the process of appointing specialists to the panel, providing financial assistance and reducing red tape. Given these assurances, Labor is supportive of these amendments.
Schedule 3 relates to the international agreements and gives the minister power to make agreements with foreign governments to cover the provision of benefits and payments for the benefits under the MRCA and DRCA. This amendment is required as under the current arrangements the minister can only enter into the agreement for the provision of benefits and treatment, including rehabilitation, that are comparable to those provided under the Veterans' Entitlements Act. Current and former ADF members now have coverage under other veterans' entitlements portfolio acts in addition to the Veterans' Entitlements Act and, as such, there is a need for arrangements which refer to benefits and payments, including rehabilitation, that are provided by the Repatriation Commission or the Military Rehabilitation and Compensation Commission under the VEA, the MRCA, the DRCA or the Australian Participants in British Nuclear Tests (Treatment) Act. This is a logical extension of the current arrangements that ensures that all veterans' legislation is covered. I understand there will be an amendment to the title of this and that, rather than calling it 'agreements', it will be 'arrangements', and we will support that amendment by the government.
Schedule 4 legislates the employer incentive scheme payments, which are made to employers in the form of wage subsidies to encourage them to engage an injured veteran who has found it difficult to compete in a tight labour market. The department provides vocational rehabilitation to eligible serving and former Defence Force members, reservists and cadets following service related injury or disease. Vocational rehabilitation delivers assistance to members to help them achieve sustainable employment where possible and return them to the workforce at at least the level of their pre-injury employment. These services include assessment, guidance or counselling, functional capacity assessment, work experience, vocational training and jobseeking assistance. It also may involve incentive payments to employers to facilitate civilian employment of veterans. While the department has been able to facilitate these payments under existing provisions, this amendment will strengthen and clarify the legislation around these payments.
Labor is supportive of measures which assist veterans to move to and retain employment. Vocational rehabilitation plays an important role in assisting eligible veterans with finding or retaining employment. It can assist with transition from military to civilian employment for members of the ADF and peacekeeping forces who may experience difficulty in obtaining or holding civilian employment.
Schedule 5 amends the MRCA and the DRCA to facilitate information sharing between the MRCC and the Commonwealth Superannuation Corporation with respect to certain service related compensation claims. These amendments will implement a recommendation by the Review of Military Compensation Arrangements which was intended to improve the information-sharing framework for incapacity and superannuation benefits between the MRCC and the Commonwealth Superannuation Corporation. While the MRCC is authorised to request information from the Commonwealth Superannuation Corporation to assist with the calculation of incapacity payments, there is no express provision to allow the MRCC to provide information to the Commonwealth Superannuation Corporation to assist with their assessment of superannuation benefits. As such, at present all requests to the MRCC for information from the Commonwealth Superannuation Corporation are undertaken in accordance with the Freedom of Information Act 1982, which is a cumbersome and time-consuming process accounting for approximately 20 per cent of all FOI requests received by the department on behalf of the MRCC.
These amendments, we are informed, will provide a stronger foundation for the MRCC to provide the Commonwealth Superannuation Corporation with the information needed to make an assessment of the superannuation benefit. Requests from the CSC to the MRCC for claims information are increasingly being received for the purpose of conducting superannuation investigations through the useful and relevant medical and rehabilitation information held by the MRCC. Enabling the Commonwealth Superannuation Corporation to use information held by the MRCC will also avoid the need to send Defence Force members for further medical assessment where the MRCC already holds the relevant information which could be used by the Commonwealth Superannuation Corporation to determine benefits. Apart from saving time and effort, this would also prevent Defence Force members from having to explain their circumstances to different medical professionals. This is particularly important in the cases of members who are suffering from psychological conditions, including those which have arisen from physical or psychological abuse. This will prevent any retraumatisation as a result of having to ongoingly explain their circumstances.
I must note that this section has caused some concern within the veterans community through the Senate inquiry process. Senators raised a number of privacy concerns with the committee, noting there is some confusion within the Defence community as to what type of information is being shared. Many of the submitters called for a privacy impact assessment to be conducted on schedule 5 of the bill, and I understand the government has completed this process.
Labor is supportive of the measures listed in schedule 5 to help veterans reverse the process and to reduce the unnecessary work. It is important, I think, that we note that the time taken to process claims by DVA has been a longstanding issue with many veterans. Veterans and their loved ones have regularly expressed to me the frustration of having to tell their story again and again. This amendment seeks to address this, and that is why we're supportive of it. However, I do understand these privacy concerns and certainly have supported the calls to conduct a privacy impact assessment. I am pleased that the government has done that.
Schedule 6 seeks to amend the MRCA to provide the minister with the power to delegate his or her powers and functions to the members of the MRCC, employees of the department or persons engaged or appointed under the Public Service Act 1999. This is a provision which exists under the other act, the VEA, but it appears to have been omitted from the development process of the MRCA in 2004. This omission has prevented the implementation of some of the administrative reforms to achieve efficiencies across the department as part of the government's commitment to reduce red tape. Examples that have been provided of the type of determinations which might be delegated include determination of an interest rate payable on a lump sum payment of permanent impairment compensation; minor determinations concerning reimbursement of travel expenses; requirements for medical examinations; and the types of payments that may be deducted from payments of weekly compensation. Delegating authority for minor matters to appropriate employees will enable quicker decision-making in relation to small issues and reduce unnecessary red tape. The department have assured Labor that delegation levels would be set at either band 1 or band 2 or at the chief operating officer level only, to ensure that the employee has the appropriate skill set to be approving these decisions. On that condition, Labor will support this amendment.
Schedule 7 will amend the legislation to exempt certain legislative instruments from section 14(2) of the Legislation Act 2003 and enable these legislative instruments to incorporate material contained in other non-disallowable legislative instruments or other non-legislative writings in force from time to time.
The current requirement to amend the Veterans' Affairs portfolio legislative instruments to incorporate changes in non-disallowable instruments has caused significant administrative issues for the department. These changes will essentially allow materials to be updated with new references to information without lodging each individual instrument into the parliament. Many of the legislative instruments include references to external documents which are incorporated by reference into instruments that are legally regarded as being parts of the instrument. As such, any change to such documents can't be recognised unless the changed versions are incorporated into the legislative instrument by an amendment or a replaced instrument. This can cause significant administrative issues and unnecessary delays.
An example of this can be seen in relation to the availability of new rehabilitation appliances. The availability of the new equipment will be delayed, as the legislative instrument in the case of the Treatment Principles, which incorporates the document under which the appliance may be provided, would need to be amended to refer to the changed date of the policy document. As we can see, that's quite an ordeal, and for that reason Labor will be supporting this amendment.
The final schedule deals with the repeal of redundant and spent provisions administered in the Veterans' Affairs portfolio concerning benefits that are no longer payable, and it makes consequential amendments in relation to the repeal. This was originally proposed as part of the Omnibus Repeal Day (Spring 2015) Bill 2015, which lapsed with the end of parliament in April 2016. The proposed amendments seek to remove the following spent provisions: the clean energy advance during a period before 1 July 2012; parts providing for one-off payments to older Australians in 2006, 2007 and 2008; the Economic Security Strategy payment from 2008; and the educational tax refund payment in 2012.
However, a provision has been inserted that will ensure that, in a circumstance where a person is found to have been eligible for one of the payments due to a retrospective assessment of the pension, they will still be able to access the spent provision. The Veterans' Affairs portfolio is supportive of these changes, and therefore we are also and think that this is an appropriate way to go.
The Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017 seeks to streamline the operation of the law and to improve processes for veterans. Labor is supportive of the changes, which will improve the process for veterans. However, as stated, we do believe that we need to remove one section of schedule 1. As I've said, it's my understanding that the government will move that amendment, and we certainly welcome them paying careful consideration to Labor's views. We certainly welcome the government doing that and look forward to continuing to work in a bipartisan way. I think that this legislation not only has bipartisan support but now accurately reflects the views of the veterans community. Overall, it will be welcomed by the veterans community as a sensible piece of legislation and one that we have worked together to land perfectly.