House debates

Wednesday, 25 October 2017


Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017; Second Reading

6:53 pm

Photo of Ross HartRoss Hart (Bass, Australian Labor Party) Share this | Hansard source

I echo the sentiments expressed by the member for Lingiari about the spirit of cooperation and bipartisanship that infects the area of Veterans' Affairs. Unlike the unfortunate circumstances this afternoon with respect to equally important legislation dealing with gun trafficking, this minister understands that it's really important to develop and encourage a spirit of bipartisanship—particularly around this vitally important area of veterans' affairs.

I'm always very pleased to speak on legislation affecting our veterans community, like this Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017. I was very fortunate during my legal career to have represented veterans, commencing with veterans of the Second World War and then succeeding generations, in connection with pension claims. I have been able to gain an insight into that community, particularly those who sought to battle on and delayed making any claim for support from the taxpayer.

I fondly recall many veterans who recounted the fact that they tried to get on with their lives, despite in some cases having severe trauma which should have been the subject of an earlier claim. These veterans often found it difficult to make a late claim for TPI, for example, because of their willingness to put up with many conditions until pain or incapacity proved insurmountable.

It was and is a privilege to represent all of those veterans, each with their own unique stories of service, hardship, mateship and, of course, their postservice lives. If there was a common thread through all of these claims—whether it was a seaman who served in the Second World War in HMAS Shropshire and was exposed to high levels of radiation, someone who served in North Africa and washed his kit in petrol, or someone who damaged his knees, unsurprisingly, in parachute training—it was the volume of service and medical material that had to be trawled through in order to build a case for the veteran's claim. Often my involvement, for very practical reasons, only commenced once the matter had been unsuccessful before the Veterans' Review Board, the VRB. In many cases, delay in the resolution of a meritorious claim would have been avoided if some person with suitable knowledge and training had been in a position to review the material, advise as to the evidence and instruct medical experts as to what reports may have been required.

The object of veterans' affairs legislation is beneficial. In other words, the legislation should be construed in favour of the applicant veteran. The system should work in a manner which facilitates the resolution of claims in a manner which is fair, just, economical, informal and quick. My experience and the feedback I've received from veterans support groups would suggest that more work would need to be done to achieve that object. Labor is supportive of changes which will clarify, improve or streamline the operation of the laws and processes within the department. This is something that I strongly believe in and something which should also be subject to a process of continuous improvement.

The bill contains eight schedules which deal with a variety of different elements within the legislation. The bill was considered by the Senate Standing Committee on Foreign Affairs, Defence and Trade. Labor supported the referral to enable a thorough examination of the legislation. The overriding consideration is to ensure that the legislation operates as intended and that veterans are no worse off as a result of these changes. Our obligation—that is, the obligation of this place—to those who have served on behalf of our nation is to ensure that we do not, through changes that we make in this place, place them at any additional disadvantage.

Schedule 1 within the legislation seeks to amend the provisions which govern the Veterans' Review Board. This is designed to ensure that these provisions are aligned with similar provisions of the Administrative Appeals Tribunal. The VRB is a statutory authority. It's designed to provide independent merits review of decisions in connection with disability pensions, war widows and war widow pensions, a tenant allowance under the Veterans' Entitlements Act and, of course, the rehabilitation, compensation and other benefits under the Military Rehabilitation and Compensation Act. The amendments are designed to ensure that the operations of the board are modernised and improved to ensure accessibility, fairness, justice, economy, informality and speedy resolution. The operation of the board should be proportionate to the importance and complexity of an individual matter and, generally speaking, the operation of the board should promote public trust and confidence in the decision-making of the board.

As a legal practitioner, I know that independent merits review is a vitally important aspect of ensuring that, in the administration of complex systems of pensions entitlement, the applicant is able to have a decision reviewed without involving the expense of a legal practitioner in a complex formal process. One of the central aspects of merits review is access to proper material to found a decision. The legislation imposes an ongoing obligation upon both the applicant claimant and the Department of Veterans' Affairs to lodge with the board a copy of any document in their possession which is relevant to the review and has not been lodged previously.

It is notable that the Repatriation Commission and any person representing the commission in a review are required to use their best endeavours to assist the board in fulfilling the board's legislative objectives of accessibility, fairness, justice, economy, informality and speed of resolution. I must note that, whilst my experience in my dealings with representatives of the Repatriation Commission was almost without exception positive, there are and have been concerns expressed by the veterans community that the department and the commission often take a position towards the claimant applicant which is adversarial in nature. The formal introduction of an obligation to use best endeavours to assist the board in fulfilling those objectives is a positive step.

Schedule 1 also introduces provisions which would entitle the principal member to dismiss an application if they are satisfied that the application is frivolous, is vexatious, is misconceived, is lacking in substance, has no reasonable prospect of success or is otherwise an abuse of process. On balance, the provision of this express power is claimed by the minister to be appropriate, although it's unlikely there'll be many occasions in which it would be appropriate to dismiss an application without proceeding to a final hearing. I thank the minister for his ability to remove this particular clause from the legislation. As I said earlier, the spirit of bipartisanship with respect to this area of public policy is most important.

I know that on this side of the House, and certainly as conceded by the minister, we would be concerned if any power were used to deny an applicant an opportunity to put their case, even if their case appeared to have low prospects of success. It is understandable, of course, that our veterans community would be concerned about the introduction into legislation of any such power, but as a legal practitioner I understand and respect that courts have under their inherent jurisdiction a power to dismiss in these circumstances. Obviously, as a statutory tribunal, the Veterans' Review Board cannot exercise any inherent review powers, so these powers, if they were to be appropriate, must be conferred expressly.

This is obviously a balancing exercise. Lawyers are not permitted to appear before the Veterans' Review Board; the procedure is supposed to be informal. A case may not have been assembled with the assistance of a person with knowledge of procedure, as I have indicated earlier. It is important that the documents are reviewed and organised so that the Veterans' Review Board gets to consider the best possible case. As has been conceded, the veteran deserves an opportunity to be heard. It is always my preference for the applicant to have the opportunity to present their case.

Schedule 2 of the bill simplifies the appointment process for those who are to be appointed to the Specialist Medical Review Council. It progresses the whole-of-government requirements for digital transformation, removing red tape and commencing reviews and provides for reimbursement of certain travel expenses. The Specialist Medical Review Council is an independent statutory body that reviews the contents of statements of principle or a decision of the Repatriation Medical Authority not to issue a statement of principle. As a person who has practised in this area, I know that the existence of statements of principle provided some measure of certainty with respect to veterans' claims. Prior to the introduction of the statements of principle, aspects of the law required the establishment of a reasonable hypothesis linking service with a particular claimed condition. The statements of principle effectively codified reasonable hypotheses so as to assist in the resolution of claims.

It is obviously in the interest of justice for the statements of principle to have authority as to the matters that they cover. The people that determine the statements of principle should be appropriately qualified and possess appropriate expertise. Under the current arrangements, the minister must select members for the panel from a list of nominations submitted by colleges or other bodies of medical practitioners or scientists. However, that is not the way the process has worked in practice. In practice, the colleges have forwarded the names of candidates who have responded to advertisements, without assessing or recommending candidates. The minister, in making appointment, must have regard to the branches of science where expertise is necessary to decide review matters and must appoint no less than two councillors with experience in each branch. Obviously, given these requirements, the process of appointing members takes time—around three months or longer. This can affect the ability of the review council to perform its functions. These amendments, as proposed by the minister, are designed to streamline and facilitate the operation of the council.

Schedule 3 of the bill relates to international agreements and gives the minister the power to make agreements with foreign governments to cover the provision of benefits and payment of benefits under the MRCA, the SRCA and the DRCA. The current legislation only provides for existing agreements under the Veterans' Entitlements Act. The new provisions will cover allied veterans and Defence Force members with entitlements under whichever regulation gives them their entitlement. Labor supports the extension of agreements to cover all veterans' affairs legislation to ensure that veterans are covered under the relevant legislative framework irrespective of formal entitlement.

Schedule 4 deals with employer incentive scheme payments. These payments provide for wage subsidies which are payable to employers to encourage them to employ injured veterans who may be finding it difficult to compete in the labour market. That is particularly the case where we have a labour market where there is high unemployment. These amendments are commendable and strengthen the legislative foundation for the payments. Labor is supportive of measures which assist veterans to integrate into the community, to move on and to retain employment.

Schedule 5 introduces some important provisions to facilitate information sharing between the Military Rehabilitation and Compensation Commission and the Commonwealth Superannuation Corporation, in respect to certain service-related compensation claims. Under the existing legislation, due to information-sharing provisions—indeed, restrictions—when somebody is medically discharged they will undergo a medical, but when they go to the Commonwealth Superannuation Corporation to organise those payments they may be required to undertake a second medical and, in turn, when they go to the DVA for assistance, they'll be required to undertake yet a further medical. These amendments are appropriate to enable information sharing between these bodies, reducing some of the intrusive medical examinations required. Access to the department's claims information, particularly relevant medical and rehabilitation information, enables the Commonwealth Superannuation Corporation to make speedier superannuation benefits assessments and, in turn, will assist the department to determine a person's entitlement to incapacity payments. A common theme of my former practice as an advocate in this area was the necessity to organise multiple medical examinations. This is extremely frustrating for a veteran, particularly where there is a sense that the deck is stacked against the applicant.

I support this bill—of course, subject to the concerns that were expressed by Labor, with respect to the power, which was initially contained in this bill, to dismiss certain claims. It's very pleasing, therefore, that the minister has agreed to amend the bill to remove those provisions. Our veterans deserve a fair, just, economical, informal and quick system to address their claims. We welcome this change, which recognises the unique nature of the Veterans' Review Board. The measures within this bill are designed to address that object. I commend the legislation to the House.


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